CHAPTER CIII. SLEEPING CAR COMPANIES. ECTION 605. Sleeping car companies not common carriers nor innkeepers. 606. Bound to exercise ordinary care to protect passengers from thieves. 607. Notices and stipulations attempting to discharge their liability. 608. Mere loss of baggage not prima facie evidence of negligence. 609. Responsibility as between the railroad company and the sleeping car company. 3610. Nature of the contract between the sleeping car company and the passenger. 3611. Obligation of sleeping car companies to furnish berths to persons applying therefor. 3612. Liability of sleeping car com pany for breach of its contract with purchaser of ticket. 3613. Railroad company responsible for safety of passenger in sleeping car and liable for negligence, etc., of servants of such company. 3614. Duty of sleeping car company to awaken guest before ar SECTION riving at point of destination. 3615. Extent of liability of sleeping car companies for loss of passenger's money, reasonable sum for travelling expenses. 3616. Extent of liability of sleeping car companies for loss of other personal property of passengers. 3617. Responsibility of sleeping car companies for thefts of passengers' effects by companies' servants. 3618. Specific acts which have been imputed to sleeping car companies as negligence, in respect of the safety of the valuables of their guests. 3619. When money is deemed to be in the custody of the passenger-pocketbook under passenger's pillow. 3620. Contributory negligence of the passenger whose money, baggage, or valuables are stolen. 3621. Liability of sleeping car companies for negligent injuries to passengers. 3622. Indignity-Murder-Insanity. $3605. Sleeping Car Companies not Common Carriers nor Innkeepers. Judicial opinion seems to have settled upon the proposition that a sleeping car company is neither a common carrier1 nor 1 Somewhat at variance with this statement is a decision to the effect that a sleeping car company becomes responsible as a common car rier for the safe delivery of the baggage of a passenger entrusted to the porter of the company, to be carried to a given place: Voss v. Wagner an innkeeper; and, consequently, that it is not liable as an in for the loss of the money or effects of its guest while he is asleep its car, but is liable only upon proof of negligence; and the meas of its duty is to exercise ordinary or reasonable care to protect him from such loss.* Palace Car Co., 16 Ind. App. 271; s. c. 43 N. E. Rep. 20; rehearing denied 44 N. E. Rep. 1010. But as sleeping car companies never hold themselves out as the mere carriers of baggage or other packages or parcels, it is difficult to see how this can be so, unless there is special proof of the authority of the porter from the company to receive and carry the baggage. The facts were that the porter of the sleeping car undertook to carry the effects of a passenger from the car to the reception room of a station, and left a part of them behind and they were lost; and what the court really held was that, although the sleeping car company may not have been liable as a common carrier, yet it was culpably negligent, and on that ground became responsible to the passenger for the loss of his effects: Voss v. Wagner Palace Car Co., supra. * Pullman Palace Car Co. v. Gavin, 93 Tenn. 53; s. c. 21 L. R. A. 298; 23 S. W. Rep. 70; Stevenson v. Pullman Palace Car Co. (Tex. Civ. App.), 32 S. W. Rep. 335 (no off. rep.); Blum v. Southern &c. Palace Car Co., 1 Flip. (U. S.) 500; Hughes v. Pullman Palace Car Co., 74 Fed. Rep. 499 (not a common carrier); Pullman Palace Car Co. v. Matthews, 74 Tex. 654; s. c. 12 S. W. Rep. 744; Pullman Palace Car Co. v. Pollock, 69 Tex. 120; s. c. 5 S. W. Rep. 814 (not liable for baggage as a common carrier); Fall River &c. Co. v. Pullman Palace Car Co., 4 Ohio N. P. 26; s. c. 6 Ohio Dec. 85 (not liable for property of passenger as innkeeper). Contrary to the general doctrine, the Supreme Court of Nebraska have held that a sleeping car company, in so far as it renders services similar in kind to those rendered by an innkeeper, is subject to the same liabilities; so that where an article of wearing apparel belonging to a passenger in such a car has been placed in the care of the porter, and is stolen from the car, the company becomes liable therefor, without proof of negligence, but upon proof of the theft merely: Pull Palace Car Co. v. Lowe, 28 Nea 2 s. c. 6 L. R. A. 809; 40 Am. & E Rail. Cas. 637; 44 N. W. Rep. 92. a Williams v. Webb. 58 N. Y. Surt 300; s. c. 27 Misc. (N. Y.) 508; 6 Am. Neg. Rep. 129; modifying s. c. 49 X Y. Supp. 111; 22 Misc. (N. Y.) 51, Tracy v. Pullman Palace Car Co. (7 How. Pr. (N. Y.) 154 (liable only on proof of negligence); Carpenter v. New York &c. R. Co., 124 N. I 53; s. c. 26 N. E. Rep. 227; 11 L. E A. 759; 34 N. Y. St. Rep. 854: 9 R & Corp. L. J. 234; McMurray v. Pa... man Palace Car Co., 86 Ill. App. 619 Smith v. Pullman Palace Car (Montreal Cir. Ct.) (Can.), 6o A L. J. 188; Whitney v. Pullman Par ace Car Co., 143 Mass. 243: Pallon Palace Car Co. v. Hall, 106 Ga. 755 s. c. 44 L. R. A. 790; 71 Am. St. Rep 293; 14 Am. & Eng. Rail Cas X S.) 229; 32 S. E. Rep. 923; Bla▼ Southern &c. Palace Car Co., 1 Fm (U. S.) 500; Pullman Palace Car v. Smith, 73 III. 360; s. c. 24 Am Rep. 258; Woodruff Sleeping & Coach Co. v. Diehl. 84 Ind. 474; 8.6 43 Am. Rep. 42; Lewis v. New Yo Sleeping Car Co., 143 Mass. 273: st 58 Am. Rep. 135; Root v. New Ye &c. Sleeping Car Co., 28 Mo. App 199; Pullman Palace Car Co. ↑ Adams, 120 Ala. 581; s. c. 24 Sarth Rep. 921; Belden v. Pullman Pali Car Co. (Tex. Civ. App.). 42 S. * Rep. 22; Falls River &c. Co. v. Pal man Palace Car Co., 4 Ohio N P. 26; s. c. 6 Ohio Dec. 85; Pull Car Co. v. Gardner, 3 Pennypas (Pa.) 78; Dawley v. Wagner Palis Car Co., 169 Mass. 315. See, 1s note to Mann Boudoir Car Co Dupre, 21 L. R. A. 289; note to De val v. Pullman Palace Car Co. 1 C. C. A. 331; and note to Edmunst v. Pullman Palace Car Co., 34 C. 7 A. 382. Compare Pullman Pals e Car Co. v. Lowe, 28 Neb. 239: s 6 L. R. A. 809. 'Scaling v. Pullman Palace Car Co., 24 Mo. App. 29; Bull v. Pullman Palace Car Co. (Fed.), 1 Am. No Rep. 200; Pullman Palace Car Cc. Pollock, 69 Tex. 120; s. c. 5 S. W. § 3606. Bound to Exercise Ordinary Care to Protect Passengers from Thieves.-It stands under the clear duty to exercise ordinary or reasonable care to guard the passengers who are being transported within its car, from theft; and if, through want of such care, their money, to such a reasonable amount as a passenger may properly arry with him, or their effects, of such a kind and value as a passenger may reasonably carry with him, are stolen, the sleeping car company will be liable. This duty of exercising care extends to protecting the passenger from the theft of his pocketbook, placed anywhere in his berth, while he is asleep; and to preventing the loss of luggage left by the passenger in his berth. The duty of the sleeping car company is not ended by merely furnishing a berth to its guest; but its invitation to him to sleep implies an obligation upon its part of keeping a reasonable watch for his safety, of excluding unauthorized persons from the car, and of taking reasonable care and precaution to the end of preventing thefts of his money or other valuables. But a sleeping car company is bound to have an employé charged with the duty of carefully and continuously watching the interior of the car while the berths are occupied by the sleeping passengers. 10 In such a case, where there were only curtains dividing the sections, and separating them from the aisle, it was held that the sleeping car company was liable, on the footing of Rep. 814; Falls River &c. Co. v. Pull- 474; Henderson v. Louisville &c. R. Co., 20 Fed. Rep. 437. 5 Pullman Palace Car Co. V. Matthews, 74 Tex. 654; s. c. 12 S. W. Rep. 744; Pullman Palace Car Co. v. Pollock, 69 Tex. 120; s. c. 5 S. W. Rep. 814; Falls River &c. Co. v. Pullman Palace Car Co., 4 Ohio N. P. 26; s. c. 6 Ohio Dec. 85; Barrott v. Pullman Palace Car Co.. 51 Fed. Rep. 796; s. c. 52 Am. & Eng. Rail. Cas. 498; Kates v. Pullman Palace Car Co., 95 Ga. 810; s. c. 23 S. E. Rep. 186; Pullman Palace Car Co. v. Adams, 120 Ala. 581; s. c. 24 South. Rep. 921; 45 L. R. A. 767. Pullman Palace Car Co. v. Adams, 120 Ala. 581; s. c. 24 South. Rep. 921; 45 L. R. A. 767. Effron v. Wagner Palace Car Co., 59 Mo. App. 641. Blum v. Southern &c. Palace Car Co., 1 Flip. (U. S.) 500. 10 Carpenter v. New York &c. R. Co., 124 N. Y. 53; s. c. 11 L. R. A. 759; 34 N. Y. St. Rep. 854; 9 Rail. & Corp. L. J. 234; 26 N. E. Rep. 277. negligence, either for not furnishing apartments that could be securely closed, or for not supplying such a watch.11 It seems that, in an action against a railroad company for money lost while a passenger on a sleeping car of such company, because of alleged failure to maintain continued watchfulness over the interior of the car whi the plaintiff was sleeping, the plaintiff must prove that the money was stolen from his berth while he was asleep; and evidence that he loss was not discovered until after he arose and went to the toilet room, or until after he returned to his seat in the body of the car, is insufficient.12 § 3607. Notices and Stipulations Attempting to Discharge their Liability. It is hardly necessary to say that a sleeping car compary can not relieve itself from liability for the theft or other loss of the money or effects of its passenger, by its act of posting notices in the car that it will not be responsible for the property of guests. It ca not thus alter the implied contract subsisting between it and the passenger, nor absolve itself from its own negligence, nor dispens with the operation of the law of the land.13 Nor can the duty of exercising reasonable care to protect the passenger from the theft ☞ loss of his money or effects, be evaded by any printed words or the check which is given to the passenger as the token by which he clairs his berth from the servants of the sleeping car company in charge of the car. In some jurisdictions, the statement that the sleeping car company can not thus relieve itself from liability by posting notices in its car is qualified by the proviso that the notice was pet known to the passenger.15 There is no propriety whatever in such 14 11 Woodruff Sleeping &c. Coach Co. v. Diehl, 84 Ind. 474; s. c. 43 Am. Rep. 102. That a sleeping car company is bound, in addition to keeping the necessary watch described in the text, so to manage its car as not unreasonably to expose the property of its passengers to an unusual risk of loss by thieves or otherwise, -see Williams v. Webb, 58 N. Y. Supp. 300 (both the conductor and porter were asleep). But the sleeping car company is not, as matter of law, guilty of negligence in failing to inspect and identify the baggage which the passengers carried off with them at a station reached in the nighttime, in the absence of any circumstance calling for more than ordinary diligence: Belden v. Pull man Palace Car Co. (Tex.), 3 Am 12 Sessions v. New York &c. R. Co. 78 Hun (N. Y.) 541; s. c. 61 N. I. St. Rep. 170; 29 N. Y. Supp. 628. 13 Voss v. Wagner Palace Car Co. 16 Ind. App. 271; s. c. 43 N. E. Rep 20; rehearing denied 44 N. E. Rep 1010; Stevenson v. Pullman Palace Car Co. (Tex. Civ. App.), 26 S. W Rep. 112 (no off. rep.); Lewis v. New York Sleeping Car Co., 143 Mass 267; s. c. 56 Am. Rep. 852, note. 14 Stevenson v. Pullman Palace Car Co. (Tex. Civ. App.), 26 S. W. Re 112 (no off. rep.); Louisville & R Co. v. Katzenberger, 16 Lea (Ten) 380; s. c. 57 Am. Rep. 232. 15 Lewis v. New York Sleeping Car a qualification. The contract between the parties has been made before the passenger enters the car. Thereafter it is not competent for one of the parties to modify it to the disadvantage of the other, without his consent; and this must be so, no matter how fully he is notified by such a posted notice after he has purchased his rights and paid for them. On a principle hereafter considered,16 which makes the railroad company liable for such torts of the sleeping car company and of its servants as are injurious to the passenger, the railroad company may be held liable for the theft or loss of the property of the passenger, visited upon him by the negligence of the servants. of the sleeping car company, in which case the conditions printed on the ticket given the passenger by the sleeping car company would have no bearing on the question of his rights as against the railroad company. A notice posted in a sleeping car to the effect that the company will not be liable for any losses of valuables sustained by passengers, if not known to a passenger will not relieve the company from liability to him for a loss of his pocketbook, in consequence of its negligence in failing to keep a suitable watch.18 17 § 3608. Mere Loss of Baggage not Prima Facie Evidence of Negligence. The negligence here intended is not presumptive, theoretical, or constructive negligence, but is negligence in fact, which the passenger sustaining the loss must aver and prove. The mere fact of the loss of his baggage and effects does not create a prima facie presumption of negligence, such as casts the burden of explaining or excusing it upon the sleeping car company,19 but some other affirmative evidence tending to show negligence on the part of the defendant must be given.20 Co., 143 Mass. 267; s. c. 56 Am. Rep. 852, note. See, also, Voss v. Wagner Palace Car Co., 16 Ind. App. 271; s. c. 43 N. E. Rep. 20; rehearing denied 44 N. E. Rep. 1010. 16 Post. § 3613. "Louisville &c. R. Co. v. Katzenberger, 16 Lea (Tenn.) 380; s. c. 57 Am. Rep. 232. 18 Lewis v. New York Sleeping Car Co., 143 Mass. 267; s. c. 9 N. E. Rep. 615; 56 Am. Rep. 852. That the court may, in such an action, instruct the jury as to what special acts or omissions will constitute such negligence as will authorize a recovery, but is not bound to do so, -see Scaling v. Pullman Palace Car Co., 24 Mo. App. 29. 19 Tracy v. Pullman Palace Car Co., 67 How. Pr. (N. Y.) 154; Falls River &c. Co. v. Pullman Palace Car Co., 4 Ohio N. P. 26; s. c. 6 Ohio Dec. 85. 20 Carpenter v. New York &c. R. Co., 124 N. Y. 53; s. c. 26 N. E. Rep. 277; 11 L. R. A. 759; 34 N. Y. St. Rep. 854; 9 Rail. & Corp. L. J. 234; McMurray v. Pullman Palace Car Co., 86 Iil. App. 619. According to a Canadian court, specific acts of negligence on the part of the sleeping car company must be shown, to establish a liability for the loss of a handbag left by the owner by the side of his berth at night, in order that it might be examined by the customs officer: Smith v. Pullman Palace Car Co. (Montreal Cir. Ct.) |