BENGAL NORTH WESTERN RAILWAY CO LTD Vs. MATUKDHARI SINGH

JUDGEMENT

(1.) This is an appeal from a decision of the Subordinate Judge of 2nd Court, Chapra, decreeing the suit of the plaintiffs against the B.N.W. By. Go. Ltd., for damages in respect of their negligence in running into and killing the plaintiffs elephant. The elephant was admittedly killed by a train running into it on the line and the only question is whether the occurrence was due to negligence on the part of the Railway Company.

(2.) Now the line upon which the accident occurred is a single line by which trains pass east and west between Rajapatti on the east and Dighwa Dobauli Station on the west, and from east to west between those two places the line is not fenced and traverses some level-crossings. The place of occurrence is in the vicinity of a level-crossing which traverses the line from south to north and immediately to the south of this level-crossing a mela is held twice in the week and large numbers of people attend this mela and pass from the mela to villages which lie to the north of the line, by way of the level-crossing.

(3.) According to the story of the plaintiffs, the level-crossing is, it is true, provided with the usual gates but the gates are not supervised and it is admitted that there is no house by the level crossing to accommodate any gate-keeper. The case of the defendant Company is that they had not appointed any permanent gate- keeper for that particular level-crossing but that they had temporarily appointed a person whose normal employment was that of a keyman to take charge of the gates and that this direction had been given about a fortnight before the incident in question. The story of the plaintiffs is that the elephant which had been taken to the mela to the south of the line was being taken across the level crossing and in doing so it passed through the southern gate which had not been closed and on the train coming from the east along a stretch of line at least half of which is perfectly straight, the elephant took fright at the noise and bolted westwards along the line which runs on a slight embankment. But the train could not be pulled up or was not pulled up in time and struck the elephant in the rear and it fell down the embankment and there died.