JUDGMENT Das, J. - This is an appeal by the Defendant, against the decision of Mr. H.K. Mukherji, learned Subordinate Judge, Burdwan, decreeing the Plaintiff's suit for recovery of damages for personal injuries sustained in consequence of the negligence of the Defendant. 2. The material allegations of the Plaintiff were that the Defendant is the owner of the East Indian Railway, which carries passengers for profit, that, on February 7, 1942, the Plaintiff was a passenger in the Burdwan Local from Howrah to Memari leaving Howrah at 3-40 p.m. The Plaintiff was accompanied by his mother, his cousin, Sunit Kumar Mukherji and his brother-in-law, Jagatmohan Banerji. The train was heavily overcrowded. The luggages were placed in the ladies' compartment, where his mother was seated. When the train reached Memari, the Plaintiff and Jagat got down from their own compartments and went over to the ladies' compartment. The Plaintiff's mother got down first, the Plaintiff and Jagat brought out the luggages and made them over to a railway porter and Sunit, who was on the platform. 3. The plaint then recited: Thereafter, while the Plaintiff was alighting from the train, the employees of the said railway acting negligently, without due and proper care and without any warning whatsoever, set the said train in motion suddenly and with an unusual jerk, causing the Plaintiff to lose his balance and to be thrown out, resulting in his fall below to the said train and the platform at the said station and in consequence thereof the Plaintiff sustained serious injuries on his person resulting in the amputation of his right arm. 4. The plaint then stated that, though the train was very much overcrowded and a large number of passengers alighted from the train at Memari, sufficient time was not given for the detraining of the passengers and the train stopped for less than a minute and the Defendant acted negligently and carelessly in the matter. 5. The plaint then alleged that, after the accident, the guard did not, in spite of loud shouts by the people, immediately stop the train, the train was stopped by some passengers pulling the alarm chain for stopping the train, that the railway authorities did not render all possible aid to the Plaintiff after the accident. 6. 5. The plaint then alleged that, after the accident, the guard did not, in spite of loud shouts by the people, immediately stop the train, the train was stopped by some passengers pulling the alarm chain for stopping the train, that the railway authorities did not render all possible aid to the Plaintiff after the accident. 6. The plaint went on to state that the Plaintiff was an M.B. of the Calcutta University and a lecturer, Visiting Physician and Deputy Superintendent of the Bengal Medical Institution and Hospital, Belliaghata, Calcutta and was a practising doctor and that his career had been ruined by reason of the accident. 7. The Plaintiff, accordingly, claimed a sum of Rs. 1,00,000 as damages on the following heads, viz., (a) Rs. 2,000 for medical treatment, (b) Rs. 1,000 for four months' loss of income and (c) Rs. 97,000 for loss of limb and future career and for bodily and mental pain. 8. The Defendant filed a written statement and averred that the Defendant's servants were not guilty of negligence; that, prior to the starting of the train, usual and proper warnings by whistle by the guard and the driver were given; that the train did not start with a jerk; that the train remained at the station for more than the scheduled time of one minute; that the Plaintiff did not inform the Defendant's servants that he had a large quantity of luggage and no request was made to the Defendant's servants to stop the train until the Plaintiff and his party and the luggages were detrained. The Defendant further stated that the injuries sustained by the Plaintiff were the direct result of his own negligence; that-- in spite of warnings by means of whistles blown by the guard and driver that the train was about to start and in further disregard of additional warnings that the train had started and calling upon him to desist from any attempt to alight therefrom, the Plaintiff, carrying a substantial suit-case in one hand, jumped from the foot-board of the train whilst the latter was in motion; that the guard seeing the Plaintiff jump from the train applied the vaccum brake and brought the train to a standstill; the Plaintiff thus voluntarily incurred the risk of the accident. The Defendant also denied that proper aid was not rendered to the Plaintiff after the accident and stated that the Plaintiff was not entitled to the damages claimed or to any damages. The other allegations in the plaint were not denied. 9. The following issues were framed for trial: (1) Were the injuries sustained by the Plaintiff the direct result of negligence on the part of the Defendant's servants? (2) Did the Plaintiff by negligence of his own contribute to the accident? (3) Did the Plaintiff voluntarily incur the risk of accident? (4) What amount, if any, is the Plaintiff entitled to get as damages? (5) Did the Defendant act negligently and without due and proper care T Were the injuries sustained by the Plaintiff the result of such action on the part of the Defendant? 10. In his judgment, the learned Subordinate Judge dealt with issues (5), (2), (1) and (3) together and issue (4) separately. 11. (5) Did the Defendant act negligently and without due and proper care T Were the injuries sustained by the Plaintiff the result of such action on the part of the Defendant? 10. In his judgment, the learned Subordinate Judge dealt with issues (5), (2), (1) and (3) together and issue (4) separately. 11. The learned Subordinate Judge found that the Plaintiff must shew, in the first instance, that there was negligence on the part of the employees of the Defendant and that this negligence and the injuries sustained by the Plaintiff were connected as cause and effect, that the Defendant must take all such steps as skill, prudence and foresight can devise to keep passengers free from personal injury while travelling on its system, that the guard and the Assistant Station Master remained standing near the brakevan and put the train in motion without caring at all to see whether any passenger was still alighting from or boarding the train and without even giving them, the scheduled time of one minute for that purpose although the train was admittedly coming overcrowded on that day; and that there was utter negligence, including flagrant breach of the statutory duties on the part of both the guard and Assistant Station Master, but for which the accident would never have happened, that a passenger travelling in a train does not cease to be passenger on his alighting therefrom at the station of his destination, but remains a passenger till his journey is complete, i.e., until he gets down with his belongings, such as his personal luggage, etc., that it was not a moving train, but a stationary train when the Plaintiff was attempting to alight therefrom and it was a sudden pull or jerk of the starting that made him slip from the footboard and to fall down on the ballast, passing through the space between the platform and the train, in consequence of which he sustained the serious injuries in question, that, if the train had stopped for the scheduled time, then the Plaintiff would not have met with the accident, that the guard did blow his whistle, but that the engine did not whistle before the starting of the train, that the shouts, if any, from passengers requesting the Plaintiff to desist from alighting, was made after the happening of the accident and that the effective cause of the injuries sustained by the Plaintiff was the negligence of the Defendant's servants and that there was no such contributory negligence on the part of the Plaintiff as would disentitle him from recovering damages and that there were no sufficient circumstances to justify the Defendant to invoke the principle of volenti non fit injuria; that the Plaintiff was entitled to damages for (i) medical expenses, (ii) loss of income for four months, (iii) bodily disfigurement and mental and bodily pain and (iv) loss of prospective earnings as a medical practitioner; that Rs. 50,000 should be the fair and reasonable amount of compensation on all the above heads. 12. In the result, the suit was decreed in part for Rs. 50,000 with corresponding costs on contest. 13. Against the said decree the Defendant has preferred this appeal, the Plaintiff has filed a cross-objection against the portion of his claim which was disallowed. 14. Dr. Sen Gupta, appearing for the Defendant Appellant has pressed the following points: (1) that the train did stop at Memari for more than the scheduled time, that the guard blew his whistle and waved his green flag and the driver blew the engine whistle before the train moved and the Assistant Station Master on duty, the guard and the driver complied with the relevant statutory rules and standing orders; (2) that the train did not start with a jerk at Memari; (3) that the Plaintiff jumped down from the train while in motion, in spite of the fact that the whistles were blown and the train had started and in spite of warnings by passengers and other persons and there was contributory negligence on the part of the Plaintiff which disentitled the Plaintiff from getting compensation; (4) that, on the facts of this case, the Defendant was also entitled to rely on the plea of volenti non fit injuria; (5) that the compensation awarded had no basis and was excessive. 15. Dr. Sen Gupta did not dispute the view taken by the Court below that the Plaintiff did not cease to be a passenger at the time of the accident. 16. Mr. Gupta, appearing for the Plaintiff Respondent, has limited his cross-objection to a, sum of Rs. 7,000 only. His, contention is that the Plaintiff should have been awarded a sum of Rs. 50,000 only on account of loss of income, actual and prospective; and that in addition a sum of Rs. 2,000 on account of medical expenses and a sum of Rs. 5,000 on account of bodily pain and physical disfigurement as assessed by the court below, should be awarded. 17. We may observe, at the outset, that, in deciding this case, we have borne in mind the submission made by Dr. Sen Gupta that we should not be led away by any sympathy for the Plaintiff, who has to bear for years a maimed body and an unhappy life. 17. We may observe, at the outset, that, in deciding this case, we have borne in mind the submission made by Dr. Sen Gupta that we should not be led away by any sympathy for the Plaintiff, who has to bear for years a maimed body and an unhappy life. The submission is supported by the weighty observations of Lord Justice Farewell in Latham v. R. Johnson v. Nephew Limited (1913) 1 K.B. 398, 408: We must be careful not to allow our sympathies with the infant Plaintiff to affect our judgment; sentiment is a dangerous will-of-the wisp to take as a guide in the search for legal principles. 18. The admitted facts of the case, are as follows: On February 7, 1942, the Plaintiff Dr. Sushil Kumar Mukherji was a passenger travelling in the Defendant's train in question (Burdwan Local) from Howrah to Memari; that he was accompanied by his mother, his brother-in-law Jagat and his brother Sunit; that, as soon as the train stopped at Memari, the Plaintiff and Jagat went to the ladies' compartment where his mother was, detrained his mother and with the help of a railway porter and Sunit, the luggages, with the exception of a suit-case, were brought down on the platform; that while the Plaintiff was alighting from the train with the suit-case in hand, he came by the accident. The parties differ as to how the accident took place. The Plaintiff was found after the actual incident on the ballast and was brought out with severe injuries. The Plaintiff was taken by the same train, in company with a local doctor, to Burdwan, that, at Burdwan station, the Plaintiff was attended to by the railway doctor and was removed in an improvised stretcher to the Fraser Hospital, Burdwan, where his right arm was amputated by Dr. Mukherji, surgeon of the hospital, shortly after arrival. The Plaintiff remained for sometime at Burdwan, both as in-door and out-door patient and then went to Dhanbad where he was treated by Captain Banerji, the railway doctor. 19. Shortly after the accident, there was a police and a joint enquiry by the railway administration; that, in June, 1942, the Plaintiff served a notice on the Defendant claiming a sum of Rs. 1,00,000 as compensation; that the Defendant denied liability; hence this suit. 20. 19. Shortly after the accident, there was a police and a joint enquiry by the railway administration; that, in June, 1942, the Plaintiff served a notice on the Defendant claiming a sum of Rs. 1,00,000 as compensation; that the Defendant denied liability; hence this suit. 20. The suit is founded on the negligence of the Defendant and the Plaintiff can recover if he establishes the facts of Defendant's negligence and of his own damage and that the one is the effect of the other; Wakelin v. London and South Western Railway Company (1886) 12 App. Cas. 41. 21. The first head of negligence alleged by the Plaintiff is that the Defendant was guilty of negligence inasmuch as its employees did not observe the statutory rules and standing orders framed by if. 22. Section 47(1) of the Indian Railways Act provides for the framing of rules for the purposes mentioned therein. Section 47(b) further requires that a copy of such rules shall be kept at each station and shall be open to inspection by the public. 23. The relevant rules framed u/s 47(1) of the Act are as follows: Rule 111(1) lays down that no passenger or mixed train shall be despatched unless every passenger carriage is provided with means of communication with the guard, subject to certain exceptions mentioned in Rule 111(b). Rule 113 requires the guard, before taking charge of the train, to see, amongst other things, that a train is properly coupled. Rule 114 enjoins upon the station master to see, before he gives the guard permission to start a train, that all is right for the train to proceed. Rule 115(b) further provides that the guard-in-charge of a train with passenger vehicles attached shall not give the signal for starting the train unless he has satisfied himself that no passenger is getting into or out of the train, that no person is riding outside a carriage. Rule 115(4)(b) requires the driver not to move the train from any station, unless he has received the signal of the guard. The guard shall sound his whistle and at the same time waive a green flag by day or a green light by night. Rule 115(4)(b) requires the driver not to move the train from any station, unless he has received the signal of the guard. The guard shall sound his whistle and at the same time waive a green flag by day or a green light by night. Rules 119 and 120 enjoin upon the driver to satisfy himself, before starting the train, that all the correct signals are shown and that the line is clear and not to start without authority to proceed and the guard's signal to start. 24. The rules referred to above find a place in Chapter III (working of trains generally) C (precautions before starting trains). 25. We may also refer to certain rules set out in standing orders of the East Indian Railway, Part C (staff duties in regard to passengers). 26. Rule 95 deals with precautions before starting a train. Clause (a) requires the station master before giving permission to start the train to satisfy himself that all his staff are clear of the train and all passengers seated. The guard in charge is also to satisfy himself on these points before giving the starting signal. Clause (b) requires the station staff to see that the doors of carriages are closed and outside catches, if any, fastened before, the train starts. The guard is also required to see that this has been done, before he gives the starting signal. 27. Rule 101(g) provides that both station master and guard shall see that sufficient time is allowed at roadside stations to admit passengers of alighting and entraining safely. 28. The preface to the standing orders states that they are to be read in conjunction with the general rules for Indian Railways and subsidiary rules of the East Indian Railway and do not affect any orders contained therein. 29. Dr. Sen Sen Gupta contends that these orders are intended only for the railway staff and are purely administrative rules. 30. In our opinion, these orders explain the general rules and unless they conflict with the latter, are also intended for the safety of passengers, and though they are not statutory rules, nevertheless they are not merely administrative behests. In any event, the rules state what the railway administration and for the matter of that, the common man regard as proper rules of safety which can be reasonably expected from the railway employees. 31. In any event, the rules state what the railway administration and for the matter of that, the common man regard as proper rules of safety which can be reasonably expected from the railway employees. 31. The above rules and standing orders are clearly intended for the safety of passengers and to guard against accidents which may cause personal injury. As such, a breach either of the general rules or of the standing orders is prima facie a tort, for which an action for recovery of damages will lie. 32. Learned advocates appearing for the parties have referred us to various English decisions in support of their submission. 33. It is, therefore, necessary to consider how far the citation of English decisions is permissible. 34. Before the advent of the British rule, the law of torts was rather meagre. The texts of Hindu law subordinate the law of torts to the law of crimes. 35. A reference to Chap. VIII of the Manu Samhita (texts of Manu) would shew that the right to recover compensation arose in three classes of eases, viz., damage to crops by trespass by cattle; bodily injury resulting in medical and other expenses of cure; damages, intentional or otherwise, to goods (verses 241, 287, 288). Manu's classification was amplified and extended in later smritis as may be seen from the Viramitrodaya and the Vyavahare Mayukha. Broadly speaking, the claim for compenastion was said to arise only in cases of pecuniary loss. 36. Mahomedan law further subordinated the law of torts to the law of crimes and covered a much narrower ground. 37. So far as Anglo-Indian law goes, the position was thus stated by Sir Courteney Ilbert, "Government of India," 3rd Ed., p. 366: The law of torte on civil wrongs as administered by the courts of British India whether to Europeans or Natives, is practically English law. 38. The above observation is borne out by the judicial decisions. 39. In cases arising within the presidency-towns of Calcutta, Bombay and Madras, different views have been taken of the Charter of 1936. The High Court of Calcutta has held that the courts are bound to follow the English common law. Bhooni Money Dossee v. Natobar Biswas ILR (1901) Cal. 452; Sukltan Teli v. Bipad Teli ILR (1906) Cal. 48. 39. In cases arising within the presidency-towns of Calcutta, Bombay and Madras, different views have been taken of the Charter of 1936. The High Court of Calcutta has held that the courts are bound to follow the English common law. Bhooni Money Dossee v. Natobar Biswas ILR (1901) Cal. 452; Sukltan Teli v. Bipad Teli ILR (1906) Cal. 48. The High Courts of Bombay and Madras have laid down a more elastic rule, viz., that the courts are to follow the English law, but only so far as circumstances permit, or according to justice and right: Hirabai Jehangir v. Dinshaw Edulji ILR (1926) Bom. 167. Narayana Sah v. Konnamma Bai ILR (1931) Mad. 727. 40. In cases arising outside the said presidency-towns, there is no statute law and courts are to decide according to the rules of justice, equity and good conscience. Generally speaking, the courts have applied the English law as being in consonance with rules of justice, equity and good conscience; except in special cases, where the English law has been considered by judges to be unreasonable or unsuitable to local conditions; Waghela Raj sanji v. Shekh Masludin ILR (1887) Bom. 551 : L.R. 14 IndAp 89. Satish Chandra Chakravarti v. Ramdoyal De ILR (1920) Cal. 388, 408; Teruvengada Mudali v. Tripurasundari Ammal ILR (1926) Mad. 728, 736; AIR 1937 354 (Nagpur) . 41. To appreciate the effect of a breach of the statutory rules or standing orders, we have to consider the duties of the railway administration towards its passengers. 42. The liability of the railway company towards passengers carried by it is not that of a common carrier and the company is not to be regarded as "insurer of the safety of passengers". This is fully borne out by the decision of the Privy Council in East Indian Railway Company v. Kalidas Mukerji ILR (1901) Cal. 401 : L.R. 28 IndAp 144, on which Dr. Sen Gupta relied. The cases bearing on the point were reviewed by Page J. in Jew an Rami Khettry v. E.I. Ry. Co. ILR (1924) Cal. 861 and it was held that a railway company must take all such steps as skill, prudence and foresight can devise to keep passengers free from personal injury while travelling on its system. In Gibbs on Collisions on Land, 5th Ed., Ch. Co. ILR (1924) Cal. 861 and it was held that a railway company must take all such steps as skill, prudence and foresight can devise to keep passengers free from personal injury while travelling on its system. In Gibbs on Collisions on Land, 5th Ed., Ch. VI, Section 1, p. 162, it is stated that the duty of a railway company towards persons accepted by it as passengers is to ensure that all persons connected with the carrying and with the means and appliances of the carrying, with the carriages, the road, the signaling and otherwise, shall use proper care and diligence, so that no accident shall happen. 43. Judged by the above standard, a breach of the rules adverted to already would fasten liability on the railway company if is employees do not observe them. 44. This view is supported also by the English decisions. 45. In Blamires v. Lancashire and Yorkshire Railway Company (1873) L.R. 8 Ex. 283, on which Mr. Gupta relied, a passenger by a railway train, within 31 and 32 Vict., c. 119, Section 29, was held entitled to recover compensation merely on proof of a failure of the railway company to provide for a communication cord between the passenger and the driver as required by the Act, although there was no other sufficient evidence of negligence. It may be noted that the rule, a breach whereof was in question in this case, is similar to Rule 111(a) of the General Rules. 46. In Lochgelly Iron and Coal Company Limited v. M'c Mullan (1934) A.C. 1, which arose out of a claim for compensation under the Workmen's Compensation Act, 1925, the pursuer alleged that there was an omission to keep the roof of a mine secure as required by the Coal Mines Act, 1911, it was held that the employer was liable on the ground of negligence in failing to keep the roof secure. 47. Lord Atkin in his speech at p. 9 stated: All that is necessary to shew is a duty to take care to avoid injuring; and if the particular care to be taken is prescribed by statute and the duty to the injured person to take the care is likewise imposed by statute and the breach is proved, all the essentials of negligence are present. 48. 48. In a concurring speech, Lord Wright (p. 27) preferred the opinion of Boyd C in Thompson v. Wright (1892) 22 Ont. Rep. 127, 130 to the effect that a failure to guard dangerous machinery is "per se evidence of "negligence" to that of Lord Adams in Kelly v. Globe Sugar Refining Co. (1893) 20 R. 838, 835 to the effect that the neglect of statutory provisions creates a prima facie case of fault, but added that "in "either case the judges were in effect describing the breach of "statute as negligence". 49. The effect of the decisions was stated by Luxmore L.J. in Greenwood v. Central Services Co. (1940) 2 K.B. 461 to be that where a, statute provides that a certain thing must be done, it is a question of construction whether the thing is to be done in all events or merely that the person upon whom the duty is imposed is to use due care and diligence in the endeavour to perform it and if he fails to perform it through no fault of his, he shall be free from liability. 50. The trial court referred to an American decision of Schiller v. Dry Dock E.B. and R.R. Co. 90 New York State Ref. 184 where, quite apart from statutory rule, the Plaintiff was held entitled to recover compensation where the conductor of a tram car set the car in motion without giving the Plaintiff sufficient time to alight from the car, with the result that the Plaintiff fell down in the process of alighting and sustained injuries. 51. We shall now discuss the evidence on this point. 52. Mr. Ross, D. W. 4, the driver admitted that he did not examine the couplings in the rake itself. D.W. 12 Mr. Basu, the guard, does not say anything on this point. There was thus a breach of general Rule 113. 53. We shall now examine the evidence bearing on the time of stoppage of the train at Memari. * * * * * 54. After discussing the evidence his Lordship said: Our conclusions, on the entire evidence, are that there was non-compliance with Rule 113, 114, 115(b), 115 (4)(b), 119, 120 of the general rules as also with Rules 95(a), 101(g) of the standing orders. * * * * * 54. After discussing the evidence his Lordship said: Our conclusions, on the entire evidence, are that there was non-compliance with Rule 113, 114, 115(b), 115 (4)(b), 119, 120 of the general rules as also with Rules 95(a), 101(g) of the standing orders. We also hold that the Defendants employees did not take sufficient care to look to the safe detrainment of passengers and that this was the cause of the accident. 55. Whatever view may be taken of a breach of the standing orders, viz., whether a restricted or a broader view is taken of the liability of the Defendant in respect of such breach, the conclusion is irresistible that there was culpable negligence on the part of the employees of the Defendant which led to the accident. 56. The first contention of Dr. Sen Gupta must, therefore, be overruled. 57. We shall now deal with the second contention of Dr. Sen Gupta, viz., that the train did not start with a jerk. * * * * * 58. After considering the evidence his Lordship said: On a consideration of the entire evidence we are of opinion that, as a result of the jerk, the Plaintiff lost control and he slipped; his right arm was caught in between the platform and the footboard, resulting in the crushing injury on the right arm. The Plaintiff admitted in his evidence that a crushing injury is caused by the limb being brought between two hard surfaces. It is unfortunate that P.W. 2, Dr. Shailendra Nath Mukherji, was not asked as to whether the injuries caused were consistent with the version of the Plaintiff or the Defendant; the Defendant did not examine the railway doctor of Burdwan who attended to the injuries on the Plaintiff's arrival at Burdwan station. 59. We have given our anxious consideration to the evidence on record and we are clearly of opinion that the case made by the Plaintiff is true and that the Defendant's story about the accident cannot be accepted. We are in substantial agreement with the view taken by the court below as regards the happening of the accident. 60. 59. We have given our anxious consideration to the evidence on record and we are clearly of opinion that the case made by the Plaintiff is true and that the Defendant's story about the accident cannot be accepted. We are in substantial agreement with the view taken by the court below as regards the happening of the accident. 60. Our conclusion is that the train did start with an unusual jerk and that the waving of the green flag by the guard and the whistle by the engine did not precede the starting of the train, that the Plaintiff was trying to get down from a stationary train, that the jerk of the train, when it started, unbalanced the Plaintiff, whose right foot was at the time of starting on the footboard, the right hand clasping the door handle, the left foot about to be placed on the platform, the suit-case being in his left hand and that, in consequence, the Plaintiff fell in between the train and the platform, his right arm was caught between the foot-board and the platform with the result that the Plaintiff sustained injuries leading up to amputation of his right arm. 61. Now, a jerk is produced (i) by bad handling of the engine, (ii) faulty coupling of the engine and the rake or in the rake, (iii) faulty locomotive. This is deposed to by D.W. 4, Mr. Ross, the driver and D.W. 11, Mr. Ganguli, the shunter. In his cross-examination Mr. Ross stated that "had there been a jerk "in the train in question on the date, then it would have been "done (sic) to my fault". Mr. Ross also stated that the coupling of the rake and the engine was satisfactory and that his written notes about the defects, if any, in the engine, would shew that the engine was probably all right. The written note, which, according to Mr. Ross, he made over to the railway, was not produced. Mr. Ross did not examine the other couplings in the rake itself. Whether the jerk was caused by the fault of the driver, as D.W. 4 Mr. Ross says, or was due to defect in the engine or in the couplings, the Defendant is liable, as the Defendant has failed to prove absence of negligence on its part in the causation of the jerk. 62. Whether the jerk was caused by the fault of the driver, as D.W. 4 Mr. Ross says, or was due to defect in the engine or in the couplings, the Defendant is liable, as the Defendant has failed to prove absence of negligence on its part in the causation of the jerk. 62. In Metropolitan Railway v. Delancy (1921) 90 L.J. 721, the Plaintiff got into a standing train, but, before he could take his seat, the train started suddenly without warning and the Plaintiff was thrown off his balance. The Plaintiff put out his hand to save himself from falling and it was caught and injured by the automatic closing of the sliding door of the carriage, which was closed by the momentum of the train in starting. The House of Lords held that there was evidence of negligence on the part of the railway company to go to the jury? 63. The question, in that case, turned on the point whether there was evidence to go to the jury. Even so, on proof of the fact that there was an unusual jerk, the burden would shift to the Defendant to shew that it had taken all proper steps to ensure the safety of passengers. In our opinion, the Defendant has failed to prove that such steps were taken. 64. We, accordingly, hold that the Defendant is liable to compensate the Plaintiff in respect of the injuries sustained by him. The second contention of Dr. Sen Gupta also fails. 65. The next contention of Dr. Sen Gupta is that, even if the Defendant was negligent, the Plaintiff could not recover compensation, as the Plaintiff was guilty of contributory negligence. Such negligence of the Plaintiff is said to fall under the following heads: (i) The Plaintiff attempted to get down from the train, after the guard had blown his whistle and waved the green flag and the driver had blown the engine whistle and the train had started. (ii) The Plaintiff disregarded the warnings given by passengers and other persons, asking the Plaintiff not to get down from a moving train. (iii) The Plaintiff could have got into the compartment and should not have attempted to alight from the train seeing that it had started. (ii) The Plaintiff disregarded the warnings given by passengers and other persons, asking the Plaintiff not to get down from a moving train. (iii) The Plaintiff could have got into the compartment and should not have attempted to alight from the train seeing that it had started. (iv) Even assuming that the guard had not waved his green flag and the driver had not whistled up, the Plaintiff, knowing that the train was giving jerks, should have been careful not to try to alight from the train, as the guard had blown his whistle. 66. In determining the above issue of contributory negligence, the burden of proof at the commencement of the trial is upon the Defendant and the Plaintiff is not bound, in the first instance, to give any evidence to negative the existence of it: Clerk and Lindsell on Tort, 10th Ed., p. 407. 67. Grounds (i) to (in) above may be taken up together. We have already held that the train had moved before the guard had waved his green flag and the engine had whistled. We have also held that the train started with a jerk while the Plaintiff was already on the foot-board and that, but for the sudden motion of the train without the requisite waving of the flag and the whistling by the engine, he would have been safely on the platform, that, situated as he was at the time, it was not possible for him to get into the compartment. We have also held that the sudden jerk led to the accident and was its effective and proximate cause. 68. In the written statement, the Defendant alleged that the Plaintiff disregarded the warnings to the effect that the train had started and asking him to desist from alighting from the train and that, as such, the Plaintiff was guilty of contributory negligence. The Defendant led evidence on this point. We have to consider the effect of the evidence on this question. 69. The burden of proving the allegation is as already stated, on the Defendant. 70. Nanigopal, D.W. 3, stated that he heard shouts of some people asking people to pull the alarm chain, he did not say anything nor did he hear anything else. We have to consider the effect of the evidence on this question. 69. The burden of proving the allegation is as already stated, on the Defendant. 70. Nanigopal, D.W. 3, stated that he heard shouts of some people asking people to pull the alarm chain, he did not say anything nor did he hear anything else. Sheikh Khayarat Ali, D.W. 6, deposed that after the train started he heard a shout namben na namben na (do not get down, do not get down) and that he then saw the Plaintiff getting down from the moving train. This story is repeated by D.W. 7, Shamsul Alam. We have already given reasons for our disbelieving the testimony of these two witnesses as regards the actual accident. Masuddi, D.W. 9, the porter, deposed that he shouted and asked the Plaintiff not to get down. Suphal Mahto, D.W. 10, the railway khalashi, however, spoke about passengers requesting the Plaintiff not to get down from the moving train. In cross-examination he at first stated that he moved towards east and west and then corrected himself by saying that he stuck to his post which was just in front of the ladies' compartment. 71. In his examination-in-chief, the Plaintiff denied the allegation. P.W. 6, Meghnath, deposed that he did not hear any shouts, neither the Plaintiff nor his witnesses (P.W. 4, 5, 6, 8) were cross-examined on the point. 72. We are not impressed with the evidence adduced by the Defendant. The evidence is discrepant. In our view, the evidence is not sufficient to prove that any shouts were made before the Plaintiff attempted to get down. At the most, it may be, as deposed to by D.W. 3, Nanigopal, that, after the Plaintiff fell down there were shouts for pulling the chain. 73. We have already held that the Plaintiff did not jump off the train. 74. The result is that, on the facts of this case, there was no negligence on the part of the Plaintiff, and consequently, the plea of contributory negligence fails. 75. Both sides have referred us to some English cases bearing on the plea of contributory negligence. Though, in the view of the facts taken by us, it is not necessary to discuss in detail the law bearing on the point, yet, for the sake of completeness, we give our opinion on the question of law discussed at the bar. 75. Both sides have referred us to some English cases bearing on the plea of contributory negligence. Though, in the view of the facts taken by us, it is not necessary to discuss in detail the law bearing on the point, yet, for the sake of completeness, we give our opinion on the question of law discussed at the bar. 76. The true nature of the doctrine of contributory negligence raises a difficult question. 77. The principle was known to the Roman law and was recognised in England long ago. Holdsworth, History of English Law, Vol. VIII, p. 459. The origin of the doctrine in England and its growth is historical. Attempts have been made by judges and jurists in England to state the principle underlying it and to define its limits. In the last edition of Mr. Salmond's well-known work on Torts (which was edited by the author himself) the doctrine is characterised as being essentially unsound and as giving rise to elusive and baffling problems and it is suggested that a fair rule was that followed in admiralty cases, viz., apportionment of the damages between the parties, based on the extent of their respective negligence. The law has now been codified in England by the Law Reform Act, 1935. 78. We have already stated the law to be followed as regards torts in areas outside the presidency-towns of Calcutta, Bombay and Madras. How far the English common law doctrine of contributory negligence, which had a historical origin in England and had been subjected to criticisms, should be followed in this country is a moot question. 79. In M. and S.M. Railway Co., Ltd. v. Jayammnal ILR (1924) Mad. 417 442, Srinivasa Ayyangar J. expressed a pious wish that the rule in the admiralty was a fair one, but decided the case on an application of the English decisions to the facts of the case. 80. Assuming that the case falls to be decided according to the English common law, we proceed to discuss the same. 81. In Wakelin v. London and South Western Railway Company (1886) 12 App. Cas. 41, 45. Lord Halsbury advanced the penal theory that, where both parties are negligent, the Plaintiff cannot recover on the principle in pari delicto potior est conditio defendentis. 81. In Wakelin v. London and South Western Railway Company (1886) 12 App. Cas. 41, 45. Lord Halsbury advanced the penal theory that, where both parties are negligent, the Plaintiff cannot recover on the principle in pari delicto potior est conditio defendentis. This view is unsound, because the Plaintiff and the Defendant may not, in most cases, be in pari delicto, the negligence of the parties not being equal and further, the object of the law of torts is not punishment, but the award of compensation. 82. The theory of the last clear chance, viz., where both, the Defendant and the Plaintiff are negligent, the decision depends on the question who could have, by the use of reasonable care, avoided the accident, has been applied in some cases. 83. Thus, in Butterfield v. Forrester (1809) 11 East 60 : 103 E.R. 926, where the Defendant had unlawfully and negligently put a pole across a public highway and the Plaintiff came galloping very fast and collided with the pole and had a nasty cut, the action failed, Lord Ellenborough C.J. observing-- One person being in fault will not dispense with another's using ordinary care for himself. 84. In the celebrated donkey case, Davies v. Mann (1842) 10 M and W 546 (549) : 152 E.R. 588 (549), the Plaintiff had unlawfully and negligently left his donkey with forefeet fettered, on a narrow lane, the Defendant's waggon, which was coming at a smartish pace, ran over the donkey and killed it. The Court held that the Defendant was liable. Parke J. observed: For, although the ass may have been wrongfully there, still the Defendant was bound to go along the road at such a pace as would be likely to prevent mischief. 85. In Butterfield's case, the Plaintiff had the last opportunity for avoiding the accident, while in Davies' case the Defendant had a similar one. The doctrine of last clear chance was clearly stated in the leading case of Radley v. London and North Western Railway Company (1876) 1 App. Cas. 754, 759 where Lord Penzance said: The Plaintiff in an action for negligence cannot succeed if it is found by the jury that he has himself been guilty of any negligence or want of ordinary care which contributed to cause the accident. Cas. 754, 759 where Lord Penzance said: The Plaintiff in an action for negligence cannot succeed if it is found by the jury that he has himself been guilty of any negligence or want of ordinary care which contributed to cause the accident. But there is another proposition equally well-established and it is a qualification upon the first, namely, that the Plaintiff may have been guilty of negligence and although that negligence may, in fact, have contributed to the accident, yet if the Defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the Plaintiff's negligence will not excuse him. 86. The principle of Davies v. Mann (supra) has also been applied in this country: Krishna Murari Lal Vs. Dixit Chaturbhuj ; Nani Bala Sen v. Auckland Jute Co., Ltd. ILR (1925) Cal. 602. 87. The above doctrine, though useful as a guide, is, however, not decisive of the matter. Moreover, at the present day, where the accident takes place in a short moment, it would be difficult to apply the rule. 88. The theory of causation was adopted by Lord Bowen in Clayards v. Dethick (1848) 12 Q.B. 439 : 116 E.R. 932. It was observed that, if the causal connection between the Defendant's negligence and the accident was severed by the negligence of the Plaintiff, the Defendant's negligence could not be said to be the true proximate cause of the injury. 89. In various other cases, learned Judges have used expressions like direct cause, immediate cause, decisive cause, real, dominant, efficient, effective cause, substantial cause, common sense cause, or cause causans to fasten the liability on the Defendant. 90. The use of the above expressions does not clarify the position and has been a potential source of litigation. 91. In British Columbia Electric Railway Company Limited v. Loach (1916) A.C. 719 727, Lord Sumner observed: The question is not one of desert or the lack of it, but of the cause legally responsible for the injury. 92. In Holdsworth's History of English Law, Vol. VIII, p. 426, the learned author regards Lord Sumner's statement to be an illustration of attempts made by judges to piece together two incompatible theories of civil liability, viz., the medieval theory of the author of the injury and the modern theory of moral guilt, either of the negligent or of the unintentional type. VIII, p. 426, the learned author regards Lord Sumner's statement to be an illustration of attempts made by judges to piece together two incompatible theories of civil liability, viz., the medieval theory of the author of the injury and the modern theory of moral guilt, either of the negligent or of the unintentional type. The tendency on the part of judges to substitute a too philosophical analysis of causation for a broad estimate of responsibility in the legal sense was deprecated by Scott L.J. in The Eurymidon (1938) P. 41, 58. 93. In Casewell v. Powell Duffryn Associated Collieries, Ld. (1940) A.C. 152, 165, Lord Atkin said: Plaintiff may be negligent at some stage but this is not sufficient. The question is who caused the injury. 94. In our opinion, in this case, where the courts are to decide according to justice, equity and good conscience, the question should not be decided on any test of prior or subsequent negligence nor on a metaphysical analysis of the causation theory, but on a broad view as to whose negligence substantially caused the accident. 95. Dr. Sen Gupta contended that, upon the proved fact that the Plaintiff knew that the train was giving jerks and that the guard had blown his whistle, the Plaintiff was guilty of negligence in stepping upon the foot-board and that this negligence on the Plaintiff's part caused the accident. 96. Tested by the principles' already discussed, the above facts do not lead to the conclusion that the Plaintiff's act was the substantial cause of the accident. Moreover, the law does not require the Plaintiff to guard against fantastic possibilities, but merely requires that people should guard against reasonable probabilities. Fardon v. Harcourt-Rivington (1932) 146 L.T. 391. Again, the Plaintiff is not bound to anticipate and provide for the possible negligence of the Defendant, but is entitled to take it for granted that the Defendant has done things rightly and carefully. If, in such a case, an accident takes place, the Defendant cannot be heard to say that the Plaintiff might have avoided the accident by care. Again, the Plaintiff is not bound to anticipate and provide for the possible negligence of the Defendant, but is entitled to take it for granted that the Defendant has done things rightly and carefully. If, in such a case, an accident takes place, the Defendant cannot be heard to say that the Plaintiff might have avoided the accident by care. In Gee v. Metropolitan Railway Company (1873) L.R. Q.B. 161, the Plaintiff, who was a passenger on the Defendant's railway, leaned against a door of the carriage, which had been negligently left unfastened by the Defendant's servants and fell out of the train and was injured; it was held that the Plaintiff was entitled to recover damages, because, although the Plaintiff could have easily avoided the accident by the simple precaution of examining the door handle, he was entitled to rely on the carefulness of the Defendant and a decree was passed in the Plaintiff's favour. 97. In the present case, the Plaintiff has deposed that he did not hear the guard's whistle. We have held that the guard did not wave the green flag and the engine did not whistle before the train moved. The Plaintiff could not, therefore, be said to have acted negligently, as suggested by Dr. Sen Gupta. 98. From whatever point of view the case is looked at, the plea of contributory negligence cannot be brought home to the Plaintiff. 99. The third contention of Dr. Sen Gupta therefore fails. 100. Dr. Sen Gupta also relied on the plea of volenti non fit injuria. 101. In order to support the plea, it is not necessary to establish that the Plaintiff was negligent, but it is necessary to shew that he expressly or impliedly consented to run the risk of injury with knowledge of it. 102. The plea was rested on the act of the Plaintiff in jumping off a moving train. 103. We have already negatived the story of jumping and as; such, the plea fails. 104. We may also add that, in case of a breach of statutory duty, as in the present case, the plea of volenti nonfit injuria has been held to be inapplicable. Wheeler v. New Merton Board Mills Limited (1933) 2 K.B. 669. 105. The fourth contention raised by Dr. Sen Gupta must also be overruled. 106. The only other point which requires consideration is the assessment of damages. Wheeler v. New Merton Board Mills Limited (1933) 2 K.B. 669. 105. The fourth contention raised by Dr. Sen Gupta must also be overruled. 106. The only other point which requires consideration is the assessment of damages. This is the last point pressed by Dr. Sen Gupta in support of the appeal and is the only point pressed by Mr. Gupta on behalf of the cross-objectors. 107. Cempensation was claimed under four heads, (i) Medical expenses, (ii) Physical disfigurement and mental and bodily pain, (iii) Actual loss of income for four months, (iv) Loss of future income. 108. The learned Subordinate Judge held that the Plaintiff was entitled to a sum of Rs. 2,000 as medical expenses, Es. 5,000 for bodily disfigurement, mental and bodily injury, Rs. 666 as actual loss of income for four months, Rs. 40,000 to Rs. 50,000 as loss of future income; on the whole he awarded a sum of Rs. 50,000 under the four heads. 109. Dr. Sen Gupta has not disputed that damages can be claimed under the aforesaid four heads. 110. The position is also well settled that, in assessing damages, the court has to consider (z) medical expenses, viz., expenses incidental to attempts to effect a cure, or to lessen the amount of the injury and the expenses of nursing, (ii) nervous or mental shock leading to injury or illness, pain and suffering undergone and the effect of physical disfigurement, (iii) actual loss of income, i.e., special damages, (iv) general damages, i.e., future loss of income and future disability and reduction in the physical capacity to enjoy life and shortening of the duration of life. 111. The four heads of claim in the present case are thus admissible: Secretary of State v. Gokal Chand ILR (1925) Lah. 451. 112. The evidence is conclusive to prove that, after the accident, the Plaintiff was taken by the same train to Burdwan, he was accompanied by Dr. K.L. Banerji, a local doctor of Memari, that at Burdwan railway station, the Plaintiff was examined by the railway doctor, Dr. S.N. Ray. His report is Ex. 2(a) and states the nature of the injury and the serious condition of the patient. 113. The Plaintiff was removed in an improvised stretcher to the Fraser Hospital, Burdwan. On arrival at the hospital, he was examined by Dr. K.N. Sen, Assistant Surgeon. His report is Ex. S.N. Ray. His report is Ex. 2(a) and states the nature of the injury and the serious condition of the patient. 113. The Plaintiff was removed in an improvised stretcher to the Fraser Hospital, Burdwan. On arrival at the hospital, he was examined by Dr. K.N. Sen, Assistant Surgeon. His report is Ex. 2 and is dated February 7, 1942 (8-30 p.m.). The report states that the injuries might have been caused by the accident. The Plaintiff was immediately, thereafter, examined by P.W. 2, Dr. Shailendra Nath Mukherji, the surgeon of the hospital. His evidence shews that he is a brilliant student of the Calcutta University and is an eminent doctor. He swears that the Plaintiff's condition was very bad due to shock and loss of blood, that in spite of tourniquets, the wound was bleeding even then and that an amputation was necessary to save the life of the patient and could not be postponed. The right arm was amputated by the witness. He went on to state that the Plaintiff's condition was serious for a week and that the Plaintiff remained as an in-door patient for about three weeks and continued as an out-door patient for about a month longer. 114. The Plaintiff then went to Dhanbad and was under the treatment of P.W. 1, Dr. S.N. Banerji (Captain), a medical officer of E.I. Railway from the end of March till sometime in April, 1942. The Plaintiff was again examined by P.W. 2, Dr. Shailendra Mukherji, in May-June, 1944. P.W. 2 deposed that the injured part was even then painful and would remain so till re-amputation. The Plaintiff, P.W. 3, deposed that he was still undergoing pain and that, in view of expert opinion of P.W. 2, Dr. Mukherji and of Drs. Lalit Banerji and Panchanan Chatterji (both reputed surgeons of Calcutta), he has decided to undergo another operation to get rid of the pain. 115. Dr. Sen Gupta has contended that the learned Subordinate Judge was in error in accepting the bare statement of the Plaintiff that the expenses amounted to Rs. 20,000 in the absence of any detailed accounts of the expenses incurred. 116. It is true that no details have been given. The long course of treatment and its nature show that the expenses must have been large. We are not prepared to dissent from the view taken by the trial court. 20,000 in the absence of any detailed accounts of the expenses incurred. 116. It is true that no details have been given. The long course of treatment and its nature show that the expenses must have been large. We are not prepared to dissent from the view taken by the trial court. We believe the estimate made by the Plaintiff of the expenses incurred by him and overrule the contention raised by Dr. Sen Gupta. 117. Dr. Sen Gupta has not contested the finding of the court below as regards the amount awarded on account of bodily disfigurement and pain. 118. The third and fourth items have been the subject of discussion on both sides, Dr. Sen Gupta contending that the assessment is arbitrary and excessive, Mr. Gupta urging that the sum awarded is rather low and should be increased by Rs. 7,000. 119. The assessment of damages on these heads is incapable of precise calculation and has to be arrived at on a consideration of all the circumstances of the case. Attempts by judges and jurists to crystallise the basis of assessment to set rules have proved to be abortive. The Plaintiff is not to be given the value of an annuity of the same amount as his average income for the rest of his probable life. Nor is the principle of restitutio in integrum fully applicable. 120. In Mayne on Damages, 9th Ed., p. 42, the author observed: On the other hand, where the person or character is injured, it is difficult, if not quite impossible, to fix any limit and the verdict is generally a resultant of the opposing forces of the counsel on either side, tempered by such moderating remarks as the judge m ay think the occasion requires. 121. We are, however, not so pessimistic. We think, a fair test is afforded by the summing up of Field J. to the jury in Phillips v. South Western Railway Company (1879) 4 Q.B.D. 406 approved by the Court of appeal in Phillips v. London and South Western Railway Company (1879) 5 Q.B.D. 78. His Lordship said: Perfect compensation is hardly possible; and would be unjust. You cannot put the Plaintiff back again into his original position, but you must bring your reasonable common sense to bear and you must always recollect that this is the only occasion in which compensation can be given. Dr. His Lordship said: Perfect compensation is hardly possible; and would be unjust. You cannot put the Plaintiff back again into his original position, but you must bring your reasonable common sense to bear and you must always recollect that this is the only occasion in which compensation can be given. Dr. Phillips can never sue again for it. You have, therefore, now to give him compensation, once for all. He has done no wrong, he has suffered a wrong at the hands of Defendant and you must take care to give him full compensation for that which he has suffered. 122. In Johnston v. Great Western Railway Company (1904) 2 K.B. 250, 260 Vaughan Williams L.J. opined that the Plaintiff was entitled to a fair sum-- considering the position for which he was fitted and the position in which he is now. 123. Sitting as a Court of appeal we have to bear in mind that the verdict of the trial court as regards the quantum of damages should not be disturbed unless it is based on erroneous principles of law or misconception of facts. 124. The evidence of the Plaintiff, which we accept, shows that he passed the M.B. Examination of the Calcutta University in 1931 and served at first as junior and then as Senior House Surgeon, Medical College, Calcutta, for one year. He then set up practice as a general medical practitioner. He acted as a junior to his father, Dr. Debendra Nath Mukherji, a well-known physician of Calcutta. He became attached to Belliaghata-Medical Institution and Hospital as a lecturer and visiting physician. He was Deputy Superintendent of the said Institution in 1941-42, but is no longer acting as such. He deposed that his income before the accident was Rs. 250 per month, he having claimed Rs. 1,000 as four months' income. He admitted that he did not pay any income tax. He did not produce his account books. He stated that his fees was Rs. 4 per call, that he was pretty busy, that he had some mofussil calls. The court below was of opinion that his annual income should be taken to be Rs. 2,000 We agree with the court below on this point. 125. He did not produce his account books. He stated that his fees was Rs. 4 per call, that he was pretty busy, that he had some mofussil calls. The court below was of opinion that his annual income should be taken to be Rs. 2,000 We agree with the court below on this point. 125. As regards loss of his future income, the court below was of opinion that the Plaintiff had a bright prospect and that such prospects have been doomed as a result of the accident. 126. We have referred to the standing of the Plaintiff in 1942. In addition to the evidence already referred to, we have the opinion of P.W. 1, Capt. Banerji, that the Plaintiff used to have a busy practice at Calcutta. We have also the opinion of Dr. Denham White and Dr. N.R. Sen Gupta, two eminent physicians of Calcutta, as recorded by them in their certificates respectively, dated August 1, 1943 and July 30, 1943. The certificates were marked as Exs. 1, 1(a), without any objection. Both the doctors opine about the attainments of the Plaintiff as a medical practitioner, his future prospects and his loss of future prospects on account of the accident. It is true that none of these doctors were examined in the court below. On a perusal of the entire evidence, we entirely concur in the view of the court below that the Plaintiff had a bright future and that his career has been doomed to a very large extent as a result of the accident, pleading to an amputation of his right arm which was necessary to save his life. We have anxiously considered the submissions made by the learned advocates for the parties. We hold that the assessment of compensation made by the court below should not be interfered with. 127. In the result, we affirm the finding of the court below that the damages claimed by the Plaintiff on all the four heads should be assessed at Rs. 50,000. We, accordingly, overrule the last contention of Dr. Sen Gupta for the Appellant and the contention of Mr. Gupta for the cross-objector. 128. As regards costs of the appeal the Appellant has failed to substantiate any of the points raised by him and must pay the costs of the Respondent. 129. As regards the costs of the cross-objection, Mr. 50,000. We, accordingly, overrule the last contention of Dr. Sen Gupta for the Appellant and the contention of Mr. Gupta for the cross-objector. 128. As regards costs of the appeal the Appellant has failed to substantiate any of the points raised by him and must pay the costs of the Respondent. 129. As regards the costs of the cross-objection, Mr. Gupta, at the opening of the appeal, stated that he would limit the claim to Rs. 7,000 only. The point raised in the cross-objection arose out of the last point urged on behalf of the Appellant. In these circumstances, we hold that the parties should bear their own costs in the cross-objection. 130. The result, therefore, is that the appeal and the cross-objection both fail and must be dismissed, the judgment and decree of the court below are affirmed. 131. The Defendant Appellant will pay to the Plaintiff Respondent the costs of the appeal. 132. Parties will bear their own costs of the cross-objection. 133. The decree must be satisfied within three months from this date June 23, 1949.