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17. There is no nicety about the question by reason of the fact that the steamship company have made neither attempt nor pretense of doing so. The only possible question as to the evidence called by the plaintiffs is whether it is sufficient by itself affirmatively to establish negligence.

18. As regards the fourth count, which is a claim in tort and independently of any question as to common earners, once the question of pleading has been determined, I think that the cases of Foulkes v. Metropolitan District Railway Co. (1880) 5 C.P.D. 157 : 49 L.J.C.P. 361 : 12 L. T. 345 : 28 W.R. 526 and Hooper v. L. & N.W. Ry. (1881) 50 L.J.Q.B. 103 : 43 L.T. 570 : 29 W. R. 241 : 45 J.P. 223 reduce this to a question of fact, viz, whether the plaintiffs can establish a failure of the ordinary obligation to take due and reasonable care. These cases and others show that the distinction between non-feasance and misfeasance is of no service to the steamship company here [Kelly v. Metropolitan Ry. Co. (1895) 1 Q.B. 944 : 64 L.J.Q.B. 568 : 14 R. 417 : 72 L.T. 551 : 43 W.R 497 : 59 J.P. 437, Meux v. Great Eastern Railway Co. (1895) 2 Q.B. 387 : 64 L.J.Q.B. 657 : 14 R. 620 : 73 L.T. 247 : 43 W.R. 680 : 59 J.P. 66. Upon this basis Section 106 of the Evidence Act has to be applied. It has been made clear by the Privy Council that when the defendants do by the facts before the Court, the plaintiff still has to discharge the onus of proving negligence [Dwarkanath Raimohan Chawdhuri v. Rivers Steam Navigation Co. 46 Ind. Cas. 319 : 27 C.L.J. 615 : 23 M.L.T. 376 : 8 L.W. 4 : (1918) M.W.N. 435 : 20 Bom. L.R. 735 (P.C.)] by satisfying the Court that negligence is the true inference from the facts so proved. What the position in when the defendants do not lay the foots before the Court is not stated in their Lordships' judgment. Section 106 of the Evidence Act requires to be very carefully considered before it is relied upon. Section 106 has apparently some into this code from certain cases decided in England which will be found colleted in Taylor's Book on Evidence. My own view is that so far as England is concerned, there is not, and never was, any such general principle of evidence as is laid down in Section 106 of the Indian Evidence Act. I think that those cases, if they are looked to, will really show that there is no occasion for any such principle in the interests of justice; but at any rate in the case of Elkin v. Janson (1845) 14 L.J. Ex. 201 : 13 M. & W. 655 : 9 Jur. 353 : 153 E.R. 274 : 67 R.R. 771 Baron Alderson put in a clear and precise way the method of treating such a position under the ordinary Rules as regards onus. Now in this case I do not want to rely on any interpretation of Section 105 beyond what I consider to be an interpretation that is consistent with what Baron Alderson says in Elkin v. Janson (1845) 14 L.J. Ex. 201 : 13 M. & W. 655 : 9 Jur. 353 : 153 E.R. 274 : 67 R.R. 771. I think myself that the broader principle was really intended to apply only to negative averments and that it is unnecessary as a special principle even as regards this. Still, sitting here 1 have to apply Section 106 and to give it what I consider to be its fair meaning. It seems to me that without wiping it out from the Evidence Act altogether, it must at all evens mean as much as Baron Alderson laid down in the case which I have referred to. I am quite satisfied that if I take the evidence of negligence which has been adduced by the plaintiffs, and view that in the light of this further fast, treated as mere matter of evidence, that the defendants have not laid the materials before the Court, there can be no question that the plaintiffs have discharged the onus of proof. Indeed I will go further. I think that, apart from that special principle, there is sufficient in the evidence adduced by the plaintiffs to make it incumbent upon the defendants to make some defence upon the facts. The facts appear from two documents (Exhibits E and F). I will, for this purpose, disregard Exhibit C, as I am doubtful whether that is evidence against the steamship company at all; if it is, then there are various discrepancies between Exhibit C and the other Exhibits that would go some way to assist the plaintiffs, but I do not think Exhibit C is evidence against the steamship company, and I disregard it. What then are the facts? It is quite clear here that I have far more than the bald fact that a fire broke out upon the flat. The first thing is that it broke out either at 18 15 standard or at 18 30, there or thereabouts, on the 2lst December 1915, and I imagine that I am entitled to take judicial notice that at that time of the year, and at that time of the evening, the sun would not be beating down upon these cases in such a way as to cause them suddenly to burst out in flame. It appears further that the fire started when all hands were aft. There had been a tally dispute about one chest, and apparently the whole occupation of the railway and steamship companies' employees was to make another and better check. It seems according to Exhibit F that the fire was first noticed, not by any watchmen, but by a railway coolie, and before the pumps could get going, the once was blazing. It appears that the stack of canes was on deck piled against the forward bulkhead, that the flames ran the whole length in a few moments, and that the men were unable to reach the pumps, or at least to work the pumps, as the flames rose immediately.