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Ihc porter of a slcepmg car took Stevenson 7. rnliinan i'alare Car Co

charge of and placed together the plain- (To.\. Civ. App) 26 S W 11'>

tiffs l.agga>,'r. including a seal-skin coat, 74. Contributory negligence. — Hmtnt

lor the purpose of taking it frr,m the .V/a/i-.^.- Barrott 7'. ('uilinan's i\-il-,cc Car

car on the arrival of tli,- train ;u pl.iin- Co.. 51 Fed 796

tifis destination. When plaintiff alighted, Gcorgia.-KiUvs r. Pullman's i'alace Car



§§ 3571-3572



CARRIERS.



3224



of theft by an employee of the company."''^ But where it appears that the acts
of the passenger alleged to be negligent were caused by the wrongful conduct of
the company itself, it is estopped from claiming immunity because of such acts.'''"'
And the act of the passenger, relied upon as contributory negligence, must in
some way have been responsible for the loss of the property, in order to relieve
the company from liability for its negligence."'

Negligence of Passenger's Companion. — The negligence of the sleeping
companion of the owner of property stolen through the negligence of the sleeping
car company does not preclude a recovery from the company."^

Contributory Negligence Must Be Pleaded. — See post, "Necessity for
Pleading Contributory Negligence," § 3579.

§ 3572. What Constitutes Contributory Negligence. — A passenger in
a sleeping car is guilty of contributory negligence in depositing his property in
an improper place." '-^ And a passenger, who, without notice to the company's
servants, leaves in his berth in an exposed condition valuables which he could
easily have carried on his person, is guilty of contributory negligence.^" Where
a passenger while the train was stopping at a station, left the car for ten min-
utes, leaving his satchel upon the sill of one of the car windows, which could be
reached from the outside through an adjoining open window, it was held that
he was guilty of negligence which contributed to his loss and that he could not
recover.*^

Acts Not Constituting Negligence. — Where a passenger in a sleeping car
deposits clothing and other property in a vacant upper berth directly above him,
the use of which berth he has not purchased or secured, it is not such contribu-
tory negligence on his part as bars recovery for the loss of the articles.^- And
the act of a passenger in putting a ring, that he was accustomed to wear, in his



Co., 95 Ga. 810, 23 S. E. 186, 2 Am. &
Eng. R. Cas., N. S., 480.

Iowa. — Hillis v. Chicago, etc., R. Co.,
72 Iowa 228, 33 N. W. 643, 31 Am. &
Eng. R. Cas. 108.

Kentuckw — Myers v. Pullman Co., 149
Ky. 776, 149 S. W. 1002, 41 L. R. A., N.
S., 799. See Pullman Palace Car Co.
V. Gaylord, 9 Ky. L. Rep. 58.

Massachusetts. — Whitney v. Pullman
Palace Car Co., 143 Mass. 243, 9 N. E.
G19, 28 Am. & Eng. R. Cas. 147.

Mississippi. — ■ Illinois Cent. R. Co. v.
Handy, 63 Miss. 609, 56 Am. Rep. 846.

Missouri. — Root v. New York Cent.,
etc., Co., 28 Mo. App. 199.

Texas. — Pullman Palace Car Co. v. Mat-
thews, 74 Tex. 654, 12 S. W. 744, 15 Am.
St. Rep. 873.

75. Thefts by employees. — See post,
"Where Property Stolen by Employees,"
ii 3573.

76. Kates v. Pullman's Palace Car Co.,
95 Ga. 810, 23 S. E. 186, 2 Am. & Eng.
R. Cas., N. S., 480.

77. Passenger's negligence must have
caused loss. — Morrow z'. Pullman Palace
Car Co., 98 Mo. App. 351, 73 S. W. 281,
holding that when the company, in an
action against it for negligently permit-
ting the theft of plaintiff's property, sets
up as a defense that plaintiff was negli-
gent in leaving his window^ up during
the night, it must further show that the
plaintiff was responsible for the window
being left up and that the property was



stolen through that window by a stran-
ger from without.

78. Negligence of passenger's compan-
ion. — Pullman Palace Car Co. v. Adams,
120 Ala. 581, 24 So. 921, 45 L. R. A. 767,
74 Am. St. Rep. 53.

79. Depositing property in improper
place. — Kates v. Pullman's Palace Car
Co., 95 Ga. 810, 23 S. E. 186, 2 Am. &
Eng. R. Cas., N. S., 480.

80. Leaving property in berth un-
guarded. — Root V. New York Cent., etc.,
Co., 28 Mo. App. 199.

It is negligence for a passenger on a
sleeping car to leave his watch in his
herth while he is in the toilet room, un-
less he directs the porter to look after
his effects in his absence. Chamberlain
V. Pullman Palace Car Co., 55 Mo. App.
474.

A passenger occupying a sleeping car
i- guilty of gross negligence in leaving
?. pocketbook containing a large sum of
money in his vest pocket under his pil-
low while he goes to the water closet.
Wilson V. Baltimore, etc., R. Co., 32 Mo.
App. 682.

81. Whitney v. Pullman Palace Car Co.,
143 Mass. 243, 9 N. E. 619, 28 Am. &
Eng. R. Cas. 147.

82. Putting property in unoccupied
berth. — Florida z'. Pullman Palace Car
Co., 37 Mo. App. 598. But see Welch v.
Pullman Palace Car Co. (N. Y.), 16 Abb.
Prac, N. S., 352.



^225 PALACE CARS AND SLEEPING CAR COMPANIES. §§ 3572-3574

pocketbook while he slept, and his failure to put the pocketbook in the safest
place in hi^ berth is not contributory negligence, precluding a recovery against the
sleeping car company for negligently permitting the theft thereof.^s A passen-
ger who occupies the smoking compartment of a sleeping car, under a special
arrangement with the servant in charge of the car, and who retires for the night
with knowledge that one of the windows of the compartment is open, is not
guilty of contributory negligence wdiich will preclude his recovery for the loss of
his personal belongings, unless the window was left open at his request.^-* A com-
panion of one sleeping in the berth of a sleeping car, whose pocketbook was
stolen, was not negligent, where he left the berth, and walked up and down the
aisle of the car, without watching for thieves. ^^

§ 3573. Where Property Stolen by Employees.— A sleeping car company
is not released from liability for valuables stolen from passengers by its servants
because the servants were tempted to steal, through the negligence of passenger in
leaving the valuables exposed.^^ Where a sleeping car porter was charged with
misappropriating a passenger's diamond ring, which it was claimed he found in
the berth, it was no defense to the company's liability therefor that the passen-
ger was negligent in losing it.^"

Nature and Amount of Property.— A sleeping car company is liable for
the thefts of its servants to the extent of the necessary baggage or money of the
passenger, regard being had to the character, duration, and purposes of the
journey, though the passenger was negligent.^^

§ 3574. Liability of Railway Company. — All the duties to a passenger in-
cident to a carrier's contract of transportation continue to rest on the railroad
company, notwithstanding the passenger, by virtue of another contract with the
.sleeping car company, is entitled to special accommodations in the sleeping car;
the sleeping car company having no control over the contract for transportation,
and not being responsible for the manner in which it is performed. ^^^ And
a railway can not escape liability for injuries inflicted on a passenger on
the ground that they were sustained in a sleeping car, owned by another
company and which furnished its own agents.'^" The railway company
must exercise the utmost care for the safety of a passenger in a Pull-
man car, and when the passenger, while asleep in her berth, is assaulted
and robbed the railway company is liable for a negligent failure to pro-
tect the passenger.^ 1 Where plaintiff, who had engaged a berth in a sleeper,
was compelled to leave the same before reaching her destination, and complete

83. Pullman Palace Car Co. v. Adams, Kinsley v. Lake Shore, etc., R. Co., 125
120 Ala. 581, 24 So. 921, 45 L. R. A. 767, Mass. 54, 28 Am. Rep. 200; Nelson v. II-
74 Am. St. Rep. 53. iinois Cent. R. Co. (Miss.), 53 So. 619;

84. Leaving window open. — Morrow v. Cleveland, etc., R. Co. v. Walrath, 38 O.
Pullman Palace Car Co., 98 Mo. App. 351, St. 461, 8 Am. & Eng. R. Cas. 371, 43
7;i S. W. 281. Am. Rep. 433.

85. Pullman Palace Car Co. v. Adams, "The law will not permit a railroad
120 Ala. 581, 24 So. 921, 45 L. R. A. 767, company engaged in the l)usinoss of
74 .^m. St. Rep. 53. cairying persons for hire, through any

86. When property stolen by employee. device or arrangement with a sleeping
— Morrow v. Pullman I'alace Car C(i., 98 car company, whose cars are used by
Mo. .App. :;:,], 7:5 S. W. 281; Pullman Pal- and constitute a part of the train of the
ace Car Co. v. Matthews, 74 Tex. 654, 12 railroad company, to throw off the duty
S. W. 744, 15 Am. St. Rep. 873. of providing proper means for the safe

87. I'ullman Co. v. Vandcrhoeven, 48 conveyance of those whom it has agreed
Tex. Civ. App. 414, 107 S. W. 147. to convey." Pennsylvania Co. ?'. Roy, 1();3

88. Nature and amount of property.— V. S. 451. 26 I,. Jul. 141, quoted in Nelson
Morrow z: i'ullinan i'alace Car Co., 98 7. Illinois Cent. R. Co. (Miss.), 53 So.
Mo. App. 351, 73 S. W. 281; Root v. New 619.

York Cent., etc.. Co.. 2H Mo. App. 199. 90. Louisville, etc.. R. Co. 7: Church,

89. Liability of railway company. -Cal- 155 Ala. 329, 46 So. 457.

houn r. I'ullman Co., kc, C. C. A. 387, 159 91. Calder v. Southern R. Co., 89 S. C.

l''cd. 387, affirming 149 l'\-d. 546. See 2H7, 71 S. K. 841.



§ 3574



CARRIERS.



3226



her journey in a chair car, the raihvay company was not rehevecl of liability for
the breach of plaintiff's contract for transportation in the sleeper by reason of
the fact that the sleeper on one of defendant's trains running in the opposite
direction had become disabled ; that it was occupied by a large number of people,
some of whom intended to make an all night trip, and some of whom were ill;
and that the railway company desired for such passengers' accommodation the
sleeper in which plaintiiT was riding, and in which there was no one going beyond
her place of destination. ^-

Negligence of Employees of Sleeping Car Company. — So far as a pas-
senger is concerned the employees of the sleeping car company will be regarded
as the employees of the railway company for whose negligent acts the latter com-
pany will be liable.^3 Thus, where a passenger, having a ticket for transporta-
tion and a sleeping car ticket, w-as injured while in the sleeping car by a table
falling on her hand, through the negligence of the porter, the railroad company
was liable for any neglect of duty by the porter causing the injuries. ^^ And it is
held that where a sleeping car passenger loses an article of personal baggage,
through the negligence of a person in charge of the car, and without fault on his
own part, it is no defense to an action against the railway company that the
car was not owned by the defendant, but by a third person, who by a
contract with the defendant, provided conductor and serv^ants, in the ab-
sence of evidence that the plaintiff had knowledge of these facts.^^ It
has been held, however, that a railway company is not liable for the act of the
employee of the Pullman company when the act has no connection with the con-
tractual duty the railway company owes the passenger, though the employee
acted negligently or even will fully. ^^ Where a Pullman car porter ejects a pas-
senger of the railway company because of his refusal to pay fare, it has been
held that he is acting as the servant of the railway company.^*^ The rule that the



92. Pullman Palace Car Co. v. Hocker,
41 Tex. Civ. App. 607, 93 S. W. 1009.

93. Negligence of employees of sleep-
ing car company. — Aiabcnyta. — Louisville,
etc., R. Co. v. Church, 155 Ala. 329, 46
So. 457.

Colorado. — Denver, etc., R. Co. v.
Derry, 47 Colo. 584, 108 Pac. 172, 27 L.
R. A., N. S., 761.

Louisiana. — Williams v. Pullman Palace
Car Co., 40 La. Ann. 417, 4 So. 85, 8
Am. St. Rep. 538.

Mississippi. — Nelson v. Illinois Cent. R.
Co. (Miss.), 53 So. 619.

N'ew York. — Thorpe v. New York, etc.,
R. Co., 76 N. Y. 402, 32 Am. Rep. 325,
affirming 13 Hun 70.

0/zio.— Railroad Co. v. Walrath, 38 O.
St. 461, 43 Am. Rep. 433. 8 Am. & Eng.
R. Cas. 37, affirming 6 O. Dec. 718, 4
Wkly. L. Bull. 11.

South Carolina. — Campbell v. Seaboard,
etc.. Railway, 83 S. C. 448, 65 S. E. 628,
137 Am. St. Rep. 824; Taber v. Seaboard,
etc., Railway, 84 S. C. 291, 66 S. E. 292,
19 Am. & Eng. Ann. Cas. 1132.

Tennessee. — -Louisville, etc., R. Co. v.
Ray, 101 Tenn. 1, 46 S. W. 554; Nash-
ville, etc., R. Co. V. Lillie, 112 Tenn. 331,
78 S. W. 1055. 105 Am. St. Rep. 947;
Nashville, etc., R. Co. v. Price, 125 Tenn.
646, 148 S. W. 219.

Texas. — Missouri, etc., R. Co. v. Max-
well (Tex. Civ. App.), 130 S. W. 722;
Pullman Co. v. Norton (Tex. Civ. App.),



91 S. W. 841, affirmed in 101 Tex. 653,
no op.

94. Louisville, etc., R. Co. v. Church,
155 Ala. 329, 46 So. 457.

95. Loss of baggage. — Kinsley v. Lake
Shore, etc., R. Co., 125 Mass. 54. 28 Am.
Rep. 200. See Louisville, etc., R. Co. v.
Katzenberger, 84 Tenn. (16 Lea) 380, 1
S. W. 44, 57 Am. Rep. 232.

96. A passenger testified that she re-
quested the Pullman car porter, at what
she thought was 1 o'clock at night, to
?nake up her berth, and he said she could
have it made up for two hours, where-
upon she declined to have it made up for
so short a time. The train did not reach
her destination till 6 o'clock in the morn-
ing. Held that, if the porter was negli-
gent, or even willfully disregardful of the
passenger's request, the carrier was not
liable, in the absence of evidence connect-
ing it with the special contract of the
Pullman company, any defect being a
lireach of such company's duty. Taber v.
Seaboard, etc., Railway, 62 S. E. 311, 81
S. C. 317.

97. Liability for ejection of Pullman
passenger. — In an action against a rail-
road company to recover damages for an
assault by a porter having charge of a
drawing room car run by defendant, the
evidence showed that the plaintiflf, a pas-
senger on one of the defendant's trains,
took a seat in a drawing room car on ac-
count of the other cars being crowded,



3227



PALACE CARS AND SLEEPING CAR COMPANIES.



3574



negligence of employees of a sleeping car company, whereby a passenger is in-
jured, is the negligence of the railway company, applies in some instances when
the Pullman is not attached to the train.^^ Thus, where, with the knowledge of
the railway company, a sleeping car company is accustomed to preparing its
cars for the reception of passengers, before the arrival of the train, the railway
company is liable for any injury to its passengers by the negligence of the servants
of the sleeping car company. ^^

As to Discharge of Passengers. — A railroad company is responsible to a
passenger for damages arising from the neglect of the sleeping car employees to
awaken the passenger at his destination, though the sleeping car company be an
entirely different company from the railroad company. ^ And it is liable for
causing a passenger to alight at the wrong station, due to the negligence of the
employees of the sleeping car company. ^ So far as concerns a passenger injured
by being discharged beyond, instead of at, her station, the sleeping car company,
on whose car she was a passenger, and its employees, were the servants of the
railroad company operating the road, so as to make it responsible for their neg-
ligence.^ ^^'here, after a passenger had been caused to alight from a sleeping car
attached to a train at a wrong station, the train operatives were notified of the
mistake just after the train had started, but refused to stop and permit the pas-
.■>enger to again get aboard, there was a willful breach of dut}' on the part of the
railroad company's servants, which rendered it liable independent of the liability
of the sleeping car company.^

Selling Sleeping Car Ticket over Wrong Route. — A railroad company is
liable in damages for the expulsion of a passenger from a sleeping car, due to its
mistake while acting as agent for the sleeping car company, and while operating,
in connection with other railroads, a line of through sleepers between two points,
in selling him a sleeping car ticket good between those points, but not over the
route covered by his railroad ticket.^

Effect of Contract with Sleeping Car Company. — A railway company will
not be allowed to evade its liability to passengers through a contract with a sleep-



and refused to pay the extra charge de-
manded by the porter for a seat in that
car, but consented to leave it when he
could get a seat in one of the other cars,
and upon his refusal to pay the porter
attempted to eject him. It was also
i,hown that the drawing room cars were
not the property of the defendant, but
were run by him under a contract with
the owner; that the porter was in the
employ of such owner, but was charged
with the duty of assisting the train con-
ductor in maintaining order on the train.
Held, that as to his dealings with pas-
sengers the porter was the defendant's
servant, and that it was lialile for his acts
as fully as though he were directly em-
ployed Ijy it. Thorpe v. New York, etc.,
R. Co., 70 X. Y. 402, 32 Am. Rep. 325,
affirming 13 Hun 70.

98. When Pullman not attached to
train. -Denver, etc., R. Co. v. Derry, 47
Cob.. r>H4, 108 Pac. 172, 27 L. R. A., N.
S.. 701.

99. With tlic knowledge of a railroad
company, it was customary for a sleep-
ing car company to have its sleeper ready
for passengers of the railroad company
before the train to which it was to 1)C at-
tached arrived. A blind passenger, hav-



ing a through ticket, changed cars at a
station where a sleeping car was ready
and having a berth therein, the porter of
the train on which he had arrived took
him over to the porter of the sleeping
car who was informed of his blindness,
and through his negligence the passenger
was injured while attempting to go to
his l)erth. Held, that the porter of the
sleeping car was an employee, as to the
passenger of the railroad company, and
it was liable for the injury, though the
.sleeping car was not attached to any
train. Denver, etc., R. Co. v. Derry, 108
Pac. 172, 47 Colo. 584, 27 L. R. A., N. S.,
71- 1.

1. As to discharge of passengers. —
.^irey 7'. Pullman Palace Car Co., 50 La.
Ann. 048, 23 So. 512.

2. Campbell ?'. vSeaboard, etc., Railway,
83 S. C. 448, 05 S. E. C28, 137 Am. St.
I'Jcp. 824.

3. Missouri, etc., R. Co. ?'. Maxwell
(Tex. Civ. App.), 130 S. W. 722.

4. Campbell v. Seaboard, etc., Railway,
83 S. C. 448, 0.-. S. !•'.. 0:.'8, 137 .\m. Si.
Rep. 824.

5. Selling sleeping car ticket over
v/rong route. Xasbvilb', etc., R. Co. v.
Price, \2r, Tenn. 040, 148 S. W. 219.



§§ ZblA-Z':^?? CARRIERS. 3228

ing car company binding it to furnish sleeping cars and keep the same in repair.^
A railroad company having placed its dining car at the rear of the train, and
invited its passengers to go to and from it, is bound to provide them a safe pas-
sage, from one car to another, and can not escape liability for its failure to do so
by showing a contract with the Pullman car company to do it."^

" Stipulations on Pullman Ticket. — A statement printed on a Pullman ticket
that the Pullman car company will not be liable for the loss of baggage, does not
relieve the railway company from liability. ^

§ 3 575. Joint Liability of Sleeping Car and Railway Companies. — The

duty to protect the person and property of sleeping car passengers rests upon
both the sleeping car and the railway companies, under their separate contracts,
and their negligent failure to perform such duty, resulting in a single indivisible
injur}% makes them joint tort feasors.^ Thus where a passenger on a Pullman
car, while asleep in her berth, was assaulted and robbed the carrier and the sleep-
ing car company were both liable for a negligent failure to protect the passenger.^'"*
And they are both liable for mental suffering to a passenger in a palace car at-
tached to the railway company's train, caused by drunken persons permitted to
enter and remain in the car.^^ Where a sleeping car company agreed to furnish
plaintiff" with sleeping car accommodations to a certain point, but before arriving
there the sleeper was cut out of the train, and plaintiff" was compelled to ride in
a chair car for the balance of the distance, the sleeping car company's employees
adding the train employees in forcing plaintiff to leave the sleeper, both companies
were liable jointly. ^^

§§ 3576-3587. Actions — § 3576. Nature of Action. — A passenger
wrongfully ejected from a sleeping car can bring an action either ex contractu
or ex delicto. The fact that he is entitled to sue ex contractu does not prevent
him from bringing an action ex delicto. ^^ Where, in an action against a sleeping
car company by a passenger, for loss of her hand bag containing medicine and
stimulants which she had purchased for use during the journey, she being sick
and in charge of a nurse, the complaint alleged a duty on the part of defendant's
porter as its agent and servant to care for such bag as a part of plaintiff's effects,
and that the duty was breached by the porter's wrongful act in taking and carry-
ing away the hand bag, medicine, etc., while acting within the scope of his em-
ployment, the complaint stated a cause of action ex delicto, and not ex contractu. ^^

§ 3577. Parties. — A passenger who is intrusted with money to pay the trav-
eling expenses of another in his care for the journey, has such a right in the
money that he can recover from a sleeping car company by whose ser^-ant it is
itolen.i^

Joinder of Parties Defendant. — A railroad company and a sleeping car com-
pany may be joined in a suit for mental suffering to a passenger in a palace car

6. Effect of contract with sleeping car 11. Houston, etc., R. Co. v. Perkins, 21
company.— Pullman Co. v. Norton (Tex. Tex. Civ. App. 508, 52 S. W. 124.

Civ. App.), 91 S. W. 841, affirmed in 101 12. Pullman Palace Car Co. v. Hocker,

Tex. 653, no op. 41 Tex. Civ. App. 607, 93 S. W. 1009. See

7. Robinson v. Chicago, etc., R. Co., 97 Taylor v. Wabash R. Co., 130 Mo. App.
N. W. 689, 135 Mich. 254. 582 109 S W. 1059.

. 8- Effect of stipulation on Pidlman jg ^^^^^^ ^j action.-Nevin v. Pullman

IV^ Tni .°a" f '"^-t?^- ^°;7- ?^"^yMf^ Palace Car Co., 106 111. 222, 4 Ky. L. Rep.
Miss 609, 56 Am. Rep. 846; Louisville ^g ^^_ ^ ggg_ g^^ Pullman Pal-

?*''■'^^o•oP; c 5f?."^.'/^A""' ^p ^'".00 ^^^ ^ce Car Co. v. Booth (Tex. Civ. App.), 28
Lea) 380, 1 S. W. 44, 57 Am. Rep. 232. g vy ^jg

9. Joint liability of sleeping car and \ '^ ' ^ ,, ^ ,.„ t^ j .
railway companies.— Nelson v. Illinois I*- Bacon v. Pullman Co., 159 Fed. 1.
Cent. R. Co. (Miss.), 53 So. 619. 15. Parties.— Pullman Palace Car Co. v.

10. Calder v. Southern R. Co., 89 S. C. Gavin, 93 Tenn. (9 Pickle) 53, 23 S. W.
287, 71 S. E. 841. 70, 42 Am. St. Rep. 902, 21 L. R. A. 298.



3229 PALACE CARS AXD SLE^EPING CAR COMPANIES. §§ 2>}'77-Z?79

attached to the raih-oad's train, caused by the language of drunken persons per-
mitted to enter and remain in the car.^'' And they may be joined in an action
tor damages for inconvenience and humiliation inflicted upon a passenger by
putting him out of a sleeping car berth. i'''

§§ 3578-3579. Pleading— § 3 578. Declaration or Complaint.— In an

action against a sleeping car company there can be no recovery where the declara-
tion does not state a cause of action against the defendant.^^

Alleging Authority of Servant. — In an action for breach of a sleeping car
company's contract to furnish accommodations in a particular car between cer-
tain places, an allegation that plaintiff was required to leave the car by defend-
ant's servant in charge sufficiently alleges that such servant acted in the line of
his employment.^''

Alleging Negligence. — It is held that in an action against a sleeping car com-
pany to recover for property stolen from plaintiff while occupying a berth in de-
fendant's sleeping car a declaration is defective which does not set forth any
particular act or omission constituting negligence ; yet where there is no special
demurrer on that ground and the declaration is good in substance, there is no
error in overruling a demurrer to the declaration upon other and general
grounds.'^ Where plaintiff" relies upon gross negligence as a ground of liability
on the part of the defeii(lant, upon the theory that there was a gratuitous bail-
ment, he should aver gross negligence.-^ A complaint by a passenger suing to



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 23 of 214)