The railway administration has a duty to provide adequate safety measures at level crossings, including gates or chains, warning signals, and railway servants to warn the public. Failure to provide such safety measures constitutes negligence.

Misra, J.

1. This appeal by the plaintiff is directed against the judgment of a learned single Judge of this Court in First Appeal No. 78 of 1952, allowing the appeal from the judgment of the learned Subordinate Judge, Daltonganj. The learned Subordinate Judge passed a decree in favour of the appellant for a sum of Rs. 5578/8/9 together with costs and interest to the date of realisation, but the suit now stands dismissed.

2. The plaintiff brought the action for damages for recovery of a sum of Rs. 7,000.00 from the railway administration on account of damage caused to the plaintiffs motor-truck in an accident. The truck involved in the accident was a three-ton truck BRO 101. It was purchased by him towards the end of 1945. On the 28th of August, 1948, between 1 and 2 p.m., the driver of the plaintiffs truck, Dukhan Singh, with the cleaner, Jagdish Singh, was in the truck driving towards Barwadih station. The road along which the truck was passing ran through a level crossing known as Huter siding railway crossing at 347/6 mile west of Barwadih station.

The plaintiffs case was that the road in question was a public thoroughfare. The level crossing was made by the railway administration sometime in 1947 after the commencement of their new construction work. This blocked another level crossing which was two furlongs further to the west. At about the time that the truck was on the railway track, shunting was going on this siding and railway engine No. 1723P, which was being shunted at a fast speed towards Barwadih station together with a brake-van, collided with the truck without giving it any warning. The truck was badly damaged and the driver and the cleaner were killed instantaneously. The hind wheels of the brake-van came upon the truck. The accident happened because the railway level crossing was not provided with a gate or even chain affixed to a pole to the crossing road on either side. No notice-board was also put up nor was any railway servant posted there to warn the pedestrians or the drivers of motor-vehicles etc. of the shunting operation. The other allegation was that the driver of the engine did not have any driving licence and it was moving at a speed of 20-25 miles per hour. A huge quantity of materials such as bulky iron girders for bridges and other materials of construction were heaped on both sides of the road near the level crossing which made it difficult for the driver even to see that any train was being shunted. All this indicated gross negligence on the part of the railway authorities. There was no negligence whatsoever on the part of the truck driver who was proceeding slowly. The plaintiffs motor-truck was repaired, although it was highly damaged, at a cost of Rs. 4,900/-. The plaintiff claimed this amount as well as the amount of loss suffered on account of the truck remaining idle as a consequence of the accident.

3. The Union of India contested the claim of the plaintiff. Several pleas were taken including one of lack of service of valid notice under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure. It was denied that the railway was guilty of any negligence. It was stated that the engine was moving at a speed of not more than 4 or 5 miles an hour and was whistling all the time. The allegation in the plaint that heaps of construction materials including bulky iron girders were lying on either side of the road near the level crossing which affected the visibility of the line was also denied. The accident which was not, however, denied was ascribed to negligence on account of rash and careless driving by the plaintiffs driver as the truck was going at a very high speed. The road was not a public thoroughfare but it was the private road of the railway administration through which the trucks of contractors alone were allowed to pass which carried materials etc., for the construction which was going on there under the railway.

4. The learned Subordinate Judge fo