( 24 ) IN Kemshead v. British Transport Commission is a case of accommodation crossing which is to be distinguished from a crossing to which the public as such has a usual access. That was a case where a car at an accommodation crossing run over by a train and it was held that as no negligence was proved which could be attributed to the driver of the train and it was also held that it was an accommodation crossing the only duty owed by the railway was to take reasonable care and it was not a case where there are any special circumstances of danger and, therefore, even if no whistle had been given by the train and no whistle board was placed at the crossing the accident could not be attributed to the negligence of the railway. It is pertinent to note that in this very case it was recognised that there may be special circumstance relating to the particular crossing which might as a matter of commonsense and common or reasonable precaution require that special precaution should be taken. It was also recognised that if there were circumstances in which the railways ought to put a whistle board and they do not put it up they will be held liable. It is clear that this authority recognises that the degree of care required of occupier will depend on the circumstances of the case.

( 25 ) IN Jenkins v. Great Western Railway was a case where railway was sued for damages for injury when he was crossing the main line. It was found that the main line was at a distance of 35 yards from the place where wooden sleepers were placed to which place the company had knowledge that the children would come and play with sleepers. In these circumstances it was held that leave and licence, if any, to play on the pile of sleepers was confined to that spot and did not extend to the main line; that there was no duty on the railway to fence off the sleepers from the rest of their land, and, therefore, they were not liable. It was clearly found that there was no danger at the place where licence was given to the children, namely, the pile of wood the accident had taken place only because child got through the fence to the main line and as he was considered to be in the position of a trespasser, when on the main line obviously no liability of the railways could arise.

( 26 ) LATHAM v. R. Johnson and, Nephew Limited was a case where it was found that a child who had not been invited but was in the position of a licencee had gone on a plot and found upon a heap of paving stone one of which had fell upon her and injured her hand. There was no evidence to show how accident happened. It was in these circumstances held that no negligence could be attributed to the owner because the use of the land for placing on the heap of stone was a normal use, and it was neither allurement nor trap, nor dangerous thing. I do not see how this authority is of any assistance to Mr. Dhir. Reference was also made to Commissioner for Railways v. Cuinlan. This was a case where a person was injured when he was going in a truck on a private level crossing. There the injured had taken the route which brought him on the crossing where both the gates were open but before he was clear of the crossing the truck was run into by the train. It was found that no permission had been obtained to use the crossing, and that he could reach the development site by other means of access. It was conceded at the hearing that the injured was a trespasser. It was also found that it was an accommodation crossing. It was also found that there was no evidence that the railway would know that this cross ing would be used at the time when the accident took place by a builders truck. It is apparent that in that case after the finding that the injured was in the position of a trespasser the duty owed to him was evidently different from what is expected in the present case where the deceased had been specifically, certainly, impliedly permitted to stay on in the bogie. In Short v. British Railways Board the train

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