P L D 1967 Supreme Court 249 (PLP)

HAMOODUR RAHMAN, J.‑This appeal has come before us under a certificate granted by the High Court of West Pakistan, Lahore, under Order XLV, of the Code of Civil Procedure read 4 with Article 158 of the late Constitution, as the value of the. subject‑matter in dispute in the appeal exceeded Rs. 15,000 and the decree of the High Court was a decree of variance. The said appeal in the High Court arose out of a suit filed by the respondent herein for the recovery of a sum of Rs. 1,20,000 as damages and compensation for loss suffered by him as a result of an accident alleged to have been caused by the negligence of the Pakistan Western Railway Administration. The said respondent, who was a resident of village Nawan Lok, which is situated at a distance of about three miles from Mandi Bahauddin, left his village on the 21st of June 1954, at about 7‑30 or 8‑00 p m. along with his cousin P. W. Inayat Ullah, for catching the train to Lahore which was scheduled to leave Mandi Bahauddin at about 10‑15 p.m. When they left the village the sky was already cloudy and a strong wind was blowing but by the time they reached Mandi Bahauddin the wind had turned into a severe dust storm and the visibility was extremely poor. To approach the Mandi Bahauddin Railway Station platform from the town one had to proceed along a level crossing across the railway lines. The gates of this level crossing were so arranged that when the level crossing was available for free passage to the passengers from the town they closed the railway track blocking the passage of any train or engine on the line but when the level crossing was not so available to passengers the gates were moved outside to block the passage between the town and the railway station. The gates could also be held in position by catches provided on the gates. The respondent's case was that when he had his companion reached the level crossing the gates were found by them to be open and no warnings lights were on them. They, accordingly. assuming it to be quite safe for passage, proceeded along the level crossing over the railway track which was incidentally the only means of approach to the booking office and the platform of Mandi Bahauddin Railway Station. At this point of time a railway goods wagon, which had been negligently left unlocked and unchained on the railway line, which too was left "unscotched", was set in motion by the dust storm and before the respondent and his companion, who were facing towards the railway station, could see or hear the wagon approaching, presumably, due to the dust storm, it bit them both. The respondent was carried away by the impact for some distance before he fell on the track between the lines and the wagon rolled on a little further before stopping. The respondent's companion escaped with minor injuries, as he was a little ahead of the respondent and could manage to move away. As a result of this collision the right elbow and the right leg of the respondent were severely injured and his right leg had ultimately to be amputated in hospital. When the wagon hit him, it appears, he gave out cries which attracted other persons on the platform who came running to the spot and found the respondent lying injured on the railway track at a distance of about 59 ft. from the level crossing. He was picked up from there and removed first to the local civil dispensary, then the Civil Hospital, Gujrat, and ultimately to the Mayo Hospital, Lahore, where his right leg had to be amputated as by then gangerine had set in. The appellant in defence admitted the accident but denied that it was due to any negligence on the part of its servants or agents. According to the Railway Administration the respondent was not bit while crossing the track at the level crossing but he was hit while he was trespassing on the railway track at the place from where his body was picked up at a distance of 59 ft. from the level crossing itself. Furthermore, it was pleaded that since the wagons had been set in motion by a dust storm the accident was caused by an act of God which was beyond the control of the Administration. It is unnecessary to mention the other pleas raised in defence, for, they are not material for the purposes of this appeal. Upon the evidence adduced in the case, however, the trial Court found that the Railway Administration was negligent in not securing the wagon with a safety chain after its shunting, not putting a scotch‑block across the lines, not providing any warning lights on the level crossing and not closing the gates of the level‑crossing after shunting, but it held that the respondent had failed to prove that he was crossing the railway line by the level crossing. This finding was arrived at mainly on the basis of the opinion of the Railway Medical Officer, who expressed the view that the injuries found on the respondent could not possibly have resulted from dragging caused by a striking wagon. His reason for saying this was that dragging could, at the most, have caused fracture of a bone with laceration of the skin but the nature of the two major injuries found on the respondent was more consistent with crushing. Preferring this opinion the trial Court found it difficult to believe that dragging for 59 feet on a stone‑ballasted track could only cause scratches and abrasions and not laceration of the skin as stated by the other doctors who had actually examined the respondent. The injuries, according to the trial Court, were more consistent with the case of the appellant that the respondent was hit at the place where he was found lying underneath the wagon itself. Upon this finding the trial Court was further of the view that the entry of the respondent at that place was unlawful and, therefore, he was not entitled to any damages, even though the negligence of the Railway Administration may have contributed to the happening of the accident. On appeal the High Court agreed with the findings of the trial Court both with regard to the negligence of the Railway Administration and as to the place of the accident but disagreed with its conclusion of law that a trespasser, who is injured by the wilful negligence of the owner or occupier of the property or his agents or employees, is not entitled to claim damages. The High Court took the view that if it is found that in spite of the contributory negligence of the plaintiff the defendant could, by the exercise of ordinary care and caution, have avoided the accident, the plaintiff was entitled to recover "not because he was not negligent but only because the negligence that proximately caused the injury was the negligence not of the plaintiff but that of the defendant." Upon this principle the High Court held that the Railway Administration was liable, because the respondent would have been hit, in the facts and circumstances established in this case, even if he had been crossing the line at the level‑crossing, The fact, therefore, that the accident occurred at some other place did not disentitle the respondent from claiming damages. In other words in the view of the High Court the proximate cause of the accident was the negligence of the Railway Administration amounting to wilful default, "in the sense that they deliberately failed to take the necessary cautions which if taken would have prevented such an accident taking place." The damage assessed, however, was only Rs. 20,000, although the respondent had been permanently incapacitated by the loss of his right leg. There is not only no cross‑appeal before us by the respondent challenging the inadequacy of the damages but he has not even appeared to oppose this appeal. On behalf of the appellant, on the other hand, it has been contended that upon affirming the findings of the trial Court the High Court should have held that the respondent was not entitled in law to recover any damages. Being a trespasser on the Railway track he was not in the position of an invitee or a licensee to whom only the Railway Administration could be held to owe a duty to take reasonable care. It is no doubt true that in a civil appeal this Court, following the practice of the Privy Council, does not normally go behind a concurrent 1nding of fact if that finding is not vitiated by any error in point of law but this rule, as pointed out by the Privy Council itself in the case of Bibhabari v. Ramendra Narayan (A I R 1947 P C 19) "is not a cast‑iron one" and "there may occur cases of such an unusual nature as will constrain" the Court "to depart from the practice" in order to prevent a "miscarriage of justice". Upon this principle the Privy Council itself recognised that it would not hesitate to review the evidence in spite of a concurrent finding of the Courts below if "it be shown with absolute clearness that some blunder or error is apparent in the way in which the learned Judges below have dealt with the facts" vide Allen v. Quebee Warehouse Company ((1887) 12 A C 101), or "if there had been any principle of evidence not properly applied." But this at best is a rule of practice only which has gradually developed as a result of the decisions of the Board which are merely illustrative and by no means exhaustive. Applying this principle we would say that the rule may also be legitimately departed from where the finding is on the face of it against the evidence or so patently improbable or perverse that to accept it would amount to perpetuating a grave miscarriage of justice. There would, in our opinion, be still greater justification for interfering with a concurrent finding of fact if the finding could be demonstrated to be physically impossible. In the present case what the Courts below have accepted is that the wagon was moved by a dust storm, that it must have on] its velocity moved down a distance of 59 ft. or more before It struck the respondent at the place whore he was found lying and as a result of that impact the wagon stopped just at that place or within a few feet of it, for, they appear to have been inclined) to accept the version that the respondent was removed from underneath the wagon after shifting it a bit. This conclusion, we regret to say, we are unable to accept, for, on the very face of it is opposed to all laws of dynamics. It is impossible to conceive of the possibility of a body of considerable weight in motion being stopped abruptly as a result of an impact with another body of an immensely less weight. The wagon, even on a conservative estimate, must have been at least 100 times more in weight than the respondent. It could not, therefore, possibly have stopped after coming into contact with him. The impact would inevitably have carried the body of less weight along with the body of the larger weight up to a point where the body of the larger weight would have stopped after losing its own momentum. That this was not only a speculative possibility but something which probably did happen can also be reasonably supported by the evidence on the record. The evidence in the present case is to the effect that at the point of impact the respondent was between the two rails and must have come into contract with the wagon at some point which was away from the wheels of the wagon. It might well have been that he hit the wagon somewhere in the middle, where the couplings are usually fixed and that he got entangled in them and was carried along with the wagon up to nearly the place where the wagon stopped after losing its momentum. There he got disentangled and fell between the rails. The medical evidence as to the cause of the injuries found on the respondent is, by no means, consistent. Dr. Mirza Hamid Hussain (P. W. 9), the Surgeon of the Mayo Hospital, has clearly opined that the wheels of the wagon had not passed over any part of the respondent's body and that it was not possible that "his leg was on the line and the wheel of the wagon struck it because in that case the wheel would have passed over and cut as under the leg." The Divisional Medical Officer of the Railway, Dr. Zaheeruddin Ahmad (D. W. 2), however, gave a contrary opinion, because, in his view, in case of dragging there would necessarily have been lacerations of the skin or deep wounds caused by the buries on the track. This Doctor had not, of course, himself examined the respondent at any stage but he gave his evidence only with reference to certain medical reports, copies of which have unfortunately not been included in the paper boom by the appellant. The only medical certificate on the record is the one granted by Dr. Rashid Ahmad Khan (P. W. 8), the Medical Officer of Gujar Khan, who was the first person to examine the respondent on the 21st of June 1954, at the Civil Dispensary, Mandi Bahauddin. This certificate (Exh. P. 7) only shows that the respondent had "compound commuted fractures of right humerus and right forearm allegedly as a result of railway accident." But Doctor Bashir Ahmad Bhatti (P, W. 4), who examined the respondent on the 22nd of June 1954, at the Civil Hospital, Gujrat, and gave him first aid treatment, not only confirms that "he had severe injuries on right leg and right arm" (vide Exh. P. 6), but also, in his evidence, discloses that the respondent bad besides these certain "simple scratches", as far as he can remember. Dr. Hamid Hussain (P. W. 9), Surgeon, Mayo Hospital, when examined in Court stated that he saw the respondent on the 22nd of June 1954, in an unconscious state but at that time he found that "his head, right leg and right arm were injured. There were abrasions on the back side of head and on the remaining body. The joint of the right elbow had been opened and the bone had broken into several pieces." He was of the opinion that these injuries "could be caused by an accident such as striking against a wagon of goods train and being dragged by it." He was cross‑examined at length but he struck to his opinion that the fractures of the bones of the right thigh and the elbow found by him were not of the nature of an injury which could be caused by crushing under the wheels of a wagon. He was categorically of the opinion that no part of the body of the respondent was lying on the railway line itself at the time of the occurrence. Dr. Hamid Hussain was a qualified surgeon with foreign qualifications as was conceded by Dr. Zaheeruddin Ahmad (D. W. 2) himself. In this state of the evidence it is difficult to appreciate how the trial Court could come to the conclusion that the opinion of Dr. Hamid Hussain was not supported by any reason and therefore, the possibility of its being incorrect could not be excluded. Evidently in preferring the evidence of Dr. Zaheeruddin Ahmad the trial Court had ignored the evidence of Dr. Bbatti (P. W. 4) and Dr. Hamid Hussain to the effect that there were "simple scratches" and "abrasions" on the body of the respondent. According to Dr. Hamid Hussain there were abrasions on the back side of head and on "the remaining body." Why could these injuries not have been caused by dragging and bumping on the ground while being so dragged? Dr. Zaheeruddin Ahmad avoids mention of these abrasions but with regard to the scratches. which he admits were found on the rest of the body, he just opines that they could not have been caused by dragging. It is significant, however, that he does not suggest as to how those scratches could have come on the body if, as suggested by him, the respondent was run over by the wagon at the place where he was hit and the wagon stopped. A careful and intelligent examination of the medical evidence would have exposed the fallacy of the opinion expressed by Dr. Zaheeruddin Ahmad and demonstrated it to be physically impossible for the wagon to have stopped immediately after running over the respon dent as a result of the impact. The High Court has also, in our view, misread the evidence of Dr. Hamid Hussain by saying that he found only "a few abrasions" on his body; because, he had clearly stated that "there were abrasions on the back side of the head and on the remaining body." This does not suggest, as the High Court has purported to save that there were only "a few abrasions on his body." The High Court also has taken the view that to produce dragging the body must have been found attached to the wagon. Again, we are unable to appreciate upon what hypothesis this condition was found essential for establishing a case of dragging. The fact that no blood was found at the level crossing does not also, in our view, exclude the possibility of the accident having occurred at the level‑crossing, as was stated by the respondent and his witnesses. The High Court itself, however, felt that the opinion expressed by Dr. Zaheeruddin was, by no means, convincing and that his evidence was not helpful for coming to a definite conclusion, yet it felt "almost certain that the appellant could not have been dragged to a distance of about 60 ft. or so by the railway wagon after he was hit by it." In any case, in its opinion, "the appellant had failed to prove that the accident took place at the level‑crossing and that after he was hit by the railway wagon he was dragged from there to a distance of about 60 ft. or so to the place from where he was taken out afterwards." Hence they felt themselves constrained to accept the finding of the trial Court on this issue as correct. Such a method of arriving at a conclusion by a Court, which was the final Court of facts, based as it is purely upon the personal inclinations of the learned Judges cannot be accepted as a satisfactory finding, particularly, since the finding of the trial Court, as already stated, was manifestly unsupportable being outside the range of physical possibility. We are unable, therefore, with respect to the learned Judges of the High Court, to uphold their finding. In our view, the probabilities fairly arising upon the evidence were such that the version of the respondent was more consistent with the common course of events and. physical laws and it should have been preferred to that given by th4e appellant which was inherently improbable. It is difficult also to appreciate as to why the respondent, who was Wrong to the platform to catch a train, would take a different rooute, apart from the level‑crossing which was, according to the evidence on the record, the only access to the platform, particularly on a night like this when there was a severe dust storm on and visibility was extremely poor. The suggestion put forward by the Railway Administration that he was hit by the wagon when he had sat down to urinate has not been accepted even by the trial Court. No other reason has been suggested for the alleged deviation on the part of the respondents from the highway nor can we induce ourselves to believe that on a night like this a person seeking to reach the: platform will of his own volition take a more hazardous x‑outs. 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 respondent 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 for see that the invitee will 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 safeguards 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 crossings 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. The occupier also owes a similar duty to a licensee but in the case of a trespasser the position is radically different, because, a trespasser, it is said, ought not to be there at all and it would be unfair to allow him by his own wrong‑doing to interfere with the occupier's freedom of action in making proper use of the premises. There are also practical reasons for this, because, it is often not possible for the occupier to anticipate when or where or by what route or for what purpose the trespasser will be entering or moving about his land. No duty of taking care is, therefore, owed to a trespasser until it becomes known either that he is present or that his presence is extremely likely but even in such a case the duty is of a very limited nature, i.e., not to injure him wilfully or not to behave with recaless disregard for his safety. The trespasser, it is said, must take the land or the structure as he finds it and the duty on the occupier is only "to abstain from doing any act which if done carelessly must reasonably be contemplated as likely to injure him and of course, to abstain from doing acts which are intended to injure him", vide Hillen v.

1. C. 1. (Alkali) Ltd. (L R 1936 A C 65). Thus in the case of a trespasser unless it can be shown that something in the nature of a trap designed for causing bodily harm was laid for an unwary trespasser the occupier of the land will not be liable for any injury to a trespasser. The occupies of the land may also be held liable if he changes the condition of the land in such a way as to create a new danger. If such a new danger causes injury to the trespasser who has to the knowledge of the occupier already entered and not been warned of that danger, the occupier will be held liable. Thus if after a trespasser is already on the land and the occupier being aware of his presence cuts down a tree without giving any warning and the tree by its fall injures the trespasser the occupier will be held liable. But this is not the same thing as mere "wilful negligence" on the part of the occupier as has been held by the High Court, for, there should be something in the nature of a reckless disregard for the safety of the trespasser after knowing that he is already on the land or that he is likely to be there. It is unnecessary, however, to pursue this matter any further, for, in the view that we have taken the appellant in the present case clearly owned a duty to exercise a higher degree of care, as the respondent was not a trespasser but an invitee lawfully and necessarily on the level‑crossing. The gates of the level‑crossing being open amounted to an invitation to him to cross the same under the reasonable assumption that he could do so safely. For the reasons given above, which are different from those given by the High Court, we are of the view that this appeal must be dismissed, but since the respondent has not appeared" at the hearing of the appeal there will be no order for costs. A. H. Appeal dismissed.