P L D 1982 Peshawar 123 (PLP)

4. The liability of the Railway authorities for an accident on a manned level-crossing came up for consideration in Federation of Pakistan v. Ali. Ihsan (P L D 1967 S C 249) and at page 257 the following observation was made :

"If this finding of the Courts below is not accepted, then so far as the next question is concerned no serious difficulty arises, for, if the respon dent was on the level crossing when he was hit he was not- a mere trespasser but an invitee lawfully on the level crossing. In the case of such an invitee there can be no manner of doubt that a duty is cast upon the occupier of the premises to take such care as in all the circumstances of the case is reasonable to see. that the invitee wilt be reasonably safe in using the premises for the purpose for which he is invited or permitted to be there. The degree of care necessary in the. case of such a person lawfully coming on the premises will depend upon the nature of the danger or hazard to which the person so invited is likely to be exposed. This duty is not confined only to maintaining, what has often been described as the "static condition" of the property, free from danger but it extends also to the taking of reasonable care to safeguard the invitee from any special hazard or danger to which he may be likely to be exposed by reason of any danger inherent in the activity carried on by the occupier. on the premises. Thus it has consistently been held that where a railway line crosses a public highway on the level it is the duty of the railway company to make it safe for persons using the highway to cross at a manned level-crossing under the assumption that they may do so with safety when the gates of the level-crossing are left, open and if no warning of any special danger is given. The railway operator's general duty of taking all reasonable precautions to ensure the safety of persons lawfully using a level-crossing not only includes a duty to keep the crossing itself in a reasonable condition of safety according -to the circumstances of the case but also to safeguard them from the special dangers inherent in its positive operations. It is abundantly clear from what has been reproduced above that it was imperative for the Railway authorities to take all reasonable precautions for the safety of the persons lawfully using a manned level-crossing. It is their duty to keep the crossing itself in a state of safety and to safeguard the public from the special dangers inherent in its positive operations. In Federation of Pakistan v. Muslim Vehari and Wehniwal Bus Service (P L D 1955 Lah. 256) it was observed that where the gates of a level-crossing are left open, the Railway authority which' is responsible for keeping them locked when a train passes, gives to the traffic/B on the road an "invitation" to cross the line. This dictum was referred to in Federation of Pakistan v. Bibi Shahzadi and others (P L D 1966 Kar. 567) wherein open gate, at the railway level-crossing was held to amount to invitation to death inasmuch as no reasonable steps whatsoever were taken for the safety of the public who had to pass through it.

5. The plea of the respondent has been that as, required under the rule a notice board had been fixed at a distance of 100 feet on both sides of the level-crossing that it was unmanned or manned. Besides the notice board there were also axed road signs near the level-crossing showing that it was unmanned. It was urged, therefore, that there was no negligence on the part of the respondent. Such a plea was raised in Malik Raza Khan v. Pakistan (P L D 1965 Kar. 244) and was repelled. The plea of contributory negligence was also agitated. The learned counsel for the respondent strenuously contended that the great speed of the rickshaw indicated the contributory negligence of the appellant and no case could be made out by her for claiming compensation. While dealing with a similar plea the following remarks were made in the above authority at page 250 :-. It is true that if the driver of the taxi had been extra cautious he should have stopped the car when it came to the crossing and looked both towards the left and the right to wake sure that no railway engine was approaching towards the crossing. But if this was not done it does not absolve the servants of the defendants from their obligations to take care which they were required under the rules and which, in any case, they would have to observe so as to claim that they had acted as prudent man in the situation in question. My finding, therefore, is that inasmuch as the servants of the defendants were initially negligent and had not taken due care and precaution, it is not open to the defendants then to urge that if the driver of the care had taken the necessary care the accident could have been avoided. A person who is initially negligent cannot fall back upon the contributory negligence of the other party so as to avoid liability .arising from an accident unless it can be held that it was the act of the other side which was the proximate cause of the accident. The question of contributory negligence was considered in the Federation of Pakistan v. Muslim Vehari & Wehniwal Bus Service (P L.D 1955 Lah. 256) and it was urged that the railway line was visible from a considerable distance, the care driver could see the engine but he tried to cross the line before the engine did so. The plea was turned down and it was observed that "even if he saw the engine be might have assumed that since the crossing was open the engine was not to pass through. At that distance indeed the thought of a collision would be very remote from his mind." I am of the view that the rickshaw driver Rustam Ali, no doubt, saw the goods train but it appears that since the level-crossing was unmanned he thought that he would cross the railway line before the goods train could reach the crossing. It can be said that he erred in miscalculating the distance and the speed of his rickshaw vis-a-vis the approaching train and fell into the trap laid by the respondent. Had the level-crossing been manned the rickshaw driver would not have hastened to reach it before the train could do and, in fact, c would have slowed down the rickshaw so as to reach the level-crossing after the train had passed. The respondent had, in fact, invited the driver to cross the level-crossing but it costs two human lives and serious injuries to the appellant. Had the gates of the level-crossing been there and closed in time this catastrophic accident could have been averted. The question of contributory negligence on the part of the appellant would not, in the circumstances, arise.

6. There is another aspect of the matter which may be spotlighted. The appellant cannot be saddled with the contributory negligence inasmnch as she was travelling in the rickshaw and was not driving it. She cannot, therefore, be identified with the carrier and cannot be guilty of contributor negligence. This view is in consonance with the observation made in La of Torts by Clerk and Lindsell which is as under :- The tendency of the law has been to move away from identification rather than towards it. Thus, a person is no longer identified with a carrier, not with his bailee, nor is a child in the charge of an adult identified with the latter's negligence, nor is a husband or wife identi fied with the negligence of the other spouse, unless in the particular case he or she was acting as the servant of the other. Sir Frederick Pollack in his The Law of Torts has dealt with the subject and remarked that no passenger carried for hire intends or expects to be answerable for the negligence of the driver, guard, conductor, master or whoever the person in charge. may be. He naturally intends and justly accepts, on the contrary, to hold every such person and his superiors answer able to himself. He further remarked that where negligent acts of two or more independent persons have between them caused damage to a third, the sufferer is not given to apply any such analysis to find out whom he can sue. He is entitled, of course within the limits set by the general rules as to remoteness of damage, to sue all or any of the negligent persons.

7. The appellant was examined by Dr. Qureshi (P. W. 11) on 7.10-1967 and the following injuries were found on her:-

1. One lacerated wound on the left side of skull. It was Y-shaped, and its size was 1/3" into skin deep.

2. One lacerated wound at occiput. Its size was 3` x 1/3" into skin deep.

3. Terminal phalynx- of the left index finger was absent. Bone was visible and cut. She was X-rayed on 9-10-19(7 and her right clavicle, second and fourth right ribs were found fractured. She was discharged from the hospital on 17-10-1967. The doctor opined that except the imputation of the terminal phalynx of the left finger she had no permanent disability.

8. She was examined the same day by Dr. Azizur Rehman (D. W. 1), an employee of the respondent, and he found

1. Fracture or left index finger.

2. Fracture of right clavicle.

3. Minor head injuries. It is manifest from her medical examination that besides her right clavicle, the second and fourth right ribs were found fractured. . She had received head injuries and the terminal phalyux of the left index finger was lost by her:

9. Ghulam Sadiq (P. W. 10) who is husband of the appellant is a public servant and an employee of the respondent. He' stated that a sum of Rs. 2,000 to Rs. 2,500 was spent on her treatment. He candidly admitted that "I got reimbursement for, the medicines I produced for my wife." The exact amount of reimbursement for medicines was, however, not disclosed by him. I am of the view that on the basis of the injuries suffered by the appellant, she is entitled to the damages amounting to Rs. 8,000 regard being had to the reimbursement for the medicines referred to above.

10. The learned counsel for the appellant conceded at the Bar that she had brought the suit for general damages and not under the Fatal Accidents Act. So far the death of Nargas Parveen in concerned the appellant could not sue the respondent for general damages and the suit was required to b brought under the aforesaid Act. Had such a suit been brought the appellant would not have been successful. The reason is that Nargas Parveen was hardly 2 years old. It is held in Khan Sahib Muhammad Ibrahim Khan and another v. Latif and others (P L D 1957 Kar. 352) that no damages were permissible to parent under the Fatal Accidents Act for the death of their child aged 8 years. The question of damages for the death of Nargas Parveen would, therefore, have no significance. In the result, I would accept the appeal, set aside the judgments and decrees of both the learned Courts below and grant the appellant and decree for recovery of Rs. 8,000 against the respondent with costs. S. A. H. Appeal allowed.