Pullman Palace Car Co. v. Adams

120 Ala. 581

• Court: Supreme Court of Alabama
• Decided: November 15, 1898
• Status: Published

Opinion

HARALSON, J.

There was no error in overruling the demurrers to the 2d and 3d counts of the complaint. They sufficiently advised defendant of what the plaintiff complained, and against which he was called to defend.

Nor was there error in sustaining the demurrers to defendant’s 2d and 3d pleas of contributory negligence.

The cause was tried on issue joined on the plea of the general issue, and on the 4th plea, to which a demurrer was overruled.

In this case the appellee, plaintiff below, with his friend, Alcorn, left Longview on the afternoon of February 20, 1895, to go on a journey to New Orleans. On reaching Montgomery, he and his friend went into a sleeper of the defendant company and paid $2 for an upper berth, for himself and Alcorn. About 9 o’clock, the two retired, Alcorn taking the back and plaintiff the front side of the berth. The plaintiff testified that he placed his pocket-book, which was a large one, on the inside of his vest pocket, and placed the vest in a hammock that was swinging just above, on the back side of the berth, and went to sleep shortly after retiring; that he did not awake until the train was in about an hour’s run of New Orleans, and it was then daylight; that Al-corn was up and dressed and waked him up ; that his vest was lying on the outer edge of the berth on the. top of the cover ; that his watch was in the vest as he left it, but the pocket-book was gone ; that it contained amongst other things, $25 in money and a diamond ring, worth $125, and the property has never been recovered.- He testified, on cross-examination, that the setting of the ring had been loose for some time ; that he had worn it until two or three weeks before going to New Orleans, and the stone being loose, on the advice of a jeweler that it was unsafe to wear it, he had carried it for that length of time in his pocket-book, with the intention of having the diamond set in a plain gold band.

Alcorn testified for plaintiff, that prior to starting out on their journey, the plaintiff had shown him two certificates of deposit on a bank amounting to $5,000, and something wrapped up in a paper, which he said was his diamond ring, and the setting was loose, was the reason he had wrapped it up ; that he occupied the berth with plaintiff, slept on the back side of the berth and placed his coat in the hammock first; that plaintiff, when he got in the berth, placed his vest in the hammock on witness’ coat ; that he could not sleep and got up about midnight, took hold of his coat with* his right hand and with his left, held plainiff’s vest while he drew out his own coat from the hammock, and crawled out over plaintiff who he thought was asleep ;: that he saw the porter sitting on something, asleep, but did not see the conductor till the train whistled to stop at Mobile, and from the time he got out of the berth until they got to Mobile, he walked back and forth through the car, as there was no seat for him to take, and saw no one awake ; that if the porter was awake, he had his eyes closed ;'that at Mobile he got out of the sleeper and went into the day coach where he remained until about sun-up, when here-turned to the sleeper, and finding plaintiff asleep, he aroused him ; saw nothing on the floor, nor did he see the plaintiff’s vest, but it was yet quite dark in the sleeper ; that as soon as plaintiff got up, he came forward to the wash room, where witness had gone, and stated that his vest had been rifled and his pocket-book emptied of its contents ; that the loss was reported to the conductor who caused search to be made in every nook and corner without avail.

The conductor for defendant testified, that as soon as the porter had made up the berths, he went on watch and remained until 3 o’clock in the morning, and did not leave the car at all, and sat and remained in such position that he could see down the aisle the whole length of the car ; that during his watch, no one went about plaintiff’s berth or disturbed anything in it, and no one entered the car that did not belong there ; that about 3 o’clock he called the porter, who was sleeping in the smoking room, and as soon as the porter came and went on watch, he went to bed and slept till morning; that he retired about forty minutes before the train reached Mobile.

The porter swore that he was making up the berths ■and the like, till all the passengers retired, and the conductor came in and went on watch, and he then went off and went to sleep, till three o’clock in the morning, when the conductor woke him up about thirty or forty minutes before reaching Mobile, and as soon as he went on in, the conductor retired from watch ; that he sat at the end of the car, in a position to see down the aisle from one end to the other, and was engaged in blacking the boots of the passengers ; that he was continually in that position the remainder of the night, with the exception of the time when the train stopped at Mobile, when according to the rules, he went to the end of the car to receive passengers, and did not lock the'other end of the car, the rule being that the porter of the front car was to lock his front door, and that each was to guard the rear end of his car and the front end of the next car, while the train was stopped ; that the porter of the front car was in his place, and witness did not know or remember anything about Alcorn getting up out of his berth and going to the day coach.

The rule now seems to be well settled that sleeping car companies are not held to the responsibility of common carriers and inn-keepers. Many reasons for this distinction will be found stated in the text books and decisions, and nowhere more fully, perhaps, than in Blum v. Southern Pullman Palace Car Co., 1 Flipp. U. S. C. Rep. (Tenn.) 500; see also Hutchinson on Carriers, 617 d.; 22 Am. & Eng. Encyc. of Law, p. 797, where the authorities may be found collated.'

In Lewis v. N. Y. S. Car Co., 143 Mass. 267, the rule as to the .liability of such companies, as stated by Morton, C. J., seems to have been generally approved on principle and authority. It is there said : “A sleeping car company holds itself out to the world as furnishing safe and comfortable cars, and, when it sells a ticket, it impliedly stipulates to do so.' It invites passengers to pay for, and make use of, its cars for sleeping, all parties knowing that, duiing the greater part of the night, the passenger will be asleep, powerless to protect himself or to guard his property. He cannot, like the guest of an inn, by locking the door, guard against danger. He has no right to take any such steps to protect himself in a sleeping car, but, by the necessity of the case, is dependent upon the owners and officers of the car to guard him and the property he has with him from danger from thieves or otherwise.

“The law raises the duty on the part of the car company to afford him protection. While it is not liable as a common carrier or as an inn-keeper, yet it is its duty to use reasonable care to guard the passengers from theft, and if, through want of such care, the personal effects of a passenger, such as he might reasonably carry with him, are stolen, the company is liable for it. Such a rule is required by public policy, and by the true interests of-both the passenger and the car company, and the decided weight of authority supports it.”

In Blum’s Case 1 Flipp. supra, Brown, J., in his instructions to the jury, after a careful statement of the liability of such a company, concludes : “The substance of the law, then, is this: the defendant was not only bound to furnish the plaintiff with a berth for his accommodation, but to keep watch and take reasonable care that he suffered no loss. If plaintiff’s loss was occasioned by the want of such care, and his own negligence did not contribute to it, he is entitled to recover such sum as you may deem reasonably necessary for his personal ex-pensed,-considering the length of the journey, and all other circumstances of the case."—Woodruff &c. Car Co. v. Diehl, 84 Ind. 474; I. C. R. Co. v. Handy, 63 Miss. 609; Philip Carpenter v. N. Y., N. H. & H. R. R. Co., 124 N. Y. 53. The liability of the company in such cases, it has also been held, entirely consonant with reason, does not include anything except the clothing, ornaments, and such articles as are usually carried by travelers in their hands, together with a sum of money reasonably sufficient for .the expenses of the journey in which one is engaged. The ground upon which the principle rests, so well stated by the Mississippi court in Handy's Case cited above, where the traveler had with him a sum of money he was carrying to New Orleans to pay debts with, is, that “it was a much greater sum than was necessary for the payment of expenses incident to the journey he was upon, and as to all in excess of such sum there was no liability of the company, for the reason, that as to such an amount it stood in no contract relation to him, owed and undertook no duty, nor authorized its servants to do anything in reference to it. The Ohio court, in a well considered case holds that a railroad company, even, as a common carrier of passengers is not liable for the loss of money kept in the sole custody of a passenger, and which he carries without notice to the company, for purposes disconnected with the expenses of the journey, notwithstanding such loss was occasioned by the negligence of the defendant's servants. First Nat. Bank of Greenfield v. M. & C. R. R. Co., 20 Ohio St. 259. The same principle would apply, as stated in the cases last cited, in arguendo, as to small parcels of great value-. On no good principle could a traveler be allowed to carry in his pocket jewels and ornaments, wholly disconnected with his personal attire and the necessary and reasonable expenses of his journey, and hold a sleeping car company liable' for them in case of loss. Such a liability would be entirely foreign to the ordinary undertaking of the company in its engagement to furnish the traveler protection, and reasonable accommodations on his journey.

From the foregoing, we may pass on the assignments of en*or insisted on. There was no error in refusing the general charge for the defendant, as from all the evidence the j ury were authorized to draw an inference unfavorable to defendant. The plaintiff's evidence tended to show that the porter went to sleep while on his watch, and that of defendant, that he did not sleep. Besides, the porter testified, that he left the car at Mobile and went outside to receive passengers, and during his absence, it is not shown that any one was on watch inside the car. This furnished occasion when the theft may .have been committed by some of the passengers, of whom there were many. The watching to secure safety of the passengers in the night-time, should be continuous and active.—Pullman P. Car Co. v. Gardner, (Penn.), 16 Am. & Eng. R. Cases, 324.

There was no error in refusing charge 4 for defendant. This charge was not within the plea numbered four on which plaintiff by the ruling of the court was forced to take issue. It may be difficult for a passenger to tell where is the safest place in his berth to place his valuables, to keep them from being stolen. The plea under which the charge was requested does not postulate that it was plaintiff’s duty to put his purse in the safest place, nor could any such duty be properly required of him.

Charges 6, 23 and 24 were properly refused. They each contain the instruction for a verdict for defendant, if the loss of plaintiff’s property was the result of the negligence of Alcorn, a third person, who happened to be travelling with and shared the berth of plaintiff. From the evidence, we fail to see in what Alcorn was negligent, and if he was, the plaintiff, certainly, would not be responsible for it.

Charge 9 was an improper instruction. The porter may not have gone to sleep after the train left Mobile, and it would not follow, he may not haVe been guilty of other negligence, which the charge does not hypothesize.

Though Alcorn may have been awake until the train reached Mobile, there is no evidence that he was on watch, or ought to have been, to protect plaintiff’s property. Nor does it follow because he walked the aisle until he reached Mobile, that plaintiff’s purse could not have been stolen. In walking, his back was tufned from plaintiff’s berth as much as it was towards it. Charge 17 was properly refused.

If there was no evidence of negligence of defendant shown, occurring after the train left Mobile, it would not follow, that there had not been negligence of defendant, and that the property had not been stolen, before it reached that point. The 18th charge ignores evidence tending to show negligence of defendant at Mobile, and before reaching that point, on account of which the theft may have occurred, and was properly refused.

Charge 25 is abstract. There is no evidence that Alcorn handled the vest, as the charge hypothesizes, in such a manner as to allow the pocket-book to fall on the floor. Alcorn testified that he took his coat out of the hammock and left plaintiff’s vest, which contained the purse, in the hammock. Plaintiff testified that when he awoke, his vest was lying on the outer edge on the cover, and this was all the evidence there was as to the position of the vest, after the theft. If Al-corn’s evidence is true, — and there is nothing to the contrary, — the pocket-book as for anything he did, could not have fallen out on the floor.

Charge 27 seems to require that plaintiff should have placed his vest in the safest place in his berth and certainly distinguishes between places of safety in the berth, assuming that by depositing it in the hammock, it caused the pocket-book to be liable ■ to fall to the floor or to some other more dangerous and exposed place by the act of Alcorn, of which there is no proof, and makes the negligence of Alcorn, the negligence of plaintiff. If a charge' as to such negligence could be considered at all, it should have postulated the loss as wholly attributable to Alcorn’s negligence, and not to a mere liability of loss arising from his acts. Moreover, for the purposes of another trial, as the cause must be reversed, it is well to add, that the demurrer to the 4th plea was, in our judgment, improperly overruled, and that plaintiff was entitled to the exercise of proper, reasonable care on the part of the company to prevent the theft of his pocket-book, placed anywhere in his berth. The law draws no distinction as to places of safety in the berth, and as for this, the hammock must be regarded as safe as any other place therein for the deposit of the valuables of the passenger while asleep.

Charge 33, without reference to any other fault, bases the instruction on the postulate that plaintiff was guilty of contributory negligence alone on the ground of his having placed his purse in a dangerous place,- when he could have placed it in a safer one, and does not hypothesize that the pocket-book waS'-lost on account of such contributory negligence. We-may add, however, as we have said in another connection, it was entitled to protection anywhere in the berth.

From what has,been said, it will appear that defendant’s charges, 19, 21, 34 and 35 should have been given. Charge 26 was an improper instruction, in its last branch, in which it is said, “If they [the jury] find from the evidence, that the ring could be worn in the usual manner, the defendant [plaintiff] was guilty of contributory negligence in not keeping it on his finger, and there can be no recovery for its loss.” The proposition asserted is, if one wears a ring on a sleeper, which he had- been accustomed to wearing on his finger, and should take it off at night, and put it in his pocket-book, and the book containing the ring should be stolen from his berth, that this would be contributory, negligence on his part, disentitling him to recover, although the theft occurred from the negligence of the defendant, — a proposition finding no support in law or reason.

Charge 28 requested by plaintiff asserts generally, a. correct principle of law. If the defendant apprehended that it was misleading in that it did not limit the dúty of the company in the care to be taken by it of such property, as, under the rules stated, a passenger may properly carry with him on a sleeper, an explanatory charge should have been requested by it.

It is well settled that the burden of proof as to contributory negligence, is in all cases on the defendant, unless the plaintiff’s own evidence established it. —B. M. R. Co. v. Warner, 97 Ala. 166; M. & E. R. Co. v. Chambers, 97 Ala. 338; K. C., M. & B. R. Co. v. Crocker, 95 Ala. 428; McDonald v. M. Street R. Co., 110 Ala. 161, 175-6. And, in civil cases, as we have heretofore held, when the evidence is equally balanced, the verdict of the jury must be against the party on whom rests the burden of proof; but a charge asserting that the jury must find according to the preponderance of the evidence is erroneous, for the reason that preponderance may not convince the 'minds of the jury. ' The measure or weight of proof, to justify a verdict based upon it as to any material fact is, that shall reasonably convince or satisfy the minds of the jury that the fact exists.—Vandeventer v. Ford, 60 Ala. 610; Life Asso. v. Neville, 72 Ala. ; Rowe v. Baber, 93 Ala. 422; Glover v. Gentry, 104 Ala. 222.

For the errors indicated, let-the judgment be reversed and the cause remanded.

Reversed and remanded.