- (1.) THIS first appeal arises out of a suit instituted by the plaintiff appellants against the Union of India through the General Manager of the Central Railway, Bombay. The plaintiffs Nos. 1 to 8 carried on business in the name of a firm styled as Messrs Ganga Prasad Mata Prasad which was located at Attara. The firm deals in groceries, spices and vegetable products. Plaintiff No. 9, carried on a grocery shop a Karvi, district Banda and also dealt in vegetable products. Plaintiffs Nos. 1 to 8 through plaintiff No. 1, and plaintiff No. 9, engaged a public carrier No. UPC 4782 owned by one Smt. Ram Janki Devi, to transport their goods from Allahabad to Attara and Karvi respectively by the Allahabad Chakghat route. THIS highway crosses the Allahabad Jabalpur Railway Line near about mile stone No. 8. roughly one mile away from the Railway Station of Iradatganj. The level crossing is numbered as 430. In the course of its journey the public carrier reached the level crossing at about 9.45 p. m. and finding the gates open entered the level crossing. At that time the engine of the Itarsi passenger No. 390 up going to Iradatganj reached the level crossing, and according to the plaintiff, hit the truck. The entire contents were thrown away and among the dead persons was the cleaner of the truck and several others were seriously injured. According to the plaintiff the accident was caused entirely due to the negligence of the defendants.
(2.) THE plaintiffs instituted a suit for damages against the Railways. THEir case was that the carrier was driving at a slow speed and shortly before the vehicle reached the level crossing another public carrier had preceded it across the level crossing and the driver of the public carrier in which the goods were being transported followed the other vehicle as he found that the gates were open. According to the plaintiffs' case no gateman was present on duty, and the railway engine had no headlights, and was being driven at an excessive speed. It also did not give any whistle before it reached the level crossing. THE plaintiffs' case further was that there were no proper signs to indicate that the level crossing lay ahead, and as such, the Railway were entirely responsible for the accident. The Railway Administration contested the suit. The case of the defendant was that the engine had a headlight which was on, that it gave a whistle when it reached the crossing and that the gateman was on duty. It was further the case of the Railway Administration that the road on which the public carrier was coming ran parallel to the railway track for a considerable length and the driver of the public carrier must have seen that a passenger train was also going in the same direction that he was travelling. It is necessary to mention that the railway track is about ten feet higher than the road level and shortly before the level crossing the road rises to the level of the railway track in order to cross at the level crossing. According to the defendants the level crossing has two gates. The gateman when he learnt that the train was coming first went to close the gate at the Rewa side. He then realised that a truck had entered the railway level crossing, and was in danger from the on coming train. So he opened the gate again and let that public carrier cross. Thereafter he closed that gate and was going to close the gate at the Allahabad side of the level crossing but before he reached that gate the public carrier carrying the plaintiff' s goods entered the level crossing. The gateman tried to get that vehicle to go back, but the vehicle did not go back, and as a result thereof, the accident took place. In these circumstances, the Railway Administration claim that it was not liable in damages to the plaintiffs. Various other pleas were also taken.
(3.) THE trial court dismissed the suit. It found that the engine had lights that it had given a whistle before it reached the level crossing; that the train was not travelling at an excessive speed and that the driver of the truck in which the plaintiffs' goods were being transported should have seen the train and not entered the level crossing. It further found that the gateman was on duty and the Railways' version as to how the accident took place was correct. In the appeal, the question is whether the plaintiffs have succeeded in proving negligence on the part of the Railway Administration.;