Judgement Appeal from a decree of the High Court; (December 23, 1904), reversing a decree of Tyabji J. (July 14, 1904). The action was brought to recover damages for injuries to the plaintiff under the circumstances stated Law. Rep. 34 Ind. App. 115 ( 1906- 1907) Kessowji Issur V. Great Indian Peninsula Railway Company 35 in their Lordships judgment. The negligence complained of was that the compartment in which the plaintiff was travelling overshot the platform and was drawn up opposite to the foot of a slope where the lighting was insufficient. The defendants traversed the allegation that the compartment in question was drawn up opposite to the slope, and asserted that it was drawn up opposite to the platform itself, and, after traversing the allegation that there was insufficient light on the slope, alleged that the plaintiff was well acquainted with the station and the slope, and that his injuries were caused by his own negligence and carelessness, and could have been avoided by the exercise of ordinary care and caution on his part. The findings on the evidence as to negligence are thus stated by Tyabji J. — " The conclusions of fact at which I have arrived from a review of the evidence are that (1.) This second-class carriage in which the plaintiff was travelling had overshot the platform ; (2.) that this second-class carriage stood opposite the slope of the platform ; (8.) that it was dark; (4.) that the purpose of the defendants, their intention, their avowed object, and their instructions to their servants were to draw up the train at the platform—that although, as the witnesses state, the trains did now and then overshoot the platform, they were usually at the platform; (6.) that the plaintiff, who had constantly travelled by this train between Victoria terminus and the Sion Station, had in his own experience never known the train to overshoot the platform, but he always got down on to the platform from his carriage; (7.) and that no warning of any kind was given to the plaintiff, and he was not in any manner made aware that his carriage was not opposite the platform as usual, but was opposite the slope. “I say it was dark, because the train arrived at Sion at about 53 or 54 minutes past 6. “I say it was dark, because the train arrived at Sion at about 53 or 54 minutes past 6. On that day the sun set at 6.12 or 6.13, and the twilight lasted 38 minutes; therefore, the daylight had ceased at 6.13, and the reflected twilight had ceased at about 6.51. And this accident took place at about 6.54; that is to say, after all light from the sun had entirely disappeared. " As regards the artificial light, there were four lamps; but they were at great distances from each other. They did not throw sufficient light, even on to the platform; but if they did, none of them threw any light on this particular slope, where I hold it proved that the plaintiff fell. " This slope (the highest point of it is three feet above the ground) is about sixteen feet in length, and it is obvious that, if there is not sufficient light for a man to see exactly where he is alighting, and if he imagines that his carriage is drawn up at the platform as usual, it is obvious, I say, that he can sustain these injuries without any neglect or default on his own part. "And I, therefore, hold that the defendant company was negligent in drawing up this carriage at the slope, in not providing sufficient light to the plaintiff to see that it was drawn up at one slope and not at the platform, and in not cautioning him in any way that he was to use more than the usual amount of care that the law demands from the passengers by these railways." The appellate Court, on the application of the defendants under s. 568 of the Civil Procedure Code, ordered that further evidence should be taken without recording any reasons for so doing. It found that the appellants carriage did overshoot the level of the platform and was drawn up alongside the slope; and that the appellants injuries were received by a shock or fall on alighting, and not by a fall after he had alighted. It was not disputed that the stoppage of the train was under the circumstances an invitation to alight. It was not disputed that the stoppage of the train was under the circumstances an invitation to alight. The judges of the Court of Appeal went to Sion Station under conditions intended to represent those existing at the time of the accident, and came to the conclusion that the twilight had not ceased, and that the lamps of the train afforded sufficient light to enable the appellant to have Law. Rep. 34 Ind. App. 115 ( 1906- 1907) Kessowji Issur V. Great Indian Peninsula Railway Company 36 alighted safely. The Court of Appeal therefore decided that there was no concealed danger and no negligence on the part of the company, and accordingly dismissed the suit. Cohen, K.C., and De Gruyther, for the appellant, contended that the evidence supported the judgment of Tyabji J. The High Court erred in admitting fresh evidence. They referred to ss. 568 and 623 of the Civil Procedure Code. The evidence ought not to have been admitted—was it not required within the meaning of s. 568—and no reasons for its admission were recorded as required by s. 568. There was therefore no jurisdiction to admit it, and findings based thereon should be excluded. To admit fresh evidence the defendants must shew that after the exercise of due diligence it was not within their knowledge or capable of being produced at the trial. This was finally decided against them on an application for review. The evidence of the witnesses who saw the accident on March 30, 1903, as to the condition of the light, natural and artificial, at the time is the only legal evidence on which the Court should act. As for the visit of the High Court judges to the scene of the accident on December 8, 1904, that might be regular If they wished to visit the locality or scene where the accident took place, but it was irregular if it was to assist at a presentation or rehearsal of the occurrences on the assumption, correct or otherwise, that on that day the natural light was the same as on March 80. The result of this so-called local investigation could not be allowed to supersede the legal evidence of actual occurrences given at the trial, by which alone the judgment of the Court should have been guided. They referred to Bridges v. North London Ry. Co. The result of this so-called local investigation could not be allowed to supersede the legal evidence of actual occurrences given at the trial, by which alone the judgment of the Court should have been guided. They referred to Bridges v. North London Ry. Co. (( 1874) L. R. 7 H. L. 213.) ; London and North Western Ry. Co. v. Walker. ([ 1903] A. C. 289.) Sir R. Finlay, K.C., and Tyrrell Paine, for the respondents, contended that the judges of the High Court had discussed with counsel their projected visit to the scene of the accident, and it was with the consent of both sides that they did so under conditions which were ascertained to approximate as nearly as possible to those existing at the time of the occurrence. They were entitled in their discretion, having regard to the words in s. 568, " for any substantial cause," and under the circumstances, to admit the evidence on which they acted. Notwithstanding the refusal of the application to review, the Court had the jurisdiction which they exercised under ss. 623 and 629 of the Civil Procedure Code. They were right, it was contended, in coming to the conclusion that there was sufficient light, both natural and artificial, to have enabled the plaintiff to leave the train with safety if he had used due care. Also in finding that the circumstances did not prove any negligence on the part of the company. And the course taken by the parties through their counsel leaving the matter in the hands of the Court for a local inspection amounted to a submission to their arbitration and precluded an appeal. There was no suggestion at the time that the degree of light at the local investigation was in any way different from what it was on the day of the accident. Cohen, K.C., replied. The judgment of their Lordships was delivered by LORD ROBERTSON. The appellant was plaintiff in a suit against the respondents for damages for personal injuries lleged to have been sustained through their negligence. Cohen, K.C., replied. The judgment of their Lordships was delivered by LORD ROBERTSON. The appellant was plaintiff in a suit against the respondents for damages for personal injuries lleged to have been sustained through their negligence. He was a passenger in a train of theirs from Bombay to Sion Station, and his case was that, on the evening in question, the train overshot the platform at Sion and the passengers, on the implied invitation of the respondents, alighted where the train stopped; that at this place it was dark and there were no lamps; that no warning was given to the appellant that the train had passed the platform or that special care must be taken in descending; that the appellant fell heavily, and was seriously injured, and for long disabled from business. There was no dispute as to the nature of the injuries. The case went to trial, the respondents denying liability ; evidence was led at great length and the trial Law. Rep. 34 Ind. App. 115 ( 1906- 1907) Kessowji Issur V. Great Indian Peninsula Railway Company 37 lasted ten days. The result was that the learned judge who tried the case gave the appellant Rs. 24,000; and it is sufficient at present to say that the judgment presents a careful and complete analysis of the evidence. Cases of overshooting the platform and resulting accidents to passengers have so frequently been tried and considered that no question of law arises for determination. The present case is only remarkable because the respondents (in the teeth of the written report of the Sion stationmaster, made the day after the accident, that the train had overshot the platform) maintained at the trial and adduced witnesses, including this very stationmaster, to prove the contrary and that the passengers duly alighted at the platform. This fatal course was really to give away the case; it was proved to the satisfaction, even of the appellate Court, that the train did overshoot; and the respondents, by this perverse attitude, were disabled from maintaining any intelligible theory as to the conditions under which the passengers actually alighted. They could not pretend that the passengers were warned to take care, and all their evidence as to lamps applied to a place where the accident did not happen. They could not pretend that the passengers were warned to take care, and all their evidence as to lamps applied to a place where the accident did not happen. It may be noted in passing that the darkness which in fact prevailed is proved by a piece of real evidence to which sufficient weight has not been given, viz., that when it became known that a man was lying hurt, lights were brought from the station. From the description of the case now given, it is clear that the case was a commonplace and plainsailing one and required no deus ex machina, and that it was very deliberately investigated. Its subsequent course, however, was destined to be untoward. Fourteen days after the judgment of Tyabji J. the respondents applied to him for a review of his judgment, on the ground that, since the trial, there had come to the respondents knowledge new and important evidence which was, in short, that one of the employers of the appellant said that the appellant had lost the employment of the informants firm owing to causes unconnected with the accident, whereas in evidence the appellant had ascribed this loss to the accident. Now the Code of Civil Procedure permits such applications for review on the ground of such discovery, but it exacts very strict conditions so as to prevent litigants lying on their oars when they ought to be looking for evidence—it enjoins the judge to require the facts as to the absence of negligence to be strictly proved; and it makes the judge who tried the case final on such applications. The remedy is allowed (s. 623) to "any person considering himself aggrieved .... who from the discovery of new and important matter or evidence, which, after the exercise of due diligence, was not within his knowledge, or could not be produced by him at the time when the decree was passed .... or for any other sufficient reason." And, by s. 626, "no such application shall be granted on the ground of discovery of new matter .... without strict proof of such allegation." In the present instance the judge refused the application, and it is manifest that the circumstances rendered it inadmissible. The appellant had in his plaint described himself as muqaddam Generally the headman of a village, but in Guzarat " commonly the name of a supervisor " (Wilson). without strict proof of such allegation." In the present instance the judge refused the application, and it is manifest that the circumstances rendered it inadmissible. The appellant had in his plaint described himself as muqaddam Generally the headman of a village, but in Guzarat " commonly the name of a supervisor " (Wilson). of several mill companies; there was no doubt of his identity and as to his employment; in the witness-box he was explicit and even copious as to his loss of the agencies in question, to such an extent that the respondents objected to some of his books being produced; he was cross-examined on the subject, and this took place on June 17, 1904, the first day of a trial which did not conclude till July 2, 1904, and took place at Bombay, the scene of the transactions in question. It is obvious that if the respondents had desired to inform themselves before or even during the trial as to this mans loss of business, all they had to do was to step round and see his employers; and it would be pessimi exempli if provisions for review were perverted to supply such omissions. Law. Rep. 34 Ind. App. 115 ( 1906- 1907) Kessowji Issur V. Great Indian Peninsula Railway Company 38 After their failure to get review the respondents appealed to the appellate Court on the whole case; and the 25th reason of appeal was that they should be given the opportunity of adducing further evidence, which had been refused by Tyabji J. on their application for review. Having got into the appellate Court the respondents gave notice of an application for permission to examine the man Wadia, whose information had founded the application to Tyabji J., and this application was supported by affidavit, just as in the Court below. The appellate Court heard the application, and on September 30, 1904, granted it, or rather, with greater latitude, ordered that " further evidence" be taken; and taken it was, before one of the appellate judges, not merely Wadia, about whom the application was made, but several other witnesses being examined for the respondents, and the appellant being examined for himself. Now at this stage the question is, Under what jurisdiction was this fresh evidence taken by the appellate Court? Now at this stage the question is, Under what jurisdiction was this fresh evidence taken by the appellate Court? They had, as has been noticed, no jurisdiction to reverse the refusal of Tyabji J., appeal from his decision being excluded by statute. Sect. 568 of the Code of Civil Procedure can alone be looked to for sanction of this proceeding; but when its terms are examined they will be found inapplicable. The part of the section which alone is colourably relevant is "If the appellate Court requires "—which plainly means needs, or finds needful—" any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial reason, the appellate Court may allow such evidence to be produced, or document to be received, or witness to be examined." The section goes on " Whenever additional evidence is admitted by an appellate Court, the Court shall record on its proceedings the reason for such admission." Now this evidence was admitted by the order of September 30, 1904, and that order states no reason for such admission. Prima facie, .therefore, this was not done under s. 568. But, further, the ultimate judgment of the appellate Court puts it beyond doubt that in fact the learned judges were simply reviewing and reversing Tyabji J.s refusal of review, for they frankly narrate that refusal, and go on to say " On the case coming up in appeal it appeared to us desirable that the further inquiry invited should be undertaken." On this phraseology, " in appeal," it must be observed 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 special and preliminary application. This is important, because the legitimate occasion for s. 568 is when, on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, not where a discovery is made, outside the Court, of fresh evidence and the application is made to import it. That is the subject of the separate enactment in s. 623. On these grounds it appears to their Lordships that the appellate Court had no jurisdiction to admit this evidence, that it was wrongly admitted and does not form part of the evidence in this appeal. It must, therefore, be disregarded. That is the subject of the separate enactment in s. 623. On these grounds it appears to their Lordships that the appellate Court had no jurisdiction to admit this evidence, that it was wrongly admitted and does not form part of the evidence in this appeal. It must, therefore, be disregarded. The evidence, however, was necessarily read and commented on; and, in fairness to the appellant, their Lordships think it right to add that they do not agree in the following analysis of it which is taken from the judgment of the appellate Court 11 The result may be stated in a single sentence. There is an end to the possibility of relying upon the plaintiffs testimony." The appeal having been heard on its merits, there ensued what, it may be hoped, is an unprecedented chapter in appellate pro cedure. The Court seems to have adopted the view that the train had overshot the platform, and to have considered that the crux of the case was the question of light, and this question, of course, was a complex one, what light came from the sky and I what from artificial sources—the station lamps having been the artificial light relied on by the respondents. The course taken by the appellate Court had better be described in their own language— Law. Rep. 34 Ind. App. 115 ( 1906- 1907) Kessowji Issur V. Great Indian Peninsula Railway Company 39 "Owing to this difficulty and to the vital importance of settling it with certainty, it was suggested that we 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. This suggestion was welcomed by counsel on both sides, and after communication with the local observa tory it was agreed that on the evening of December 8 at forty minutes after sunset the conditions now in question would be, as nearly as possible, exactly reproduced. At that time, therefore, attended by the legal advisers of both parties, we visited Sion Station, with the result that we are clearly of opinion that the plaintiffs accident must be attributed to his own carelessness and that the company cannot be held liable for negligence. At that time, therefore, attended by the legal advisers of both parties, we visited Sion Station, with the result that we are clearly of opinion that the plaintiffs accident must be attributed to his own carelessness and that the company cannot be held liable for negligence. By the courtesy of the railway company we were provided at Sion with the same carriage in which the plaintiff was travelling on March 30, and we were thus enabled to make a thorough investigation of the material conditions accompanying the accident." The result was that it became manifest to the two learned judges that " a passenger of ordinary carefulness would have had 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, namely, the light from the lamps in the carriage," and " this place was specially and amply lighted from the lamp of the particular compartment." 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 find 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 for despairing of sound results being yielded by a careful analysis of the evidence, and, in fact, this was demonstrated by the excellent judgment of the trial judge. On the other hand, the method actually adopted is subject to the most palpable objections and fallacies. It was suggested by one of the learned counsel for the respondents (in irreconcileable inconsistency with the leading argument) that this proceeding was so remote from regular judicial methods as to constitute an arbitration, and that the result was not appealable. Their Lordships do not think that the appellant is shewn to have done anything to exclude his appeal. In the judgment it is stated that counsel on both sides welcomed the " suggestion," which is thus traced, in its inception, to the bench. Their Lordships do not think that the appellant is shewn to have done anything to exclude his appeal. In the judgment it is stated that counsel on both sides welcomed the " suggestion," which is thus traced, in its inception, to the bench. But the " suggestion" was " that we 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." 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 curiae, and to insist on their abstaining from experiments which to some may prove too alluring to admit of adherence to legal media concludendi. Their Lordships will humbly advise His Majesty that the appeal ought to be allowed, the judgment of the appellate Court reversed with costs, and the judgment of Tyabji J. restored. The respondents will pay the costs of the appeal.