tions. All the berths open upon a common aisle, and are secured only by a curtain, behind which a hand may be slipped from an adjoining or lower berth, with scarcely a possibility of detection. 2. As a compensation for his extraordinary liability, the innkeeper has a lien upon the goods of his guests for the price of their entertainment. I know of no instance where the proprietor of a sleeping-car has ever asserted such lien, and it is presumed that none such exists. The fact that he is paid in advance does not weaken the argument, as innkeepers are also entitled to prepayment. 3. The innkeeper is obliged to receive every guest who applies for entertainment. The sleepingcar receives only first-class passengers traveling upon that particular road, and it has not yet been decided that it is bound to receive those. 4. The innkeeper is bound to furnish food as well as lodging, and to receive and care for the goods of his guests, and, unless otherwise provided by statute, his liability is unrestricted in amount. The sleeping-car furnishes a bed only, and that, too, for a single night. It furnishes no food, and receives no luggage, in the ordinary sense of the term. The conveniences of the toilet are simply an incident to the lodging. 5. The conveniences of a public inn are an imperative necessity to the traveler, who must otherwise depend upon private hospitality for his accommodation, notoriously an uncertain reliance. The traveler by rail, however, is under no obligation to take a sleeping-car. The railway offers him an ordinary coach, and cares for his goods and effects in a van especially provided for that purpose. 6. The innkeeper may exclude from his house every one but his own servants and guests. The sleeping-car is obliged to admit the employees of the train to collect fares and control its movements. 7. The sleeping-car cannot even protect its guests, for the conductor of the train has a right to put them off for non-payment of fare or violation of its rules and regulations. Per Brown, J., in Blum v. The Southern Palace Car Co., reported in Cen. L. Jour. vol. III, p. 591, and 22 Int. Rev. Rec. 305. But see The Railroad Company v. Lillie, cited post, § 1266, where the railroad company was held liable as an insurer of the safety of such baggage as was not easily succeptible of exclusive custody by the passenger which he had taken with him into the sleeping-car. The case of Pullman Car Co. v. Lowe, 28 Neb. 239, 44 N. W. Rep. 226, holds the company liable as innkeeper, but this case is clearly opposed to the great weight of authority, and its force is lessened by the fact that the court treated the question as a new one, which it obviously was not. The report of this case, however, in 6 Law. Rep. Ann. 809, shows that the counsel for the company in his brief cited a large number of cases to the court to the contrary of its conclusion, no one of which is referred to by the court in its opinion. By the constitution of Mississippi, sleeping-car companies are common carriers. Pullman Palace there can be no recovery. The mere fact, therefore, that baggage is lost from a sleeping-car does not raise any presumption of negligence, and to sustain a recovery against the sleeping-car company some evidence of negligence on the part of the defendant must be given.2 But, on the other hand, the invitation to make use of a berth carries with it, as has been stated, an invitation to sleep, and an implied agreement to take reasonable care of the passenger's effects while he is asleep, and a failure to use ordinary care proportionate to the danger reasonably to be apprehended would be such negligence as would ordinarily make the company liable for the loss of the passenger's property. And the burden is on the company Car Co. v. Laurence, 74 Miss. 782, Car Co. v. Martin, 92 22 So. Rep. 53. 1. Whitney v. Pullman Car Co., 143 Mass. 243; Pullman Palace Car Co. v. Freudenstein, 3 Colo. App. 540, 34 Pac. Rep. 578; Williams v. Webb, 58 N. Y. Supp. 300, 27 Misc. Rep. 508, modifying 49 N. Y. Supp. 1111, 22 Misc. Rep. 513; Arthur v. Pullman Co., 88 N. Y. Supp. 981, 44 Misc. 229. 2. Pullman Car Co. v. Arents, 28 Tex. Civ. App. 71, 66 S. W. Rep. 329; Pullman Co. v. Hatch, 30 Tex. Civ. App. 303, 70 S. W. Rep. 771, citing Carpenter v. Railway Co., 124 N. Y. 53, 26 N. E. Rep. 277, 11 L. R. A. 759, 21 Am. St. Rep. 644. 3. See cases cited in preceding section. See, also, Florida v. Car Co., 37 Mo. App. 598; Pullman Car Co. v. Matthews, 74 Tex. 654; Cooney v. Pullman Palace Car Co., 121 Ala. 368, 25 So. Rep. 712, 53 L. R. A. 690; Pullman's Palace Car Co. v. Adams, 120 Ala. 581, 24 So. Rep. 921, 45 L. R. A. 767, 74 Am. St. Rep. 53; Kates v. Pullman Palace Car Co., 95 Ga. 810, 23 So. Rep. 186; Pullman Palace Ga. 161, 18 S. E. Rep. 364; Pullman's Palace Car Co. v. Hunter, 107 Ky. 519, 47 L. R. A. 286, 54 S. W. Rep. 845; Hampton v. Pullman Palace Car Co., 42 Mo. App. 134; Morrow v. Pullman Palace Car Co., 98 Mo. App. 351, 73 S. W. Rep. 281; Belden v. Pullman Palace Car Co. (Tex. Civ. App.), 43 S. W. Rep. 22; Stevenson v. Palace Car Co. (Tex. Civ. App.), 26 S. W. Rep. 112, 32 S. W. Rep. 335; Pullman Co. v. Hatch, 30 Tex. Civ. App. 303, 70 S. W. Rep. 771. While the same degree of care might not be required in the case of a passenger awake as in the case where the passenger is asleep, yet such care is required in each case as is reasonable under the circumstances. Pullman Palace Car Co. v. Hall, 106 Ga. 765, 32 S. E. Rep. 923, 44 L. R. A. 790, 71 Am. St. Rep. 293. The fact that a passenger sleeps in the smoking compartment by permission of the porter in charge of the car, even though no charge is made for such accommodations, will not, in the absence of collu 4 to show that it exercised reasonable care while the passenger was asleep in protecting his property from theft. The obligation of the company also includes the supplying of its car with sufficient servants of suitable capacity and experience, the so arranging their trips and ordering their duties that they may be able to exercise the care required, and, having done this, the company is then bound to keep, by such servants, a reasonable and continuous watch over the car and its contents during the night. And where the passenger's effects are purloined by the company's servants themselves, there can be no doubt that the company is liable. sion by the passenger and porter to defraud the company, relieve the company from exercising the same watchfulness to protect his baggage and personal effects while he is asleep as though he paid for and occupied a regular berth. Morrow v. Pullman Palace Car Co., 98 Mo. App. 351, 73 S. W. Rep. 281. 4. Kates v. Pullman Palace Car Co., 95 Ga. 810, 23 S. E. Rep. 186; Pullman's Palace Car Co. v. Hall, 106 Ga. 765, 32 S. E. Rep. 923, 44 L. R. A. 790, 71 Am. St. Rep. 293. 5. In the Carpenter case (124 N. Y. 53) but one servant was kept on the car, and he was required to perform the duties of conductor and porter, and was also permitted to earn money for himself by blacking boots, in which service he was in a portion of the car from which the sleeping compartments could not be seen. This was held to show a prima facie case of negligence. In the Lewis case (143 Mass. 267) the facts were quite similar. The porter's run was from Boston to Chicago. His duties were such that he could not keep the aisle continuously in view. After the loss he was found asleep in the end of the car. The company was held liable. In the Scaling case (24 Mo. App. 29) and the Diehl case (84 Ind. 474) the same was true. The duties of the porter were such that he could not perform them and keep a constant watch. The company was held liable in each case. In the Pollock case (69 Tex. 120) the porter was a new man unfamiliar with his duties. A verdict for the plaintiff was not disturbed. Where the passenger is injured through the negligence of the sleeping car in failing to keep its cars in suitable condition, either the sleeping car company or the railroad company can be held responsible. Pullman Co. v. Norton, Tex. Civ. App. 91 S. W. Rep. 841. 6. Pullman's Palace Car Co. v. Martin, 95 Ga. 314, 22 S. E. Rep. 700, 29 L. R. A. 498; Pullman Car Co. v. Gavin, 93 Tenn. 53, 23 S. W. Rep. 70, 21 L. R. A. 298, 42 Am. St. Rep. 902; Hatch v. Pullman Co. (Tex. Civ. App.), 84 S. W. Rep. 246. Sec. 1132. (§ 617f.) Same subject-Limit of the liability.— But the sleeping-car company, under this rule, will be held liable only for such reasonable baggage as the passenger needs upon his journey; his clothing and personal ornaments and the small articles of luggage usually carried in the hand, and a reasonable sum of money for his traveling expenses. Nor will the company be liable for a loss occurring through the negligence of the passenger in leaving his property exposed, nor for a theft committed by a fellow-passenger if the servants of the company were not negligent in failing to prevent it. Nor 7. Blum v. Car Co., 1 Flippin, 500; Welch v. Pullman Car Co., 16 Abbott Pr. (N. S.) 352, 43 N. Y. Superior Ct. 457; Palmeter v. Wagner, 11 Alb. L. Jour. 149; Pfaetzer v. Car Co., 4 Weekly Notes, 240; Root v. Sleeping Car Co., 28 Mo. App. 199; Pullman Car Co. v. Gaylor, supra; Woodruff Car Co. v. Diehl, 84 Ind. 474; Illinois Cent. R. Co. v. Handy, 63 Miss. 609; Hillis v. R'y Co., 72 Iowa, 228; Wilson v. Railroad Co., 32 Mo. App. 682; Barrett v. Palace Car Co., 51 Fed. 796; Kates v. Pullman Palace Car Co., 95 Ga. 810, 23 S. E. Rep. 186; Hampton v. Pullman Palace Car Co., 42 Mo. App. 134; Williams . Webb, 58 N. Y. Supp. 300, 27 Misc. Rep. 508, modifying 49 N. Y. Supp. 1111, 22 Misc. Rep. 513; Morrow v. Car Co., 98 Mo. App. 351, 73 S. W. Rep. 281. No claim could be made for a pistol, but the company would be liable for a mileage book carried by a traveling man, opera glasses, glass and brass compass, razor and strop. Cooney v. Palace Car Co., 121 Ala. 368, 25 So. Rep. 712, 53 L. R. A. 690. 8. Whicher v. Railroad Co., 176 Mass. 275, 57 N. E. Rep. 601, 79 Am. St. Rep. 314; Chamberlain v. Pullman Palace Car Co., 55 Mo. App. 474; Morrow v. Pullman Palace Car Co., 98 Mo. App. 351, 73 S. W. Rep. 281. Illinois Cent. R. Co. v. Handy, 63 Miss. 609. In this case it is held: 1. If a passenger, on leaving a sleeping-car at its destination, negligently leave his pocket-book containing money in the car, the sleeping-car company is not responsible for the property so left, if it be stolen by some one not in the employ of the company, unless an agent of the company discovered before the theft that such property had been left. 2. A sleeping-car company is not liable to a passenger for property stolen by a fellow-passenger, where the theft was not committed in the presence of a servant of the company, or under such circumstances as would reasonably suggest to such servant that the theft was being or about to be committed, if the servants of the company were not guilty of any negligence in keeping that reasonable guard which its contract implies that it will keep. 3. A sleepingcompany is not liable for car will the company be held liable for the loss of property while Sec. 1133. Same subject-Liability while passenger is away money stolen by one of its em- So a parlor-car company is not The law draws no distinction as And in the case of a diamond 9. Tracy v. Car Co., 67 How. Pr. (N. S.) 352; McMurray v. Pull- As for money kept in the passen- Contrast the above cases with Where plaintiff gave his umbrel- 10. See Lewis v. Sleeping-Car Ante, § 1069 et seq. |