JUDGMENT

Das, J. - This is an appeal by the Defendant, against the decision of Mr. H.K. Mukherji, learned Subordinate Judge, Burdwan, decreeing the Plaintiff's suit for recovery of damages for personal injuries sustained in consequence of the negligence of the Defendant.

2. The material allegations of the Plaintiff were that the Defendant is the owner of the East Indian Railway, which carries passengers for profit, that, on February 7, 1942, the Plaintiff was a passenger in the Burdwan Local from Howrah to Memari leaving Howrah at 3-40 p.m. The Plaintiff was accompanied by his mother, his cousin, Sunit Kumar Mukherji and his brother-in-law, Jagatmohan Banerji. The train was heavily overcrowded. The luggages were placed in the ladies' compartment, where his mother was seated. When the train reached Memari, the Plaintiff and Jagat got down from their own compartments and went over to the ladies' compartment. The Plaintiff's mother got down first, the Plaintiff and Jagat brought out the luggages and made them over to a railway porter and Sunit, who was on the platform.

3. The plaint then recited:

Thereafter, while the Plaintiff was alighting from the train, the employees of the said railway acting negligently, without due and proper care and without any warning whatsoever, set the said train in motion suddenly and with an unusual jerk, causing the Plaintiff to lose his balance and to be thrown out, resulting in his fall below to the said train and the platform at the said station and in consequence thereof the Plaintiff sustained serious injuries on his person resulting in the amputation of his right arm.

4. The plaint then stated that, though the train was very much overcrowded and a large number of passengers alighted from the train at Memari, sufficient time was not given for the detraining of the passengers and the train stopped for less than a minute and the Defendant acted negligently and carelessly in the matter.

5. The plaint then alleged that, after the accident, the guard did not, in spite of loud shouts by the people, immediately stop the train, the train was stopped by some passengers pulling the alarm chain for stopping the train, that the railway authorities did not render all possible aid to the Plaintiff after the accident.

6. The plaint went on to state that the Plaintiff was an M.B. of the Calcutta University and a lecturer, Visiting Physician and Deputy Superintendent of the Bengal Medical Institution and Hospital, Belliaghata, Calcutta and was a practising doctor and that his career had been ruined by reason of the accident.

7. The Plaintiff, accordingly, claimed a sum of Rs. 1,00,000 as damages on the following heads, viz., (a) Rs. 2,000 for medical treatment, (b) Rs. 1,000 for four months' loss of income and (c) Rs. 97,000 for loss of limb and future career and for bodily and mental pain.

8. The Defendant filed a written statement and averred that the Defendant's servants were not guilty of negligence; that, prior to the starting of the train, usual and proper warnings by whistle by the guard and the driver were given; that the train did not start with a jerk; that the train remained at the station for more than the scheduled time of one minute; that the Plaintiff did not inform the Defendant's servants that he had a large quantity of luggage and no request was made to the Defendant's servants to stop the train until the Plaintiff and his party and the luggages were detrained. The Defendant further stated that the injuries sustained by the Plaintiff were the direct result of his own negligence; that--

in spite of warnings by means of whistles blown by the guard and driver that the train was about to start and in further disregard of additional warnings that the train had started and calling upon him to desist from any attempt to alight therefrom, the Plaintiff, carrying a substantial suit-case in one hand, jumped from the foot-board of the train whilst the latter was in motion;

that the guard seeing the Plaintiff jump