- (1.)The suit out of which this appeal arises was brought in forma pauperis by the respondent against the appellant under the Fatal Accidents Act, 1885, for damages for the death of her husband, Ronald Duncan Wells. He had died on December 14, 1937, as the result of injuries received a few days earlier when the engine on which he was serving as a firem n in the employment of the North Western Railway was involved in a collision within the limits of the railway station at Mirpur Mathelo. The respondent alleged that the collision was caused by the. negligence of the railway s employees and claimed on behalf of her two children and herself. At the date of the accident the North Western Railway was owned by the Government of India and administered by the Secretary of State for India in Council acting through the North Western (State) Railway Administration. The deceased was then serving on the railway pursuant to a contract of service made by him with the Secretary of State on March 29, 1929.
(2.)The suit came to hearing in the Court of the Subordinate Judge, First Class, at Lahore. He held that the accident was solely due to the negligence of the driver of the engine on which the deceased was acting as firemen that the driver and the deceased were in common employment and that defendant was entitled to rely upon the doctrine of common employment as a defence to the suit notwithstanding the provisions of Section 5(d) of the Indian Employers Liability Act (XXIV of 1938) 1938, (hereinafter referred to as the Act of 1938). He accordingly found for the defendant and on July 5, 1940, decreed that the suit be dismissed.
(3.)On appeal to the High Court at Lahore this decision was reversed and the plaintiff was granted a decree for Rs. 36,000 to be divided between her and her children in three equal shares. The decree and judgment of the High Court were pronounced on May 18, 1945. It is from them that the present appeal is brought by the Governor General in Council.