line. The plaintiff(S) case further implied that engine of Itarsi passenger 390 was overspeeding, travelling without headlights and that it did not honk while approaching the railway line. The plaintiff(s) case solely held the Indian Railways (Defendant) liable for the collision and seeked for Damages.

Defendant’s Case: The Defendant in this case (Indian Railways) contested against the same. According to the defendant’s case, The engine of Itarsi passenger number 390 had a light which was visible to delivery truck number UP C 4782,The engine honked loud enough whilst it approach the crossing to be heard by the delivery truck. The Defendant’s case also stated that the gateman was on the duty. According to the defendant, the railway crossing line has two entry/exit points. When it came to gateman’s conscious mind that the train was approaching, the gateman attempted to close the gate at the exit point, but as soon as the gateman realised that the truck entered the railway line crossing, the gateman opened the gate as he was aware of the fact by now that the truck entered the railway crossing line and was in danger from Itarsi passenger number 390.The gateman tried his best in his capacity to push the vehicle back, but the truck did not go back, hence the accident took place .The defendant’s claim was that it was not liable for damages to the plaintiff.

The Judgement :Considering all valid evidence,(Evidence implied that Engine had lights , it did honk before it reached the crossing, The engine was not travelling at an excessive speed and that the driver of the truck should have been aware of the engine passing the railway line and that it should not have entered the crossing. It also found out that the gateman was on duty.

Discussion: As per the judgement passed by the court, it can be clearly observed that the Court did take into consideration of the “foreseeability factor” while establishing it with negligence. The fact that the passing of engine of Itarsi passenger 390 was clearly visible to the driver ,and that the engine had its lights on, travelled at ordinary speed and honked, implied that It was an foreseeable happening that the engine was approaching and that driver should have reversed its vehicle, which it did not do despite a strong signal from the gateman. However, it was determined in the Allahabad case of Daya Shanker v. B.B&C.I Railway (AIR 1931 All 744) that a person who discovers a level crossing's gates open and is subsequently misled into believing the line is safe for crossing is not required to exercise minute caution and that the company must compensate him if he is run over by a train, even though he did not use his faculties as clearly as he might have under other circumstances. But in this instance, human discretion and foreseeability are not considered as factors leading to negligence.

Facts of the case: The plaintiff was in route to Cawnpore after leaving a fair held at Bithur in the Cawnpore district. Within a short distance of the Bithur Railway Station, the plaintiff was required to cross the railroad tracks. There was a set of open gates that allowed the plaintiff to cross the railroad line. As the plaintiff approached the tracks at a reasonable pace of approximately 7 miles per hour, a train engine coming from the direction of the railway station at Bithur struck and broke his bike.

Initial Judgement: After hearing the defendant's defence, the judge ruled that the plaintiff was guilty of contributory negligence, as it was the plaintiff's responsibility to exercise caution when approaching the gate and to check to see if a train or engine was passing.

Second appeal: The plaintiff demanded 1,300 Rupees in damages from the Bombay, Baroda, and Central India Railway Company. In the initial appeal, the plaintiff demanded 1200 rupees but as the intial plea got dismissed, the plaintiff demanded 1300.

Contention by the plaintiff: It had been argued in this court that the learned Subordinate Judge formed an incorrect conclusion from the evidence and that there was no contributory negligence. The plaintiff further contested that one cannot just carelessly damage others without consequence, nor can they put them in a worse situation than what they presently are. One also shouldn't put a man in a situation where they face risk or loss on all sides and then claim that their miscalculation caused the man problems. One also cannot claim that the man failed to anticipate and guard against the defendant’s carelessness.

The Judgement: The court was in favour of the plaintiff as the court found out that the case did not quite fulfil the criteria for a contributary negligence case and that the subordinate judge Subordinate Judge had drawn a wrong inference from the facts and were in favour of the principle laid down by the plaintiff. The plaintiff was awarded 1300 rupees as compensation.

This case is a follow up case in reference to the Gopi Mohan Singh vs Bengal Provincial Railway where the plaintiff, Gopi Mohan Singh was awarded damages when he attempted to cross a railway crossing when the gates were open and a train while passing the gate caused damage to the Gopi Mohan’s cart. The defendant ( Bengal Provincial Railway Co) attempted to prove that there was contributory negligence on the part of the plaintiff and the defendant both and that that should be taken into account while deciding on awarding damages and the loss of property not only on the side of the plaintiff is to be considered but also of the defendant. However the court dismissed this plea on the grounds that the court found that there was a gate at the level-crossing where the accident occurred, and it was left open. Thus, there was an invitation to all comers to cross the line, as well as an indication that it could be crossed safely. As a result, there is ample evidence against the defendant Company's negligence finding, which cannot be overturned. The court also stated that the level of proven negligence to the satisfaction of the lower Appellate Court that justify that finding are enough to substantiate the point of this case not being a case of contributory negligence from the point of fault of the plaintiff to the satisfaction of that Court.

There has been different instances in how foreseeability is perceived in negligence law with respect to the Indian Judicial system, this can be substantiated with the reference of the two case laws discussed above, Daya Shankar vs B.B and C.J. Ry .Co, 24 April, 1931 and Mata Prasad And Ors. vs Union Of India (Uoi) on 7 December, 1977. It can be observed that in the former case of Daya Shankar vs B.B and C.J. Ry .Co dated 24 April 1931, ruled out the possibility of contributory negligence based on some parameters like one cannot question the plaintiff on the ground of why did they not anticipate the defendant’s action and take action. The court also took note that the degree of a negligence being such high which causes injury cannot be directly linked to the action of the plaintiff of entering the railway crossing which was open, and term it to be contributary in nature. Even in the case of Bengal Provincial Railway Co vs. Gopi Mohan Singh (1913) it is observed how the court rejected the defendant’s plea of helding the plaintiff accountable too and to get away from paying damages to the plaintiff on the grounds of contributory negligence. However some years down the line in the case of Mata Prasad And Ors. vs Union Of India (Uoi) on 7 December, 1977 it can be noted that even though the facts of the case being quite similar, and despite some important facts like presence of gatemen, gates being opened, the plaintiffs were not awarded damages as the court was of the opinion that the train was travelling at a reasonably slow speed for the plaintiff’s to see the slow train passing and that train honked before reaching the crossing point, and implied that this event was a very much foreseeable one and that the driver should have reversed the vehicle to avoid the accident. It is interesting to note how the court did not consider the factor which was considered in the case of Daya Shankar vs B.B and C.J. Ry .Co dated 24 April 1931 being the high degree of negligence which could have been given more importance which caused loss of lives and that One cannot claim that the man failed to anticipate and guard against the defendant’s carelessness. The prior notion of foreseeability in the cases was to held the defendant liable even if the plaintiff crossed the railway line seeing the gate open as it invited them to believe that the line was crossable at that time. However in the later case of 1977, the court believed that the accident could have been avoided if the plaintiff would not have crossed the line considering factors like honking of the train, slow speed of the train. But however this adds on to a totally different angle too. The angle of “Master being held liable for wrongdoing of their servant” can be considered as evidence proved that there was a gateman present, who eventually opened the gates in thinking that the vehicle maybe able to cross the railway line, however it could not. If it was foreseeable to the gateman that the train is arriving why did he open the gates to the vehicle? The researcher believes that there has beena shift in application of foreseeability over the years in negligence law as in the earlier cases, there was more focus on the wrongdoings of the defendant and that the mistake of the plaintiff was not to be held liable as the magnitude of the negligence on the part of the defendant was far more. However in the case of 1977, The court came to a conclusion that it was negligence on the part of the plaintiff for not anticipating the accident. This thus can be concluded that there has been a shift when it comes to application of foreseeability in negligence law or it can be argued that the case of 1977 was just an exception.