1. This is an application in revision, or rather under Section 25, Small Cause Courts Act. The plaintiff claims for the loss of two bales of goods said to contain dhotis and other cloth goods. The weight of each bale is said to be roughly 4½ maunds. The size, therefore, would be considerable, and each bale would require two or three men at the very outset to unship and carry if they used their hands only. These are fundamental and admitted facts in the case, which the learned Judge has overlooked. The goods were dispatched from Carnac Bridge, Bombay, to Agra Fort. The rights of the parties are governed by Risk-note H which, as everybody knows, is a new form recently introduced in the railway administration. It provides that the railway shall be held free from all responsibility for loss
except upon proof that such loss arose from the misconduct of the railway administration’s servants; provided that in the following cases: (hero we only quote the language appropriate to this case.) Non-delivery… of the whole of one or more packages forming part of a consignment… the railway administration shall be bound to disclose to the consignor how the consignment was dealt with throughout the time it was in its possession or control and, if necessary, to give evidence thereof before the consignor is called upon to prove misconduct, but, if misconduct cannot be fairly inferred from such evidence, the burden of proving such misconduct shall lie upon the consignor.
2. It is to be regretted that both the pleaders for the plaintiff and the learned Judges themselves seem to have got into the habit of failing to confine themselves to the language of the risk-note. When the rights of the parties are governed by a written document, it is essential to study and to follow the terms of such document just as it is necessary, when a Court is administering the sections of a Code that it should study the exact language of the section before troubling itself about decided cases or general considerations. In this case, as in many others of the same kind, there are allegations about negligence. That is not the question under this risk-note. One principle to be borne in mind as a member of this Bench pointed out in a recent case of the same kind, is that the less the evidence of negligence of servants, that is to say, the more careful the railway arrangements may be, the stronger the inference of misconduct against the railway administration, if the goods have disappeared in spite of the exercise of due care, because if the custody and care of the goods is of a high order, it is impossible for a trespasser to remove them without the connivance of the diligent servants.
3. The learned Judge in this case appears to have taken too narrow a view as a consequence of ignoring the fundamental facts, to which we have already referred, and the terms of the risk-note. We will now refer to some additional circumstances. The wagon, in which the goods were carried, was sealed and rivetted in the usual way. It arrived at Agra Fort intact. Owing to the necessities of train management and shunting, the wagon had to go on beyond its destination to the other side of the river to a station called Agra East Bank. There is no objection to that. The railway cannot be criticized or held guilty of misconduct, merely because they have to regulate their trains and wagons in the most convenient method. In the case of this consignment it involved keeping the wagon in the yard at Agra East Bank after arrival and sending it back next morning to Agra Fort. When the wagon arrived next morning at Agra Fort, one seal was found tampered with, and the two bales were missing. It is, therefore, quite clear that the bales were removed from the wagon during the night probably when the wagon was stationary in the yard awaiting its return to Agra Fort.
4. In a big center like Agra there must of necessity be a large area of lines with rolling-stock standing upon them awaiting disposal, and we are told that the yard in this case is one of very considerable size and has no enclosing wall The absence of an enclosing wall is immaterial, but it is obvious that it is necessary for the railway, in order to protect their own property and the property of consignees, that they should have watchmen upon the premises during the night, usually described as watch and ward chaukidars and there being no evidence and no legitimate inference that these men are either insufficient in number, or fail to do their duty as watchmen, it would be wrong to draw the inference that there was any negligence properly so called on the part of the railway, that is to say, the railway do their best to protect their own and other people’s property during the night when it has necessarily to remain standing. This is the aspect of the case, which the learned Judge has failed to appreciate. If wagons containing goods are kept standing during the night on the company’s premises, which are of course adequately lighted, and which are guarded by an adequate supply of watchmen, it is humanly impossible for a bale containing 4½ maunds of weight to be stolen from a wagon removed on to the line, and conveyed across the open space of the company’s premises into the public road, by trespassers without the knowledge of those occupied in watching the premises. In this case that proposition is a fortiori because it is proved that the seal and rivet, which were tampered with, could not be tampered with, by an ordinary individual without some instrument, and without making a noise certain to attract attention during the night. Those who have slept near a railway station, will recognize how clearly and how far sound travels from a railway yard during the night. It is, therefore, to put it at the least, a legitimate’ inference to be drawn from the disappearance of these heavy articles from the railway premises at Agra during the night that the operation must have been done either by railway servants themselves, or by trespassers, with the connivance if not the assistance of the railway servants. Whichever it was, it is a clear case of misconduct of those in charge of the yard during the night, which may be inferred from the defendant’s own account of the matter. There was, therefore nothing left for the plaintiff to prove. The learned Judge said that the only two facts, which had been made out, were that one of the seals had been tampered with, and Secondly that the bales in dispute were short. These facts, he adds, do not by themselves show misconduct. We agree, but that is not an adequate statement of the facts. The revision must, therefore, be allowed with costs. The two cases must go back to the Small Cause Court Judge for the assessment of damages.