Judgment Mukherji, J. 1. This second appeal by the defendants arises out of a suit filed by the plaintiff-respondent for recovery of Rs. 2,000.00 as damages on account of injuries suffered by him due to the negligence of the defendants. 2. Facts giving rise to this appeal briefly stated are that defendant No. 1 is a registered partnership firm carrying on contract business. Defendant No. 2 is a working partner of defendant No. 1. They had taken a contract for laying a pipe line from Dimna to Telco and for that purpose they had dug out trenches by the side of the road in front of the Government hospital. The trench was left open and it was neither fenced nor any light was placed by the side of the trench as a security measure. On 12-12-1965, the plaintiff-respondent was going to the hospital at about 8 p.m. As the defendant-appellants did not take any precautionary measure the plaintiff-respondent could not ascertain the location of the trench as a result of which he fell down in it and received injuries. His wrist and other portion of his body were fractured. He remained in the hospital for 19 days. It is alleged that as the plaintiff-respondent suffered from these injuries on account of the negligence of the defendant-appellants the latter are liable to compensate the plaintiff-respondent and hence he claimed a sum of Rs. 2,000.00 as special and general damages. 3. The defendant-appellants contended, inter alia, in the written statement that the road side in front of the hospital was not dug; that a strip of land was kept intact for the people going to hospital; that the excavation was done in two stages that the trench was properly fenced on the road side and a red lamp was kept burning throughput the night; that there was no negligence on the part of these defendant- appellants and that they are not liable to pay any compensation to the plaintiff-respondent. 4. The trial Court held that it was due to the negligence of these defendant-appellants in keeping the ditch unsecured for the public during the night time, that the plaintiff-respondent had received injuries on his person and accordingly it assessed the general and special damages at Rs. 1815/- and accordingly decreed the plaintiffs suit with proportionate costs. The appeal preferred against the judgment and the decree are dismissed by the lower appellate Court. 1815/- and accordingly decreed the plaintiffs suit with proportionate costs. The appeal preferred against the judgment and the decree are dismissed by the lower appellate Court. 5. Mr. R. S. Chatterji, learned counsel appearing on behalf of the defendant-appellants has urged that: (i) There was no negligence on the part of the defendant-appellants and, as such, the plaintiff respondent is not entitled to claim any compensation for the iniuries sustained by him. (ii) Assuming but not admitting that the appellants were negligent in not taking proper protective measure near the trenches the plaintiff-respondent was equally guilty of contributory negligence for want of ordinary care and, as such, the court below should have held that the plaintiff-respondent was not entitled to any relief. (iii) The amount of compensation awarded to the plaintiff is excessive and is not commensurate with the simple injuries received by him. 6. Points (i) and (ii):- - The case of the plaintiff-respondent in the plaint that the defendant-appellants were constructing a pipe line by the side of the road in front of the Government hospital at Jamshedpur and for that purpose they excavated trench to take the pipe line, has not been specifically denied by the defendant-appellants in their written statement. As a matter of fact it is admitted by the defendant-appellants that they had undertaken the job of laying the pipe line and that they had excavated the land for that purpose. The defendant-appellants have averred as follows in paragraph 7 of their written statement:-- "As a matter of fact the piece of land on the road side in front of the Government hospital entrance was not dug -UP at the time of the alleged occurrence. A sufficiently wide strip of land was kept intact to allow ingress and egress to the vehicular and other traffic for people visiting the hospital. Excavation was done and pipe laid much later. It was also done in two stages--first, half of the land was dug keeping the other half intact for pedestrians and vehicles to pass. When this half was completed and filled up the other half was dug up. Excavation was done and pipe laid much later. It was also done in two stages--first, half of the land was dug keeping the other half intact for pedestrians and vehicles to pass. When this half was completed and filled up the other half was dug up. Thus, there was absolutely no difficulty for anybody or any vehicle to go in or coming out of the hospital." The aforesaid assertion of the defendant-appellants contain an implied admission that a portion of the flank of the road leading to the hospital was dug up but that it did not cause any obstruction to the pedestrians and the vehicular traffic going to the hospital. Unless this is the logical inference from the above averment, there was no need for the defendants to assert that half of the land was dug up keeping the other half for the pedestrians and vehicles to pass for the purpose of going to hospital. 7. The trial Court has held that the ditch was dug by the defendant-appellants. The lower appellate Court held that the trench was dug toy the defendants lust near the gate of the hospital. This finding of fact arrived at by the lower appellate Court establishes that the trench was dug by the side of the road leading to the hospital. The courts below have concurrently held that the defendant-appellants had not taken any security measure for avoiding accident. The courts below appear to have accepted the case of the plaintiff-respondent that no red light was put near the trench and that it was not fenced. This is also a finding of fact which cannot be assailed in this court in second appeal. 8. It is well settled by authorities that it is for the plaintiff-respondent to show that the accident in which he received injuries on his person had happened on account, of negligence of the defendant-appellants. As it appears from the judgments of the courts below, the plaintiff-respondent has proved by cogent evidence that the road to the hospital was a busy thoroughfare and people pass through that road day and night and that the night of occurrence was a dark one as black out was being observed on account of Indo-Pakistan war. As it appears from the judgments of the courts below, the plaintiff-respondent has proved by cogent evidence that the road to the hospital was a busy thoroughfare and people pass through that road day and night and that the night of occurrence was a dark one as black out was being observed on account of Indo-Pakistan war. The concurrent finding of both the courts below was that the defendant-appellants did neither put any fence round the trench nor did they keep any red light near the trench to warn the pedestrians of the danger. It is urged on behalf of the respondent that it was incumbent on the defendant-appellants to do so specially be- cause it was a black out night. It is true that it has not been established that the trench was dug on the main road but it has been established that the ditch was dug by the side of the main road. The defendant-appellants must have known that on account of darkness prevailing all round it was not unlikely that the pedestrians using the road might fall into the ditch. It is urged that in the circumstance the defendant-appellants were negligent in not putting any fence round the trench and in not putting any red light there. 9. It is necessary to state as to what is the meaning of the expression negligence as given by the authorities. Salmond on the Law of Torts. 1965 Edition, at page 268 has quoted the well known definition of Alderson B. in Blyth V/s. Bermingham Waterworks Co., (1856) 11 Ex 781 at p. 784 as: "Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do." It follows that any reasonable man after having dug the trench adjoining the highway is expected to take such precaution about fencing the trench and putting red light round about it so that persons using the highway in the night might not fall inside the trench. After having excavated the land abutting the highway it was the duty of the defendant-appellants to take proper care so that the trench may not be source of danger to persons using the highway as a matter of right. After having excavated the land abutting the highway it was the duty of the defendant-appellants to take proper care so that the trench may not be source of danger to persons using the highway as a matter of right. Every person has a right to go to the hospital by the road adjacent to which the excavation has been done. In my opinion, there cannot be any manner of doubt that the defendant-appellants were negligent in not fencing the trench by the side of the highway and giving proper warning of its existence there in the dark night. The defendant-appellants should have properly fenced the trench and should have taken proper precaution regarding the trench so that this should not prove a source of danger to the person using the highway as a matter of right, 10. It was urged on behalf of the appellants that there was no obligation on their part to put any fence round the trench or to put any red light by the side of the trench and as such the defendant-appellants cannot be said to be guilty of any negligence. In support of this contention reliance is placed on the case of Searle V/s. Wall-bank reported in 1947 AC 341. This was a case where one Searle was riding cycle on a public highway which was bounded on each side by hedges or fences. Searle collided with a horse-belonging to Wall-bank which had strayed into the highway from a field adjoining the highway as & result of which he got injuries. Searle sued Wallbank for damages for negligence. One of the questions which was raised in that case was whether respondent Wallbank as the owner of the field abutting on the highway was under a prima facie legal obligation to users of the highway to keep and maintain the hedges and gates along the highway as to prevent his animals from straying on to it. Their Lordships of the Privy Council answered this question in the negative. Their Lordships observed:- - "Hedges and fences were generally constructed and maintained in the interests of the owners of adjacent lands, and accidents to road-users arising from the animals straying on the roads were so far as one can judge practically nonexistent. Their Lordships of the Privy Council answered this question in the negative. Their Lordships observed:- - "Hedges and fences were generally constructed and maintained in the interests of the owners of adjacent lands, and accidents to road-users arising from the animals straying on the roads were so far as one can judge practically nonexistent. Since fast traffic on such-roads became usual, accidents due to straying animals no doubt sometimes occur; but so far as we know they are exceedingly rare ..... ..... The fact that the duty does not exist if the road is uninclosed by fences and yet that accidents are rare is. I think, strong to show that the respondent was not bound as a reasonable man to think that his failure to fill up a gap in his fence was likely to cause such an accident as the one which took place." Facts of the reported case are, therefore, easily distinguishable from the facts of the instant case and, as such, the aforesaid decision, in my opinion, has no application to the instant case. 11. It was urged on behalf of the defendant-appellants that the plaintiff-respondent who was alleged to have been going to the hospital on the night of occurrence was guilty of negligence as he did not take proper precaution in walking on the road on that night when black-out was being observed. The contention urged on behalf of the appellants is that there was contributory negligence on the part of the plaintiff-respondent and, as such, he is not entitled to claim any compensation from the defendant-appellants. In support of this contention, reliance has been placed on the case of Madras and Southern Maratha Rly. Co. Ltd. V/s. Jayammal, reported in AIR 1925 Mad 304 . In this, case a young girl had entered the railway line through a wicket gate through which people used to pass end cross, the railway line to the knowledge of the railway authorities. The young girl was run over by a railway engine. In an action for damages against the rail-- way authorities it was held that the girl was only a licensee and, as such, the railway company was not liable for any damage caused to her by her own negligence. The facts of the case referred to above are also distinguishable from the facts of the instant case. In an action for damages against the rail-- way authorities it was held that the girl was only a licensee and, as such, the railway company was not liable for any damage caused to her by her own negligence. The facts of the case referred to above are also distinguishable from the facts of the instant case. In that case, the accident had happened in broad-day light and the young girl at the time of the accident was carrying a load on her head, and, as such it was likely that she could not readily turn her head to the right and left and look up and down the line and see if anything was coming. It was observed in that case that the girl was capable of appreciating danger and was old enough to have a sense of circumspection but she did not use it owing to the head-lessness of youth or the burden on her head. Their Lordships further observed that the engine was an obvious danger, capable of being perceived even by a child of tender years. These circumstances are non-existent in the instant case. People are not used to find trenches by the side of highway and as such, they are not expected to take such precaution in walking on the highway in black-out condition as they are bound to take precaution while crossing a railway line. 12. Similar argument was advanced in the case of Harrold V/s. Watney reported in (1898) 2 QB 320, but it was not permitted to prevail by the court of appeal. In this case, a child aged four years got injury on his person when he put his foot on a fence abutting on a highway. The fence being defective gave way and fell upon the child injuring him. In an action for the injury sustained the defendant who was the owner of the fence pleaded that there was no negligence on his part and that the child was guilty of contributory negligence and, as such, the child was not entitled to any compensation. Their Lordships observed:- - "But on reading the evidence the only conclusion to be arrived at is that the fence, in the condition in which it was constituted a danger to those using the highway--that is, it constituted a nuisance. Their Lordships observed:- - "But on reading the evidence the only conclusion to be arrived at is that the fence, in the condition in which it was constituted a danger to those using the highway--that is, it constituted a nuisance. When that has been settled, all has not been done to give a right of action to the plaintiff. It must also be proved that it was this nuisance which was the cause of the injury complained of. When it is urged that the child should not have put his foot on the fence, that amounts to a suggestion that the accident was not caused by the nuisance, but by the conduct of the child; and for this purpose it does not matter whether that conduct was negligence or trespass. In my view, looking at the facts of this case, it is not true to say that the accident was caused by the conduct of the child." It was held in this case that the defective fence being a nuisance and the cause of injury to the plaintiff of that case the defendant was liable to pay the damages. 13 Mr. J. C. Sinha, learned counsel, appearing for the respondent has urged that the action of the appellants in keeping a trench by the side of a highway unguarded and unprotected constituted a nuisance adjoining a highway and they were liable to compensate the respondent. In the case of Jacobs V/s. London County Council reported in 1950 (1) All ER 737, their Lordships have quoted from Pratt and Mackenzies Law of Highways 18th Edn., p. 107: "Nuisance may be defined, with reference to highways, as any wrongful act or omission upon or near a highway whereby the public are prevented from freely, safely, and conveniently passing along the highway." It is, therefore, manifest that it is a nuisance to keep an excavation immediately adjacent to a highway unfenced because that becomes dangerous to the persons using the highway. It is, therefore, clear that the ratio decidendi of Harrolds case (1898) 2 QB 320 is against the contention of the defendant-appellants that the injuries which were caused to the plaintiff-respondent were due, to his contributory negligence. 14. It is, therefore, clear that the ratio decidendi of Harrolds case (1898) 2 QB 320 is against the contention of the defendant-appellants that the injuries which were caused to the plaintiff-respondent were due, to his contributory negligence. 14. It was urged on behalf of the appellants that the trench was not dug on the main highway and that if the plaintiff had trespassed into the land by the side of the highway and fell into a ditch that was dug there, the defendant-appellants could not be held responsible for the injuries caused to the plaintiff-respondent. There does not appear to be any force in this contention. In the instant case it appears that the excavation was substantially adjoining the public highway and the plaintiff-respondent while walking along the highway must have put his foot on the trench adjacent to the highway on account of absence of any fence or light, and so the defendant-appellants who made the excavation must be held responsible for the injuries caused to the plaintiff-respondent. In this connection, learned counsel appearing on behalf of the appellants referred to the case of Hardcastle V/s. South Yorkshire Rly. Co., reported in (1859) 28 LJ Ex 139. In this case the owner or occupier of land, along which there is a right of way, was held not responsible for any injury caused to a person, falling inside a reservoir in the dark in consequence of straying out of the way by mistake. The facts of the case are also distinguishable from the facts of the instant case. The present case is not one where it can be said that the plaintiff-respondent went off the road on a dark night, lost his way and then fell into a ditch. In other words, it is not a case of straying out of the way by mistake. In the instant case the ditch was dug adjacent to the highway whereas it appears from the reported case that the reservoir was not adjacent to the highway. In other words, it is not a case of straying out of the way by mistake. In the instant case the ditch was dug adjacent to the highway whereas it appears from the reported case that the reservoir was not adjacent to the highway. It was observed in the reported case:- - "When an excavation is made adjoining to a public way so that a person walking on it might by making a false step, or in the case of a horse or carriage, who might by the sudden starting of a horse be thrown into the excavation, it is reasonable that the person making such excavation should be liable for the consequences." The aforesaid observation clearly supports the claim in the present case, and as such when the plaintiff-respondent fell in the trench dug by the defendants adjacent to the highway round which the defendant-appellants had not put any barrier, they are surely liable for the consequences. 15 Reference was also made as already adverted to above to the case of Jacobs v. London County Council reported in (1950) 1 All ELR 737 in support of the appellants contention that there was no negligence on the part of the appellants when they did not put any fence or red light round about the trench. The facts of the reported case are that the landlord of a housing estate had laid out a forecourt between the pavement of the highway and the entrance to some shops which they had let. If any one had to go to the shops from the highway, he had to cross the forecourt which remained in the occupation of the landlord. The appellant of that case while going to make purchase from one of the shops stepped from the pavement of the highway to the forecourt and she received injuries from a stop-cock which projected about an inch and a quarter above the surrounding surface of the forecourt. It was held in that case that the appellant was a licensee and, as such, she was not entitled to claim any compensation from the landlord of the housing estate. This case appears to have been decided on the finding that the appellant was a licensee and that at the time she met with the accident she was not a user of the highway. This case appears to have been decided on the finding that the appellant was a licensee and that at the time she met with the accident she was not a user of the highway. In view of their Lordships there could not be any conclusion that the owner of the land adjoining the highway was guilty of public nuisance simply because he allowed a stop-cock on the land to be protruded by so little from the surrounding surface. The aforesaid case is easily distinguishable from the instant case. The appellant in that case did not go to the forecourt by accident She went there deliberately and it was found that she was not using the highway at the time she met with the accident. In the instant case, however, it is clear that the plaintiff-respondent met with the accident while he was using the highway. So the aforesaid case has no application to the facts of this case. 16. The learned counsel appearing on behalf of the respondent has referred to the case of Barries. Administrator V/s. Ward, reported in (1847) 175 ER 277 in support of his contention that the defendant-appellants were bound to fence the trench adjoining the highway. In the reported case the defendant omitted to rail off an area abutting on a public foot-way. The plaintiffs wife in that case accidently fell into that area while passing the footway and was killed. In an action by the plaintiff to recover damages for the loss of his wife, it was held that the occupier of the land was bound to fence off any hole or area upon it which adjoins a public way because that was dangerous to passersby when it was left unguarded and as such the occupier was held prima facie liable for any damage that may arise by neglecting to fence that area. The principle enunciated in this decision fully applies to the facts of this case and as such I hold that on the facts and in the circumstances of the case the defendant-appellants not having fenced trenches and in not putting any red light indicating danger, are liable to pay damages for the loss suffered by the plaintiff-respondent. Both these points are, therefore, decided in favour of the plaintiff-respondent. 17. Both these points are, therefore, decided in favour of the plaintiff-respondent. 17. Point No. (iii): Both the courts below have considered the mental and bodily pain suffered by the plaintiff-respondent due to the negligence of the defendant-appellants and have assessed the general and special damages at Rs. 1815/-. In my opinion, at the second appellate stage we cannot say that the amount awarded is excessive. 18. In the result. I find no merit in this appeal and it is accordingly dismissed with costs. Shambhu Prasad Singh, J. 19 I agree.