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A treatise on the law of carriers (Volume 4) online

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recover for property stolen in a sleeping car sufficiently shows that the sleeping
car company was negligent by alleging that it failed to secure efficient employees
to protect his property, without alleging that the company failed to have a watch-
man, or that its watchman failed to exercise proper care to protect plaintift"s
property. 2- Allegations, in an action against a railway company and a sleeping
car company that their employees, instead of stopping the train at a station, neg-
ligently caused a passenger to alight before the station was reached, and that the
train moved away leaving her without assistance to reach the station, charges
negligence of both companies. -^

§ 3579. Necessity for Pleading Contributory Negligence. — Contributory
negligence of a passenger in a sleeping car in losing a diamond ring sued for
is not available as a defense to the sleeping car company's liability, where it is
not pleaded. 2"*

16. Joinder of parties defendant. — cause the ticket had not been counter-
Houston, etc., R. Co. V. Perkins, 52 S. rigned in New York; that he paid fare
W. 124, 21 Tex. Civ. App. 508. to the next nearest station, where he was

17. Taylor v. Wabash R. Co., i:iO Mo. ejected. Held, that the declaration did
App. .",S2, 109 S. W. lO.JO. not state a cause of action aijainst the

18. Declaration not stating cause of ac- sleeping car company. Calhoun v. Pull-
tion. — I'laintiff alleged that. l)Ling a man Palace Car Co., 149 Fed. 546.
holder of a railroad ticket which entitled 19. Alleging authority of servant — Pull-
him to be carried over the P. Railroad man Co. v. Riley, 5 Ala. App. 5('>1, 59 So.
from New York to Washington, then to 761.

Chattanooga, Tennessee, he exhibited 20. Alleging negligence. — Pullman Pal-

fuch ticket to the agent of defendant ace Car Co. v. Martin, 92 Ga. KH, IS S.

flccping car company at Providence, R. E. 304.

I., who informed him that by purchasing 21. Gross negligence.— Hillis v. Chicago,

a local ticket from Providence to Jersey ,,tc., R. Co.. 72 l.nva 228, 33 N. W. 643,

City the agent could sell him sleeping .d Aiii. & hjig. R. Cas. 108.

car accommodations from Providence to n« d n r> ^ /-</-> a i

Washington, whore the railroad authori- .22- I u nian Pa lace Car Co. v Adams.

tics would countersign his ticket so as to X ^"- ^i\' 13^ ^^- •'"'• ■^•' ^^ ^'- ^- ^^^'

validate it for the l^aiance of his journey; '"^ ^'"- •^*- ^^''P- ''^•

that, relying on such information, he- 23. Pullman Co. v. Hoyle, 52 Tex. Civ.

purchase<l a ticket, but was refused per- '^PP- •''•'■^' 11''> '^- W. 315.

mission to ride by the train cfiiidurinr 24. Necessity for pleading contributory

of the P. Kaiiroad Company after Icav- negligence, rullin.iii Co. t. \ .indcrhoe-

ing Jersey City, unless lie paid fare, be- ven, is Tex. Civ. .\\i\>. IM, in? S. W. 117.

§§ 3580-3581 CARRIERS. 3230

§ 3580. Issues, Proof and Variance. — It seems that under a general al-
legation of negligence "of defendant, its servants, and employees in charge of the
car," no inc^uiry can be made as to whether or not the construction of the car
was adequate for the protection of the property of passengers. ^^ In an action by
a passenger against a sleeping car company for the loss of property alleged to be
due to defendant's negligence, there must be proof of negligence or facts and
circumstances pointing so clearly to negligence as to supply the place of more
direct evidence. 2« One suing a sleeping car company for breach of its contract
to provide plaintiff and her family with sleeping car accommodations from a
designated point to her point of destination can not recover on proof that her
reservation for sleeping car accommodations was from an intermediate point to
the point of destination. 2"? And where plaintiff charged a breach of contract in
that she was not permitted to occupy Pullman accommodations in a particular
sleeper, but the proof showed that she was only entitled to Pullman accommoda-
tions on a particular train, the variance was fatal.^s

§ 3581. Presumptions and Burden of Proof.— Scope of Authority of
Employee. — \A'here sleeping car passengers are improperly discharged before
reaching their destination by employees of the defendant company, which offers
no evidence of the duties of its servants and the usages and rules in force on. its
cars, it will be presumed that the employees were acting within the scope of their
employment so as to render the company liable.^^

Negligence of Defendant.— It is generally held that the burden of proving
negligence on the part of the sleeping car company in failing to exercise proper
care for the security of passengers' property is on plaintiff', and negligence on the
part of a sleeping car company will not be inferred from the mere fact of a loss
of property by a passenger in an action by him against it to recover for such loss.^^
But there may be cases, where the evidence that a theft took place will, when the
surrounding circumstances are considered, carry with it a reasonable inference of
negligence.31 And it is held that evidence that a sleeping car passenger on leaving

25. Issues, proof and variance. — Pull- Pullman Palace Car Co., 6 O. Dec. 85, 4
man Palace Car Co. v. Gaylord, 9 Ky. L. N. P. 26.

Rep. 58. T^'.ra.j.— Pullman Palace Car Co. v. Pol-

26. Carpenter v. New York, etc., R. Co., lock, 69 Tex. 120, 5 S. W. 814, 34 Am. &
10 N. Y. St. Rep. 712. Eng. R. Cas. 217, 5 Am. St. Rep. 31;

27. Smith v. Pullman Co., 138 Mo. App. Dargan v. Pullman Palace Car Co., 2
238, 119 S. W. 1072. Texas App. Civ. Cas., § 691, 26 Am. &

28. Pullman Co. v. Riley, 5 Ala. App. 5"^' ^'a ^^^- 149; Pullman Palace Car
561, 59 So. 761. Co. r/. Arents, 28 Tex. Civ. App. 71, 66

29. Scope of authority of employee.- ^ 'Cana Ja.-Stearn v. Pullman Car Co., 8
L« Tr^ w "^oQ. o',S.°- %?"V,^^' ^o.J^^'o Ont. 171, 21 Am. & Eng. R. Cas. 443.

f V A ■ ^^\ ^^' ' ^" ^" ^^^'°" t° recover for money stolen

1^. K. A. ^15. from plaintiff while occupying a berth in

30. Negligence of defendant.— ///j;!ou.— a sleeping car, the presumption exists in
McMurray v. Pullman's Palace Car Co., favor of the defendant that it performed
86 111. App. 619. its duty toward its passengers. Carpen-

Massachusetts. — Whicher v. Boston, etc., ter v. New York, etc., R Co 15 N Y

R. Co., 176 Mass. 275, 57 N. E. 601, 79 St. Rep. 345.

Am. St. Rep. 314. Gross negligence. — The law will not

Missouri. — Root v. New York Cent., presume gross negligence; and, if the

etc., Co., 28 Mo. App. 199. plaintiff relies upon it as a ground of lia-

New York.— Tracy v. Pullman Palace bility on the part of the defendant, upon

Car Co., 67 How. Prac. 154; Carpenter v. the theory that there was a gratuitous

New York, etc., R. Co., 124 N. Y. 53, 26 bailment, he should prove the gross neg-

N. E. 277. 47 Am. & Eng. R. Cas. 421, 21 ligence. Hillis v. Chicago, etc., R. Co., 72

Am. St. Rep. 644, 11 L. R. A. 759; Cohen Iowa 228, 33 N. W. 643, 31 Am. & Eng.

V. New York, etc., R. Co., 105 N. Y. S. R. Cas. 108.

483, 121 App. Div. 5; Weingart v. Pull- 31. Bevis v. Baltimore, etc., R. Co.. 26

man Co., 108 N. Y. S. 972, 58 Misc. Rep. Mo. App. 19. See Carpenter v. New

187; Carpenter v. New York, etc., R. Co., York, etc., R. Co., 124 N. Y. 53, 26 N.

10 N. Y. St. Rep. 712. E. 277, 21 Am. St. Rep. 644, 11 L. R. A.

Ohio.— Falls River, etc., Mach. Co. v. 759, 47 Am. & Eng. R. Cas. 421.


the car for the night on account of a long delay was assured by the conductor that
it would be safe to leave his baggage in the car and that the baggage was not re-
turned to him nor its loss explained makes out a prima facie case of negligence on
the part of the company.''- There are cases holding that the burden of proof is on
the company of showing that it exercised the requisite degree of diligence and that
the loss was not occasioned by a failure on the part of its employees to do so.^^
And it has been held that on proof of injury sustained by a passenger on a rail-
road train, by the fall of a berth in a sleeping car, and that the passenger was
without fault, a presumption arises, in the absence of other proof, that the rail-
road company is liable.^*

Rebuttal of Presumption of Negligence. — Where the proof of the loss of
property raises the presumption of negligence on the part of the sleeping car com-
pany the presumption is rebutted by the uncontradicted evidence of the car porter
that he was on duty, and engaged in watching the car. through the night, till after
the loss.^^

Contributory Negligence. — The burden of proof as to contributory negligence
is in all cases on the defendant, unless the plaintifif's own evidence established it.^*^

§§ 3582-3584, Admissibility of Evidence— § 3582. In General.— in a

suit against a sleeping car company for its neglect to put a passenger off at
the proper station, in which injury to health was alleged as an item of damages,
it is competent for the passenger to testify that she knew nothing else than
the exposure to which she was subjected which could have caused the illness.^''
Where in an action against a railway company and a sleeping car company for
injuries to a passenger by a defect in a sleeping car, the railway company pleaded
a contract with the sleeping car company which stipulated that the sleeping car
company should have authority to furnish its own conductor, and that the railway
conductor should not interfere with the business of the sleeping cars except for
the purpose of collecting the tickets of passengers, the admission of the testimony
of the railway conductor that he had nothing to do with the sleeping cars, and
that that duty devolved on the conductor of those cars, was not erroneous.-'^^

The agency of a railroad ticket agent in contracting in behalf of a sleeping
car company to reserve a berth in one of its cars may be established by his prior
acts, and circumstances attending the same, showing that the company recognized
similar contracts made under like circumstances.'^^

§ 3583. In Actions for Wrongful Ejection. — In an action against a sleep-
ing car company which had contracted to furnish plaintiff a berth, her testimony
that she left the car under the conductor's order, and finding no other seat took
one in a negro car, is admissible.'*'^ In an action for ejection from a sleeping car,
under the passenger's protest, it is not improper to ask the one who ordered the
passenger to leave, if he intended to make him leave if he had not obeyed the

32. Croll J'. Pullman Co., 11 :i X. Y. S. I'alacc Car Co. v. Adams, 120 Ala. ."iSl.
542. 01 Misc. Rep. 205. :'4 So. 921, 74 Am. St. Rep. 53, 45 L. R.

33. F'ullman Palace Car Co. v. Frcudcn- A. 767.

itein. .3 Colo. App. ,''.40, 34 Pac. 578; Kates 37. Admissibility of evidence.— Pull-

V. Pullman's Palace Car Co., 95 Ga. 810, „i^,i Palacc Car Co. v. Smitli, 70 Tex.

23 S. E. ISO. 2 Am. & Enj?. R. Cas., N. 4,;h, 14 S. W. 993. 23 Am. St. Rep. 35f>,

S.. 480; Pullman's Palace Car Co. v. 13 L R A 215

Harvey, 101 Ga. 733, 28 S. E. 989; Pull- „o d 11 " V' xt , /o- /-•

man Co. v. SchafTner, 120 Ga. 009 55 S. a .^^\ ^f c^'w S.*"., "'• " ^ ""■ ^"'■

E. 93.3. 9 L. R. A., N. S., 407. ^^'•'^•)' ^' '^- ^- ^-^i-

34. Cleveland, etc., R. Co. 7: Walrath. 39. Agency of railroad ticket agent.—
38 O. St. 401 H .Am. Si V.n^. R Cas 371. I' Palace Car Co. v. Nelson, 22
43 Am. Kcp, .i:!3. '''<-^- C'v- Ai)p. 223, .Vt S. W. 024.

35. Rebuttal of presumption of negli- 40. Actions for wrongful ejection. —
gence.-I'ullman Palace Car Co. v. Freud- ''ullman Palace Car Co. v. Booth (Tex.., 3 Colo. App. .'>40, 34 I'ac. r,7H. Civ. App.), 28 S. W. 719, afiirmed in 93

36. Contributory negligence. — Pullman 'iCx. 093, no op.

^•§ 3583-3584 carriers. 3232

order.-* 1 Where a sleeping car company breaks its contract in such a way as to
constitute ejection, it is proper to admit evidence of inconvenience, annoyance,
pain, and suffering incident to the ejection. 4- Under the allegations of a com-
plaint that plaintiff was wrongfully, willfully, maliciously, and in violation of her
contract rights, ejected from a sleeping car by the conductor, evidence of the
'-"onductor's rudeness in ordering her out of the car is admissible. ^^

§ 3584. In Actions for Loss of Property. — In an action against a sleeping
car company for a valise and contents lost by a passenger on defendant's car, evi-
dence is admissible of details of conversations between plaintiff' and the porter
and conductor of the car as to the' place of putting the valise, and the conductor's
statement, when putting it in an unoccupied seat opposite plaintiff, that it would
be perfectly safe there, as the passenger is not responsible for the choice of modes
of performing the defendant's duty to watch over the hand baggage of its pas-

Knowledge of Other Thefts. — In an action for loss of a sleeping car pas-
senger's eft'ects, evidence that defendant's servants knew that stealing from cars
had been going on in the neighborhood was admissible, though such knowledge
was not alleged.^^

That other passengers were robbed may be shown by witnesses who are
able to swear to the fact of their own knowledge, but the declarations of other
passengers that they had been robbed is hearsay evidence merely and inadmis-

Circumstances Connecting Porter with Theft. — Where plaintiff claimed
that defendant's sleeping car porter while searching for a ring lost by plaintift''s
wife discovered it in the pillow box and appropriated it, plaintiff', having testified
that he stated to the porter when he was making up the berth that they had lost
something during the night and heard it drop into the pillow box, was entitled to
state that he saw the porter in making up the berth stoop over and pick up some-
'thing. and put it in his pocket.'*'^

Declarations and Admissions of Servants. — The declarations, explanations
and suggestions of the servant of a sleeping car company, whose duty it is to
care for the passengers' baggage, made upon a passenger's inquiry while on the
car, as to what had become of his baggage placed away by such servant, are ad-
missible in evidence in an action against the company to recover for the lost bag-
gage.'*'^ And where a sleeping car porter was the sole agent and representative
of the sleeping car company and was in charge of the car in which plaintiff was
riding at the time he was assaulted and robbed, the porter's declarations were ad-
missible against the company.^^ But it is held that admissions made by the
porter after the discovery of a loss by a passenger are inadmissible.^'^ And the
porter's declarations as to his suspicions of two men who had left the car during
the night are not admissible against the company in an action by a passenger
who had been robbed during the night. •''^

41. Pullman Palace Car Co. v. Cain, 40 more, etc., R. Co., 26 Mo. App. 19. See
S. W. 220, 15 Tex. Civ. App. 503. Lewis v. New York Sleeping Car Co., 143

42. Inconvenience, annoyance, etc. — Ap- Mass. 267, 9 N. E. 615, 58 Am. Rep. 135,
lington V. Pullman Co., 97 N. Y. S. 329, 28 Am. & Eng. R. Cas. 148.

110 App. Div. 250, 17 N. Y. Ann. Cas. 455. 47. Circumstances connecting porter

43. Rudeness in ejection. — Pullman with theft. — Pullman Co. v. Vanderhoeven,
Palace Car Co. x'. Booth (Tex. Civ. 107 S. W. 147, 48 Tex. Civ. App. 414.
App.), 28 S. W. 719. 48. Declarations and admissions of

44. Admissibility in actions for loss of servants. — Hampton v. Pullman Palace
property. — Hampton v. Pullman Palace Car Co., 42 Mo. App. 134.

Car Co.. 42 Mo. App. 134. 49. Hill v. Pullman Co., 188 Fed. 497.

45. Knowledge of other thefts. — Pull- 50. Admissions inadmissible. — Carpen-
man Co. v. Schober (Tex. Civ. App.), 149 ter v. New York, etc., R. Co., 10 N. Y.
S. W. 236. St. Rep. 712.

46. Evidence of other thefts — Declara- 51. Bevis v. Baltimore, etc., R. Co., 26
lions of third persons. — Bevis v. Balti- Mo. App. 19.


Purpose of Carrying Property. — In an action against a sleeping car com-
pany for loss of a passenger's ring alleged to have been found and misappropri-
ated by the porter the purpose for which she was carrying the ring on her jour-
ney was immaterial, so that the court did not err in permitting her to testify that
she took the ring to wear at a dinner, or such other use as she might have for it.^-

Evidence of Construction of Pillow Box. — Where plaintifif claimed that his
wife's ring fell from defendant's sleeping car berth, which they had been occupy-
ing, into the pillow box, and that the porter found it there when searching for it
at the wife's request, and appropriated it, evidence that the pillow box was so
constructed at the time the wife examined it that a thing the size and shape of a
ring could fall from the berth into the box, was admissible. ^-"^

§ 3 585. "Weight and Sufficiency of Evidence. — To Show Negligence
in General. — The rules governing the weight and sufficiency of evidence to
show negligence in civil actions generally apply in actions against palace and
sleeping car companies."^ As has been seen, it is generally held that the proof
of the loss of the property of a passenger on a sleeping car is not sufficient to
show the negligence of the company, though there are cases holding the con-
trary. ^^ And it is held that the naked fact that a theft has been committed
r.pon a passenger, while asleep in a sleeping car, is not evidence of negligence
to charge the sleeping car company. ^^ Evidence that when a passenger went
to his berth he had money in his trousers pocket, and no porter or other em-
ployee was present, and that in the morning when he arose his money was gone,
and no porter or other employee was present, is insufficient to show the loss
was caused by the company's negligence. ^"^ And the mere unexplained disap-
pearance from a Pullman day coach of an overcoat given by a passenger to the
porter, with directions to put it on the seat he had engaged in the car, does not
establish defendant's liability. ^^ But where a passenger on a sleeping car gave
his umbrella to a porter, who was alone in charge of the car, and it was never
returned to him, the negligence of the company was sufficiently shown to sus-
tain a judgment for its value. ^^ And evidence that a passenger, upon leaving the

52. Purpose of carrying property. — caused by the negligence of the defend-
Pullman Co. ?•. Vanderhoevcn, 107 S. ant's servants, wa'- sustained by the evi-
W. 147 !* Tex. C'v. Apf. '14. dence. Belden v. Pullman Palace Car

53. Evidence of construction of pillow Co. (Tex. Civ. App.), 43 S. W. 22.
box. — I'uHinan Co. 7'. Vandcrhoeven, 4S Evidence, in an action by a passen-
Tcx. Civ. App. 414, 107 S. W. 147. ger against a sleeping car companj^ to

54. Weight and sufficiency of evidence recover for valuables stolen, held to sus-
— Illustrations. — Tn an action against a tain a verdict for plaintiff. Pr.Hman Pal-
sleeping car company for the value of r>ce Car Co. t'. Woods, 10 Neh. 004, 107
a valise left by plaintiff, when he retired, X. W. 8.")S.

by the side of his berth in the aisle, the Evidence insufficient to show that pas-
evidence was that the car had two serv- senger contracted pneumonia through in-
ants, whose duty it was to sit by turns sufficient heat. Marcott ?'. Minneapolis,
at the end of the aisle to wait on pas- etc.. 1\. Co. (Wis.), l.",:! X. W. :17.
scngcrs and see that nothing was stolen, To rebut presumption of negligence,
and that during the first part of the — See ante, "rrcsumiitions and l'iir<len
night one of these kept watch; that when of T'rodf," !J :;.")Si.

this one left the car to wake the other. Sufficiency of evidence to go to jury. —

the valise was in place; that during the See post, "Questions for Court or jury,"

latter part of the night, while the sec- § S.'iRI.

ond servant was on watch, several per- 55. Mere proof of loss, — See ante, "Prc-

sons came into the car; that the servant sumptions and Iliudiii of Proof." § S.TSl.

woke the passengers for A., an<l they 56. Bevis 7'. I'altiniore, etc., R. Co., 20

got off, taking their valises; that the Mo. App. 10.

servant could not identify particular va- 57. Cohen ?'. Xew ^'ork, etc., R. Co.,

Uses where there were a number fif pas- 121 A])]!, l^iv. .'), 10.'; N. Y. S. tsn.

scngcrs each having one; that no pas- 58. Weingart 7-. Pullman Co., lOS N. Y.

scngers got off that night except at A. S. 072, r.8 Misc. Re]). 1S7.

Held, that a finrling that the valise was 69. Irving v. Pullman Co., 84 N. Y. S.

taken at A., and tliat its loss was not 2IS.

§ 3585 CARRIERS. 3234

car to get his dinner, left his haggage in the car upon being told that it would be
safe there, and upon his return found that the car had been switched off from
the train and part of his baggage transferred to another car, and part of it lost,
is sufficient to prove negligence.^*'

Personal Injury. — Evidence that the upper berth of a sleeping car fell on
a passenger in a seat assigned to him by the conductor, and that no mechanical
defect was found in the springs and catches, is sufficient to show negligence in
not causing the berth to be properly fastened in the absence of evidence to the
contra ry.*^i

Failure to Properly Guard Car. — In an action against a sleeping car com-
pany for theft of a passenger's personal property while sleeping in a car, evi-
dence that the car behind it was an empty baggage car which was not visited
by the regular trainmen, and that the porter was not keeping watch, but was
otherwise engaged at a place in the forward end of the car from which he could
not see the aisle, sustains a finding that the company was negligent in failing
to keep a sufficient watch to secure passengers against intrusion.*^^ And where
there is evidence that a lady passenger was subjected to indignities by men pass-
ing through the car, and that there was no one guarding the car, and that she
tried in vain to summon the porter, a verdict against the defendant will not be
disturbed.*^^ The fact that the porter of a sleeping car blacked boots during
the night when a theft occurred is not sufficient, standing alone, to make out a
prima facie case of negligence against the company for failure to properly watch
the car and guard the effects of passengers from theft.*''*

Leaving Window Open.— W'here property was shown to have been stolen
because the servants of the company failed to keep the windows closed while
at a station, as required by a regulation of the company, it was held that negli-
gence was sufficiently proved.^^

To Show Theft by Employee. — In an action against a sleeping car com-
pany for loss of property alleged to have been found and misappropriated
by the porter, plaintiff was not bound to prove such misappropriation beyond a
reasonable doubt, but was only required to prove facts and circumstances rea-
sonably tending to show that defendant's porter in the discharge of his duties
found the property and appropriated.*'^^ Where it appeared that a sleeping car

60. Kinsley v. Lake Shore, etc., R. Co., findings that the company's employees
125 Mass. 54, 28 Am. Rep. 200. were negligent in not keeping the win-

61. Cleveland, etc., R. Co. v. Walwrath, dow closed, or in failing to see and pre-
6 O. Dec. 718, affirmed in 38 O. St. 461, vent the theft, and that plaintifif was not
43 Am. Rep. 433. negligent, were justified. Pullman Pal-

62. Failure to properly guard car.— ace Car Co. v. Arents, m S. W. 329, 28
Hill c'. Pullman Co., 1S8 Fed. 497. Tex. Civ. App. 71.

63. St. Louis, etc., R. Co. v. Hatch, 94 66. To show theft by employee. — PuU-
S. W. 671, 116 Tenn. 580. man Co. v. Vanderhoeven, 48 Tex. Civ.

64. Carpenter v. New York, etc., R. App. 414, 107 S. W. 147.

Co., 13 N. Y. St. Rep. 718. Evidence insufficient to show theft by

65. Leaving window open. — While plain- employee. — In an action against a sleep-
tiflf was a passenger on a sleeping car, ing car company to recover the value of
his valise was stolen from the car at a property lost by a passenger, the evi-
station in Mexico. The rules of the com- dence showed that the porter had faith-
pany required the rear door and windows fully watched over the occupants of the
of the car to be closed while at such car. No passenger entered or left the
stations. The conductor and porter tes- car from the time the property was last

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