This suit was filed by the plaintiff, a well-to-do muccadam of certain mills in Bombay, to recover damages from the defendant Railway Company in respect of injuries sustained by reason of their negligence.   The plaintiff was a passenger on a G.I.P. Railway train which left Victoria Terminus at 6-15 p.m. (local time) and arrived at Sion station at about 6-52 p.m. on 30th March 1903.   When the train stopped at Sion, according to the plaintiff, the compartment in which he was travelling overshot the platform and was brought up alongside the slope or ramp of the platform, which was about 2 ?  feet below the level of the platform.   It was quite dark, with the result that the plaintiff stepping out of his compartment in the expectation of alighting on the level platform, missed his footing and fell heavily on the slope, seriously injuring his leg; and he claimed damages from the Railway Company for the injury suffered by him, due to the negligence of the defendant Company.   The defendants traversed the plaintiff's allegations in toto.  They denied negligence and alleged that plaintiff himself was responsible for the accident.  In the written statement the defendants pleaded that the plaintiff's compartment did not overshoot but was drawn up alongside the platform proper.   Further, that the plaintiff having safely alighted on the platform proceeded to walk down the slope with a view to cross the line; and that in walking down the slope, he met with the fall by which he was injured.  They also denied that there was insufficient light on the station; and they disputed the amount of damages.  The suit was tried by Mr. Justice Tyabji who held that the accident was caused in the manner alleged by the plaintiff; that the scene of the accident was in complete darkness, and that the railway Company were in consequence liable for negligence.   He awarded the plaintiff Rs. 24,000 by way of damages, under different heads-Rs. 4,000 for medical charges, Rs. 5,000 for physical pain and suffering, and Rs. 15,000 for past and prospective loss of income.
 

Mr. Justice Tyabji's judgment was delivered on 14th July 1904.   Thereafter, the agents of the three mills of which the plaintiff was Muccadam wrote to the railway company that, having had their attention drawn to the judgment, they had to state that the plaintiff was dismissed from service as Muccadam of the mills in the beginning of January 1904, for reasons not connected with the alleged accident.   On receiving this information the defendants applied for a review of the judgment and a rule nisi was granted; but later the rule was discharged with costs.

The defendants appealed.  The appeal came up before Sir Lawrence Jenkins C.J. and Mr. Justice Batchelor.  The Appeal Court was of the view that the further evidence which defendants desired to produce should be allowed; and the evidence was accordingly recorded by the Appeal Court. The result of this evidence was that a serious doubt was thrown upon the credibility of the plaintiff's evidence.  The plaintiff adhered to his evidence in the lower court.  Mr. Justice Batchelor, who recorded the additional evidence before the Appeal Court, remarked that the plaintiff's demeanour in the witness box was shuffling and prevaricating; and the court entirely disbelieved the plaintiff's story that his loss of employment was connected with his accident at Sion station.   In his very lucid judgment, Mr. Justice Batchelor referred to the conflict of the evidence as regards the conditions at Sion station at the time of the accident and the manner in which the plaintiff met with the accident.   After taking this additional evidence and considering all the evidence given on behalf of the parties in the trial court, the Judge observed that on the consideration of the evidence on both sides, he felt bound to adopt, on this part of the case, the same conclusions as were arrived at by Mr. Justice Tyabji, viz., (i) that the plaintiff's carriage did overshoot the level portion of the platform and was drawn up alongside the slope; and (ii) that the plaintiff's injuries were received by a shock or fall on alighting, and not by a fall after he had alighted.   Having agreed with the trial court so far, the Judge proceeded to consider the necessary ingredients of liability for negligence in a case of this nature; and on the authority of several English cases, he ruled that, in order to establish negligence arising from "invitation to alight" against the Railway Company, it is not sufficient to prove that the carriage in which the plaintiff was travelling overshot the level portion of the platform and was drawn up alongside the slope, and that the plaintiff's injuries were received by shock or fall on alighting; but the plaintiff must further show that the situation in which he was placed by the invitation to alight at the particular spot, exposed him to danger which was not visible and apparent, and that he was invited to alight in an unsafe and improper place.   Mere overshooting is not necessarily or by itself negligence.   There must be on the part of the defendants some further act or omission which exposes the passenger to a danger not visible or apparent.   In other words, such a danger as a passenger of ordinary caution could not reasonably be expected to avoid.   In the opinion of the Appeal Court, the whole question turned upon whether there was sufficient light at the time, by which the plaintiff could see that his carriage had not stopped on the level portion of the platform but alongside the slope.   Plaintiff's case was that at the time when the train stopped and he was invited to alight, it was completely dark, and so he could not see that his carriage was not alongside the level portion of the platform.

The defendants denied  this and said that there was sufficient light.   Mr. Justice Tyabji had relied upon the almanac to ascertain the condition of light on the particular day at the time of the accident.  The Appeal Court judges were not satisfied as regards the sufficiency of an inference drawn from the almanac.   Consequently, before the Appeal Court it was suggested that the Judges should visit the scene of the accident under conditions approximating as closely as possible to those which prevailed when the plaintiff met with his injuries.   These suggestions were welcomed by counsel on both sides; and curiously enough the Appeal Court resolved to adopt this novel procedure.

After communicating with the observatory, it was agreed that on the evening of the 8th December, at 40 minutes after sunset, the conditions now in question would be as nearly as possible exactly reproduced.   Accordingly, at that time the judges along with the legal advisers of both parties visited Sion station; and as a result of their own observation of conditions of light at the station on 8th December 1904, the judges were of the opinion that the piaintiff's accident must be attributed to his own carelessness; and that the defendants could not be held liable for negligence.   In the light of their own observations, the Appeal Court held that it was noticeable that twilight had by no means completely ceased, so that the plaintiff's allegation that it was pitch dark must be rejected as untrue.   In their opinion, a passenger of ordinary carefulness would have no difficulty in alighting safely even though he had nothing but the twilight to guide him; but in fact there was a far better light, viz., the light from the lamps in the carriage in the neighbouring compartments of the train.

For these reasons the Appeal Court allowed the appeal, the decree of the lower court was reversed and the plaintiff's suit was dismissed.

The plaintiff, Kessowji Issur, appealed to the Privy Council.   In the opinion of Their Lordships of the Privy Council, the procedure adopted by the Appeal Court was unprecedented and wholly unjustified; and they made strong strictures upon the validity of a suit being decided in such a novel manner.   They reversed the decision of the Appeal Court, and restored the decree of Mr. Justice Tyabji, describing his judgment as " excellent."

It is rather amazing that a judge of the calibre and experience of Sir Lawrence Jenkins should have been led into an error of procedure of this nature.   If the Appeal Court was of the view that the evidence as regards the condition of light on the station at the time of the accident on which Mr. Justice Tyabji relied was unsafe, the kind of testimony on which the Appeal Court relied was still more dubious.   Mr. Justice Tyabji relied upon the almanac to determine the time of sunset on the day of the accident, and the duration of twilight after sunset.   The Appeal Court attempted to recreate artificially on 8th December 1904 the conditions of light and twilight as at the date of the accident, i.e. on 30th March 1903, when there was a complete change of season and conditions of light; and they relied upon testimony much more problematic than the testimony on which the trial court had relied, namely, the opinion of the Colaba Observatory that on the 8th of December 1904 at a particular hour, the condition of light would approximate the condition of light as on 30th March 1903.   It is not clear from the report in whose fertile brain this idea of re-enacting the scene of the accident first arose.   It was apparently suggested by somebody, and strangely enough, it was enthusiastically embraced by all parties including the judges.   It appears, however, from certain observations made by the Judicial Committee that it was the judges of the Appeal Court who suo motu suggested the visit to the scene of the accident.

The judgment o£ the Privy Council reveals some amazing irregularities in the procedure adopted by the Appeal Court. Their Lordships observed that the Appellate Bench of the Bombay High Court, without giving any reasons, granted the application of the Railway Company for leading further evidence on the issue that Kessowji had lost employment with some of his employers, not on account of the accident, but on account of illegal charges.   Earlier, at the conclusion of the trial, the trial judge had dismissed a similar application.   The Appeal Court had no jurisdiction to reverse the refusal of Tyabji J., as an appeal from such a decision was excluded by the Civil Procedure Code.   Referring to the following remark of the Judges in appeal:  "On the case coming up in appeal, it appeared to us desirable that the further inquiry invited should be undertaken, "Their Lordships said that the further evidence was ordered not after the appeal on the merits had been heard, and the evidence as it stood had been examined by the judges, but on a special and preliminary application.  The Appeal Court had no jurisdiction to admit this evidence, for it was wrongly admitted and did not form part o£ the evidence in appeal.
 

The Privy Council then referred to another aspect of what happened in the Appeal Court, and which they termed as "an unprecedented chapter in appellate procedure".   The Appeal Court had thought that the crux of the case was the question of the light.   On this the Privy Council said that the darkness which in fact prevailed was praved by a piece of oral evidence  to which sufficient weight had not been given; namely, that when it became known that a man was lying hurt, lights had to be brought from the station.   The Appeal Court however suo motu suggested a visit to the scene of the accident, under conditions approximating as closely as possible to those that prevailed when the plaintiff met with his injuries.  The judges then paid a visit to the station and came to their own conclusion as regards the light.   " The practical result was that the appeal was allowed and the suit dismissed, the case being decided not On the testimony given at the trial as to what took place on the night of the accident, but by the judges' observation of what they saw on another night altogether."   Their Lordships found it impossible to admit the legitimacy of such procedure, or the soundness of such conclusions.   Even if the question of light could be isolated from the rest of the case, there was no ground whatever far despairing of sound results being yielded by a careful analysis of the evidence on record; and, in fact, this was demonstrated by the excellent judgment of the trial Judge.   On the other hand, the method actually adapted is subject to most palpable objections and fallacies. ".   Their Lordships do not approve of such a suggestion; but even if it had been tentatively carried out, it did not necessarily follow that the court would cast to the winds the legal evidence in the case, and decide on impressions arising on the concerted representation.   It would be too strict to hold that it is the duty of counsel, at their peril, to restrain judges within the cursus curice, and to insist, on their abstaining from experiments, which to some may prove too alluring to admit of adherence to legal media concludendi".