
    Philip Carpenter, App’lt, v. The New York, New Haven and Hartford Railroad Company, Resp’t.
    
    
      (New York Court of Common Pleas, General Term,
    
    
      Filed April 2, 1888.)
    
    1. Common carriers—Duty of passengers—Cabe of property of.
    This action was brought to recover from a common carrier for money stolen from the plaintiff, one of its passengers, while asleep in the berth of one of its sleeping cars. Held, that it was the duty of the defendant to keep watch of its sleeping passengers.
    2. Same—Presumption in favor of discharge of duty.
    The presumption exists in favor of the defendant that it performed its duty toward its passengers, but where the evidence is such as to permit a contrary inference the case should be submitted to the jury.
    3. Same—Circumstances justifying inference of negligence.
    Where the evidence is such as to permit the inference that but one man was employed by the defendant in the car where the theft was committed, and that he was charged with the p rformance of duties which might interrupt his watching of the passengers. Held, that it was for the jury to decide whether or not the defendant was-gsSty of negligence.
    
      J. Holmes, Jr., for appl’t; Page & Taft, for resp’t.
    
      
       Reversing 13 N. Y. State Rep., 718.
    
   Van Hoesen, J.

To the correctness of most of the propositions of law contained in the opinions of the learned justices at the trial and general terms of the city court no exception can be taken, and yet I think that the evidence ' of the plaintiff was sufficient to carry the case to the jury. It is not at all improbable that a jury would have taken the same view of the facts that was taken by the judges in their opinions, but nevertheless a prima facie case was made out by the plaintiff.

The evidence does not show that the sleeping car had a conductor, or any other person than a porter in charge of it. What the duties of the porter were, we do not know, for there is no evidence upon that subject. Where the porter was stationed in the car, whether in a place where he could observe during the night what took place in the aisle that ran between the berths, or whether in the cupboard, where he could see nothing, the evidence does not disclose.

That the porter blackened boots in the course of the journey to Boston, is reasonably certain, and it is not likely that he did that work in proximity to the sleepers, whom the noise of that operation might have disturbed.

Even if he sat where he might have seen the aisle, it is a question whether he could efficiently watch it if his attention were diverted to the polishing of the leather.

There is no evidence (though the city court assumed that there was) that the porter was charged with the duty of keeping watch of the sleeping passengers, and consequently there is no room for the presumption that he did his duty in that respect.

It was the duty of the defendant to keep watch of the sleeping passengers, and there is no evidence that the porter performed, or was expected to perform, that task.

The rule is undoubtedly that the plaintiff must overcome the presumption that the defendant had complied with all the obligations that rest equally upon all men. He must prove facts from which it can be ascertained, with reasonable certainty, what particular precaution the defendant ought to have taken, but did not take; and he must also prove facts from which it may fairly be inferred that the defendant’s negligence caused the injury complained of. But the plaintiff is not bound to prove more than enough to raise a fair presumption of negligence, and of resulting injury to himself. Having done this, he is entitled to recover, unless the defendant rebuts this presumption. If the facts proved make it probable that the defendant violated his duty, it is for the jury to say whether he did so or not. To hold otherwise would be to deny the value of circumstantial evidence. Shearman & Redfield on Neg., §§ 12, 13.

In Hart v. Hudson River Bridge Co. (80 N. Y.), the court said: “Where, from circumstances shown, inferences are to be drawn that are not certain and incontrovertible, and may be differently made by different minds, it is for the jury to make them; that is to say, the process of ascertaining whether one fact occurred because another fact existed, is for the jury. What we have to arrive at is this, that the facts in this case were not so weak as to give no support in some fair and sound minds to legal probabilities. The facts may be so weak that the law will not tolerate that a verdict should be founded upon them. It is not necessaiy that the legal probabilities should be so strong that the plaintiff would be entitled to a verdict.”

“The question,” said Mr. Justice Mattle, “is not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established.” Or, as Lord Cairns said, in Metropolitan Railway v. Jackson (24 Eng. R., 124): “ The judge has a certain duty to discharge, and the jurors have another and safer duty. The judge is to say whether any facts have been established from which negligence may be reasonably inferred; the jurors have to say whether, from those facts, when submitted to them, negligence ought to be inferred. It would be a serious inroad on the province of a jury if, in a case where there are facts from which negligence may reasonably be inferred, the judge were to withdraw the case from the jury upon the ground that, in his opinion, negligence ought not to be inferred.”

The defendant starts with the presumption that it did its duty towards the plaintiff. That duty was to keep watch of him while he slept. If watch were not constanly maintained, the jury could find that the defendant was negligent, and if it should find that the robbery occurred whilst the watchman was absent, and that it would not have happened if he had been attending to his duty, the defendant’s •liability would be established. Pullman Car Co. v. Gardner, 29 Albany L. J., 8.

Of course, the law is not so absurd as to requre of a sleeping man proof of the very moment at which he was robbed; and it permits a jury to infer that the robbery must have taken place when the watchman was off guard, or inattentive, if there be any evidence from which reasonable men can draw the conclusion that the watchman probably was absent from his post, or if present, had his mind on other work than watching the car.

I have said that the plaintiff proved that neither at night nor in the morning did he see any other person than the porter in charge of the car. From this the jury were at liberty to infer that the porter was the only man in the defendant’s employ charged with the duty of watching the passengers as they slept.

Now, what evidence was there to warrant the inference that he did not do his duty ? We have the fact that he was engaged in blackening boots. Where did he blacken them, in the aisle of the car, or in the room called the porter’s closet ? That, it seems to me, was a question of probabilities to be answered by the jury. It is not probable that he did that work in the aisle, where the noise would be offensive to sleepless or nervous passengers. There is certainly no presumption that because a man ought to have watched the aisle he remained there while doing work that could not conveniently be performed there.

Again, he must, in all probability, have gone to the place in which the blacking and the brushes were kept, to get those articles. How long was he absent whilst preparing his tools ? Was it for the plaintiff to prove ? Or was it not for the defendant to show that his absence was momentary ?

Again, if he were engaged in blackening boots, could he give such attention to watching the aisle as the importance of that duty required? As matter of law, I am unable to say that he could. That is a matter for the jury and not for any judge to decide.

It seems to me that a jury might well say that if the defendant had only one servant on the car, it could not, without negligence, allow that servant to engage in the business of blackening boots when its duty was to see that the sleeping passengers were watched.

If the jury should be of opinion that the porter could, with safety to the traveling public who sleep in these cars, combine the two professions of boot-cleaning and watching, their verdict would be for the defendant. But it is for the jury and not for the court, to determine the question. If negligence could reasonably be inferred from the evidence —as 1 think it could be—it was error to withdraw the case from the jury.

The admissions of the porter, made on the morning following the robbery, were properly excluded.

Judgment reversed, and a new trial ordered, with costs • to abide the event.

Daly, J., concurs.  