- (1.) THIS is an appeal by Thakur Madho Singh against the judgment and decree of the Civil Judge Balotra and has arisen in the following circumstances.
(2.) THE appellant brought a suit against Mr. Rawlins, General Manager, Jodhpur Railway, Jodhpur, in 1945. His case was that five of his mares had been run over by a railway train on the night between the 27th and 28th of July, 1943. Four of them died, while the fifth was rendered more or less unless Consequently Rs. 9,000/- were claimed as damages for the loss. The suit was originally filed against Mr. Rawlins. He appeared on the 27th of October, and filed a written statement in which he took the objection that the suit as filed against him was not proper, as he was not the owner of the Jodhpur Railway, and that he could not be sued as representing the Jodhpur Railway Administration. Thereupon the plaintiff got the plaint amended, and the name of Mr. Rawlins was removed on the 8th of November, 1945, and the suit continued against the General Manager, Jodhpur Railway. There was another amendment later on, and the name of the General Manager, Jodhpur Railway, was also struck off,and Marwar Durbar was substituted for it on the 15th of July, 1946. Later, the Marwar Durbar has been replaced by the Union of Indian. The main defence of the defendant was two-fold, (1) that the suit was barred by time, and (2) that there was no such accident and in any case there was no negligence on the part of the Railway, which would entitle the plaintiff to a decree for damages. We shall first deal with the question of limitation. Art. 36 of the Limitation Act is the article which applies to this case, and the limitation is two years from the date when the malfeasance, misfeasance or nonfeasance takes place. Thus the suit should have been brought within two years of the 28th of July 1943. It was actually filed on the 2nd of July, 1945, and was within time on that date. But the contention of the defendants is that it was filed against a wrong person, namely Mr. Rawlins, and the substitution of either the General Manager, Jodhpur Railway, or the Marwar Durbar took place after the period of limitation was over. Such a substitution would not enure to the advantage of the plaintiff, in as much as the suit was originally filed against a wrong person. Learned counsel for the appellant, however, urges that the plaint shows that from the very beginning the intention was to sue the owner of the Railway, and that the description of the defendant given in the original plaint was merely a misdescription, and therefore the later amendment, by which the right person was brought on the record, must be deemed to relate back to the 2nd of July, 1945: In this connection, reliance has been placed on a number or railway cases on behalf of the appellant. These cases are - Saraspur Manufacturing Company vs. B. B. & C. I. Railway Company (1), Messrs, Gopiram Behariram vs. Agents, East India, Ry. and O. & R. Ry. (2), Messrs Kanailal Kripashankar Dikshit vs. The Governor General in Council & others (3 ). These are all cases, however, where the suit was originally field against the agent of the Railway Company, and it was held that the name was a mis-description, and the suit was really against the Railway Company itself. There was no suit in the proper name of any particular person in these cases. Reliance has also been placed on Jodhpur Railway vs. Gulam Rasul (4 ). In that case, it was held that it was the practice in the former State of Marwar to file the suit against the Manager of the Jodhpur Railway in such cases. There are some cases which have taken the opposite, view even where the suit was brought in the name of the Agent or Manager of the Railway Company as for example Sinehai Ram Bihari Lall vs. E. I. Ry. Co. (5), Agent, Bengal Nagpur Ry. vs. Behari Lal Dutt (6) and East Indian Railway Co. , vs. Ram Dakhan Ram (7 ). We are of the view that if the suit is filed against the manager or agent of the railway, and if it appears that the intention was to sue the railway and to get a relief against the railway, it may be possible in an appropriate case to hold that the name of the defendant originally put own was merely a misdescription. But the present case is of a different nature altogether. Here that the suit was not against the Manager of the Jodhpur Railway. The suit was against Mr. Rawlins who was described as the Manager, Jodhpar Railway, In paragraph 3 of the plaint, it was said that the suit was being brought against the defen-dant (i. e. Mr Rawlins) as he was the manager of the railway by the train of which the accident had been caused, and the plaintiff was entitled to recover the amount of damages from him Learned counsel urged that these words mean that the suit was against the Railway. We are not prepared to accept this interpretation. The words clearly mean what they say, namely that Mr. Rawlins had been sued as the plaintiff held him responsible for the damage as the Manager of the Railway. Therefore, the principle of the cases relied upon by learned counsel for the appellant does not apply to the facts in this case. The facts here are more in accord with two older cases to which we may refer-namely (1) Ram Dass Sein vs. Mr. Cecil Siephenson (8), (2) Nubeen Chunder Paul vs. Cecil Stepson, Agent of the East India Railway Company (9 ). In those cases, the suit had been brought in the proper name of certain servants of the Railway, and it was held that it was not brought against the Railway We are, therefore, of opinion that the suit in the present case must also be held to have been brought against Mr. Rawlins, and not against Jodhpur Railway, and as such the substitution of Mr Rawlins by the Manager, Jodhpur Railway, or by the Marwar Durbar amounted to bringing these persons, for the first time, on the record. As this was done long after the period of limitation was over, it must be held that the suit either against the Manager, Jodhpur Railway, or against the Marwar Durbar was barred. We are, therefore, of opinion that the view of the court below on the question of limitation is correct. The next question is whether the accident took place at ell, and also whether there was such negligence as would make the Railway liable, So far as the actual accident is concerned, we are ; satisfied from the plaintiff's evidence that the accident did take place. The defendant's case was that no such accident had taken place; but we are not impressed by the fact that no report of the accident was made by the driver. He might not have made a report for fear that he might be held departmentally liable to punishment. The question, however still remains whether the Railway would be liable in the circumstances on the ground of negligence. The accident took place on the open line where there is no restriction of speed and no rule requiring a constant look-out by the driver. The mares, according to P. W. I, were grazing in the for which is about 2 miles from the railway line. For some reason or other they came and trespassed on the railway line. The time was past mid-night. There is nothing to show that the driver had noticed the mares on the railway line, and had time to stop and still did not do so. The mere fact that five mares were injured in one accident would not necessarily establish the negligence of the driver. If the mares were all together, it is quite possible for all five of them to be injured in one accident. We may in this connection refer to a number of cases which lay down responsibility of the Railway Company for accidents of this kind. In B. N. Ry. Co. , Ltd. V. Tara Prosad Maity (l0), it was pointed out that there was no principle or authority which demanded that a driver running an engine on the open line at places where there were no level-crossings or which were not known to be ordinarily used for purposes of crossing the rails was bound to be on the look out to see if any trespassers were on the lines. A Railway Company allowing persons to cross the line otherwise than by a level crossing was not in duty bound to use care to protect such persons. Omission to notice and the failure to blow a whistle in consequence of which any loss was sustained did not amount to negligence. It was also pointed out that the Railway Companies in India were not bound to fence the line, and that if an animal strayed on the Railway line and was killed in consequence, and there was nothing to show that the accident was caused by negligence on the part of the driver, the Company would not be liable,
(3.) IN Ismail Haji Nana Mafat V. B. B. & C. I. Ry (11), it was held that a Railway Company was not liable for damages to a trespasser for a mere error of judgment (such as failure to blow whistle) even amounting to negligence on the part of its servant which caused damage to the trespasser. The company would be liable only if the servant acted in wilful disregard of the safety of the trespasser. In Lal Ramkumar Singh vs. Governor General in Council, through the Agent B. N. Railway, Kidderpur, Calcutta (12), it has been held that the duty of an occupier towards the trespasser is different from that towards a licensee or an invitee. So far as the trespasser is concerned, the duty is not to do a wilful act in reckless disregard of ordinary humanity. The general rule is that a man trespasses at his own risk. The position is the same with regard to trespassing animals. On the principles laid down in these cases with which we respectfully agree it is quite clear that the plaintiff has failed to prove such negligence on the part of the driver as would make the Railway liable. There is nothing to show that the driver necessarily noticed the animals trespassing on the line, and that after noticing them he deliberately ran them over. We cannot agree with the view taken by the lower court that there was negligence by the driver, and so the Railway was bound to pay damages. There is no force in this appeal, and it is hereby dismissed with costs. . ;