
    Philip Carpenter, Resp’t, v. The New York, New Haven & Hartford Railroad Co., App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed January 14, 1891.)
    
    1. Negligence—Cabbiees—Money stolen ebom fassengbb in sleeping-cab.
    Money in a passenger’s clothing worn during the day and placed under his pillow at night, is not in the custody of the corporation which carries, and furnishes travellers with berths in- sleeping coaches so as to make it liable for its loss. To sustain a recovery some evidence of negligence on the part of the carrier must be given.
    2. Same.
    Proof that a car ran over an important route between great, through and stopping at eight, considerable cities, that but one person was employed on the car as conductor, porter and bootblack, and to assist passengers in alighting, is sufficient to put the carrier to proof of the care which it took of the occupants of the sleeper on the trip and is sufficient to require the question, whether the loss was caused by the defendant’s negligence, to be submitted to the jury.
    Appeal from an order of the general term of the court of common pleas in the city of Mew York, reversing a judgment of the general term of the city court, which affirmed a judgment dismissing the complaint on the merits, with costs, entered on an order at the trial term.
    The defendant, a railroad corporation, is a carrier of passengers over its line between the cities of Mew York and Boston, and runs sleeping cars with the usual accommodations.
    July 6, 1885, the plaintiff paid his fare, and §1.50 for a berth from Mew York to Boston, and took passage on a train that left the Grand Central station at half past eight o’clock in the evening. He was assigned the lower berth in section ten of the sleeping car u Boston,” and went immediately to bed. A colored porter was in charge of the car, to whom the plaintiff gave his passage and sleeping car tickets. He testified that he undressed and placed his pocketbook, containing $40.00 in money, in his inside vest pocket, and then placed that garment under the pillow next to the window. He slept soundly and without waking until about six o’clock in the morning, when the train was near Boston. Seeking his vest he found it under the pillow next to the passageway, with his joocketbook in the pocket, but the money had been stolen. His watch, which was in another pocket of the garment, and about $3.00 in silver in a third pocket were not taken. When the plaintiff went to bed the berth over him was occupied by a stranger, but it was unoccupied when he got up. On discovering his loss he called the porter and acquainted him with the fact.
    
      Jabish Holmes, for resp’t; Henry W. Taft, for app’lt.
    
      
      Affirming 15 N. Y. State Rep., 345.
    
   Follett, Ch. J.

Money necessary for the payment of the expense of a journey undertaken which is carried in the trunk of a passenger is part of his baggage, and if lost while in the custody of a carrier for transportation it is liable. Merrill v. Grinnell, 30 N. Y., 594; Fairfax v. N. Y. C. & H. R. R. R. Co., 73 id., 167; 2 Red. R. R., 59. But carriers do not undertake to carry and safely' deliver the effects of travelers not delivered into their custody, and it cannot be held that money in a passenger’s clothing worn during the day, and placed under his pillow at night, is in the custody of the corpoffition which carries and furnishes travelers with berths in sleeping coaches. Lewis v. N. Y. Sleeping Car Co., 143 Mass., 267 ; 2 Rorer R. R., 887.

The mere proof of the loss of money by a passenger while occupying a berth does not make out a prima facie case, and to sustain a recovery some evidence of negligence on the part of the defendant must be given.

The negligence complained of is that none of the defendant’s employes were continually on guard in the car in a position to observe the movements of all persons in the passage-way between the sections.

A corporation engaged in running sleeping coaches with sections separated from the aisle only by curtains, is bound to have an employe charged with the duty of carefully and continually watching the interior of the car while berths are occupied by sleepers. Pullman Car Co. v. Gardner, 3 Pennypacker, 78.

These cars are used by both sexes of all ages, by the experienced and inexperienced, by the honest and dishonest, which is understood by the carriers, and though such companies are not insurers they must exercise vigilance to protect their sleeping customers from robbery. A traveler who pays for a berth is invited and has the right to sleep, and both parties to the contract know that he is to become powerless to defend his property from thieves, or his person from insult, and the company is bound to use a degree of care commensurate with the danger to which passengers are exposed. Considering the compensation received for such services, and the hazards to which unguarded and sleeping travelers are exposed, the rule of diligence above declared is not too onerous. Did the plaintiff give evidence which would have authorized the jury to have found that the defendant did not discharge this duty to the plaintiff ? The car in which the plaintiff rode was constructed with a passageway through the center, with sections on each side, each section containing two berths. These sections were separated from each other by movable wooden partitions, and from the aisle by two curtains which were closed when a berth was occupied. At one end of the car was a toilet for ladies, shut off from the passageway by a swinging door. On one side of the other end of the car was a toilet for gentlemen, opposite to which was the porter’s closet. A full view, of the main aisle could not be had from all parts of the space at the end last described. The train stopped at eight cities to take up and set down passengers, staying at New Haven twelve minutes, and at Springfield four.

The undisputed evidence is that the entire force employed on the sleeper which .ran over an important thoroughfare and made frequent stops was one man who acted as conductor, as porter and was also engaged for his_own profit in blackening the shoes of the passengers. Whether this employe had that part of the sleeper which is for the common use of passengers and the servants of the corporation constantly in view during the trip is not shown by the evidence, except inferentially. The facts hereinbefore referred to, that the car ran over an important route between great, through and stopping at eight considerable cities', that but one person was employed on the car, the services rendered by him for the defendant and those which he was at least permitted to render to passengers for his own profit affirmatively appear, and in addition it may well be presumed that he assisted passengers in entering aná leaving the coach at intermediate stations. The existence of these facts was not denied nor was any explanation of them offered. The defendant gave no evidence. Under the circumstances the evidence was sufficient to put the defendant to proof of the care which it took of the occupants of the sleeper on this trip and in the absence of any explanation on its part it was sufficient to require the question whether the loss was caused by the defendant’s negligence to be submitted to the jury.

The order should be affirmed and judgment absolute rendered against the appellant, with costs.

All concur.  