NAYUDU, J.: This Letters Patent appeal is directed against the judgment and decree of Mehrotra, J., as he then was, in First Appeal No. 17 of 1956, confirm­ing the judgment and decree of the Subordinate Judge, Upper Assam Districts, Jorhat, dated 17th September 1955. (2) The facts of the case that require to be,, briefly noticed: The plaintiff is the owner of a motor lorry, bearing No. ASJ 2482, which on the day of oc­currence, that is on the 9th September 1950, she had used to carry chests of tea from the Amguri Tea Estate to the Niamati Steamer-ghat under an arrangement with the said Tea Estate authorities. The lorry was loaded at the relevant time with 60 chests of different varieties of tea weighing in all 77 maunds. As the truck was proceeding from the Tea Estate in question to the Niamati Steamer-ghat it had to pass over a level crossing near the Amguri Railway Station, the road running roughly from south to north passing over the rail­way track which was west to east. As the lorry came on to the level crossing the 11 Up passenger _ train, which was coming from the western direc­tion towards the Amguri Railway Station, hit the back portion of the lorry, which resulted in the lorry being dragged to a certain distance and ul­timately falling into an adjacent ditch. The lorry was damaged, and some of the tea chests had fallen down on the ground with some of the tea leaves scattered all over the place. According to the plain­tiff's case there was no indication of the train having been late; there were no warnings; there was no gate at the level crossing; there was no whistling and the train came all of a sudden and hit the lorry. Near about the level crossing were situate four rice mills besides a number of shops. There were also high trees and shrubbery obstruc­ting the view of the on-coming train from the per­sons passing over the level crossing. There is also a curve in the railway line towards the west of the level crossing and that on account of this bend, and the obstruction caused by the buildings and trees, the train approaching from the western direc­tion could not be seen by the pedestrians or persons passing along the road till they reached the level crossing. There is also a curve in the railway line towards the west of the level crossing and that on account of this bend, and the obstruction caused by the buildings and trees, the train approaching from the western direc­tion could not be seen by the pedestrians or persons passing along the road till they reached the level crossing. The plaintiff accordingly claimed that the de-dendant-Railway Administration was negligent in not maintaining gates at the level crossing in ques­tion which was frequently used by passing lorries, cars and other vehicles and by not maintaining any signs in the place or other warnings to indicate to the persons using the level crossing that a train was approaching and that they had to be careful. It was also claimed that the 11-Up passenger train, which was due to arrive at the Amguri Railway Station at about 11.30 A. M., was running unusual­ly late that day and it was at 1.30 P. M. that the accident took place as the train was approaching the Amguri Railway Station. Due to the accident the lorry in question was badly damaged and the tea, which the lorry was carrying, had also been damaged, and, the plaintiff, therefore, made a claim for a sum of Rs. 5,000/- towards the damage to the lorry in question and a sum of Rs. 3.412/14/-towards the cost of tea lost or damaged on account of the accident, and on this total sum of Rs. S,412/14/- interest at the rate of 12 per cent per. annum from 9.9.50 till the date of the suit, Rs, 1.008/-. (3) This claim was resisted by the Assam Rail­way Administration and the Union of India who filed a joint written statement wherein while ad­mitting that undoubtedly some damage was done to the lorry as also to some of the tea chests and some quantity of tea, disputed the correctness of the amount claimed towards the damage. They resisted the plaintiff's claim mainly on the ground that they were not negligent and that the accident was in fact caused by the negligence of the driver of the lorry who had recklessly come up on the railway track without due care and caution against an approaching train. They resisted the plaintiff's claim mainly on the ground that they were not negligent and that the accident was in fact caused by the negligence of the driver of the lorry who had recklessly come up on the railway track without due care and caution against an approaching train. They further claimed that the engine driver had blown whistle and that there was no obstruction of any kind to have a clear view, of a sufficient length of the Railway line on both sides and therefore the persons passing along the road could see the approaching train, and, con­sequently, the plaintiff could not recover any amount by way of damages for the accident. Alternatively, the defendants contended that even if they could be said to be negligent, there was contributory negligence on the part of the lorry driver, which was the immediate or at least the-proximate cause of the accident, and, as such, the; plaintiff could not recover any amount from the. defendants. Another plea in the written statement! was taken that the accident was the result of the joint negligence of the plaintiff and the defendants and for that reason also the plaintiff could not re-» cover any damages. (4) The Amguri Tea Estate was impleaded as pro forma defendant in the suit and in their written statement they stated that the plaintiff as a carrier of the tea was primarily responsible to them to compensate the loss sustained by reason of the accident. They assessed the loss and damage of the tea at Rs. 3.412/14/-. (5) On these pleadings the learned Subordinate Judge, who tried the suit, framed the following issues: (1) Whether the Train-Lorry collision was due to the actionable negligence of the defen­dant's railway? (2) Whether the defendant is liable for the plaintiff's claim for the damage done to the truck and/or tea? If so; to what extent? (3) To what other relief or reliefs the parties are entitled? (6) Under Issue No. 1, the learned Subordinate Judge relied on certain admitted facts, namely that there was no gate at the level crossing, that it was an unmanned level crossing at the time of the acci­dent, that there was an accident as a result of the train-lorry collision and that there was undoubtedly some damage to the lorry and the tea that was in the lorry. On considering the law on the subject and some of the evidence, the learned Subordinate Judge held as follows: "Negligent, of course, initially the Railway Administration undoubtedly was in not providing a gate with a watchman there at the said level-crossing. That being so, the persons who would cross the line at the crossing were left on their guard to see that they were not knocked down by the pass­ing train as and when it would come at the cross­ing." The learned Subordinate Judge also held: "If he (the lorry driver) got down from the truck and walked up to the level-crossing to see if any train was coming, he could have averted accident. The driver was careless in this behalf, and it was his own carelessness which brought about the accident with the resultant damage. In other words, the driver's negligence contributed to the causing of the accident even in spite of the original negli­gence of the Railway authority, so that the driver of the plaintiff's truck was the author of the wrong complained of". He further observed: "The defendant's negligence is comparatively a remote cause of the harm, and the immediate and the decisive cause is the sufferer's own fault. In such a case damage is excluded as too remote, and the person harmed is not entitled to any remedy. And one who has immediately contributed to the damage cannot maintain an action for the fault of others which is a remote cause of the damage. It is also a case of joint negligence of the plaintiff and the defendant Railway and so the plaintiff is without any remedy. In the circumstances of the case the train-lorry accident cannot be ascribed to the fault of and due to the negligence of the defen­dant-Railway only and in view of that law stated above it cannot be said to be due to the actionable negligence of the defendant's Railway and no action in damage is maintainable against the defendant for the negligence complained of." The learned Subordinate Judge further held: "As nothing has been duly and satisfactorily proved, the claim with regard to the damage done to the truck appears to be imaginary. ......There might have been mishandling as point­ed out by the defence. ......There might have been mishandling as point­ed out by the defence. The price and quantity of tea lost have not been proved.......' "But as the plaintiff cannot maintain any action in damage, and is without any remedy, it is futile and needless to pursue this issue any further..." (7) So holding, the learned Subordinate Judge dismissed the suit and directed each party to bear his or her own costs. It is seen from the judgment of the learned Subordinate Judge that he had not adverted to or discussed the evidence adduced in the case on behalf of the plaintiff barring the brief reference to the evidence of the lorry driver P. W. I and P. W. 11 Imamuddin Ahmed. We find no discussion of the evidence adduced by the plaintiff in this case. Even as regard to the other evidence of the defendants, there is only the brief reference to the evidence of the engine driver of the Railway B, W, 3i (8) Aggrieved by the decision of the learned Subordinate Judge, the plaintiff preferred an appeal to this Court, and the learned Single Judge on appeal proceeded to consider at the outset the ques­tion of damages. Obviously, the question of dama­ges did not arise for consideration in the case until the learned Judge was in a position to find that the defendants were negligent and that the plain­tiff's claim for damages required to be considered. But the learned Judge took up for consideration in the first instance the question of damages, and after making reference to the evidence of the plain­tiff and of P. W. 11, Imamuddin, the motor mechanic who inspected the damage of the lorry after the accident, came to the conclusion that the plaintiff had failed' to prove the actual extent of damage caused to the truck and the amount of loss sustained by her on that account. As regards the claim for damage to the tea, the learned Judge held that the plaintiff had no right to claim the price of tea chests as damages due to the accident, apparently on the ground that the tea chests belonged to the Amguri Tea Estate and that it was the Amguri Tea Estate alone that could claim damages from the defendants. The learned Judge further held that the amount of loss on this account had also not been established by the plain­tiff and he accordingly held that the claim of the plaintiff under this item of damage could not succeed both on the ground that the plaintiff had no right to claim damages and also because she had failed to prove the actual amount of loss of the !ea chests on account of the accident The learned Judge disallowed the claim for interest in view of the findings reached by him that the plaintiff had failed to prove the amount of loss sustained. (9) Having thus found that the plaintiff had not established the amount of damage that resulted from the accident, the learned Judge observed as follows: "In this view of the matter the plaintiff is not entitled to any part of the claim and it may not be necessary to go into the other question as to the right of the plaintiff to claim any damages. The point having been decided by the Court below and strenuously urged before me by the plaintiff-appellant that the decision of the Court below is erroneous. I would like to briefly deal with that point." It would appear from the judgment of the learned Judge that the question of liability of the defendants to pay damages on account of the accident was regarded as more or less a subsidiary matter in view of the findings reached by the learned Judge that the plaintiff had not made out the quantum of damage. (10) In considering the question of the liability of the defendants to pay damages to the plaintiff, the learned Judge considered the evidence of the lorry driver P. W. 1 and after extracting portions1 of his evidence observed as follows: "There is no other witness who has described the manner in which the accident took place; nor 'has any witness ascribed any other negligent act to the defendants." We are not a little surprised to note that this observafon should have been made by the learned Judge when he had not referred to or considered the evidence of P. Ws. 4, 5, 6, 7, 8, 9 and 10, whose evidence throws considerable light both on the manner in which the accident took place and also on the result of the accident, not to mention the evidence of D. W. 1, Excise Inspecfor, who was a passenger in the lorry. And after making reference to the evidence of the Railway engine driver D. W. 3, the Guard D. W. 4 and the Fireman D. W. 5, the learned Judge observed: "This evidence clearly shows that no attempt has been made by the plaintiff to prove any negli­gence on the part of the defendant." Considering the ev.dence in the case, the learned Judge came to the conclusion that as the driver had given whistle and stopped the steam it could / not be said that any negligence of the driver of the train had been established. As regards the failure of the defendants to have gates at the level-cross­ing, the learned Judge held: "In these circumstances there was the negli­gence on the part of the defendant in not putting up a gate at the level crossing. It has not been pointed out that there is any duty cast upon the railway administration under the Act or the Rules to put up a gate at the level crossing. In the absence of any such duty it cannot be said that there is negligence on the part of the defendant in not carrying out any duty imposed on it. If there is no duty cast on the defendant to put up a gate, no other negligence has been alleged or established by the plaintiff, which can give him a right to get ,, damages." In conclusion the learned Judge observed, after making reference to some of the English decisions, as follows: "To make the negligence on the part of the defendant actionable by the plaintiff who has suffered damage, it is necessary that there should be a duty owed by the defendant to the plaintiff to take due care and the failure to perform that duty in fact gives a right to the plaintiff to bring a suit for damages. When the defendant pleads contributory negligence on the part of the plaintiff, no such duty on the part of the plaintiff is neces­sary to be established by the defendant before he could plead the contributory negligence of the plaintiff as a defence. When the defendant pleads contributory negligence on the part of the plaintiff, no such duty on the part of the plaintiff is neces­sary to be established by the defendant before he could plead the contributory negligence of the plaintiff as a defence. The main thing is the want of the proper and reasonable care on the part of the plaintiff which has resulted in injury to him­self. As I have already pointed out, in the present case the plaintiff has neither alleged nor proved any negligence on the part of the defendant or any want of due care and caution on the part of the defendant, nor the violation of any implied duty which he owed to the plaintiff. The defendant has in the present case, also established want of care on the part of the plaintiff which contributed to the accident. The driver of the plaintiff being in the know of the position of the Railway line and the situation of the spot and further knowing that there were no gates put up, should have been more careful while crossing the Railway line and should not have attempted to cross the Railway line even, when according to his own statement, he saw the train coming." Accordingly the learned Judge held that the plain­tiff in those circumstances had also failed to esta­blish the negligence of the defendant entitling him to claim damages and that the accident was also the result of want of due care and caution on the plaintiff's own part. So holding, the learned Judge dismissed the appeal. (11) We are constrained to note that the learned Single Judge came to the conclusion on the merits of the case without having addressed his mind to the evidence of the witnesses examined in the case. We are further constrained to notice that while the .Learned Subordinate Judge assumed that the negligence on the part of the defendant was an esta­blished fact, the learned Single Judge questioned this finding without specifically adverting to it and discussing it in coming to a different opinion. We are further constrained to notice that while the .Learned Subordinate Judge assumed that the negligence on the part of the defendant was an esta­blished fact, the learned Single Judge questioned this finding without specifically adverting to it and discussing it in coming to a different opinion. (12) As both the judgments - that of the trial Court, namely the Subordinate Judge and of the Single Judge of this Court - had not considered all the evidence in the case, it has become necessary for us to go into the evidence in detail and we feel obliged to the learned Counsel on either side for having taken us carefully through the entire evidence to which we shall presently refer. (13) The case of the plaintiff is based, as seen from the evidence and from the pleadings, on the following acts of negligence on the part of the Assam Railway Administration. Firstly, at the level crossing in question, where heavy traffic con­stantly moved across the railway line, the Railway Administration failed in their duty in not having a proper level-crossing gate put up or at least in not taking adequate steps to prevent the road traffic just at the time when the train was to cross the road. They further pointed out that this was even more imperative and necessary in view of the fact that the railway track as well as the approaching train and the signals are hidden from the view of the persons passing along the road on the southern side of the railway track; and that it was this failure to warn the public of an approaching train so that "they may keep off from the track that has resulted in the accident, for which the Railway Administra­tion alone is to take the blame. Secondly, they contend that there were no warning boards put up; nor had the engine driver blown the whistle to warn the public and inform them that a train was approaching; and that the train was moving quite fast and the engine driver <did not take the necessary precaution to slow down ' and make sure that no pedestrian or vehicles or other traffic were passing over the railway line before he passed through the level crossing. As an addi­tional ground it is also stated that the 11-Up. As an addi­tional ground it is also stated that the 11-Up. passenger train' which was due to arrive at 11.30 A.M. was running more than one and a half hours late and that was another reason that the public could not anticipate or expect the arrival of the train at the odd hour of 1.30 or 2 P.M. (14) On the first point it is contended by Mr. Medhi, the learned Counsel for the contesting defendants, that there was no statutory duty or obligation on the part of the Railway Administration to maintain a gate at the level crossing. He placed reliance on Section 13 of the Indian Rail­ways Act which provided that the Central Gov­ernment might require the Railway Administration to make various constructions including erection of a railway gate at the level crossing, and, that as no such direction was given by the Central Gov­ernment to the Railway Administration they were not bound to put up the railway gate at the level crossing and that consequently they cannot be charged for failure of any duty. On the other hand Mr. Goswami, the learned Counsel for the appellant, contended that it was the duty of the Railway Administration to take all reasonable and proper steps necessary to ensure that the railways run with­out danger to the public. He placed reliance on (Section 7 of the Indian Railways Act which gave power to the Railway Administration to take all necessary steps for the purpose of running their railways. Section 7 reads as follows: "7. He placed reliance on (Section 7 of the Indian Railways Act which gave power to the Railway Administration to take all necessary steps for the purpose of running their railways. Section 7 reads as follows: "7. (1) Subject to the provisions of this Act and, in the case of immovable property not belong­ing to the railway administration, to the provisions of any enactment for the time being in force for the acquisition of land for public purposes and for companies, and subject also, in the case of a rail­way company, to the provisions of any contract between the company and the Government, a rail­way administration may, for the purpose of con­structing a railway or the accommodation or other works connected therewith, and notwithstanding anything in any other enactment for the time being in force,- (a) make or construct in, upon, across under or over any lands, or any streets, hills, valleys, roads, railways, or tramways, or any rivers, canals, brooks, streams or other waters or any drains, water-pipes, gas-pipes or telegraph lines, such temporary or permanent inclined planes, arches, tunnels, culverts, embankments, aqueducts bridges, roads, (lines of railway), ways, passages, conduits, drains, piers, cuttings and fences as the railway administration thinks proper; * * * * (2) The exercise of the powers conferred on a railway administration by sub-section (1) shall be subject to the control of the Central Government." In this connection reliance has been placed on Mercer v. South Eastern and Chatham Rly. Co's. Managing Committee, 1922-2 KB 549, Cliff v. Midland Rly. Co's. Managing Committee, 1922-2 KB 549, Cliff v. Midland Rly. Co., (1870) 5 QB 258, quoting the principle applicable as stated by Willes, J. in Inder-maur v. Dames, (1866-67) 1 CP 274: "And, with respect to such a visitor at feast, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use rea­sonable care to prevent damage from unusual dan­ger, which he knows or ought to know; and that, where there is evidence of neglect the question whe­ther such reasonable care has been taken, by notice, lighting, guarding, or otherwise, and whether there Was contributory negligence in the sufferer, must 'be determined by a jury as matter of fact." Dealing with the obligations of the railway com­pany in such matters Lush, J. observed as follows: "It may seem a hardship on a railway com­pany to hold them responsible for the omission to do something which they were under no legal obliga­tion to do, and which they only did for the protection of the public. They ought, however, to have contemplated that if a self-imposed duty is ordinarily performed, those who know of it will 'draw an inference if on a given occasion it is not performed. If they wish to protect themselves against the inference being drawn they should do so by giving notice, and they did not do so in this case." We are clearly of opinion that there is an obliga­tion on the part of the railway company or administration to ensure that whenever the railway passes over a thoroughfare adequate warning should be given to the public of the passing of the trains at the time they pass so that accidents may be avoid­ed. This duty need not necessarily be a statutory duty. It is implied and inherent in the functions to be discharged by the Railway Administration in the matter of running their railways. This duty need not necessarily be a statutory duty. It is implied and inherent in the functions to be discharged by the Railway Administration in the matter of running their railways. There is no doubt and it is not disputed that had the Railway Administration taken the precaution of either putting up a railway gate and keeping it closed at the time the train was due to pass or put up some other obstruction which could prevent the public from passing over the level crossing giving them information and notice of the approach­ing train, the accident of the kind that happened in this case could not occur. (15) We would next deal with the conditions of this level crossing and the amount of danger that was involved in not providing proper warnings and safeguards, to protect the public. P. W. 1, the lorry driver, stated that the railway line to the left side, that is to the western side, was not visible due to some Marwari shops and other houses and the presence of patches of jungle. In cross-exa­mination he stated that in between the train and the rail road there were jungles and that even from a distance of four feet from the rails the distance signal could not be seen. Then P. W. 4, the Tea House Mohurer of the Amguri Tea Estate, states that "while going from south to the north, the train coming from west is not visible till one gets on to the level crossing. Now there is a gate but at the time of accident, there was no gate, and for that reason some cattle were killed." P, W. 5 is a shop-keeper in the neighbourhood. He stated that there were four rice mills in the place and that while coming from south to the north towards the level crossing, and near the crossing, there were some shrubs and some trees and that due to the existence of all these the train coming from the west could not be seen. He further deposed that there was no gate at the crossing, and that after the accident chains had been put there and a Chowkidar kept there by the Railway to put up chains when trains came. He further deposed that there was no gate at the crossing, and that after the accident chains had been put there and a Chowkidar kept there by the Railway to put up chains when trains came. He further stated in his cross-examination that one must come very near the railway line near the low land in order to see the distant signal and that the train which was visi­ble from his shop 300 feet away while on the bridge near the distant signal became gradually out of view as it approached the level crossing. P. W. 7 who was coming on a cycle from behind stated that the train could not be seen as there were houses and trees. To the same effect is the evidence of P. W. 8, the rice mill owner in the neighbourhood, who stated as follows: "One does not get a view of the train coming from the west till he gets on to the Railway line as the view is obstructed by my house, long godown and trees and the trees on my back sides extend up to within 30 ft. from the Railway line." (16) P. W. 10 who is another cyclist, saw the lorry in passing the road at that place. He deposed J that the coming train could not be seen due to the house and trees and shrubs near the Barbam road and the Railway line. From the above evidence it is clear that it is only when the members of the public using the road came on to the Railway line that they would be in a position to know that a train was approaching. In such circumstances it was the obvious duty of the Railway administra­tion to have taken adequate steps to warn the public of the approaching trains, so that accidents might-be avoided. We consider that this is a clear cast of negligence on the part of the Railway administration and it was this that obviously has resulted in the accident in question. (17) The further question to consider is whether the engine driver D. W. 3 had in fact blown his whistle and warned the public using the road. Both the Courts below without proper examination of the evidence, assumed that the engine driver whistled and fulfilled his duty at that time. It would there­fore, be necessary to examine the evidence on this point. Both the Courts below without proper examination of the evidence, assumed that the engine driver whistled and fulfilled his duty at that time. It would there­fore, be necessary to examine the evidence on this point. The engine driver's evidence shows that he gave the whistle and applied the vacuum only when he saw the lorry at the level crossing. Nowhere does he say that he blew the whistle at any earlier point, of time, except when he passed the bridge which was quite a distance away. It is seen from the evi­dence of D. W. 2 that there is a whistle board, marked 'W' at a distance of 69 feet from the centre of the level crossing towards the west, which he had' shown in the plan produced by him in the case, and that that board was intended to serve as a direction to the driver that he should blow his whistle at that point. But the driver of the engine did not depose that he blew the whistle at that point. Neither does the guard D. W. 4 nor the fireman* D. W. 5 depose to that effect. All the three witnesses - D. Ws. 3, 4 and 5 -are agreed that the driver blew the whistle and im­mediately applied the vacuum brake, only on the driver of the engine seeing the lorry coming on to the Railway track; and the blowing of the whistle then was useless because the engine was too near the lorry by that time and the accident could not be averted in spite of the presence of mind of the lorry driver in trying to move away the lorry from« the Railway line as quickly as possible. There is, therefore, no substance in the case of the defen­dants that adequate precautions and care had bee* taken by the engine driver by blowing the whistle. This evidence of D. Ws. 3, 4 and 5 even as regards the blowing of whistle is contradicted in this regard by the evidence of the plaintiff's witnesses who deposed that they never heard the sound of any whistle from the engine. (18) The next point in this connection to con­sider is the speed of the train. This evidence of D. Ws. 3, 4 and 5 even as regards the blowing of whistle is contradicted in this regard by the evidence of the plaintiff's witnesses who deposed that they never heard the sound of any whistle from the engine. (18) The next point in this connection to con­sider is the speed of the train. Obviously any per­son in the position of an engine driver who should take reasonable care and precaution to avoid an accident, should slow down the speed of the train, before he drives the train to the level crossing, parti­cularly when he knew, and he must have known, that the level crossing was unmanned and not protected by any gates. It is seen from the evidence of the engine driver that he increased the speed as soon as he came off the bridge which was three or more furlongs away from the level crossing, and" that, after he applied the vacuum brake and tried to stop the engine, the accident occurred by the buffer of the engine hitting the back side of the lorry; and according to him the speed of the train at that time was fifteen miles per hour. If the speed was 15 miles after he had applied the vacuum over two rail length distance, obviously the speed of the train when he spotted the lorry must have been much more - may be 20 or 25 miles per hour. On the evidence of the engine driver himself that when the engine knocked the truck, the engine was going at 15 miles speed per hour, we are clearly of opinion that much greater care should have been taken by the engine driver in slowing down the speed of the engine in order to make sure that there was no traffic on the railway line, parti­cularly traffic coming from the southern side of the railway line which would not be visible to him. We are, therefore, satisfied that the driver of the engine had undoubtedly been negligent both by not blowing the whistle at the proper place and time and also by not slowing down the speed of the train when he was approaching an unguarded level crossing. We are, therefore, satisfied that the driver of the engine had undoubtedly been negligent both by not blowing the whistle at the proper place and time and also by not slowing down the speed of the train when he was approaching an unguarded level crossing. In this connection it must be noted that ;the engine driver knows when he is going to reach ;a level crossing, whereas the pedestrians or members of the public using the level crossing do not become aware of the arrival of the train, unless pro­per warnings are given to them of the approaching train, (19) In this connection it would be useful to refer to the following observations in the case of (1870) 5 QB 258 at pages 264-65: "It appeared at the trial that the number of trains which passed the crossing was very consider­able; that the crossing was on a curve, and that at about 150 yards from it there was a bridge over the line which obstructed the view of the trains from that direction until they were partly under it. * * * Now, it was pressed, I observe, in the argu­ment for the plaintiff, that this was a peculiarly dangerous place; that trains were perpetually pass­ing; that there was a curve, and a bride obstructing the view; that some notice or some man might have been placed there, and that a swing-gate was improper. Earle, C. J., who tried the cause, deli­vered judgment in these terms: "I do not intend to lay down a rule as to footpath elsewhere, or to interfere with the statute law; the ground of my 'decision is the great degree of risk in this place. Earle, C. J., who tried the cause, deli­vered judgment in these terms: "I do not intend to lay down a rule as to footpath elsewhere, or to interfere with the statute law; the ground of my 'decision is the great degree of risk in this place. * * Now, as I have said, the principle I extract from that decision is this:- The railway company had so constructed their line as to make a sharp curve at the spot where this train passed; they also built a bridge which prevented a passenger from seeing a coming train until it was very near; and on that account the company, having themselves created a peculiar difficulty, and exposed passengers to more peril than the legislature contemplated, and more than was ordinarily incident to a level crossing, undertook the obligation of providing some addi­tional protection." In this case it was further observed: "I need hardly say that I agree with my Brother Mellor that in the management of the trains upon a line which crosses a way, whether public or private, upon a level, the company are, of course, bound to use all reasonable care, vigilance, and skill; and the greater the thoroughfare over any part of the line the greater the care and the vigil­ance that ought to be exercised by those who have the charge of the trains. Those persons ought to anticipate that people may be crossing where they know people have a right to cross. Whatever the degree of traffic may be, be it more or less, a corresponding degree of care is required on the part of the company." We are therefore satisfied that the contesting defen­dants in this case have been proved to be negligent and that the accident was a result of this negligence on the part of the defendants. (20) The further question to consider is whe­ther the plaintiff is guilty of contributory negligence. The principles bearing on the law of contributory negligence are not always properly understood in this country. (20) The further question to consider is whe­ther the plaintiff is guilty of contributory negligence. The principles bearing on the law of contributory negligence are not always properly understood in this country. A defence based on contributory negligence proceeds on the assumption that the per­son raising the defence was himself negligent and that that negligence would not afford a cause of action to the plaintiff, either because of its remote­ness to the accident or because the plaintiff who had the last opportunity to avoid the accident, did not do so, or that he did not act with reasonable care and prudence and that this negligence of the claimant was the direct cause of the accident but for which the accident would not have taken place. The plea of contributory negligence as set out in the written statement of the contesting defendants is extremely vague. Paragraph 10 of, the written statement filed by defendant No. 1 the Union of India contains this plea as follows; "That the defendant is not at all liable as there was contributory negligence on the part of the lorry driver. In any case as the negligence and default of the lorry driver was the immediate or at least the proximate cause of the damage the plaintiff cannot recover even if the Court finds any the least negli­gence on the part of the defendant." Then follows another confused plea at paragraph 11 of the written statement that in any case the acci­dent was the result of joint negligence so that the plaintiff cannot recover anything against the defen­dant. It is not understood where any question of joint negligence arises in this case at all. It is not understood where any question of joint negligence arises in this case at all. This as­pect of the plea has apparently not been pursued at the time of the trial although we notice in the judgment of the learned Subordinate Judge a supple­mentary finding to the effect that the plaintiff could not recover on account of the joint negligence, as seen from the sentence as hereunder: "It is also a case of joint negligence of the plaintiff and the defendant-Railway and so the plaintiff is without any remedy." (21) The learned Subordinate Judge who con­sidered that the plaintiff was guilty of contributory negligence, based his conclusion on the following assumption as seen from the following portion of his judgment: "Whatever that may be, there was no knowing when a train might come, and in order to safeguard his own interest and to ensure his own safety and that of his own master's property, the driver ought to have been more careful and ascertained before he actually attempted to cross the line at the cross­ing that no train was coming up the line at the time, particularly when there was no gate and no watchman at the crossing. This the driver did not do. If he got down from the truck and walked up to the level crossing to see if any train was com­ing, he could have averted accident. The driver was careless in this behalf, and it was his own carelessness which brought about the accident with the resultant damage. In other words, the driver's negligence contributed to the causing of the acci­dent even in spite of the original negligence of the Railway authority, so that the driver of the plain­tiff's truck was the author of the wrong complain­ed of." In the view of the trial Court it would appear that every lorry driver who approaches a level crossing, has to first stop his lorry on the road near the level crossing, walk up to the railway, tract look on either side to see if any train was coming and then to cross the level crossing. This in our opinion, would amount to the imposition of an extra-ordinary and unnecessary duty on the part of the users of the road. This in our opinion, would amount to the imposition of an extra-ordinary and unnecessary duty on the part of the users of the road. The significant circumstance in the case is that even if the plaintiff's Driver had adopted the course suggested by the learned Subordinate Judge and walked up to the level crossing, seen that no train was coming, came back to the lorry, started it up and proceeded to go, there is absolutely no guarantee in the case that the train would not come during the interval of the time that would elapse meanwhile and knock down the lorry. Such an unnatural and extra-ordinary duty is not cast on a citizen in such matters. The duty on the other hand, is on the Railway administration to ensure that adequate warning is given to the public of the , arrival of the train and that they should not use the level crossing till the train passes, which duty as we have already found, had not been performed in this case. (22) Now on the question as to how exactly the' accident happened it would be necessary to refer to the evidence in this case. P. W. 1 the lorry driver stated as follows: "The road by which I was driving in my front was clear even on the other side of the Railway cross­ing. While my lorry crossed the rails by the first wheels, I saw the train coming by the Railway line from the left side. At that time the wheel and accelerator were under my control and I had no chance to come back and so I tried to cross the line at my best but still the Engine of the Railway dashed against the end of the truck behind the back of the first wheels and carried some distance but still I was steady in my position and so I could save the truck by stopping it dashed against the iron posts near the crossing." In cross examination he stated: "Before I drove my lorry on the rails I looked on either side and I did not notice then the train coming from my left. I did not change the gear of the lorry for its start from the front of the tea stall till I got up on the Railway line for crossing it. I did not change the gear of the lorry for its start from the front of the tea stall till I got up on the Railway line for crossing it. It was not to be changed as the lorry was on the top gear. I could not have got back the truck from the Railway line when it was up so but I could have stopped the lorry if I would have seen the train while I was at a distance of 4 "feet from the rails and the lorry would not have proceeded an inch even. From then four feet distance from the rails the distance signal cannot be seen. Before one gets on the Railway line the. distance signal could not be seen. The train was seen by me only at a distance of 50 or 60' feet while I was on the rails with the truck. Then I tried my best to drive the truck away from the rails." He further stated: "The truck was on No. 2 gear which we calf first gear and No. 1 gear is called low gear. In 2nd gear the speed is 10 i miles in the minimum, and in the low gear speed is five miles. I know besides the passenger train, goods train and shuttle train run on the railway without "fixity of time and' we are to be careful also of them when I cross the Railway line. I was so cautious on this occasion also. There is no chain or gate for cross­ing the Railway line to avoid the train so running" P. W. 6 was a passenger in the train who deposed' that while he was sitting in his compartment, he heard a knocking sound and the train went on and stopped at the station and the last compartment came almost near the station. He went to see the truck and found it lying in the drain and the tea and the chest lying scattered, P. W. 7 the cyclist who was following the lorry on the road, deposed that when the truck was crossing the level crossing, the engine of the train knocked against the rear portion of the truck. He and his companion Ratneswar Gogoi stopped. They did not hear any whistle of the train nor see the train coming. He and his companion Ratneswar Gogoi stopped. They did not hear any whistle of the train nor see the train coming. P. W. 9 - a labourer - who was also a passenger in the lorry stated that when the wheels of the truck almost crossed the Railway track the Railway Engine of the train coming from the side knocked the truck over in which he was sitting. To the same effect is the evidence of P. W. 10 who is another cyclist following the lorry. From the per­usal of this evidence considered with that of D. W. I1 who was also an occupant of the .lorry in question-, it is clear that the accident took place when the lorry had crossed the railway line and when the back portion of it was still one the track. On a consideration of the evidence in the case we are not satisfied that any lack of care or negligence could be attached to P. W. 1 the plaintiff's lorry driver. According to his evidence as corroborated by others, he took all the necessary precautions to cross the railway line and as the train was coming without any warning and also suddenly, all that he could do was to clear the lorry off the track which he did not succeed in doing in view of the train colliding against the back portion of the lorry. We are therefore satisfied on a careful consideration of the evidence adduced in this case that no blame at all could attach to P. W. 1 and so there is no case of contributory negligence at all arising for con­sideration in this case. (23) The burden of establishing the defence of; contributory negligence is on the defendant who admits that he is negligent but pleads that on account of the conduct of the plaintiff his negligence had gone into the back-ground and it was; the conduct on the plaintiff that resulted in the accident. In this connection it is useful to refer to the case of Dublin, Wicklow, and Wexford Rly. Co., ,v. Slattery, (1878) 3 AC 1155. The test has been propounded by Ford Cairns, L. C. at page 1165 as follows. "I then come to the second issue, could the deceased, by the exercise of reasonable care and skill on his part, have avoided the collision? Co., ,v. Slattery, (1878) 3 AC 1155. The test has been propounded by Ford Cairns, L. C. at page 1165 as follows. "I then come to the second issue, could the deceased, by the exercise of reasonable care and skill on his part, have avoided the collision? In other words was the deceased chargeable with what is called contributory negligence?" Again Ford Hatherley at page 1173 observed: "The plaintiff in the declaration alleges that the Defendants 'so negligently and carelessly con­ducted themselves' in various particulars, 'that John Slattery, whilst lawfully crossing' the line, 'was struck and injured by the train proceeding from Dublin,' etc.; and that he died of the accident. To this the Defendants plead 'that there was no such negligent and careless conduct on the part of the Defendants as alleged.' This issue affirms that the injury happened by reason of the Defendants' negligence; but in doing so it is not intended to affirm that it so happened wholly by the Defendants' negligence to the exclusion of all other concurrent causes. If it were so intended, the subsequent issue raised by the Defendants as to the Plaintiff's contributory negligence would be superfluous and useless; for if the accident happened wholly by reason of the Defendants' negligence, to the exclu­sion of the concurrent causes, there is no room for the assertion that the deceased man contributed to cause it. In other words, the only finding upon the first issue, under which the second issue could possibly arise, is a finding that the accident did happen, by reason of the Defendants' neglect, leav­ing open the further question whether; other causes, and among them the negligent conduct of the deceased, contributed to it." (24) As already stated the evidence in the case did not establish any act of negligence on the part of the lorry driver. The learned single Judge refer- f red to the evidence of the engine driver apparently " in support of the conclusion that the lorry driver was at fault. The only portion of his evidence which has any bearing on this aspect of the matter is: "When I reached the, level crossing, I saw a lorry running at high speed towards the line. I saw the lorry at a distance of 17 or 18 cubits on the road from the level crossing coming towards the level crossing. The only portion of his evidence which has any bearing on this aspect of the matter is: "When I reached the, level crossing, I saw a lorry running at high speed towards the line. I saw the lorry at a distance of 17 or 18 cubits on the road from the level crossing coming towards the level crossing. The level crossing was then at a distance of about two rail length from the front of the engine. One rail-length is 13 yards. I gave whistle and applied vacuum and closed steam, but the lorry did not stop and went at terrific speed, ' but the whole lorry could not pass and rear por­tion of the lorry was struck with the engine-head and the lorry which was coming from my right' side was thrown away to my left side." This evidence apart from being "highly artificial, does not fit in with the admitted and proved facts in the case, namely that the engine buffer struck" the back portion of the lorry after the lorry had passed over the rail tracks. If the engine had: reached the level crossing, as simultaneously the engine driver D. W. 3 has deposed, then the impact would not have been on the rear portion of the lorry. It should have been probably in front or in the middle. It is also not probable that the lorry could be travelling at any great speed and1 much less at terrific speed, when admittedly there were four posts at the level crossing only eight feet apart and there was a stiff gradient from the level of the road to the level of the level crossing. We cannot therefore accept the statement of the engine' driver that when he reached the level crossing he saw the lorry at a distance of 17 or 18 cubits or the road from the level crossing coming towards the level crossing. This statement of the engine) driver is not supported by any of the other witnesses in the case including D. W. 1 the Excise Inspecfor1 who was seated in the lorry. D. W. 1 stated as fol­lows:- "The train was running late and the runnning train was seen when the truck was over the Rail­way line on the level crossing. This statement of the engine) driver is not supported by any of the other witnesses in the case including D. W. 1 the Excise Inspecfor1 who was seated in the lorry. D. W. 1 stated as fol­lows:- "The train was running late and the runnning train was seen when the truck was over the Rail­way line on the level crossing. I saw the engine at a distance of two Nals from the truck, and the1 engine collided when front portion of the truck crossed the line and the back portion was still on the line." This is sufficient to discredit the evidence of the engine driver. We are not satisfied on the evidenced adduced for the defendants in this case that there is any case or proof of contributory negligence or, the part of the plaintiff or the plaintiff's driver. No j specific act has been proved against the lorry driver1 which would have been the proximate or immediate j cause of the accident. The evidence in the case is that the railway engine struck the rear portion of the lorry as the lorry was going away from the level crossing. We are therefore, satisfied that the} defendants' negligence having been established and as the accident is a direct result of the negligence, the plaintiff is entitled to claim damages against' the defendants for the loss, whatever it be, she1 sustained as a result of the accident. (25) This leads us to the next question which falls to be determined in this appeal, namely what extent of damage was suffered by the plaintiff as a result of the accident and what amount of dama­ges she would be entitled to get from the contest­ing defendants. Both the Courts below surprisingly seem to hold that there is no proof of damage. Mr. Goswami for the appellant contended that this is a case of res ipsa loquitur. The lorry fully loaded being struck by an engine running at a speed of 15 miles an hour and thrown into the ditch could necessarily result in damage to the lorry. That the lorry was- found to have fallen into the ditch after the accident in a damaged con­dition with some of the tea chests fallen down and the tea leaves scattered all over the place is abundantly established by the evidence in the case. That the lorry was- found to have fallen into the ditch after the accident in a damaged con­dition with some of the tea chests fallen down and the tea leaves scattered all over the place is abundantly established by the evidence in the case. It is sufficient to mention that P. W. 1 the lorry-driver, P. W. 5 the shop-keeper of the locality, P. W. 6 the passenger in the train, P. W. 7 and 10 the cyclists coming on the road and P. W. 8 the rice-mill owner have deposed that as a result of the accident the lorry was thrown into a ditch adjacent to the Railway line and was seen lying there. They have also spoken of the damage done to the tea chests and the tea leaves being scattered all over the place. That damage did in fact result is admit­ted categorically in paragraph 5 of the written statement of the defendant as follows: "That undoubtedly some damage was done to the lorry as also to some of the tea-chests and some quantity of tea but the defendant denies that the damage to the lorry was to the extent of Rs. 5,000 or that all the sixty tea-chests had become damaged or so damaged as to be useless for fur­ther use * * *" In the instant case there is enough evidence of the, proof of damage to the truck, apart from the fact that it could be reasonably assumed that a fully loaded lorry forcibly struck by a railway engine and made to fall into a ditch, would necessarily sustain substantial damage. There is the evidence of P. W. 11 to the effect that he had inspected the lorry when the same was brought under tow by one Amar Singh. He prepared a list of the damaged items which required replacement and Ext. 6 is hi3 letter addressed to the plaintiff, giving an estimate of the damage. According to him the estimate of the cost of repair comes of Rs. 5,674/8/- including the charges for overhauling the engine etc. In the matter of assessing damage resulting from art accident to a vehicle the only correct method is to determine what expenditure would be involved in bringing the damaged vehicle to its normal road worthy condition and apparently P. W. 11 who is" a mechanic, maintaining a motor workshop, had prepared the list after inspection. In the matter of assessing damage resulting from art accident to a vehicle the only correct method is to determine what expenditure would be involved in bringing the damaged vehicle to its normal road worthy condition and apparently P. W. 11 who is" a mechanic, maintaining a motor workshop, had prepared the list after inspection. (26) It is contended by Mr. Medhi, the learned Counsel for the contesting defendants that the items are exaggerated and unnecessary items are included. But this submission has no foundation on the evi­dence on record. Imamuddin Ahmed has been examined as a witness in the case as P. W. 11 and he was cross-examined at some length. But nothing has been suggested to him as to the correctness of the items which have been included in Ext. 6 as having been damaged and requiring replacement. As a matter of fact in this connection it must be stated that it was the duty of the Railway to have surveyed the damage immediately after the acci­dent had taken place. In spite of the fact that the matter had been reported both to the civil police1 as well as the Railway police, no steps apparently were taken by the Railway administration to have an independent person to assess the damage to the truck in the presence of the plaintiff or her re­presentative. If the defendants did not avail themselves of this opportunity they have only them­selves to thank for. On a careful consideration of the evidence given by P. W. 11 we see no reasons to discredit his evidence or to doubt the correctness of the list prepared by him. The seriousness of the damage to the plaintiff's lorry could also be gauged by the circumstance that the plaintiff had to sell her lorry after the accident as scrap for the small sum of Rs. 500/- what was before the accident a road-worthy vehicle transporting loads from one place to another. Both the Courts below erred in over­looking the plaintiff's evidence that she had spent about Rs. 7000/- on the lorry to make it fit for service after it was purchased. The plaintiff has limited her claim to Rs. 5,000/- on account of the damage done to the truck and this figure being less than the cost of repair of the damage as set out in Ext. 7000/- on the lorry to make it fit for service after it was purchased. The plaintiff has limited her claim to Rs. 5,000/- on account of the damage done to the truck and this figure being less than the cost of repair of the damage as set out in Ext. 6 and supported by the evidence of P. W. 11, the plaintiff in our opinion is entitled to get this amount from the contesting defendants. (27) The only other question that remains to be considered is the damage to the tea. It is rather surprising that without taking the trouble of going through the evidence in the case, the learned Sub­ordinate Judge as well as the learned Single Judge held that there was no evidence to prove the loss or damage to the tea. We have on record the evidence of P. W. 3 an employee of the Amguri Tea Estate who has stated that the plaintiff was 'given permission to carry tea by a lorry No. A.S.J. 2482 and that on the day of the accident tea was being carried from the Tea Estate by that lorry. He further stated that Rs. 3412/14/- was the amount demanded by the Tea Estate from the plaintiff towards the cost of tea and boxes lost by being damaged and excise duty thereon. He also deposed that they had debited the amount in the plaintiff's account. Ext. 2 is a letter of demand on the plaintiff wherein the said amount was demanded from the plaintiff. Then there is the evidence of P. W. 4 who is the tea house Mohurer of Amguri Tea Estate. He stated that 60 tea chests containing 5388 Ibs. were despatched by the plaintiff's lorry to the Niamati Steamerghat on the day of the accident and that on the way the lorry sustained an accident and immediately thereafter the Barbara Tea Estate which is one of the gardens of the Amguri Tea Company, collected all the available tea from the lorry which was involved in the accident from plaintiff's lorry and brought it and deposited it in a Store room and the tea was kept under lock and key. He further deposed that on the 18th September 1950 the Central Excise Inspecfor came and verified the stock and found it to be 4378 Ibs. only. Thus there was a shortage of 1010 Ibs. He further deposed that on the 18th September 1950 the Central Excise Inspecfor came and verified the stock and found it to be 4378 Ibs. only. Thus there was a shortage of 1010 Ibs. This witness also stated that some of the tea chests were completely destroyed, some were partly damaged and some besmeared with mud and some of them were unfit for use. He estimated according to the prices obtain­ing at the time that the -value of the tea etc. lost amounted to Rs. 3,412/14/-, which is supported by Exts. 3, 3(1) and 3(2) which were entries in the Weighment Register Extracts of the Tea Company. These show that a shortage of 1010 Ibs. has been noticed. The learned Subordinate Judge strangely enough preferred to act on surmises instead of con­sidering the evidence placed before him. He seem­ed to assume that there might have been theft of the tea, or that some misappropriation might have taken place in respect of the tea. Obviously the learned Subordinate Judge is wrong when he says that the price and quantity of tea lost have not been proved. However, both the trial Court as well as the learned Single Judge of this Court fell into an error in thinking that the plaintiff was not entitled to recover the cost of the tea damaged, observing that the carrier has her own liability in respect of the goods carried. The evidence is that the value of the deficit tea was in fact debited to the plaintiff and under law the plaintiff is responsi­ble to account to the Tea Estate, from whom she had taken delivery of the tea for purposes of transshipment to Niamati Steamer-ghat. We are satisfied in this case that the amount claimed towards the costs of tea lost is the correct amount and the plaintiff is entitled to recover the same from the defendants, through whose negligence she happened to sustain this loss. (28) The next question to consider is the one relating to the interest claimed. On a careful con­sideration of the facts and circumstances of the case we see no justification whatsoever for award­ing any interest up to the date of the suit. (28) The next question to consider is the one relating to the interest claimed. On a careful con­sideration of the facts and circumstances of the case we see no justification whatsoever for award­ing any interest up to the date of the suit. We feel that the ends of justice are satisfied if interest is allowed at six per cent per annum from the date of the suit till the date of the decree and the usual rate of six per cent per annum thereafter. In the result, this appeal is allowed with proportionate costs throughout against defendants 1 and 2, who shall bear their own costs in all the Courts. It is seen from the record that the first appeal to this Court was permitted to be preferred in forma pauperis. The Court-fee payable on the appeal memorandum of the first appeal shall be paid by the contesting defendants. (29) S. K. DUTTA, J.: I agree. Appeal allowed.