
    Frederick K. Dunn, App’lt, v. The New Haven Steamboat Co., Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 29, 1890.)
    
    1. Carriers—Negligence — Liability eor loss oe brorerty or bassenger by theet.
    Plaintiff was a passenger from New York to New Haven on defendant’s steamer. On retiring to his berth he placed his vest under Ins pillow. In it was seventy-three dollars in money, a gold watch, a silver watch, a gold pen and pencil and some railroad tickets. While he slept these were stolen. Upon defendant’s request the court charged the jury that if they found that it was a negligent act for plaintiff to have this amount of money in his berth, instead of giving it to the employes of the company to take care of, the plaintiff could not recover. Held, error; as if this was negligence it in no waj contributed to the loss of his effects, other than money.
    2. Same—Charge.
    Plaintiff’s counsel asked the court to charge that plaintiff had a right. when retiring to retain such articles as those above mentioned. The court replied: “He has a right to carry them with him on his trip but not to retain them in his berth.” Held, that this was error; because the statement was unqualified, was among the last statements made to the jury by the_ court and would commonly be understood by jurors to me in that plaintiff, since he had retained the articles in his berth, had no right to complain if they were stolen; it did not cover the possible carelessness or negligence of defendant’s servants.
    (Van Brunt, P. J.,' dissents.)
    Appeal from a judgment on the verdict of a jury, and an order denying a new trial
    
      Hyland & Zabriskie, for app’lt; William J. Kelley, for resp’t.
   Daniels, J.

The plaintiff was a passenger on the defendant’s steamer from the city of New York to New Haven. He paid his passage money, and received a ticket for the trip, with the number of his berth on its back. He testified that he had with him when he retired $73 in bills, a gold watch worth $60 or $70; a gold pen and pencil for which he paid $3; railroad tickets for which he paid $6 or $7, and a silver watch he had repaired for his brother for which no value was given, and that these articles were in his vest, and placed under his pillow. And that when he awoke in the morning the vest and these articles had been stolen. This evidence was not contradicted.

It was charged in the complaint that the loss was owing to the negligence of the persons in charge of the steamer, which was denied by the defendant. And whether the charge had been sustained was a question for and submitted to the jury. In its submission by the court the legal rules on which the action depended were plainly and clearly brought to the attention of the jury. But, as is usually the fact, that satisfied neither of the counsel. And each requested further instructions, some of which they were not entitled to have submitted to the jury. Among these requests was one by the defendant’s counsel, in which the court was asked to charge:

That if the jury believe the plaintiff was guilty of negligence in disposing of his property in the way he did it is a bar to his recovery.

And that was answered by the court: I so charge. If you find that it was a negligent act for him to have this amount of money in his berth, under the circumstances, instead of giving it to the employes of the company to take care of, if you find affirmatively that that was negligence, then the defendant is entitled to a verdict

And to that the plaintiff excepted. It did not follow, even if it was negligent for the plaintiff to have this money, which amounted to $73, in his berth, that he should be thereby defeated altogether in his action. Yet the court so instructed the jury. The direction gave them to understand that the plaintiff must be defeated, if it was negligent for him to have that money in his berth, even though the theft had resulted from the carelessness and inattention of the persons in charge of the business of the steamer. This was an erroneous direction. For such negligence on his part in no way contributed to the residue of the loss, or affected his right to recover the value of the gold watch, the gold pen and pencil, and the railroad tickets which it was not negligent to carry in this manner.

The court was also requested by the plaintiff’s counsel to charge that a passenger on such a steamboat has a right when he retires to retain such articles as those the plaintiff had in his possession at the time of retiring. That the court at first left “it to the jury to say whether, under all the circumstances, that would be justified.” The counsel then asked the court again to charge that proposition. And the response was: “ He has a right to carry them with him on his trip, but not to retain them in his berth.” And to that the plaintiff’s counsel excepted. The jurors may be assumed to have been men of plain sense and experience, who would not consider the charge qualified with these particular directions with the legal acumen of persons having a long course of professional training. But they would be very liable to be impressed with the conviction that the plaintiff had no ground of action, because of his improper conduct in taking these articles into his bertn. The statement was without qualification that he had no right to retain these articles in his berth. And it followed from that direction, as jurors would commonly understand it, that he had no right to complain of their loss by theft. These directions were so plainly given that the jury was not liable to misunderstand them, or to fail to act upon them. And their attention would not be diverted from them by what had been very properly said to them previously in the charge. They were the last directions, and as they were so plainly given must have improperly determined the jury against the plaintiff.

The judgment and order should, therefore, be reversed, and a new trial directed, with costs to the plaintiff to abide the result.

Brady, J., concurs.

Van Brunt, P. J. (dissenting).

This action was brought to recover the value of certain personal property claimed to have been lost by the plaintiff while a passenger on the defendant’s boat, the “Elm City,” on a voyage from Hew York to Hew Haven in the night time.

It appeared from the evidence that the plaintiff had been a traveling salesman for some time prior to the occurrence in question, and that in December, 1883, he took passage on the Elm City for Hew Haven, leaving Hew York at 11 p. m. He paid seventy-five cents for his passage ticket He knew that there were staterooms on the boat, and had used them before himself, but on this occasion he did not take one. A berth was'assigned him, the number of which was put upon the back of the ticket. He placed some of his baggage in charge of the officers of the boat, but kept his money and jewelry. The berth' occupied by the plaintiff was in the main cabin, which was brightly lighted when he retired and was lighted when he woke up in the morning. There was a porter in the cabin on watch when he went to bed; and he testified that when he woke up and discovered his loss the porter was not in sight. It appeared that upon retiring the plaintiff took off his vest, putting into it his money, his scarf pin, gold pen-holder- and some railroad tickets, folded it up and put it under his pillow.

The evidence further showed that upon the night in question there was a watchman in the cabin and two on the deck, and the two deck watchmen went through the cabin every fifteen minutes, and the captain two or three times. There was a safe in the office for securing the valuables of passengers if he saw fit to deposit them; and there was some dispute as to whether any notice of the existence of such safe was posted in the cabin or not.

Upon the trial the learned court charged the jury that the defendant was a common carrier, and was bound to cany the plaintiff, who was a passenger, to his destination; that it was bound to tak§ care of the property or baggage that a passenger entrusted it to carry, and that for the property entrusted to its care it would be responsible if the employe of the company failed to deliver them safely at the end of the journey. And that as to such portion of his baggage or wearing apparel as a passenger retained control of and did not give to the agents of the company a different rule applied. The obligation that the company assumed when it furnished the plaintiff with a berth was to take the care an ordinarily prudent person would take to protect him during the time he was asleep; it was to do what a prudent person would do under the circumstances; not any particular thing, but to use such vigilance as an ordinary prudent person under the circumstances would have used to protect the passenger from molestation and his baggage from robbery. And the question submitted to the jury was, whether the defendant had exercised that degree of care toward the plaintiff and his property. The jury found a verdict for the defendant and from the judgment thereupon entered this .appeal is taken.

It seems to be sought to impress upon the defendant the liability ■of an inn-keeper. We fail to find any parallel between the obligation of an inn-keeper and of a common carrier.

The rule has been well settled that, as to the personal property which the passenger takes charge of himself, the common carrier is to use only ordinary care. He is not an insurer. If this plaintiff had seated himself in the cabin of the defendant, and placed his property upon a chair beside him, and it had been stolen, there would be no question as to the liability of the common carrier, except upon proof showing that the carrier had been negligent in the management of,its vehicle of transportation. The rule is entirely different as to those articles which the passenger places under the control of the employe of- the common carrier, or in the case where he hires a room upon which there is a lock furnished by the carrier, where he has placed his goods, entrusting them to the lock so furnished, from the case where the manual custody of the goods themselves is continuously in the passenger.

In the case at bar the condition of the plaintiff was precisely the same as though he had laid down upon a sofa in the cabin to sleep; and the principle of liability of a common carrier has not been carried so far as to insure the goods of a passenger if he was robbed under those circumstances. Unless there was negligence upon the part of the common carrier in taking that ordinary care to prevent the happening of such an occurrence, the right of recovery would not exist. And this is all the duty which the defendants owed to the plaintiff; ordinary care; and this the jury found that he had received at its hands, and consequently held that he had no right to recover.

There is one exception, however, which it is necessary to specially notice. The plaintiff’s counsel made the following request:

“ I ask your honor to charge, also, as matter of law, that a passenger on a steamboat such as this has a right when he retires to retain such articles as those the plaintiff had in his possession at the time of retiring.”
“ The court: That I refuse to charge as matter of law. I leave it to the jury to say whether, under all the circumstances, they would be justified.”

This request was to the effect that the' plaintiff had a right to recover, which, as already seen, was not necessarily the case, and it was for the jury to determiue whether such was the fact or not, and, therefore, the court was justified in the refusal. The plaintiff’s counsel excepted to the refusal of the court, and then asked the court again to charge that proposition. The court replied: “ He has a right to carry them with him on his trip, but not‘to retain them in his berth.”

It is urged that this was directing a verdict for the defendant. But it will be seen from the context that the plaintiff’s counsel was urging the court as matter of law to charge that he had a right .to retain them in his berth, and the answer of the court was to the effect that he had a right, as matter of law, to carry them with him on the trip, but hot as matter of law to retain them in his berth at the risk of the defendants; and this was all that this charge meant, and because the learned counsel, after insisting upon the court charging that which it had refused to charge, got the opposite proposition from that which he was contending for, he has no reason to complain.

There seems to have been no error, and the judgment and order appealed from should be affirmed, with costs.

Judgment and order reversed and new trial ordered, with costs to plaintiff to abide result.  