JUDGMENT

1. This appeal arises out of a suit brought by the plaintiff against the Secretary of State for India in Council as re. presenting the Oudh and Rohilkhand Railway. It appears that on the 6th of May 1908, a, collision took place between Dasna and Ghaziabad Railway stations, with the result that the plaintiff's husband, who was an Engine Driver in the employment of the Oudh and Rohilkhand Railway, was killed. He was a man aged 38f years and his wages are stated to have averaged Rs. 280-4-0 a month, which evidently includes his remuneration for over-time work. Dasna is a station on the Oudh and Rohilkhand line which is a single line at that point. Ghaziabad is a station which is used both by the Oudh and Rohilkhand Railway and the Bast Indiau Railway and other Railways, but the servants employed in Ghaziabad are not the direct servants of the Oudh and Rohilkhand Railway. Efforts had been made by inquiries and by prosecutions to arrive at some conclusion as to bow the accident occurred. This much is common case, and beyond all question, namely that the immediate cause of the accident was the running of two trains in opposite directions between Ghaziabad and Dasna which unfortunately collided. There is no evidence to show whether the train from Ghaziabad started from that station before the train from Dasna started from Dasna or vice versa. The accident must have been caused by gross negligence on the part of an official at one station or the other at the time of the accident, the departures of trains from both Dasna and Ghaziabad stations were regulated by what is called Tyre's Patent Tablet Instrument. If this instrument is used and the rules are observed by the Railway servants it would appear to be impossible that a train should leave Disna after a train had already Hiarled from Ghaziabad to Dasna, or vice versa. The plaintiff in her plaint alleges that the defendant Railway appointed and maintained incompetent servants, namely, Mr. C. Collett White, Sander Lal, and Jawahir Lal and further that they neglected to supply suitable and safe machinery and appliances for the working of the line. Mr. Collett White, Sunder Lal and Jawahir Lal are all admittedly servants of the Oudh and Rohilkhand Railway. It is to be noticed that the Oudh and Rohilkhand Railway alone are sought to be made liable in the present suit.

2. The defence was that the plaintiff had no cause of action against the Secretary of State for India, that the present suit was not maintainable under the provisions of Section 1 of Act XIII of 1855, and that Article 745 of (be Civil Service Regulations was a bar to the suit. It was also alleged that an offer was made to the plaintiff of Rs. 2, 160 being the equivalent of 11 months' substantive pay at Rs. 180 per mensem. The defence of Article 745 of the Civil Service Regulations has not been pressed in this Court.

3. It must be admitted that there was neglect somewhere as the cause of the accident which happened on the 6th of May 1908. There must have been neglect by the officials either at Dasna or at Ghaziabad, otherwise it is quite impossible that the two train would have been allowed to proceed on the same line in opposite directions at the same time It is perfectly clear in this country where there is no Legislature analogous to the Employers Liability Act that a servant has no cause of action against his master for the neglect of another servant in the common employment of the same master and this notwithstanding the fact that the nature of the employment of the servant suffering the injury and the servant whose neglect causes the damage is very dissimilar. It was evidently for this reason that an allegation is made in the plaint that the defendant is liable on the ground that the Oudh and Rohilkhand Railway employed incompetent servants and neglected to supply suitable appliances for the carrying out of the work of the line. The evidence as to the incompetence of the servants Mr. Collett White, Sunder Lal and