Clarke, J.:
Appeal from a judgment dismissing the complaint upon motion made immediately after the jury was sworn and before the taking [710] of any evidence,, upon the concession of counsel that for the purposes of,the motion the loss of the .property and the negligence of' the defendant were admitted. Upon this appeal, therefore, the case is to be treated as if defendant had demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, ■ ¡ -.
The complaint alleges that the defendant was a common carrier of passengers, operating a steam railroad between Chatham' and Hew York city, known as the Harlem division; that on August. 11, 1902, the plaintiff and his wife were passengers on a train running from Amenia to Hew York city and had paid their fare; that about three miles north of Pawling the defendant so negligently operated the train “ that said-track broke or shifted and gave way, throwing-said train from its track, and a car of same, in which plaintiff and his wife were riding was turned over * * without, negligence, or fault on their part. * - * . * That solely by reason of -defend'-, ant’s, its agents?,'servants?, trackmen’s'and employees’negligence and fault aforesaid, the sum of One • thousand' one hundred and eighty and 00-100 dollars ($1,1-80.00) in lawful money of -the United States, and also a gold watch of the- valué of Fifty and 00-100-dollars ($50.00), all of which belonged.'solely to plaintiff, and which were in the handbag of his wife¿ who occupied the same seat in the said car of said- train, were entirely lost or destroyed,” and demanded judgment, for $1,230. - , ■
The contract óf the carrier is to- safely carry the passenger. This includes the carriage of such effects ás are reasonably necessary for the journey. Money necessary for the payment of tlie expense of a journey undertaken, which is carried in the trunk ¿f a passenger,, is part of his baggage, and if lost while in the custody of a carrier for transportation ittis liable. (Carpenter v. N. Y., N. H. & H. R. R. Co., 124 N. Y. 53, citing. Merrill v. Grinnell, 30 id. 594; Fairfax v. N. Y. C. & H. R. R. R. Co., 73 id. 167.) In the latter case there is a definition of the phrase “ money necessary for the journey ”'—-that it should be a proper, reasonable and necessary amount for the plaintiff to carry with him for his journey, taking into consideration his position and circumstances, the length and character of his journey, and the contingencies and accidents that might naturally arise, and the fact that he y^as in á foreign country. [711] In the Carpenter case it was said : “ But carriers do not undertake to carry and safely deliver the effects of travelers not delivered into their custody, and it cannot be held that money in a passenger’s clothing worn during the day, and placed under his pillow at night, is in the custody of the corporation which carries and furnishes travelers with berths in sleeping coaches. ■ * ■ * * The mere proof of the loss of money by a passenger while occupying a berth, does not make out a prima facie case, and to sustain a recovery some evidence of negligence on the part of the defendant must be given.” The court thereupon reviewed the evidence, there having been a dismissal upon the trial, and holding that there was sufficient evidence to require the question whether the loss was caused by 'the defendant’s negligence to be ■ submitted to the jury, affirmed the order reversing the judgment of dismissal and directed judgment absolute against the railroad company. That case seems to me to be decisive upon this appeal that it was error to dismiss the complaint, it being conceded as a fact that the Joss was caused by defendant’s negligence. I think the rule is thus to be stated: ■ The carrier is not prima facie liable for loss, except as to such articles as are intrusted to its care. by being placed in its custody and hence under its control, ¡As to articles retained by the passenger and carried by him in the same car in which he is transported, the burden is upon him to show that the loss was 'occasioned by the carrier’s negligence. The Cyclopedia of Law and'Procedure (Vol. 6, p. 661) states: “ Even without delivery of the goods into the exclusive possession of the carrier, there is a duty to furnish reasonable protection to the passenger against loss or injury of such property, such as the clothing which he wears, the valise and' personal belongings contained therein, and the like.” In the American and English Encyclopaedia of Law (Vol. 3 [2d ed.], p. 549) it is stated: “ The better rule is believed to be that unless the carrier is intrusted with full possession of the baggage, it is not liable for its loss unless negligence is affirmatively shown.” And again (p. 550): “Money carried by the passenger on his person is within the general rule stated; the carrier cannot be held liable for the loss of it, regardless of its amount, unless the loss is shown to have been the result of the carrier’s want of care.”
In Adams v. New Jersey Steamboat Co. (151 N. Y. 169) Judge [712] . O.’BbieN, speaking for a unanimous court in a case holding'"a steám- ■ boat company liable as an innkeeper* had this to say in regard to rail-' roads: “ The carrier .by railroad does not undertake to insure the personal effects of the passenger which are carried upon his person, •against depredation by thieves. It is bound, no doubt, to use due care to protect the passenger in this respect; * * fit is only upon the ground of negligence that the railroad company can be held liable to the passenger for money stolen from his person during the journey! The ground of the responsibility is the same as to all the passengers, whether they use sleeping berths or not, though the degree of care required may be different. Some proof must be. given that the carrier failed to perform the duty of protection to the passenger that is " implied in the contract before the question of responsibility can arise, whether the pásSenger be in one of the" sleeping berths or in a seat in the ordinary car.”
In the case at bar the'negligence is.admitted. It would seem, therefore, that the point that these articles were not intrusted to the railroad company has no force. ■ It does not affect the case that the articles were in the custody ,of the wife. She was also a passenger riding with the husband in the same seat. Her custody was his. The question of contributory negligence is not before us. The complaint alleged freedom from contributory negligence, and that the . loss was solely due to the negligence of the- defendant. Both propositions stand admitted as the case is presented.' ' .
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Clarke, J.:
Appeal from a judgment dismissing the complaint upon motion made immediately after the jury was sworn and before the taking [710] of any evidence,, upon the concession of counsel that for the purposes of,the motion the loss of the .property and the negligence of' the defendant were admitted. Upon this appeal, therefore, the case is to be treated as if defendant had demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, ■ ¡ -.
The complaint alleges that the defendant was a common carrier of passengers, operating a steam railroad between Chatham' and Hew York city, known as the Harlem division; that on August. 11, 1902, the plaintiff and his wife were passengers on a train running from Amenia to Hew York city and had paid their fare; that about three miles north of Pawling the defendant so negligently operated the train “ that said-track broke or shifted and gave way, throwing-said train from its track, and a car of same, in which plaintiff and his wife were riding was turned over * * without, negligence, or fault on their part. * - * . * That solely by reason of -defend'-, ant’s, its agents?,'servants?, trackmen’s'and employees’negligence and fault aforesaid, the sum of One • thousand' one hundred and eighty and 00-100 dollars ($1,1-80.00) in lawful money of -the United States, and also a gold watch of the- valué of Fifty and 00-100-dollars ($50.00), all of which belonged.'solely to plaintiff, and which were in the handbag of his wife¿ who occupied the same seat in the said car of said- train, were entirely lost or destroyed,” and demanded judgment, for $1,230. - , ■
The contract óf the carrier is to- safely carry the passenger. This includes the carriage of such effects ás are reasonably necessary for the journey. Money necessary for the payment of tlie expense of a journey undertaken, which is carried in the trunk ¿f a passenger,, is part of his baggage, and if lost while in the custody of a carrier for transportation ittis liable. (Carpenter v. N. Y., N. H. & H. R. R. Co., 124 N. Y. 53, citing. Merrill v. Grinnell, 30 id. 594; Fairfax v. N. Y. C. & H. R. R. R. Co., 73 id. 167.) In the latter case there is a definition of the phrase “ money necessary for the journey ”'—-that it should be a proper, reasonable and necessary amount for the plaintiff to carry with him for his journey, taking into consideration his position and circumstances, the length and character of his journey, and the contingencies and accidents that might naturally arise, and the fact that he y^as in á foreign country. [711] In the Carpenter case it was said : “ But carriers do not undertake to carry and safely deliver the effects of travelers not delivered into their custody, and it cannot be held that money in a passenger’s clothing worn during the day, and placed under his pillow at night, is in the custody of the corporation which carries and furnishes travelers with berths in sleeping coaches. ■ * ■ * * The mere proof of the loss of money by a passenger while occupying a berth, does not make out a prima facie case, and to sustain a recovery some evidence of negligence on the part of the defendant must be given.” The court thereupon reviewed the evidence, there having been a dismissal upon the trial, and holding that there was sufficient evidence to require the question whether the loss was caused by 'the defendant’s negligence to be ■ submitted to the jury, affirmed the order reversing the judgment of dismissal and directed judgment absolute against the railroad company. That case seems to me to be decisive upon this appeal that it was error to dismiss the complaint, it being conceded as a fact that the Joss was caused by defendant’s negligence. I think the rule is thus to be stated: ■ The carrier is not prima facie liable for loss, except as to such articles as are intrusted to its care. by being placed in its custody and hence under its control, ¡As to articles retained by the passenger and carried by him in the same car in which he is transported, the burden is upon him to show that the loss was 'occasioned by the carrier’s negligence. The Cyclopedia of Law and'Procedure (Vol. 6, p. 661) states: “ Even without delivery of the goods into the exclusive possession of the carrier, there is a duty to furnish reasonable protection to the passenger against loss or injury of such property, such as the clothing which he wears, the valise and' personal belongings contained therein, and the like.” In the American and English Encyclopaedia of Law (Vol. 3 [2d ed.], p. 549) it is stated: “ The better rule is believed to be that unless the carrier is intrusted with full possession of the baggage, it is not liable for its loss unless negligence is affirmatively shown.” And again (p. 550): “Money carried by the passenger on his person is within the general rule stated; the carrier cannot be held liable for the loss of it, regardless of its amount, unless the loss is shown to have been the result of the carrier’s want of care.”
In Adams v. New Jersey Steamboat Co. (151 N. Y. 169) Judge [712] . O.’BbieN, speaking for a unanimous court in a case holding'"a steám- ■ boat company liable as an innkeeper* had this to say in regard to rail-' roads: “ The carrier .by railroad does not undertake to insure the personal effects of the passenger which are carried upon his person, •against depredation by thieves. It is bound, no doubt, to use due care to protect the passenger in this respect; * * fit is only upon the ground of negligence that the railroad company can be held liable to the passenger for money stolen from his person during the journey! The ground of the responsibility is the same as to all the passengers, whether they use sleeping berths or not, though the degree of care required may be different. Some proof must be. given that the carrier failed to perform the duty of protection to the passenger that is " implied in the contract before the question of responsibility can arise, whether the pásSenger be in one of the" sleeping berths or in a seat in the ordinary car.”
In the case at bar the'negligence is.admitted. It would seem, therefore, that the point that these articles were not intrusted to the railroad company has no force. ■ It does not affect the case that the articles were in the custody ,of the wife. She was also a passenger riding with the husband in the same seat. Her custody was his. The question of contributory negligence is not before us. The complaint alleged freedom from contributory negligence, and that the . loss was solely due to the negligence of the- defendant. Both propositions stand admitted as the case is presented.' ' .
The remaining question is whether, for the particular-articles sued for in this case; the defendant is liable. It seems to be settled, that, as the passenger has merely paid for his transportation and has not paid eKtra compensation for “express” of packages of great value, and as such valuables are not within the contemplation of the parties when the ticket was sold, there can be no recovery for their loss even though the carrier be negligent. Said Judge Folger in Weeks v. N. Y., N. H. & H. R. R. Co. (72 N. Y. 60) : “ Should* passenger * * * be robbed of portions of his clothing, or usual and reasonable articles of personal ornanlent,. Jiis watch or his purse with the money for his traveling and other- personal expenses, it may be that the carrier would be liable for the loss which its passenger had sustained. * * * For the carriage of himself, his Watch;- his-purse and the like, the passenger does, perhaps, make contract with [713] the carrier, or so does set in operation the duty of the latter, when he buys his ticket or takes his passage ; and does, it may be, legally demand of him a care and diligence up to the needs of the hazard and render him liable for such damage as is in the contem'plation of the contract or the scope of the duty. * * * The defendants are bound to protect the plaintiff from the violence of a railway accident, as well as from the intentional violence of ruffians and rogues.” The court put its decision in that case upon this precise ground; “ The valuable securities carried by the plaintiff were not a part of the property which he could in his ordinary relation of passenger of the defendant bear about his person at its risk and under its duty as a carrier to protect him and his necessary, convenient and ornamental, reasonable, personal chattels and money; that for that reason the value of them does not properly enter into an estimate of the damages with which it should be charged on a recovery by him against it for not protecting him from violence while he was rightfully on its car, it being assumed to be guilty of negligence therein, and he being taken as free from contributory negligence.”
It would seem, therefore, that as to the watch in' the present case, there can be no doubt that it was within the contemplation of the parties, and the value could be recovered upon establishing negligence on the part of the defendant and freedom therefrom on the part of the plaintiff. As to the money, it would come down to a question of fact to be determined by the jury whether it or any part thereof, was a necessary sum for the journey, a sum that will “ embrace the whole of the contemplated journey, and include such an allowance for accidents or sickness and for sojournings on the way as a reasonably prudent man would consider it necessary to make.” (Merrill v. Grinnell, 30 N. Y. 610.)
Considering the cases cited by the respondent — First National Bank of Greenfield v. M. ds O. R. R. Go. (20 Ohio St. 259) was the case of a bank messenger carrying for the bank $4,000 of its money; and the court held that defendant was not liable for the loss of money kept in'the sole custody of the passenger and which he carried for purposes not connected with the expenses of the journey. That case is in exact line with the‘decision of our Court of Appeals in the Weeks case, and was cited by Judge Folgeb in [714] his opinion, and.so does not touch the question, as to money necessary for. the journey.. In Millis v. C., R. I. & P. Ry. Off. (72 .Iowa, 228), while apparently in'point as to the facts, there was no discussion of the question as to money riecessary for the journey, and' so the case falls within the rule as to transportation of goods of value without disclosure, and is not in conflict with the views expressed. Oohen v. Frost (2 Duer, 335) 'has been disapproved by a long line of MeW York cases. (Orozier v. Boston,: N Y. do Newport Steamboat Co.,: 43 How, Pr. 466; Macklin v. New Jersey Steamboat Co., 7 Abb. Pr. [M. S.] 229; Adams. v. New Jersey Steamboat Co., 151 N. Y. 163.)
The dismissal of the complaint was. error. The evidence should have been- taken, and the questions thereon arising wouhhhave been the negligence of the defendant, the freedom from contributory negligence of the plaintiff, and whether or no the Watch was a “necessary., convenient arid ornamental, reasonable, personal'chattel,” and whether the money or' any part thereof came within the ' detinitión of- a reasonable and suitable amount for' the journey, contemplated.
The judgment should be reversed and new trial ordered, with ■costs to the ap.ellant to abide the event. ' ■ ' '
O’Brien, P. J;, and Houghton, J.,.concurred; Patterson and McLaughlin, JJ., dissented.