Voss v. Wagner Palace Car Co.

43 N.E. 20, 16 Ind. App. 271, 1896 Ind. App. LEXIS 364

• Court: Indiana Court of Appeals
• Decided: February 20, 1896
• Docket: No. 1,823
• Status: Published

Opinions

Eeinhard, J.

The appellant sued the C., C., C. & St. L. E. W. Co. and the Wagner Palace Car Company for the alleged loss of a seal cape, of the alleged value of $250.00, while the appellant was a passenger upon one of the cars of said Wagner Company, on the railroad and train of the other appellee. The amended complaint alleges in substance that on the 24th day of September, 1892, the said railway company was operating a line of railway extending from the city of New York westward through the cities of Buffalo, New York, Cleveland, Ohio, and Indianapolis, Indiana, to the city of St. Louis, Missouri; and was the owner of said line from Cleveland to Indianapolis; that said palace car company on said day owned and operated over said line of railway between New York and St. Louis, a line of sleeping-cars which were drawn by the trains of said railway company under a contract or arrangement, the contents and terms of which are unknown to the plaintiff; that on said day the plaintiff was a passenger for hire on one of said railway -company’s trains, running from New York City to Indianapolis, Indiana, under a contract by which she was to be carried from said New York to said Indianapolis, together with her necessary and reasonable baggage, consisting of a seal cape of the value of $250.00, and other baggage, which was to be carried from said New York to said Indianapolis, and at said last named place to be safely and securely delivered to plaintiff; that at the same time the plaintiff was a passenger for hire in a car owned and operated as aforesaid by said palace car company, and drawn as aforesaid by said railway company under a contract by which plaintiff, together with her reasonable and necessary baggage aforesaid, was entitled to be carried from New York to Indianapolis, upon the car of the said palace car company; that said last mentioned contract also provided that said palace car company should use due and proper care to protect said baggage from loss, and further provided that said palace car company should safely and securely carry and deliver said baggage to plaintiff at Indianapolis, Indiana; that on said day said plaintiff was traveling alone, and was sick and unable to take charge of her said baggage and remove the same from said car upon arriving at Indianapolis; that when approaching the railroad station at Indianapolis, on said day, and just prior to the time when the train arrived at said station, the officers and agents of the defendants in charge of said train and car, whose duty it was to attend to the removing of said baggage from said car at Indianapolis, took charge of all of said baggage from said car to the railroad station at Indianapolis; and the plaintiff being sick, and unable to attend to the removing of her baggage, gave unto the said agents of the defendants sole and exclusive possession of said baggage that it might be removed by them from the car to the station as aforesaid; that after-wards on said day said train and car drew into the railroad station of the defendants at Indianapolis, which station was enclosed and covered, so that the car in which plaintiff was, was quite dark, and was left unlighted, and was so dark that objects in the car could not be seen; that thereupon the plaintiff alighted from said car and entered that part of the railroad station provided for the reception of passengers on defendants’ trains and cars; that said officers and agents removed all of plaintiff’s baggage from said car and brought it to her in the reception room of said station at Indianapolis, except the said seal cape; but in disregard of their duty the said defendants, and each of them and their agents, carelessly and negligently failed to use cfue care in the delivery of said cape to the plaintiff in said reception room of said station, and wholly failed to deliver to the plaintiff the said cape; that defendants, and each of them, failed to use due care to protect the said cape from loss, but that they and their agents and officers aforesaid negligently permitted the same to remain in said car when it arrived at Indianapolis, by reason whereof the same was lost or stolen, or was lost or stolen by the officers and agents of the defendants; that said loss occurred without any negligence on the part of the plaintiff, who used all possible means to recover said cape, and in this regard has been at an expense of $----. Wherefore, etc.

To this complaint a demurrer was overruled, but as no question is made upon this ruling we need not determine the sufficiency of the complaint to withstand the demurrer. The palace car company answered the general denial, as did also the other appellee. The cause was submitted for trial to the court, and at the request of appellee, the court made a special finding of facts in the cause and conclusions of law thereon. One of the errors assigned is that the court erred in its conclusions of law on the special finding of facts.

The essential parts of the special finding are as follows:

That appellant had with her in the car two hand valises, one dressing case, one umbrella, and a sealskin cape, all of which were placed in the section occupied by plaintiff.

Prior to entering the Union Station at Indianapolis, the porter, with the knowledge of the plaintiff, placed the sealskin cape on the back of the seat she occupied, and arranged the balance of her baggage in two bundles, preparatory to carrying the same out of the car.

The appellant, though not seriously ill, was suffering from a temporary headache and fatigue owing to her long journey, but was fully conscious of everything going on; and upon the train, by the use of proper effort and care, all objects in the car were visible to her.

After said baggage was so collected and arranged and the cape placed upon the back of the seat occupied by appellant, she paid no further attention whatever to her baggage or to said article of wearing apparel, but left them all to the care of the porter, who agreed to remove all of her baggage to the depot on the arrival of the train.

The agreement and attempt of the porter to remove said luggage of the plaintiff, including said sealskin cape, was in accordance with the'rules of the company in such cases.

All the rules upon this subject are set out in the findings, though it is also found that appellant had no knowledge of such rules. '

Upon the arrival of the car at the Union Station, one door was locked and the other continuously guarded by the conductor during the absence of the porter in assisting the appellant, and upon the return of the porter he immediately entered the car and looked into the section which had been occupied by appellant, but did not find the cape, nor was the same thereafter found by either the porter or the conductor.

During the entire trip- of appellant her sealskin cape and other luggage with her upon the car were in her own possession.

During all of said journey the plaintiff was traveling alone, and upon the arrival of the train at the station at Indianapolis the porter of said car attempted to remove from the car to the station all of the said luggage of the plaintiff, including said sealskin cape or coat, which was so undertaken with the knowledge, consent, and express permission of the conductor of said car, and in accordance with the usual rules and custom of said Wagner Palace Oar Company in such case.

The plaintiff was the only passenger in said car for said point, Indianapolis, and in accordance with said attempt and while in the discharge of his duty as such porter, the latter assumed to remove the said luggage of the plaintiff from the car to the station, and having in his possession all of said luggage, except said cape, alighted from the car, the plaintiff immediately behind him; and the plaintiff preceded by the porter proceeded from the car through the gates of the train shed and into the waiting room of said station, and to a point near the north door of said waiting room of said station; in doing which the porter and the plaintiff were at all times within the railroad station, and the plaintiff all this time supposing that the porter had in his possession said cape with the balance of the luggage.

. The porter deposited the luggage at said point near the north door of said waiting room, and then and there turned over and delivered so much thereof as he had carried from the train to the plaintiff, and immediately the porter returned to the said car. Said train was destined for St. Louis, and on said day remained at said station fifteen minutes.

Said porter left in the section so occupied by the plaintiff in said Wagner palace car, the said sealskin cape or coat, and did not carry the same therefrom with said other luggage, and did not at any time deliver the same to the plaintiff, but, on the contrary, failed and omitted to remove the same from the car, and failed to deliver the same to the plaintiff.

Upon the facts found by the court, and in the light of the averments of the amended complaint, are the appellees, or is either of them, liable to the appellant for the loss of her garment? Appellant’s counsel do not seem to insist with any degree of confidence that there is any liability on the part of the C., C., C & St. L. R. W. Co. It is difficult to see how that company could be held liable in view of the admitted fact that it never had the appellant’s baggage in its possession. As to the railway company, therefore, we need not consume any further time or space. What appellant’s counsel do contend, however, is that the Wagner Palace Gar Company is liable upon the facts pleaded and found, and that the court’s conclusions were, therefore, erroneous.

As a general rule, sleeping-car companies are not liable as insurers of the wearing apparel and effects belonging to passengers upon their cars, as innkeepers would be liable, or as common carriers of passengers are usually held liable for baggage intrusted to them, and who incidentally undertake to forward the same to the place of destination of the passenger and there deliver to him. In the case of a common carrier, the passenger usually consigns to its entire and exclusive care and custody the baggage he desires to have forwarded, by himself ceasing to exercise any oversight or supervision over the same whatever, while it is in transit, or at least while it is in the carrier’s control, and the carrier becomes an insurer for the safe delivery of the property, as in cases of shipment of freight by carriers of goods. All that the passenger has to do in that kind of a case, in order to create a liability by the carrier, is to show the delivery of the goods to the carrier, and that they were accepted by the latter under an agreement, express or implied, to carry and to deliver them, and the failure to do so. Toledo, etc., R. R. Co. v. Tapp, 6 Ind. App. 304.

Sleeping-car companies do not usually receive into their sole custody the effects or luggage of the passenger to be forwarded to him, but the passenger retains the same in his own possession and control while occupying the berth or section of the sleeper assigned to him.

In the case of Woodruff Sleeping and Parlor Coach Co. v. Diehl, 84 Ind. 474, our Supreme Court very clearly defined the duties and liabilities of sleeping-car companies toward occupants of berths upon their coaches. It was there held that such companies are not liable, either as innkeepers or common carriers, for the loss of goods or money, but that they are responsible for such losses when the same occurred through the negligence of the company or its servants. Further than this the case referred to does not go. It only defines the duties and liabilities of sleeping-car companies while the passenger is occupying the berth or section assigned to him. What relation they sustain to bim respecting his baggage while the same is being taken to and from the car by the company’s servants is not determined.

Negligence being but a failure to discharge a duty which one person owes to another, the question of whether there was or was not negligence on the part of the sleeping-car company would seem to depend upon the further question whether the company had failed to discharge some duty owing to the passenger or occupant of the berth from it.

It would seem that where, as in this case, the porter of the car taires charge of and undertakes to remove all of the passenger’s effects from the car to the waiting room of the station, or even to the foot of the steps outside of the car, the failure to remove all of such property aud consequent loss of any part thereof, ■would constitute negligence in the sleeping-car company. The Diehl case, above cited, declares that the case of an occupant of a berth upon a sleeping-car is very much like that of an occupant of a stateroom on a steamboat; that the passenger in either of such cases is invited to disrobe himself and retire for the night to sleep; that he has a right to throw aside such care and precaution as men usually exercise when awake, and to intrust his person and such articles as he usually carries to the care and vigilance which the carrier in whose charge he has placed himself, undertakes to exercise in his behalf.

The rule laid down by our Supreme Court seems to be supported by the weight of authority, although at least one case has been brought to our attention which holds the sleeping-car company liable in such a case as an innkeeper. Pullman Palace Car Co. v. Lowe. 28 Neb. 239, 44 N. W. 226.

In Pullman Palace Car Co. v. Pollock, 69 Tex. 120, 5 S. W. 814, 34 Am. and Eng. R. R. Cases, 217, it was held that a sleeping-car company, while not liable,as a common carrier of passengers for baggage, in its coach when the traveler himself has possession of it, or as an innkeeper as to guests, it is responsible as a common carrier of passengers would be in relation to the baggage of a passenger not given into its exclusive custody; and if, through failure of the carrier to exercise reasonable care, the baggage is stolen, the company is liable therefor, although the train to which the car is attached belongs to another company.

In a Massachusetts case practically the same rule was laid down, that although a sleeping-car company is not liable as an innkeeper for baggage stolen, still if the loss occurs through the want of proper care of such company it is liable, and any rule to the contrary, if not known to the passenger, cannot avail the company. Lewis v. New York Sleeping Car Co., 143 Mass. 267; 28 Am. and Eng. R. R. Cases, 148, 9 N. E. 615.

Of course the company’s liability cannot be said to end until after the passenger has safely reached his destination with all his effects.

Moreover, while it is true that a sleeping-car company, acording to the authorities cited, is not liable as an innkeeper or common carrier while the passenger is occupying the berth assigned him in the car, and is himself in charge of his baggage, it does not follow, we think, that such company may not become responsible as a common carrierwhen it undertakes to discharge the duties of such before the end of the passenger's journey. It seems to us that when the appellant in this case delivered to the porter of the car her baggage to be by him carried to the reception room of the Union Depot at Indianapolis, and he undertook to do so, and took the same in his possession, the company became responsible as a common carrier for the safe delivery of the baggage intrusted to him, including the cape. The taking of the baggage by the porter was the acceptance of it by the company for the purpose of its delivery at the station. When the company by its porter undertook to deliver the baggage a.nd the latter failed to deliver it, the company became liable the same as a common carrier would be liable to a passenger who had kept his baggage in his own custody on the train until he arrived at his destination, where it was taken in charge by a servant of the company, whose duty it was to take charge of it, and who never delivered it. Hence, granting that sleeping or palace car companies are not common carriers in the ordinary sense, and that as long as the baggage is retained by the passenger, such a company cannot be held accountable for it in case of loss, except it be through the negligence of the company, yet if they take the baggage into their possession or custody, they may, we think, in proper circumstances, be held to the duties and liabilities of common carriers.

If, as is held in Pullman Palace Car Co. v. Pollock, supra, the sleeping-car company’s liability is similar to that of a common carrier of passengers when the passenger’s baggage is retained in his own custody, then if the baggage be given into the custody of the sleeping-car company or its servants, the company will incur the same responsibility as a carrier of passengers. See Hutchinson on Carriers, section 690, et seq.

In Richards v. Railway Co., 7 Man. G. & S., 62 E. C. L., 839, the facts were that plaintiff’s wife was a passenger on a railway carriage, and that a dressing case which she was taking with her was placed in the carriage under the seat, and upon arrival at the station the porters undertook to carry the baggage from the railway carriage to the hackney carriage, which was to convey her to her residence, and that in this process of moving, the dressing case was lost. The question was whether it had ever been delivered to the company so as to make the latter liable, and the judges were all of the opinion that it had been, and that the plaintiff was entitled to a verdict.

A similar holding was made in Bunch v. Great Western R. W. Co., 17 Q. B. Div. 215, where the plaintiff’s wife, forty minutes before train time, went into the station where the railway porter took charge of her baggage, a portion of which was to be put in the car with her, of which she informed the porter. While plaintiff’s wife was out of the station for a short time the part of the baggage which was to be taken in the car with her was found missing, and the defendant company was held liable, the court holding that as long as the passenger’s baggage, although intended to be taken into the train with the passenger, is in the custody of the porter for the purpose of transit, either at the commencement or the conclusion of the journey, the railway company is the common carrier of it; but where it is put in the car and is partially under the control of a passenger, the company is no longer a common carrier, but is liable for negligence only. The case went to the House of Lords, where the verdict was sustained, Lord Bramwell alone dissenting. 13 App. Cas. (H. of L.) 31. See also Butcher v. Railway Co., 16 C. B. 13; Great North. R. W. Co. v. Shepherd, 8 Exch. 30.

But if we are wrong in our conclusion. that by reason of the delivery of the garment to the porter by the appellant, the Wagner company became liable as a common carrier, it cannot be denied, we think, that the facts found show a clear case of negligence. Sleeping-car companies are required at least to exercise reasonable care and watchfulness over the effects of their passengers, or guests, and if they are guilty of negligence in this respect, they must in proper cases respond in damages, and this is true even though the company attempt to relieve itself from responsibility by its own rule, posted up in the car, especially where the notice is not brought to the attention of the passenger. For an able discussion of this subject, see an article by W. F. Elliott, in 30 Cent. L. J. 248.

In a recent case decided by the Supreme Court of Georgia, it was held that when a passenger who has paid the customary fare on a sleeping-car, loses his property or the same is taken from his possession, it is prima facie negligence on the part of the company, and the burden is upon the latter to show that the loss did not occur by reason of a failure upon the part of its employes to exercise proper care over the property." Kates v. Pullman Palace Car Co., 95 Ga. 810, 23 S. E. 186.

. The doctrine there announced is eminently just and equitable, and applies with peculiar force, we think, to the case in hand. For an analogous holding in a case of a common carrier of passengers, see Louisville, etc., R. W. Co. v. Nicholai, 4 Ind. App. 119. The facts found specially are such as to show culpable negligence on the part of the servant of the Wagner company, and in the absence of any showing that the loss of the appellant’s cape was not attributable to such act, the presumption of negligence becomes conclusive.

Hence, whether said company was responsible as a common carrier, or whether we regard its failure to deliver the cape to the appellant as a breach of duty, such as must be characterized as negligence, we are of opinion that upon the facts found specially there is a liability.

If we are correct in either view, the court erred in its conclusion of law that the Wagner company was not liable.

Judgment reversed, with directions to the court below to restate its conclusions of law in conformity to the views expressed in this opinion, to the effect that the appellee, The Wagner Palace Oar Company, is liable to the appellant for the value of the cape.

Eoss, J., dissents.

Davis, J., did not participate in the consideration of this case.