JUDGMENT Gentle, J. - The plaintiff is the proprietor of a carnival fair known as the American Variety Show. The equipment included a merry-go-round which was constructed mainly of wood. The Governor-General of India in Council is the responsible authority for the East Indian Railway, hereinafter called 'The Railway', and is sued as defendant 1 in that capacity. Defendant 2, Captain George Edwards, was associated with the plaintiff in the American Variety Show, his actual position is not clear. Apparently, he was unwilling to be a plaintiff in the suit and in consequence was made a defendant. In the suit and in the appeal he has been treated as if he were the plaintiff's agent and he may be so considered. Some letters passed between Captain Edwards and the North Western Railway which can be treated as having taken place between the plaintiff and the East Indian Railway. Captain Edwards also signed three risk notes, the terms of which will require consideration. 2. The claim is for Rs. 36,738 as the value of the plaintiff's property, including the merry-go-round equipment, which was destroyed by fire whilst it was being carried by the Railway. Ameer Ali J. dismissed the plaintiff's suit against which the present appeal is preferred and the Railway has filed a memorandum of cross-objections against the findings which are in favour of the plaintiff. In April 1938 the Variety Show concluded at Delhi and was due to be at Dehra Dun. Railways provide concession or cheap rates to entertainment undertakings for carriage of property and personnel. On 14th April Captain Edwards applied in writing for concession rates for five wagons and ten members of the Variety Show from Delhi to Dehra Dun. The Railway replied on the same day, granting the application, and on the back of their letter the rates are printed. The material portion is to the effect that luggage and properties accompanying the party will be carried at a rate of eight annas per mile per vehicle when the property is booked in a separate vehicle, and that all luggage, baggage, etc., charged at concession rates will be carried at owner's risk, and reference is made to Risk Note 'B'. 3. On 21st April, Captain Edwards loaded the Variety Show equipment at Delhi. 3. On 21st April, Captain Edwards loaded the Variety Show equipment at Delhi. It was packed in three covered wagons and one open truck, the merry-go-round and other articles being in the open truck, which was covered by a tarpaulin supplied by the railway authority. A sum of S3. 420 was paid for the transport charges. The personnel included the plaintiff and Captain Edwards, and two first class tickets and six second class tickets at half the ordinary rate and four inter class tickets were issued for the party travelling. The inter class tickets were charged at the rates payable in respect of third class mail fare. The truck and wagons were attached to the rear of No. 33 up duplicate passenger train in which the members of the party travelled, and left Delhi at 11 P. M. The next day, 22nd April, at about 11 A. M. the train arrived at Hardwar from where the members of the party continued the journey in the same or in some other passenger train to Dehra Dun. The truck and wagons were detached and were recoupled to an 18 wagon goods train, the open truck being next to the engine and the three covered wagons immediately behind the truck. The goods train left Hardwar at 1-25 P. M. About an hour later the open truck was seen to be on fire near Doiwalla. The train was stopped on a bridge passing over a river. Attempts were made to extinguish the fire without success. About 5 o'clock the truck was detached and drawn by an engine to Doiwalla where the fire was finally extinguished at about 11 o'clock at night. Everything in the truck, which was made of wood, was completely destroyed. The load included 200 tin sheets and some other metal articles which doubtless comprised the salvage subsequently sold for Rs. 267. 4. In his first report to the railway, the Station Master of Doiwalla gave as the nature and cause of the accident "fire due to spark of engine." Subsequent reports by the Station Master, and by the Guard and the Driver of the train, state that a tin was found containing enough petrol (one report states 'K' or kerosene) which caused the fire. In the written statement it is alleged that the fire was caused by the negligence or the contributory negligence of the plaintiff by placing petrol among the articles packed in the truck. The Station Master, the Guard and the Driver were not called to support the story which they had included in their reports. If there had been a tin containing petrol or kerosene in the truck, assuredly the contents would have been consumed. It was not suggested to Captain Edwards nor to the plaintiff in cross-examination that a tin containing petrol or other inflammable liquid was packed in the truck. The written statement also contains an allegation that a "Custer" car, which is a small engined vehicle used in connection with the variety show, contained petrol when packed in the truck. The plaintiff denied this in examination-in-chief and he was not cross-examined about it, nor was any question about it put to Captain Edwards when he was under cross-examination. There is no evidence that the car contained petrol, and, in my view, it clearly did not do so. There is no substance in the suggestions regarding petrol or paraffin, either in a tin or in a "Custer" car, having been packed in the truck. A suggestion was made on behalf of the railway that the cause of the fire was bad packing of the contents by the plaintiff's employees and that some loose metal objects were placed in the truck which were oscillated during the journey and striking each other caused sparks (which have been called "friction sparks") and these started the fire by coming into contact with the wooden articles in the truck. The only evidence regarding packing was given by the plaintiff in examination-in-chief. He said that corrugated iron sheets were placed at the bottom of the truck, then poles, rods, galleries, stalls and other materials were put on the sheets, and the "Custer" car on the top of the load which was covered by a tarpaulin supplied by the railway. The plaintiff said that at the time of the packing a railway officer was present, who inspected the loading four or five times. The plaintiff was not cross-examined about the packing and it was not suggested either to him or to Capt. Edwards that the truck was not properly packed. The plaintiff said that at the time of the packing a railway officer was present, who inspected the loading four or five times. The plaintiff was not cross-examined about the packing and it was not suggested either to him or to Capt. Edwards that the truck was not properly packed. No evidence was called on behalf of the railway that the truck was wrongly or negligently packed, nor that metal articles, if loosely packed, would create sparks sufficient to set fire to the wooden things in the truck if they rubbed against each other during the journey. Further, the evidence of the plaintiff that a railway official inspected the loading was not contradicted, and there is no reason why it should not be accepted. The inspections must have been for the purpose of seeing the truck was properly packed, and if this was being done in an improper manner, exception would have been taken to it. The suggestion that the truck was not correctly packed and that fire was caused by friction sparks due to defective packing is no more than the outcome of vivid imagination. 5. The cause of this fire, as in the case of many fires, must be a matter of some conjecture, since no one, as far as the evidence goes, saw the commencement of the outbreak. The learned trial Judge expressed the view that it is a reasonable inference to draw from the facts that fire was caused by a spark from the engine. This cause was given by the station master in his first report to the railway. The admissibility of the whole of this report as evidence may be doubtful. The station master was not present until the truck load was well alight, and he does not say whether the cause which he gave was his inference or opinion or whether he was informed of it by some one else. The admissibility of the whole of this report as evidence may be doubtful. The station master was not present until the truck load was well alight, and he does not say whether the cause which he gave was his inference or opinion or whether he was informed of it by some one else. In (1886) 10 P. D. 137 The Solway (1886) 10 P. D. 137 : 54 L. J. P. 83 : 53 L. T. 680 : 34 W.R. 282, the report of a shipping disaster by the master of a ship to his owners was made in the course of his duties, and the statements in it were held to be admissible so far as they related to what the report stated the master saw and did and what orders he gave, but not any opinion which he expressed in it. The report of the station master was clearly made in the course of his duty and no objection is taken to the statements in it relative to what he saw and did. If he was told by a third person that a fire was caused by an engine spark, then the statement in the report is no more than hear-say, and again if the statement is the result of his own inference, it amounts no more than to his opinion. 6. There was one other suggestion made on behalf of the railway, during the hearing of the appeal, as to the cause of the fire, namely, that it might have been a spark from a source other than from the engine. There was no evidence at all that the engine passed any spot from where a spark could blow into the truck. In my view this suggestion can be dismissed. 7. As is not surprising to find, since no evidence was called by the railway or indeed by the plaintiff regarding sparks being emitted from engines, the learned Judge desired to have some information upon this question. Mr. A. H. Baker an official in the service of the railway, was made a court witness by the learned trial Judge. His evidence did not expressly relate to the cause of the fire to the plaintiff's goods, but was more general regarding sparks which are emitted from railway engines. The substance of his testimony so far as it concerns this case is as follows : 8. His evidence did not expressly relate to the cause of the fire to the plaintiff's goods, but was more general regarding sparks which are emitted from railway engines. The substance of his testimony so far as it concerns this case is as follows : 8. There are certain inclinations of the track between Hardwar and Dehra Dun; more sparks emanate when an engine travels up-hill; there is no railway rule or regulation that it is either proper or improper to place an open truck next to an engine in a goods train; timber is not inflammable, (that is, it is easily set alight) but it is combustible, (that is, it is capable of burning); timber is not included in the list of inflammable or dangerous goods, such as dynamite, matches and petrol, which R.134 of the East Indian Railway Manual provides should preferably be placed at the end of a train away from the locomotive; rail sleepers are made of wood and railways do not hear of them catching fire from sparks; the risk from engine sparks is away, that is to say, some distance, from the engine, because they are blown into the air and it takes some time for them to come down; sparks are more likely to affect the fourth or the fifth wagon from the engine; provided sparks could get there the first wagon is the most dangerous; and wagons within fifteen to twenty from the engine are in the danger zone. 9. Now, the suggestion in the reports of the Station Master, the Guard and the Driver that a tin containing petrol, the suggestion that the "Custer" car containing petrol, or the theory that friction sparks or sparks from an unknown and indeterminate source might have been the cause of fire, being suggestions and a theory which have no substance, there is nothing left save that which the plaintiff alleges and has alleged throughout, namely, that the fire was caused by a spark or by sparks emanating from the engine. No other cause can be said to have been reasonably probable. The plaintiff's case throughout has been that the fire was started by engine sparks falling on the open truck. The testimony of Mr. Baker leads to the conclusion that engine sparks could have caused the fire. No other cause can be said to have been reasonably probable. The plaintiff's case throughout has been that the fire was started by engine sparks falling on the open truck. The testimony of Mr. Baker leads to the conclusion that engine sparks could have caused the fire. I agree with the conclusion to which the learned trial Judge arrived that this fire was caused by spark or by sparks emitted by the engine and which fell upon the open truck. 10. The cause of the fire having been established, it is now for consideration whether the Railway is under any liability to the plaintiff in respect of the loss occasioned by his goods being destroyed by the fire. 11. The whole consignment was carried at a rate lower than the usual charges; in respect of the consignment Captain Edwards signed three risk notes on behalf of the plaintiff, the conditions in which formed the terms of the contract or contracts between the parties. These are known as Bisk Notes A, B and C. 12. Risk Note A applies to goods which are either in a bad condition or liable to damage, leakage or wastage or to badly or inadequately packed goods. The risk note in question relates solely to goods in bad condition and/or those liable to damage, leakage and wastage, no reference being made that there were goods inadequately packed. Since there is no evidence and there has been no suggestion that any of the goods which were destroyed by fire covered by risk note "A", in my view reference to it is not called for. 13. Risk Note "B" covers the whole consignment. It provides that in consideration of the goods being carried at a lower charge, the plaintiff agreed and undertook to hold the Railway harmless and free from all responsibility from any loss, destruction or damage to the consignment from any cause whatever except upon proof that such loss, destruction or damage arose from the misconduct on the part of the Railway or its servants. 14. Risk Note "C" relates to goods carried in the open truck, and is a form used when at the sender's request the consignment is packed in an open truck. 14. Risk Note "C" relates to goods carried in the open truck, and is a form used when at the sender's request the consignment is packed in an open truck. It provides that the plaintiff agreed and undertook to hold the Railway harmless and free from all responsibility for any deterioration of or damage to the consignment which might arise by reason of the consignment being conveyed in open wagons during transit. 15. In other words, the whole consignment was carried at the plaintiff's risk, save upon proof of misconduct, and also that part of the consignment which was in the truck was carried entirely at the plaintiff's risk in respect of destruction or damage arising from their being carried in an open wagon. 16. It is first convenient to deal with the questions arising with regard to risk note "C". 17. I desire to point out that, from the terms of the note, it is clear that the goods were carried in the open truck at the plaintiff's request. The consignment note purports to exempt the Railway from all responsibility for any damage to the consignment which might arise by reason of its being conveyed in an open wagon. 18. On behalf of the plaintiff it was argued that risk note "C" does not exempt the Railway from liability for negligence or misconduct inasmuch as no reference is made to such exemption and in order that the Railway should escape liability from the consequences of negligence or misconduct, either of itself or its servants, the risk note should expressly so provide for it. In support of this contention reliance was placed upon two decisions of the Courts in England: (1903) 1 K. B. 750 Price & Co. v. Union Lighterage Co. (1903) 1 K. B. 750 and (1891) 1 Q. B. 619 Steinman & Co. v. Angier Line Limited (1891) 1 Q.B. 619: 60 L. J. Q. B. 425: 64 L.T. 613 : 39 W. R. 392. The substance of these decisions, one in regard to a Railway and the other in regard to a ship, is that in the absence of any express reference to exemption from liability for negligence, misconduct or the like, the Railway and the Ship owners were not exempted when damage was caused by the negligence of the principal's servants. In my view those cases are not in point in the present instance. In my view those cases are not in point in the present instance. By the Common Law of England a Railway and owners of a ship are common carriers. The liability of common carriers, save for exceptions such as King's enemies and acts of God, is that of "Insurers." There is and always has been a reluctance to exempt a common carrier from his ordinary common law liability. 19. If he wishes to exempt himself from his liability then the Courts have held he must do so in terms which allow of no ambiguity, and in the cases to which reference has just been made, the Railway and the Ship owners concerned were common carriers and the contracts which were the subject in each of those cases exempted the carriers from liability but went no further than using words which were somewhat general and did not include negligence or misconduct. In consequence the decisions given were that no liability was exempted in regard to negligence or misconduct. Railways in India are not common carriers; this is made manifest by the provisions of S. 72 (iii) of the Indian Railways Act. They are, therefore, in the same position as carriers in England who are not common carriers but of course, they are subject to special statutory enactments, rules and regulations. It is clear from (1926) 1 K. B. 102 Fagan v. Green and Edwards Ltd. (1926) 1 K. B. 102 : 95 L. J. K. B. 363 : 134 L. T. 191 that a carrier who is not a common carrier, can exempt himself from liability in respect of his servants negligence although not expressly doing so in the terms of the contract. The above case concerns a company whose business was that of furniture removers. Clause (5) of the contract with the owners of goods which were carried provided that it would not under any circumstances be responsible for any article which should exceed the value of 10 and would not under any circumstances be responsible for the contents of chests, boxes and packages unless properly secured. Clause (5) of the contract with the owners of goods which were carried provided that it would not under any circumstances be responsible for any article which should exceed the value of 10 and would not under any circumstances be responsible for the contents of chests, boxes and packages unless properly secured. At page 110, Horridge J. expressed the view that it was clear on the authority of a case to which he referred, that the words "under any circumstances" covered the negligence of the defendants, that is to say, the carrier's servants, and that therefore they were protected although the loss was occasioned by the negligence of the servants. 20. In regard to risk note "C" Mr. Das Gupta contended that loss caused by the negligence or misconduct of the Railway is not excepted by the provisions in the risk note. Railways in India are not liable as common carriers, but they have, as is clear from S 72 of the Railways Act to accept the responsibility placed upon bailees by Ss. 151 and 152 of the Contract Act which require a bailee to take as much care of the goods bailed to him as a man of ordinary prudence would exercise. As I understand it, that makes a bailee liable for negligence or may be for some more serious wrong Risk note "C" must exempt the Railway from some liability. If it did not exempt them, as was contended, against loss occasioned by servants negligence, then I can see nothing which is [covered by risk Note "C." In my view this risk note does exempt the Railway from loss caused by its servants negligence or misconduct but to a limited extent, namely, to loss which may arise by reason of the consignment being carried in the open wagon. It does not exempt them from all responsibility. I will explain this by an example. A train composed of open trucks and covered wagons collides, through the negligence of a servant of the Railway and the whole freight in the train is damaged. It does not exempt them from all responsibility. I will explain this by an example. A train composed of open trucks and covered wagons collides, through the negligence of a servant of the Railway and the whole freight in the train is damaged. In respect of the open trucks the Railway is covered by risk note "C", which, in that case, would not save the Railway from liability inasmuch as it mattered not whether the goods were in an open truck or were in a covered truck; the cause of damage being negligence which is quite distinct from damage occasioned by the goods being packed in open vehicles in which they were carried, and in no way connected with it; in such case the Railway would be liable. The exemption must relate to damage which arises from the goods being carried in an open truck. An example was given during the course of the argument: an engine driver hosing down coal, by his carelessness directs his hose pipe towards the first carriage attached to the engine. If it were an open truck then the goods in it might be damaged. If it were a closed truck no damage would be occasioned to the goods. It would seem that damage to the goods in the open truck, in those circumstances, would arise by their being conveyed in the open truck. It would, therefore, appear that the company would not be liable, although the actual act causing the damage was a negligent one by its servants. 21. In my view, in the present case, risk note "C" does cover the risk. The goods caught fire by reason of a spark or sparks being emitted from the engine and landing in the open truck. Assuming for the moment that there was some negligence, nevertheless if the goods had been in a covered wagon, there would have been no fire. It is because those goods were carried in an open wagon that the fire took place, and the destruction or damage arose out of the goods being conveyed in the open truck. 22. In these circumstances, in my view, the matter comes within risk note "C." The plaintiff agreed with the Railway that he would hold it harmless and free from all responsibility in respect of the destruction. 23. 22. In these circumstances, in my view, the matter comes within risk note "C." The plaintiff agreed with the Railway that he would hold it harmless and free from all responsibility in respect of the destruction. 23. The question which now requires to be considered is whether there was misconduct by the Railway servants and, if so, whether the company is liable in respect of that misconduct. This arises by reference to risk note "B", which as mentioned above, exempts the railway from liability save upon proof that the loss or destruction arose from misconduct of the railway administration or its servants. Some argument has been addressed regarding the difference between the misconduct of the railway and the misconduct of its servants. I do not think that it is necessary to deal with that argument. 24. Learned counsel on behalf of the plaintiff, very properly, conceded that the burden is cast upon the plaintiff to prove misconduct, it is not for the railway to disprove it. In paragraph 4 of the plaint it is alleged the fire was caused by the misconduct of the servants of the railway and paragraph 5 sets out what would seem to be some particulars or details of the misconduct pleaded in the previous paragraph. 25. Negligence and misconduct are both wrong. Is there any difference in degree between an act which is negligent and an act which is misconduct? Negligence is the failure to take that care which an ordinary prudent man would take in the circumstances, and is the omission to do something which such man would do, or in doing some-thing which he would not do. Misconduct is not easy to define. In the Oxford dictionary it is said to be bad management, mis-management, malfeasance and culpable neglect of an official in regard to his office. A considerable number of authorities have been cited during the course of the argument in which a definition or an explanation of what is misconduct appears. I do not propose to refer to all but only to some of them. The opinions expressed in the several decisions are not in accord. In 35 C. W. N. 133 B. N. Ry. Co. v. Moolji Sicka & Co. ('30) 17 A. I. R. 1930 CAL. I do not propose to refer to all but only to some of them. The opinions expressed in the several decisions are not in accord. In 35 C. W. N. 133 B. N. Ry. Co. v. Moolji Sicka & Co. ('30) 17 A. I. R. 1930 CAL. 815 : 58 Cal 585 : 129 I.C. 769 : 35 C. W. N. 133, the meaning was considered of the word "misconduct" in a risk note containing the same or similar language as in risk note "B." Suhrawardy J., with whom Patterson J. agreed, observed at pp. 139-140 as follows : I am inclined to hold that the word 'misconduct' as used in the new risk note 'B' is wide enough to include wrongful commission or omission, intention or unintentional, any act which it wrongfully did or wrongfully neglected to do or, to put it in another way, did what he should not have done and did not do what he should have done. Later he said : In my judgment the word 'misconduct' denotes any unbusinesslike conduct and includes negligence or want of proper care which a bailee is to take under S. 152, Contract Act. In this view there would seem to be no difference in degree between negligence and misconduct and that these words are co-relative and bear the same meaning. In 39 C. W. N. 114 Atul Chandra Sen Vs. Kaunammal and Others, AIR 1935 Cal 271 Mitter J. expressed the opinion that misconduct is more than negligence. In 57 C. L. J. 281 M. & S.M. Ry. Co. Ltd. v. Sunderjee Kalidas ('33) 20 A. I. R. 1933 Cal. 742 : 60 Cal. 996 : 147 I. C. 752: 57 C. L. J. 281 an exhaustive review of the authorities was made and Guha J., at p. 285, expressed the opinion that misconduct is not necessarily established by proving even culpable negligence, it is the intentional doing of something which the doer knows to be wrong or which he does recklessly not caring what the result may be. Bartley and Guha JJ. concurred with this view and adopted this definition in 61 C. L. J. 526 Banwarilal Jagannath v. B. B. & C. I. Ry. Co. Ltd. ('36) 23 A. I. R. 1936 Cal. 24 : 160 I.C. 728: 61 C. L. J 526. Bartley and Guha JJ. concurred with this view and adopted this definition in 61 C. L. J. 526 Banwarilal Jagannath v. B. B. & C. I. Ry. Co. Ltd. ('36) 23 A. I. R. 1936 Cal. 24 : 160 I.C. 728: 61 C. L. J 526. The opinion in the M. & S. M. Railway case ('33) 20 A. I. R. 1933 Cal. 742 : 60 Cal. 996 : 147 I. C. 752: 57 C. L. J. 281 was given after reference was made to several decisions of the English Courts upon risk, or consignment, notes by which the railway was liable only upon proof of wilful misconduct or wilful default. Since the word 'wilful' was absent from the risk note under consideration in the M.& S.M. Railway company case, ('33) 20 A. I. R. 1933 Cal. 742 : 60 Cal. 996 : 147 I. C. 752: 57 C. L. J. 281 and is absent in the risk note in the present case it may be, and probably is, that the view expressed goes too far with regard to the meaning of the word 'misconduct.' In Bengal Nagpur Railway Company, Ltd. Vs. Haji Latif Abdulla, AIR 1937 Cal 410 Jack J. observed at p. 412 that negligence in his view would not always be tantamount to misconduct: which is the view held in (1877) 3 Q. B. D. 195 Lewis v G. W. Ry. Co. Ltd. (1877) 3 Q. B. D. 195 : 47 L.J.Q.B. 131 : 37 L. T. 774 : 26 W. R. 255 in which it was said that misconduct is something opposed to accident or negligence. 26. In my opinion for an act to amount to misconduct there must be a greater degree of wrong than is required for negligence. Misconduct is something in the nature of improper behaviour and is not merely either wrongful commission or wrongful omission. An act of misconduct can well be. and in most cases probably is, negligence; but a negligent act is not by itself misconduct. It seems to me that misconduct is the genus and negligence a species of the genus. The observation of Hilton J. in AIR 1930 Lah. 120 Secretary of State v. Allah Ditta Mohammad Amin. ('30) 17 AIR 1930 Lah. 120 : 120 I.C. 286 appears in point. It seems to me that misconduct is the genus and negligence a species of the genus. The observation of Hilton J. in AIR 1930 Lah. 120 Secretary of State v. Allah Ditta Mohammad Amin. ('30) 17 AIR 1930 Lah. 120 : 120 I.C. 286 appears in point. At p. 121 the learned Judge observed : The phrase misconduct of the railway administration's servants' can only have the second meaning, which involves the passing of a moral judgment on the part of the person concerned, however slight may be the lapse from rectitude which provokes it. I do not think, I can usefully add anything to the observation of the learned Judge which I have just quoted. In my view misconduct requires an act to be of a more grave nature than is required in respect of one which is mere negligence and nothing more. 27. I am unable to subscribe to the view expressed in 35 C. W. N. 133 B. N. Ry. Co. v. Moolji Sioka & Co. ('30) 17 A. I. R. 1930 Cal. 815 : 58 Cal. 585 : 129 I.C. 769 : 35 C. W. N. 133 at p. 140 that the provisions in the risk note, relieving a railway company from the responsibility for loss, destruction and damage except upon proof of misconduct, only confers the immunity of shifting the burden of proof; and that since the onus is upon a bailee in the ordinary way, if goods in his possession are damaged, to prove how the damage occurred, if he wishes to avoid liability; the provisions in the risk note remove that obligation from him and cast upon the bailor the burden to prove affirmatively that loss or damage was caused by the misconduct of the bailee. The risk note does require a bailor to establish misconduct; but it is not, in my view, the only immunity which is given to the railway company. 28. The next matter is whether there has been misconduct committed by the servants of the railway. The acts of misconduct which are alleged are: (1) attaching the open truck containing the wooden articles to a goods train and not to the plaintiff's or another passenger train; (2) placing the truck next to the engine; and (3) not taking proper care to see that the contents did not catch fire. 29. The acts of misconduct which are alleged are: (1) attaching the open truck containing the wooden articles to a goods train and not to the plaintiff's or another passenger train; (2) placing the truck next to the engine; and (3) not taking proper care to see that the contents did not catch fire. 29. Open trucks containing wood, or goods of wooden manufacture, commonly form part of a goods train, and an attachment of an open truck to such a train cannot be misconduct and is not in my view even an act of negligence. 30. Mr. Baker's testimony is the sole evidence which was given with regard to coupling next to the engine an open truck containing wooden goods covered with a tarpaulin. There are railway rules and regulations which have statutory force and authority, and these govern the conduct of railway goods and other traffic. There is none which either permits or forbids an open truck being placed next to the engine. Rule 134, which deals with dangerous goods, such as dynamite, matches and petrol, does not include timber or articles of wooden manufacture in the list of dangerous goods, and it goes no further than to provide that it is preferable that they should be placed at the end of the train away from the locomotive. There was, therefore,no infringement by the railway of a rule or regulation. Wood or timber is neither dangerous nor even inflammable, but is combustible. According to Mr. Baker the risk is greater of sparks falling upon a truck further to the rear than upon the one which is attached next to the engine, since sparks are emitted into the air and take some time to fall. During the falling process the sparks pass over the trucks nearer to the engine. Mr. Baker says sparks may fall as far back as the fifteenth or twentieth wagon from the engine. Even if this open truck had been coupled to a passenger train-and complaint is made that it is misconduct not to have done this-the sparks must nevertheless be liable to fall upon an open truck whether coupled to a goods train or coupled to a passenger train. 31. Even if this open truck had been coupled to a passenger train-and complaint is made that it is misconduct not to have done this-the sparks must nevertheless be liable to fall upon an open truck whether coupled to a goods train or coupled to a passenger train. 31. There must be, ex necessitate, risk of goods in an open truck catching fire from sparks emitted from the engine, no matter in which position trucks may be placed provided they are within twenty vehicles from the front of the train, but this in my view is no more than one. of those risks which modern transport facilities entail. There is no reason why Mr. Baker's evidence should not be accepted. From his testimony, misconduct by the Railway or by its servants is negatived. I do not propose to go through his evidence in detail, but looking at it as a whole, there was nothing done on this occasion from which it can be said that the servants of the Railway were guilty of any act which amounted to misconduct. 32. I, therefore, hold that there has not been misconduct proved as required by Risk Note B in order to bring the Railway outside the exemption provision and to make it liable to the plaintiff for his loss. 33. The next matter which requires attention is the contention on behalf of the plaintiff that the Railway cannot avail itself of the terms of Risk Note B. All the risk notes, it was argued, require the Railway to carry the goods by the same passenger train as that by which the members of the party travelled or by some other passenger train. Since the wagons and truck were coupled to a goods train, the Railway did not fulfil its obligation under contract or contracts. Consequently the Railway cannot avail itself of any term in the risk notes or in the contract. This plea is not raised in the plaint and no additional written statement was filed by the plaintiff in which such plea is made. It was, however, argued that facts, and not law, are required to be alleged in a pleading, and when facts are stated and established, then the party concerned can rely upon any legal consequence arising from those facts. 34. Pursuant to a request for particulars of misconduct alleged in para. It was, however, argued that facts, and not law, are required to be alleged in a pleading, and when facts are stated and established, then the party concerned can rely upon any legal consequence arising from those facts. 34. Pursuant to a request for particulars of misconduct alleged in para. 4 of the plaint, the plaintiff's attorneys, by letter dated 20th June 1939, gave the following : The Carnival goods were booked and a luggage ticket No. 9282 was issued in respect of them by the E. I. Railways administration and they were to have been carried normally in the same train as consignor and his party. The E. I. Railways administration, however, attached the truck containing the said Carnival goods to a goods train and moreover one of the trucks which was an open track was placed by the E.I. Railways administration next to the engine of the goods train and allowed to be carried thus without taking proper care that the goods contained in the said open truck and consisting chiefly of wooden materials, while in the custody of the said administration and in transit did not catch fire from sparks from the engine or was otherwise destroyed. It was argued that upon these allegations it is open to the plaintiff to contend that the Railway cannot avail itself of the provisions in the risk note, requiring the plaintiff to establish misconduct as a condition precedent to liability for loss and exempting it from liability if misconduct is not proved. There is nothing in the risk note from which there is any obligation upon the Railway to carry the goods by passenger train. The letter dated 14th April 1938, granting the application for concession rates, has some terms upon the back which I have stated earlier. I can find nothing in these which makes it obligatory for the Railway to carry the goods by goods train. It provides, so far as is material, that luggage and property booked in a separate vehicle shall be charged at the stipulated rate. It was emphasised that since the carnival properties were luggage, it necessarily followed that they should be carried by the same train as that by which the party travelled, but in the above letter reference is made to risk note "B", upon the terms of which the whole consignment was being carried. 35. It was emphasised that since the carnival properties were luggage, it necessarily followed that they should be carried by the same train as that by which the party travelled, but in the above letter reference is made to risk note "B", upon the terms of which the whole consignment was being carried. 35. The particulars which were supplied were delivered pursuant to the request and solely in respect of the alleged acts of misconduct in the plaint. There is nothing in any part of the plaint nor in the particulars, by which it could be hazarded that an attack was being made upon risk note "B" or any of the risk notes, because of some breach of contract alleged against the Railway. 36. In numbers of authorities it has been observed, and also by their Lordships of the Judicial Committee, that the object of pleading is to give fair notice to each party of what the opponent's case is. In my view this matter is covered by 61 I. A. 224 Someshwar Dutt v. Tirbhawan Dutt ('34) 21 AIR 1934 P. C. 130 :9 Luck. 178: 61 I. A. 224 :149 I. C. 480 (P. C.). In that case the plaintiff claimed for a deed of gift to be set aside on the ground of fraudulent misrepresentation by the defendant which forced him to execute the deed. In the plaint, in order to show the defendant could commit the fraud, it was alleged that he was in a position to exercise undue influence over the plaintiff. The learned Subordinate Judge held that undue influence was not a substantive claim. On appeal to the High Court he was overruled, but their Lordships in the Judicial Committee restored the finding of the learned Subordinate Judge. The learned Subordinate Judge held that undue influence was not a substantive claim. On appeal to the High Court he was overruled, but their Lordships in the Judicial Committee restored the finding of the learned Subordinate Judge. Lord Alness who delivered the judgment of the Board, observed at p. 229 that their Lordships were satisfied that the Subordinate Judge was right in holding that the basis of the suit was fraudulent misrepresentation; no substantive case of undue influence was raised; the allegations of the weakness of mind of the plaintiff on the one hand and the commanding position of the defendant on the other appeared to their Lordships to be ancillary to the main charge and did not present a substantive case of undue influence; although they were disinclined to stretch the structure of pleadings too strictly, a fair notice of the case to be made by the plaintiff must be given, but even so they could not differ from the Subordinate Judge's conclusion. 37. In my view this decision completely governs and covers the present case. The facts, upon which the plaintiff seeks to rely in order to raise the present contention, are alleged solely as a ground of misconduct and as part of the plea by which the plaintiff seeks to enforce the terms of the risk notes by showing that there was misconduct which the note requires to be proved as a condition precedent to recovery by the plaintiff. There is no suggestion in the plaint or in the particulars that the facts, to which reference has been made, prevent the Railway from relying upon the risk note and that a claim was being made in the suit against the Railway irrespective of the provisions of the risk note. The plaint, in my view, does not give a fair or any notice to the Railway of such a case. The sole substantive case is the misconduct relied upon to take the case out of the exemption provisions of the risk note. In my view this contention is not open to the plaintiff. 38. In regard to costs, the learned trial Judge in exercise of his discretion and for the reasons which he gave directed that there should be no order for coats. In my view this contention is not open to the plaintiff. 38. In regard to costs, the learned trial Judge in exercise of his discretion and for the reasons which he gave directed that there should be no order for coats. Costs are solely a matter for the discretion of the Judge and in this case there is nothing to show that Ameer Ali J. exercised this discretion wrongly and did not apply the ordinary principles which Should be applied when the question of costs requires decision. For the reasons which I have given I would bold that this appeal should be dismissed with costs. McNair, J. 39. I agree with the judgment which has just been delivered by my learned brother and I have nothing to add.