( 1 ) THIS is a first appeal filed by the plaintiff against the judgment of Civil Judge, class I, Chhindwara in civil suit No. 5-B of 1950 dismissing the suit.

( 2 ) THE plaintiff owned a truck which he had let out on hire to Shri D. K. Patni of chhindwara for the year 1949. While the truck was being driven by Bipat Singh (P. W. 5) on the mid-night of 14th June 1949, it met with an accident on the level crossing between Barkuhi and Khirsadoh railway stations. A goods train was coming from Barkuhi to Khirsadoh, hit the truck while it was crossing the railway line. The suit was for recovery of damages thus caused to the truck. Another suit was filed by Bipat Singh driver for compensation for injuries sustained by him. Both these suits were tried together and have been dismissed by the lower Court. Bipat Singh has not filed any appeal against the dismissal of his suit.

( 3 ) FROM the spot inspection-report Ex. P-4, recorded by the lower Court and the sketch map Ex. C-1, it appears that as the train proceeds from Barkuhi to khirsadoh on mile No. 800, it passes through a cutting about 3 furlongs in length. The place where the cart-track crosses the railway line is 87 feet from the mouth

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