Weingart v. Pullman Co.

58 Misc. 187, 108 N.Y.S. 972

Opinion

Per Curiam.

The plaintiff was the only witness called at the trial. He testified that, on May 22, 1905, he took passage on one of the Pennsylvania Railroad Company’s cars from Hew York to Philadelphia, and also bought a ticket entitling him to occupy a parlor-car seat in one of defendant’s cars attached to the Pennsylvania Railroad train, which train left Jersey City at seven-fourteen p. m. Just before entering the car, he gave his overcoat to defendant’s porter and told the porter to put it on the seat plaintiff had engaged in defendant’s said car. He followed the porter into the car and saw him place the overcoat on the said seat. Plaintiff then went into another car and remained about an hour and a half, when he returned to the seat in defendant’s said car and found that his overcoat was gone. What became of the overcoat does not appear. Plaintiff sued for the loss of the same, stating its value to he fifty dollars, and the court below gave him judgment for fifty dollars damages and fourteen dollars and forty-one cents costs. Defendant appeals. The car.in question was used as a day coach, not as a sleeping car; and the coat was not left in the care or custody of defendant’s servant, but was placed by plaintiff’s own order on the chair which plaintiff had engaged in said car. Under these circumstances, the mere unexplained disappearance of the coat did not establish defendant’s liability; but it was incumbent on plaintiff to show negligence on the part of defendant. In the case at bar no evidence of such negligence was given. Wericher v. R. R. Co., 176 Mass. 275; Carpenter v. N. Y., N. H. & H. R. R. Co., 124 N. Y. 53.

The judgment must be reversed and a new trial granted, with costs to appellant to abide the event.

Present: G-ildersleeve, Bischoee and MacLean, JJ.

Judgment reversed and new trial granted, with costs to appellant to abide event.