The main legal point established in the judgment is the application of the principles of negligence, proximate cause, and contributory negligence in determining liability in a railway accident case.

Spencer, C.J.

1. The plaintiff-respondent is a little girl of seven years of age who was run over by a locomotive engine at Wallajah Road Railway Station and lost her right arm and her right leg. She has been awarded Rs. 3,500 damages and costs in the Court of First Instance by Coutts-Trotter, J. The Railway Company has appealed.

2. The facts are clear that the plaintiff, who lived with her father in the village of Ammur adjoining Wallajah Road Station, crossed the line in order to go to her grandmothers house and that she was returning with a basket full of grass when she was knocked down by the Engine of the Ranipet train which had left its carriages standing by the platform after uncoupling and had gone up "the line, eastwards, tender foremost to the point then reversed, and was running down, head foremost, along the loop line towards the engine shed where it had to water, when the accident happened. The plaintiff herself states that on her way home she crossed by the way leading to the wicket gate near the Assistant Station Masters house, the engine ran over her, and she was injured. Of her 4th and 5th witnesses, who are merchants professing to have been eye-witnesses of the accident, P.W. 4 states:

The girl came with a basket of grass on her head and entered the gate and was walking to wards the west. She had to paas along the line a little to reach, the station platform and then go to her village. When she put her leg on the line the accident happened.

P.W. 5 states:

The girl with a basketful o grass over her head entered the gate and turned towards the west. She went and then turned to the north to go to the big platform which was sloping. The engine came and she was run over.

3. The engine driver, D.W. 2, was standing on the right hand side of the engine and driving it. He, therefore, did not see the child before the accident happened. D.W. 4, a fireman on the engine, was standing on the left hand side and suddenly saw the child at a distance of four or five feet from the engine. The fact that the childs right arm and right leg were run over by the engine wheels makes it probable that she was knocked down just as she was stepping on to the line from the south and that the was hit on the right side by the engine This accords with the statements of the eye-witnesses who profess to have seen the accident and with her own account There is evidence that people living in the neighbourhood were in the habit of crossing the railway line first over the overbridge and then from the platform crossing the station, yard in a direction which led to a wicket gate beside the Assistant Station-masters house. There is no evidence that there was a worn foot-path in this direction, but there is no reason to doubt the statements of the witnesses that this shortcut was being used. The driver of the engine and a fireman (D.W. 4) stated that the whistle was blown when the engine was uncoupled from the train and again when it started down the loop line to go westwards. The plaintiff said that no whistle was blown. P.W. 3, the Branch Postmaster, says that no warning was given. The next witness was not asked. The 5th witness says he did not hear any whistle. The Stationmaster (D.W. 5) does not remember whether it was blown. The learned Judge rightly observed that the witnesses cannot be expected to be able to speak from memory as to whether the usual formality of blowing the whistle was observed on that day unless there was something to call their attention to the fact.

4. The existence of a wicket gate close to the Assistant Stationmasters house has been made much of. There is a notice board warning persons not to use that crossing but whether it was in existence before the accident happened has been questioned. I do not consider that the existence of the wicket gate is a material circumstance in the case. Even if it had been kept locked, as suggested by the learned Judge in the Court below, it would have been easy for children like the plaint