JUDGMENT Boys, J.
1. This case concerns the operation of the Risk Note Form ''B" provided for the use of consignors of goods. The document is not happily worded. Difficulty arises not infrequently in the trial Courts in determining how for each party has discharged the shifting burden of proof laid upon him by the terms of the document. The facts to which we have to apply the law are simple and are as follows:
2. On the 23rd of June 1920, 14 bales of cloth were despatched on behalf of the plaintiffs from Bombay to be delivered by the Railway at Khurja. Thirteen bales were delivered to the plaintiffs at Khurja on July the 14th, 1920, but the 14th bale was never delivered. The plaintiffs brought this suit for the delivery of the 14th bale and damages Rs. 206-10-3, or in the alternative Rs. 952, the value of the missing bale and, in addition, the damages already mentioned. After the case had been dismissed by the Court of first instance and remanded by the lower appellate Court for the defendant Railway to be given an opportunity to produce evidence in regard to the "loss" of the missing bale, the suit was finally dismissed by the learned District Judge on February the 26th, 1923.
3. The only point with which we are concerned in this appeal is whether the defendant Company was protected under the circumstances of the case by the Risk Note Form "B." After the remand the defendant produced the evidence of two Railway servants, one of whom proved that the wagon in which the bales were enclosed had its seals intact at the Station Kotah; the other proved that at Agra East Bank one of the seals of the wagon was not in order and one bale of cotton was found to be missing. From these facts the learned District Judge has stated his conclusions of fact quite correctly. He says:
It appears quite clear from the evidence that the defendant has proved that this bale was stolen either between Kotah and Agra East Bank or possibly at Agra East Bank or possibly at Kotah.
4. It is admitted that there are also several stations between Kotah and Agra Bast Bank. It is, therefore, clear this finding amounts to holding that it is not possible to say whether the missing bale was stolen while the train was in a station yard or while it was running between two stations. In view of the fact that robbery from a running train is excluded from the scope of the term wilful neglect" in Risk Note Form "B" and that by para. 7 of their written statement the defendants claimed exemption from liability alleging theft from a running train, it is not possible without qualification to agree with the learned District Judge that the fact that the theft may have been committed in the goods-yard at Agra East Bank (or at any other station) does not affect the matter. If he meant that in view of his later finding that there was no "wilful neglect," the necessity to plead exemption on the ground that the property was lost by robbery from a running train did not arise, he is correct.
5. It has been found that "loss" of the goods has been proved. This shifted the burden of proof on to the plaintiff to establish at least prima facie that the loss was due to theft by a Railway servant or to "wilful neglect" by the Railway Administration or one of its servants other than (in the ungrammatical language of the Note) robbery from a running train or any other unforeseen event or accident. It has been proved or admitted that the Railway sent the goods on a long journey during which the train would have to travel at night and stop at all sorts of stations and sidings in a wagon not locked and of which the doors were only secured with sealing wax. These facts the learned District Judge declined to hold to constitute "wilful neglect" by the Railway. It is quite clear that if the lower Court had applied the statute and case-law correctly and, so applying it, had found that there was no wilful neglect, the Court would have been bound by that as a finding of fact, whether it agreed with such a finding or not.
6. The learned Judge states "the only point that the plaintiff can make is that the wagon was not locked at Kotah." This is a serious understatement of the admitted facts which are that the wagon was not locked from Kotah to Agra East Bank but only sealed, for a Railway servant speaks of inspecting the seal at Agra East Bank, and, therefore, the wagon was fastened with sealing wax only over a distance of 208 miles at least. It certainly would not be an unreasonable inference that the wagon was similarly ineffectually fastened from Bombay, but I will limit our consideration to the fact that the wagon was only secured with sealing wax all the way, over two hundred miles, from Kotah to Agra. Next the learned District Judge has brushed aside the decision of this Court in B. & N.W. Railway Company v. Haji Mutsaddi (1910) 7 ALJ 833, saying:
No doubt there is a case reported in 7 A.L.J. 833 in which the first appellate Court held on the evidence that there was wilful neglect and in which the second appellate Court remarking that the wagon was not locked and thefts in this section of the line were constant, declined to set aside the finding of the first appellate Court. But a judgment of a second appellate Court declining to set aside a finding of fact by a first appellate Court does not necessarily indicate that the second appellate Court would itself have come to the same conclusion on the evidence, had it been sitting as a Court of Original Jurisdiction or had it been dealing with the matter in first appeal. Much lees can this finding be interpreted as a decision binding all Courts to conclude that there has been wilful neglect once it is proved that a wagon was not locked.
7. I have quoted the words of the learned Judge in full, for the language used suggests a personal inclination on the part of the Judge to brush the case aside because he disagreed with it. The facts of that case and the decision of Sir John Stanley, Chief Justice and Griffin, J., were as follows: The wagon was properly fastened and the lower appellate Court found that thefts were constant and that the insecurity of the fastening amounted to wilful neglect. Stanley, C.J., and Griffin, J., certainly did not refrain from disagreeing with this view merely because they held themselves bound by it as a finding of fact, as the language of the District Judge in this case seems intended to suggest, but their Lordships expressly said:
We should not be disposed to differ with it as to this in view of the statements of the servants of the East Indian Railway Company that the methods they use are such that the opening of a wagon can be easily done by anybody.
8. The learned District Judge has, therefore, clearly misappreciated the judgment of this Court.
9. It is true that in this case no such statement has been made by either of the Railway servants called, but, with the evidence we have in this case as to the method of fastening the wagons, the presence or absence of such an admission by the Railway servant could not strengthen or weaken the case for wilful neglect." The method of fastening speaks for itself. It is true also that there is in the present case no evidence of constant thefts having taken place. Evidence of such constant thefts could quite properly constitute further evidence in support of an allegation of wilful neglect. But I find myself unable to appreciate that either that fact or any other fact is a further necessary element in the evidence when once we have proved the fact that the Railway deliberately despatched a wagon sealed only with sealing wax and string over a distance of hundreds of miles in circumstances in which the train would have to do part of its journey during the night and stop at stations and in sidings.
10. Counsel for the defendant Railway very properly refrained from any endeavour to take up such an impossible position on behalf of his clients, that they did not know that wagons sealed in this manner were quite likely to be tampered with. He had in the circumstances of the case to content himself with urging that it was very inconvenient for the Railway to provide such wagons with locks. The fact, therefore, that there is no evidence in this case that thefts were of frequent occurrence is no ground for distinguishing B. & N.W. Railway Company v. Haji Mutsaddi (1910) 7 ALJ 833. The mere facts as to the method of fastening the wagons for a journey such as had to be undertaken in this case are sufficient, in my opinion, to raise an inference of "wilful neglect," exactly as such an inference of "wilful negligence" would be justified against a person who knowing a plank to be very weak deliberately placed it in a footbridge, without proof specially adduced in the case that other planks have broken in similar circumstances. A person endowed with a minimum of prudence and commonsense does not need to be told, that the means taken for fastening the wagon as it was fastened in this case for a journey such as had to be undertaken in this case were simply to invite theft.
11. In justice to the learned District Judge it is clear that he has not endeavoured to distinguish the decision of this Court to which I have referred above either on the ground of any superfluous admission made by any Railway servant in that case or on the fact that in case evidence was given of the frequent occurrence of thefts. He has simply brushed it aside with an inaccurate statement of the attitude of Stanley, C.J., and Griffin, J., in respect to the finding of the lower appellate Court that there was "wilful neglect." For the respondent Railway Company we have been referred to the case of East Indian Railway Co. v. Nathmall AIR 1917 All 338. That was an application in civil revision from an order of a Small Cause Court Judge holding on the strength of the judgment of Mr. Justice Piggott in Civil Revision No. 81 of 1911 (The East Indian Railway v. Gauri Dutt decided on 23rd May 1911) that in circumstances very similar to the present there was wilful negligence. I have examined the original judgment and it is clear that the real contest before the Small Cause Court Judge was as to whether theft, as distinct from robbery, from a running train would absolve the Railway Company in accordance with the terms of the Risk Note. That main point being decided against the Railway on the basis of the judgment of Mr. Justice Piggott was followed by a finding of wilful neglect," the learned Small Cause Court Judge holding that the Railway having failed to prove robbery from a running train "the Railway was bound to show affirmatively that the loss was not due to their wilful negligence." When the case came before this Court in civil revision the main contention of the appellant Railway, as indicated by the full report of the arguments and the judgment, was that the onus of proof had been wrongly placed on the Railway of showing that the loss was not caused by their wilful neglect. It was, if I may say so, quite clearly, correctly held that primarily the burden was one on the plaintiff consignor. Dealing briefly with the question of "wilful neglect" their Lordships dismissed from consideration the case of the B. & N.W. Railway Company v. Haji Mutsaddi (1910) 7 ALJ 833 with the remark that in that case the finding of "wilful neglect" was a finding binding on this Court in second appeal and that it afforded no help in the decision of the case before their Lordships. With the greatest respect for the learned Judges whose judgment I am considering, I have already pointed out that the judgment of Sir John Stanley, C.J., and Griffin, J., did not unwillingly accept a finding on them in second appeal, but actually expressed their agreement with that finding.
12. The learned Judges in the East Indian Railway Company v. Nathmall AIR 1917 All 338 say nothing further on the question of "wilful neglect" beyond the brief statement that Under the circumstances of the present case, as proved in the Court below, we consider that no Court could hold that the loss was due... to 'wilful neglect.'
13. The argument is reported in full and it is clear that the counsel for the respondent never put the case, that to send goods sealed only with sealing wax from Dehri-on-son to Cawnpore, a distance of 288 miles, with the train travelling at night and stopping in sidings, was sufficient to justify an inference of "wilful neglect." In B. & N.W. Railway v. Firm Manorath Bhagat Dhian Ram AIR 1925 All 172 a case similar to the present, two learned Judges of this Court held that there was "wilful neglect" where wagons had been sealed in a similar manner. There was further evidence that there had bean constant thefts. I have already given my reasons for holding that such evidence is not essential to prove "wilful neglect." In Balram Dass Fakir Chand v. G.I.P. Railway Co. AIR 1925 All 562 this Court again held that in circumstances similar to the present, a case of "wilful neglect" was established. The only additional fact beyond those which we have in the present case was that there was evidence of only one previous similar theft two or three days before. In that judgment, to which I was a party, it was further remarked that, It is also clear from cases to which we will refer that the finding of broken seals is, to put it at its lowest, at least, not an uncommon incident.
14. It is next urged that even though the action of the Railway in securing the wagon so carelessly may prima facie appear to be wilful negligence, there is in the evidence nothing to show that other precautions were not taken, such as the detailing of chaukidars to watch the wagons in sidings, which might reasonably be expected to prevent any untoward consequences following on such procedure. This raises the question as to the degree of the burden of proof which is laid upon the plaintiffs. It is clear that upon the plaintiffs establishing that the wagons were not sealed and not locked, it was fully open to the Railway to rebut such prima facie evidence of wilful neglect by leading evidence that it was in their power to lead, e.g., by showing that they had intimated to the plaintiffs that the wagons would be sealed in this manner or, a fact peculiarly within their knowledge (Evidence Act, Section 106), by showing that they, the defendants, did in fact take proper precautions to have the train watched when it was not running.
15. I hold, therefore, that the plaintiffs prima facie discharged the burden of proof which lay upon them to prove wilful neglect when they proved that wagons were only sealed in the manner described in this case for a journey of the kind which had to be undertaken in this case. The burden of proof which primarily lay upon them having been discharged by the plaintiffs, the Railway have done nothing and led no evidence in rebuttal thereof; they have merely contented themselves with alleging, in order to escape from the consequences of what would otherwise be wilful neglect, that the theft took place from a running train. That has been found, and obviously quite correctly found, from the evidence not to have been proved. The result is that I find that the bale of cotton was lost in this case owing to the "wilful neglect" of the defendants.
16. The question of damages was not argued for the appellant in the Court below and I, therefore, do not consider it necessary to remand the case for a finding as to the amount of damages. I would, therefore, allow the appeal and give the plaintiff a decree for Rs. 952, the value of the bale which was not delivered to him.
Mukerji, J.
17. The question for determination in this second appeal is, whether the defendant Railway Companies in the suit are liable because they took no precaution to secure against theft the goods carried by them beyond this that they tied up the doors of the wagons, in which the goods were carried, with a piece of string and sealed the two ends of the same on a piece of paper.
18. The facts are the usual ones in such cases. The plaintiffs obtained a consignment of cloth goods from Bombay consigned to Khurja City. There were 14 bales. One bale did not arrive. The Railway Companies adduced evidence which established that at Kotah railway station the van carrying the goods was found to have its seal intact, but at Agra East Bank the seal was found broken and one of the bales was found missing. The finding arrived at by the learned Judge it that it is impossible to say that there was a theft from a running train and that a theft took place either at Kotah or at Agra East Bank Railway Station or somewhere between. There was no evidence to show that any of the servants of the Company stole the goods. We are asked, however, to infer, from the fact that no better precaution was taken than the tying up of the doors of a wagon with a piece of string, that the Companies were guilty of "wilful neglect" within the meaning of Risk Note Form B.
19. "Neglect," according to the ordinary meaning of the word (see Webster's New International Dictionary'), means omission of proper attention; 'avoidance or disregard of duty from heedlessness, indifference or wilful failure to do, use or heed anything'. 'Wilful,' according to the same authority, means 'self-determined', voluntary' or intentional. Ordinarily, therefore, 'neglect' would imply a negative conduct. When the word 'wilful' is added to 'neglect,' the implication would be that the party guilty of 'wilful neglect' committed to take proper precaution, in spite of having warnings that he should take proper precautions.
20. It has been urged that thefts from goods wagons have been so frequent that the Court should take judicial notice of the fact. And having taken judicial notice of the fact, the Court is called upon to infer that there has been a wilful neglect' on the part of the Companies. I am not aware of a single case in which judicial notice has been taken of constant thefts occurring from goods wagons. Nor am I aware of any case, in which, from the mere fact that the doors of the goods wagons have been tied with nothing better than pieces of strings, 'wilful negligence' on the part of the Railways has been inferred. Indeed, in the case of E.I.R, Co. v. Nathmall AIR 1917 All 338 a Division Bench of this Court refused to draw an inference of 'wilful negligence' from a similar method adopted for securing the doors of a goods wagon. In the case of B. & N.W.R. v. Haji Mutsaddi (1910) 7 ALJ 833 and B. & N.W.R. v. Firm Manorath Bhagat AIR 1925 All 172, there was the additional evidence that constant thefts were taking place about the time; and the inference was drawn that the Railway Companies ought to have taken additional care about the safety of the goods, and having failed to take such additional care, were guilty of wilful neglect.' As I read the judgment, nothing was said in the case of Balram Das v. G.I.P. AIR 1925 All 562 from which it can be inferred that mere tying up of the doors of a wagon with a piece of string was held to be a good enough fact, from which alone to draw the inference of 'wilful neglect.' Indeed, the learned Judges in that case did mention the fact that thefts were happening very often.
21. On the findings of the Court below, in my opinion, it is difficult to hold that a case of 'wilful neglect' has been brought home to the defendants. In the result I would dismiss the appeal with costs.
22. As there is no majority of Judges agreeing in a judgment varying or reversing the decree appealed from, the appeal is hereby dismissed with costs including Counsel's fees in this Court on the highest scale.