X'PRESSIONS
Negligence by Railway Authorities
by
Anubhav Agrawal
Indian Institute of Management, Bangalore.
The expression `negligence' as used in the rules has a definite significance. If an accident occurs which in the ordinary course could be avoided by proper care and caution it would then amount to an act of negligence.
The negligence consists of omitting to do something which a reasonable man would do or the doing of something which a reasonable man would not do in either case causing unintentionally some mischief to a third party.” Negligence” means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Ordinarily any reasonable and prudent driver while plying his vehicle on a public road would have reason to assume that the public road, if the same has been made open to the traffic, is traffic worthy unless, of course, there is displayed some signal warning about the defective condition of a particular portion of the road or such defect is visible or can be discovered by exercise of a reasonable care or is made known to him in some other manner. In the circumstances of the instant case when the latent defect in the projected portion of the road could not have been discovered in spite of a reasonable care and when there was no indication or information available with the truck driver with respect to such defect, the driver was perfectly justified in assuming rather believing that the entire width of the road was traffic worthy and in case, therefore, he plied his truck partly on the projected portion, he cannot be said to have displayed any negligence by so doing. It was held that, the accident in question could not be attributed to the negligence of the truck driver. The accident had happened on account of giving way of false projection of the road which was supported on wooden logs. Negligence or rashness in most of the cases is an inference to be drawn from proved facts. It may also be said that the driver of motor vehicle is required to keep a proper look-out on the road for other users of the road. It is also the duty of the driver of a motor vehicle to exercise due care and caution in driving the vehicle and to control it when situation demands so. The mere fact that a fatal accident had taken place is not by itself sufficient to make the driver liable and to infer that it had taken place due to the rash and negligent driving of the motor vehicle by its driver.
``Negligence'' is a term of art but has distinct meaning in different jurisdictions. In torts, damage is an essential ingredient, but that element is not necessary in the law of master and servant. In the law of crimes, there is a series of offences, based on negligence, in which loss or injury is not material. It is enough, if the act is likely to cause injury or endanger life. It is a public duty incumbent upon everyone, to abstain from negligence; and any breach of this duty which results in damage to another, is a tort.
`Negligence' means breach of duty caused by the omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do. Since no absolute rule can be laid down by which negligence or its absence can be judged in a given case, `negligence' would necessarily vary in different cases and for judging the same all the attending circumstances of the particular case have to be taken into account. The test of negligence is the exercise of ordinary care and caution which is expected from a prudent man in the circumstances of a given case. Negligence would mean breach of duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do. Lord Atkin in put thus:
``You must take reasonable care to avoid acts or omissions which you can reasonably foresee would likely to injure your neighbor. Who then in law is my neighbor? The answer seems to be persons who are closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. ‘The test of neighbourship in this definition is, as pointed out by Winfield ``not one of physical proximity but of foresight....... The fact the defendant ought reasonably to have the plaintiff in contemplation when directing his mind to the acts or omissions which are called in question, i.e. the alleged acts of negligence them. This does not mean, of course, that the plaintiff must be a person identifiable by the defendant. What is required is that he should be one of a class within the area of foreseeable injury.''
There have been two tests of liability discussed in this context the test of ``probability'', i.e. whether the accident was the natural or necessary or probable consequence of the defendant's act, and _the test of ``foresee ability'' i.e. Whether the accident was a reasonably foreseeable consequence of this act. In England, the Privy Council and the House of Lords held that the real and effective test is the foresee ability of the accident foresee ability not of the manner in which the accident happened but of the occurrence of an accident of the kind. About the standard of foresight, it was said by Lord Macmillan in Glasgow Corporation v. Muir, 1943 AC 448 at p. 457:--
``The standard of foresight of the reasonable man is, in one sense, an impersonal test. It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question, some persons are by nature unduly timorous and imagine every path beset with thorns. Others of more robust temperament fail to foresee or nonchalantly disregard even the most obvious dangers. The reasonable man is presumed to be free, both from over apprehension and from over confidence, there is a sense in which the standard of care of the reasonable man involves in its application a subjective element. It is still left to the Judges to decide, what, in the circumstances of the particular case, the reasonable man would have had in contemplation, and what, accordingly, the party sought to be made liable ought to have foreseen.''
This was elucidated: ``If the possibility of danger emerging is reasonably apparent then to take no precaution is negligence, but if the possibility of the danger emerging is only a mere possibility which would never occur to the mind of a reasonable man then there is no negligence in not having taken extra-ordinary precautions. ‘What is material is foresee ability of danger and not of the manner in which danger materialized in fact. A reasonable man would so regulate his conduct as to avoid producing any undesirable consequences which he foresees as possible. That is the normal standard of careful conduct, if the conduct in question falls short of the standard, it is negligent. The question is not whether the defendant did actually foresee the consequences that happened as probable. The question is only whether he, as a reasonable man, ought to have foreseen them. If the circumstances of the act are such that a reasonable man would have foreseen the probability of the accident, then the defendant who failed to do likewise, or who envisaged it and rejected it as too remote a chance has to be regarded as negligent. When the circumstances of the act indicate that certain consequence might ensue, the person must be held to have foreseen the consequences or at least ought to have foreseen them.
In their book of On Negligence_ celebrated authors Charlesworth and Percy have defined `negligence' in the following manner (7th Edn. p.15): ``Negligence is a tort which involves a person's breach of duty that is imposed upon him, to take care resulting in damage to the complainant''. The essential components of the modern tort of negligence propounded by Percy and Charlesworth are as follows:
(a) The existence of a duty to take care, which is owed by the defendant to the complainant.
(b) The failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and
(c) Damage which is both causally connected with such breach and recognized by the law has been occasioned to the complainant.
The law imposes a duty on everyone to conform to certain standards of conduct for protection of others. The need for existence of due care is illustrated by Lord Wright in well known judgment in the following words:
``All that is necessary as a step to establish the tort of actionable negligence is to define the precise relationship from which the duty to take care to be deduced. It is, however, essential in English law that the duty should be established, the mere fact that a man is injured by another's act gives in itself no cause of action, if the act is deliberate, the party injured will have no claim in law even though the injury is intentional, so long as the other party is merely exercising a legal right; if the act involves lack of due care, again no case of actionable negligence will arise unless the duty to be careful exists.''
The word `duty' connotes the relationship between one party and another, imposing on the one an obligation for the benefit of that other to take reasonable care in the first instance. It was undoubtedly the duty of the respondents to provide for proper platform as well as over bridge/subway to conform to standard of conduct for protection of passengers, having failed to discharge his duty respondents acted negligently.
Where a railway line crosses a busy road at such a point that the incoming train is not visible until the passer is on the railway track, there is no question of contributory negligence, in case of accident, inasmuch as the first duty in such a case is cast on the railway authorities to arrange for the safety of the passers.
In such a case it would be the obvious duty of the railway administration, whether as inviters or licensors, to take adequate steps either to fix there a gate or a chain or at least to post a man to warn the drivers of the vehicles of an approaching train.
It was found that the railway line crossed a busy road near a railway junction and it was also a shunting area where trains would pass now and then without any one even knowing whether it was time for a train to pass. On both flanks of the road high heaps of construction material for the road where stacked and the driver of the lorry could not have a clear view of the railway crossing. At about the time that the truck was on the railway track shunting was going on and railway engine which was being shunted at the fast speed together with a break-van, collided with the truck without giving it any warning. The truck was badly damaged and the driver and the cleaner were killed instantaneously. In these circumstances, the Court held that the antecedent conduct of the railway administration in not making proper arrangement to forewarn passers about approaching train where a busy road passed to cross the railway track by way of signals or otherwise made the railway administration liable and all the more so because it was a shunting area. There could be no question of contributory negligence on the part of lorry driver inasmuch as it was the obvious duty of the railway administration to take adequate steps to warn the public of the approaching trains.
Railway Company was held liable for negligence in the case where a railway line crossed a busy road at such a place that the coming train could not be seen due to a house and trees and shrubs near the road and the line and it was only when the members of the public using the road came on to the Railway line that they could be in a position to know that a train was approaching. Holding that it was the obvious duty of the railways to take adequate steps to warn the public of approaching trains so that accidents could be avoided, failure to do so amount to clear negligence on the part of railways, the Court rejected the defense based on contributory negligence.