On the 2nd March, 1961, the plaintiff sustained a compound fracture of his right heel-bone as a result of a rail falling on his right foot, while he, in the course of employment as a labourer by the defendant, was unloading rails from a railway wagon at Tanam in Johore.

In this action the plaintiff claims damages for the injury on the ground of the negligence of the defendant or his servants. In his statement of claim and his further and better particulars he alleges that Abdul Rahman, a servant or agent of the defendant, so negligently managed or controlled the unloading of rails from the railway wagon that while Abdul Rahman was pushing one end of a rail it fell on the plaintiffs right ankle as the plaintiff came to the edge of the railway wagon and injured him. He further alleges that the defendant was negligent in failing to provide a safe system of work.

The defendant in his defence denies the negligence alleged. He pleads that, the plaintiff, while standing on a pile of rails on the railway wagon, attempted to unload the pile by prising it with a crowbar and thereby caused a rail to fall on his leg; and that the falling of the rail on the plaintiffs leg was caused solely or contributed to by the plaintiffs negligence.

The first question to be decided is this: how did the rail happen to fall on the plaintiffs right foot? The evidence given by the plaintiffs witness, Samsudin, which I accept, establishes the following facts. On the day of the accident there were about thirty rails stacked lengthwise on two open railway trucks which were joined together. Each rail was about 28 feet long and weighed about 480 lbs. The trucks were about 6 feet wide and had no sideboards. Underneath the rails were four sleepers, each 5 feet 8 inches long: two of them were placed across each end of the combined trucks, one being alongside the other so that one jutted out a foot beyond one side of the trucks and the other a foot beyond the other side. The system used for unloading the rails on the day in question was this. Abdul Rahman, who was employed by the defendant, stood on the trucks and levered up with a crowbar one end of a rail to the end of a sleeper projecting from the side of the trucks. He then levered up the other end of the rail to the end of the other sleeper projecting from the same side of the trucks. The plaintiff, Samsudin and four other labourers, who were all employed by the defendant, then placed their left shoulders under the rail which was about 4 feet 6 inches above the ground and about a foot away from the side of the trucks; they lifted it with their left shoulders and carried it some distance to the right, from the point of view of an imaginary observer facing the side of the trucks; and they laid it on the railway track which was being extended. Six or seven rails were unloaded from the trucks in this way without any mishap. When the labourers returned to unload another rail, the plaintiff led the way followed by Samsudin, who preceded the other labourers. One end of a rail had been levered by Abdul Rahman to the end of a sleeper projecting from the right end of the side of the trucks, from the point of view of an imaginary observer facing the side of the trucks. Abdul Rahman then proceeded to lever the other end of the rail to the end of the sleeper projecting from the left end of the same side of the trucks. While he was doing so, the end of the rail which was resting on the end of the sleeper projecting from the right end of the side of the trucks fell over the outer side of the plaintiffs right ankle. The plaintiff fell on his right side. The other end of the rail then also fell; and the end of the rail which had fallen on the plaintiffs ankle rose a few inches and fell on the inner side of the same ankle.

Samsudins evidence is corroborated by that of the plaintiff. The defendant has elected to call no evidence. I find no substance in the defendants allegation that the plaintiff sto