Pullman Co. v. Green

57 S.E. 233, 128 Ga. 142, 1907 Ga. LEXIS 50

• Court: Supreme Court of Georgia
• Decided: April 12, 1907
• Status: Published

Opinion

Cobb, P. J.

(After stating1 the facts.) It is the duty of a sleeping-car company to exercise reasonable care to guard the personal property of the passenger from theft; and if, through the want of such care, his personal effects, or some of them, are stolen, the company would be liable for such of the stolen valuables as the passenger might reasonably be expected to carry with him on his journey. This is the rule of liability as settled by the decisions of this court, and has been declared to be in accord with the weight of authority elsewhere. Pullman Co. v. Schaffner, 126 Ga. 612. See also Pullman Palace Car Co. v. Martin, 95 Ga. 314; Kates v. Pullman Palace Car Co., 95 Ga. 810; Pullman Palace Car Co. v. Harvey, 101 Ga. 733. In all of the cases cited, the loss occurred while the passenger was asleep. In Pullman Palace Car Co. v. Hall, 106 Ga. 765, the loss occurred in the daytime and while the passenger was not asleep. That was a peculiar case. The baggage was stolen by a thief who was on the outside of the car, standing on a rod underneath the car, and reaching through the window and taking the valise from the seat. At that time the car was in motion, going at a rate of five or'six miles an hour, through the railroad yard adjacent to a city; the rear door was securely- locked, and the conductor and the porter were guarding the front door. Under these circumstances it was held, by a majority of the court, that the evidence did not authorize a finding that the company had been lacking in the exercise of reasonable care; that the occurrence was so unusual and peculiar that it could not have been reasonably foreseen and guarded against. Mr. Justice Lewis dissented, being of the opinion that the evidence was sufficient to sustain a verdict holding the company liable. The rule above referred to was recognized by all the Justices; the only difference being as to .its application to the peculiar facts of that case.

The liability of the company for a loss occurring during the night, when the passenger is asleep, has been rested upon the proposition that the company invites the passenger to sleep, and therefore owes him the duty of reasonable care to protect his personal effects while he is asleep. There is -generally in such cars a toilet-room, which the company invites the passenger to use when he rises in the morning. When the invitation of the company is accepted, the duty to guard his personal effects left in his berth, while he is absent therefrom, is founded upon a similar reason to that which requires a guard to be maintained while he is asleep during the night. He can not guard his effects himself while he is asleep; neither can he guard his effects in his berth during the morning when he is necessarily absent therefrom for the purpose of making his toilet in a place set apart by the company for that purpose. In Kates v. Pullman Co., supra, it was held, that proper diligence of the sleeping-car company towards its patrons involves the exercise of reasonable care to secure the safety of the passenger’s property while on its cars, and, upon his leaving it, a restitution of the property to its owner when ascertained; and that where such property is left, or dropped, in such place, under such circumstances as that by the exercise of ordinary care it ought to have been found by them, fhe company will be liable for its .value. If the company owes to a passenger the duty of ordinary care to find property left by him in the car when he disembarks from the ear, it would seem that there can be no question that the company owes him a duty to protect such valuables as may be in the berth of the car when he leaves the berth upon the invitation of the company, to be temporarily absent for a proper purpose, such as the purpose for which the plaintiff left her berth in the present case. It was contended that there was nothing to put the company on notice that the plaintiff would leave her valuables in the berth. There was nothing in the Kates case to put the company on notice that Kates would leave his money .in the car when he disembarked therefrom. The company is on notice that each passenger will carry such articles of personal apparel and adornment as are usual in the station of life to which the passenger belongs, and as are appropriate to a journey. It is also put on notice that articles of personal apparel and adornment will be taken from the person during the night and will not be restored until the toilet is made the following day. This is- sufficient as a notice -to require the company to use reasonable care to guard such effects of the passenger during the time that they will not be in his immediate control and in his actual custody. 'The declaration set forth a cause of action, and was sufficiently specific to put the company on notice of the character of the demand that it was called upon to defend.

2. The motion for a new trial contained numerous special assignments of error. The extracts from the charge, excepted to, were not erroneous for any of the reasons assigned. The requests to charge, so far as legal and pertinent, were covered by the general charge, which fairly submitted every material issue to the jury. It only remains to consider the general grounds of the motion. The evidence authorized a finding that the plaintiff had lost the articles described in the petition, and that they were of the value therein alleged. It is said, though, that the plaintiff should not recover, for the reason that the evidence required a finding that the loss of the articles was the direct result of her own negligence in leaving them in the berth when she went to the toilet-room. The character of the business that the sleeping-car company is engaged in is such that it is necessarily charged with notice that when a passenger rises from his berth in the morning, articles of apparel and adornment that will be upon his person during the daytime may be left in the berth, either intentionally or inadvertently, while the passenger is making his toilet; and at such time it is the duty of the company to take such precautions as are necessary to protect the passenger from loss by theft. It can not be said,.as a matter of law, that a passenger who leaves in his berth articles of app'arel or adornment during the time that he is making his toilet in the morning is guilty of such contributory negligence as'will defeat a recovery for their loss. Whether so leaving them would, in a given case, be such negligence as would defeat a recovery would be a subject for decision by a jury, under all of the circumstances of the particular case. We are aware that in other jurisdictions it has been held that to so'leave jewels and other articles of personal adornment in the berth would be such contributory negligence as would defeat a recovery; but in this .State, where the question of negligence is one peculiarly for the solution of a jury, such rulings can not be followed. The evidence authorized the verdict, and. we see no reason for reversing the .judgment. .

Judgment affirmed.

Fish, Q. J., absent. The other Justices concur.