Railway authorities have a duty of care to take reasonable precautions to prevent danger at level crossings, and a breach of this duty is evidence of negligence.

( 1 ) THIS is one of those cases which from time to time raise the question of the responsibility of railway authorities for accidents at level crossings.

( 2 ) ON September 23, 1961 at about 1. 30 a. m. in the night a driver of the plaintiff company was driving a mercedes motortruck. That night he and his friend had been to a circus show at Meerut. They were returning to Delhi in their respective trucks. They were proceedings on the main Meerut Delhi road. It is a busy road with much vehicular traffic. On this road between Meerut city and Kharkhoda railway station there is a manned public level crossing. This level crossing has iron gates on both side of the road. There is a cabin and lodging tor the gateman. The practice of the railway was to close the gates when a train was crossing. A red light signal was also provided to warn the approaching public and vehicles to wait till the train passed.

( 3 ) WHEN the plaintiff s driver reached the railway crossing he found the gates open. There was no danger signal to warn the public of the danger of any approaching train. In fact the friend s truck which was ahead of the plaintiff s truck had safely crossed the line. He was fortunate. But when the plaintiff s driver entered the gate he suddenly found a goods train running at full speed from Hapur side towards Meerut city in front of his truck. With all his presence of mind the driver could not avert a collision. The truck dashed against the wagon next to the engine of the train. As a result of the collision the truck was damaged. Its front portion including the engine was completely smashed resulting in heavy loss to the plaintiff.

( 4 ) ON November 22, 1963 the plaintiff company brought a suit to recover Rs. 14,000. 00 which they had to spend on the repairs of the vehicle. This was their claim for damages.

( 5 ) THE defendant Northern Railway denied their liability. Though they admitted that the gates were open and that the driver of the truck struck the wagon next to the engine of the train, they pleaded that the "accident was not due to the negligence of the northern railway administration or its servants but it was due to the carelessness and negligence of the driver of the plaintiff". It was said that it was a moonlit night, that the driver could easily see the railway track and hear the whistle of the engine. It was maintained that the railway had taken reasonable and proper steps for the protection of the public and that the accident was the result of the foolhandiness of the plaintiff s driver. In substance the railway pleaded : "true we invited the driver to cross the line by reason of the gate being unlocked, but we did not invite him to leave his common sense behind. He could have averted the danger. "

( 6 ) THE plaintiff examined a number of witnesses. On behalf of the railway the president of the accident inquiry committee, the fireman, driver and guard were called in evidence. The Judge inspected the scene of the accident in 1966. After hearing evidence and arguments he gave his decision. He dismissed the suit. He held that the plaintiff s driver was guilty of contributory negligence and be himself was the author of his own wrong. He said this : "the railway was no doubt negligent in not closing the gate to warn the public of the approaching train but the plaintiff s driver was all the more negligent in not having a proper look out from both the sides of the road at the level crossing in question. "

( 7 ) ON the question of damages he held that the plaintiff had to spend more than Rs. l4,000. 00 in repairs and replacement of the parts of the truck. But as on the issue of negligence he held the driver guilty of contributory negligence he dismissed the suit. From his decision the plaintiff appeals to this court.

( 8 ) ONE central fact which is undisputed is that at the time of the accident the gate were open. The gateman was absent when it was his duty to be there. It is in evidence that both the driver