
    Railroad Company v. Walrath.
    1. A passenger, by train of a railroad company, traveling in the coach of a sleeping-car company, may properly assume, in the absence of notice to the contrary, that the whole train is under one management ; and in such case, where he sustains injury by the negligence of one in the employ of the sleeping-car company, he may maintain an action against the railroad company. What the effect of such notice would be is not determined,
    
      2. On proof of injury sustained by a passenger on a railroad train, by the fall of a berth in a sleeping-car, and that the passenger was without fault, a presumption arises, in the absence of other proof, that the railroad company is liable. Railroad Co. v. Mowery, 36 Ohio St. 418, followed.
    Error to the District Court of Hamilton county.
    Walrath brought suit in the superior court of Cincinnati against the Cleveland, Columbus, Cincinnati and Indianapolis Railroad Company, to recover damages for an injury alleged to have been sustained while he was a passenger on the company’s road. He paid to the company his fare from Cleveland to Cincinnati, and also, after the train had started, paid for a berth in a car of the Woodruff Sleeping-Car Company, which car formed part of the train. After riding in his proper seat in the sleeping-car an hour or more, the upper berth came down, striking him, as he alleges, on the head, causing injury to the spinal cord, and ultimately paralysis. This, he avers, was without fault on his part, and by reason of the negligence of the railroad company, as well in using defective appliances as in the management of the same. There was evidence that the berth had never fallen before or afterward, and that, on examination after the accident, ,no defect could be discovered in its construction.
    The case was heard upon petition, answer, reply and testimony, and a verdict for $6,000 was found, upon which judgment was rendered. The judgment was affirmed in the district court, and the opinion of the court, by Avery, J., will be found in 7 Am. Law Record, 555. This petition in error was filed by the railroad company to reverse the judgments.
    Refusing to charge in terms that no presumption of negligence arose, from the fact that an accident occurred to Walrath while traveling as a passenger in the sleeping-car, and that, if there was no defect in. the road, or the car, or the mechanism used, the burden to show negligence of the railroad company’s employees was on him, the court charged the jury, among other things, as follows:
    “ The burden of proof is on the plaintiff to show that he was injured by the defendant’s negligence, either in not providing safe and suitable cars, or in not properly inspecting and taking care of said cars. A mere statement that a person was injured while riding on a railway, without any statement of the character, manner, or circumstances of'the injury, does not raise a presumption of negligence on the part of the railway company. But if the character, manner, or circumstances of the injury are also stated, such statement may raise, on the one hand a presumption of such negligence, or, on the other, a presumption that there was no such negligence. If the plaintiff was in fact injured while sitting in his proper place, by the falling on to his head of the upper berth, while said upper berth ought to have remained in place above, such fact raises a presumption in this case of negligence, for which the defendant is liable. If you find that there was no defect in the road, or in the ear, or the mechanism used, yet, if upon the evidence in this case, you find it reasonable to presume that the accident happened by reason of the upper berth not having been properly fastened in place, or by reason of the persons having charge of the ear having failed to observe that it had become loosened, if such insecure condition would be observed by proper diligence, you have a right so to presume, and you would then find the defendant guilty of negligence. If, on the other hand, in such ease, you find it equally reasonable to presume that the fastening of the berth was loosened by some other person, not those in the employment of the defendant, and such insecure condition would not be observed by proper diligence on the part of the persons having charge of the car, you have the right’so to presume, and in that case would find the plaintiff failed to make out a case of negligence against the defendant. . . . The plaintiff is entitled to damages for injury traceable to the defendant’s fault, but not for injury caused by his own act.”
    Exception was taken to specified portions of this charge.
    The railroad company also insisted that it was not liable for the negligénce of the servants of the sleeping-car company, but the charge of the court was adverse to the claim, and exception was taken.
    
      
      Stallo, Kittredge S Shoemaker, for plaintiff in error,
    commented on cases cited by defendant in error, and, on the question as to the presumption of negligence, cited: Railroad Co. v. Mowery, 36 Ohio St. 418; Railroad Co. v. Mitchell, 11 Heiskel, 400; Pierce on Rail. 314; Shear. & Red. on Neg. § 280; McPaddon v. Railroad Co., 44 N. Y. 478; Railroad Co. v. Napheys, 90 Pa. St. 135; 1 Albany L. J. 318; 18 Alb. L. Jour. 70; Railroad Co. v. Gibson, 23 Alb. L. Jour. 431; Bridges v. North London Railway, 7 Eng. & I. App. 213; Bird v. Great North. Railway, 28 L. J. Ex. 3; Hanson v. Railroad Co., 20 Weekly R. 297; Cooley on Torts, 661; 9 Met. 1; 53 Texas, 46.
    
      Follett, Eymcm & Dawson, and T. H. Kelley, for defendant in error:
    1. Railroad company liable for negligence of porter in sleeping car. Penn Co. v. Roy, 102 U. S. 451; Pullman Palace Car Co. v. Smith, 73 Ill. 360; Thorpe v. Railroad Co., 76 N. Y. 402; Knisely v. Railroad Co., 125 Mass. 54; Kennedy v. Railroad Co., 62 Ill. 395.
    2. Charge as to presumption of negligence was correct. Railroad Co. v. Mowery, 16 Ohio St. 418; Cooley on Torts, 663; Sullivan v. Railroad Co., 30 Pa. St. 234; Wharton on Negligence, § 661; Railroad Co. v. Napheys, 90 Pa. St. 135; Railroad Co. v. Noell, 32 Gratt. (Va.) 394; Railroad Co. v. Reynolds, 88 Ill. 418; Railroad Co. v. Cragin, 7 Ill. 177; Lyons v. Rosenthal, 18 N. Y. S. C. 46; Garrett v. Railroad Co., 36 Iowa, 121. See also, Ware v. Gay, 11 Pick. 106; Stevens v. E. & N. A. Railway, 66 Me. 74; Meier v. Penn. R. R. Co., 64 Penn. St. 225; Pittsburgh & Connellsville R. R. Co. v. Pillow, 76 Penn. St. 510; Boyce v. California Stage Co., 25 Cal. 460; Skinner v. London, Brighton, &c. R’y Co., 5 Exch. 787; Carpue v. London & Brighton R’y Co., 5 Q. B. 747; Dawson v. Manchester, Sheffield, &c. Railway Co., 5 L. T. (N. S.) 594; Byrne v. Boadle; 2 Hurlst. & C. 596; Scott v. London & St. Katherine Docks Co., 3 H. & C. 594; Pennsylvania Co. v. Roy, ante. The principle for which we contend is the same as that decided by this court in the case of Graham v. Davis, 4 Ohio St. 362, and which, has since been followed in numerous decisions. Wharton on Neg. § 422; 2 Redfield on Railways (4th ed.) § 192.
   Okey, C. J.

Two questions are presented : first, as to the liability of the railroad company for injury to a passenger traveling on one of its trains in a coach of a sleeping-car company; secondly, as to the presumption arising from proof of the injury.

1. In Southern Express Co. v. Railway Co., 10 Fed. Rep. 210, Miller, J., said that “the express business is a branch of the carrying trade that has, by the necessities of commerce and the usages of those engaged in transportation, become known and recognized“ that it is the duty of every railroad company to provide such conveyances, by special cars or otherwise, attached to their freight or passenger trains as are required for the safe and proper transportation of this express matter on their roads “that under these circumstances there does not exist* on the part of the railroad company, the right to open and inspect all packages so carried; ” and “ that, when matter is so confided to the charge of an agent or messenger (of the express company), the railroad company is no longer liable to all the obligations of a common carrier, but that, when loss or injury occurs, the liability depends upon the exercise of due cai’e, skill and diligence on the part of the railroad company.” And see Penn. Co. v. Woodworth, 26 Ohio St. 585.

Counsel for plaintiff in error argue in this case that sleeping-cars have became recognized as so far necessary to the comfort and convenience of passengers by railway, that railway companies may be compelled, in like manner, to attach the coaches of sleeping car companies to their trains, where they have failed to provide their own cars for such purpose, in which case there should be a corresponding modification of the liability of the railroad company, and that whether the arrangement between the companies be enforced or conventional, the railroad company should not be liable for injury to passengers resulting solely from negligence of the agents of the sleeping car company.

In support of this view, attention is called to the fact that in Penn. Co. v. Roy, 102 U. S. 451, where the liability of the railroad company for an injury received in a car of the Pullman Palace Car Co. was asserted, Harlan, J., lays stress on the fact that the railroad company had published and circulated cards, which were in such form as to induce the belief that the sleeping-car was under the management and control of the railway company. But, on examination of the whole opinion, we find there was no intention to place the liability on such narrow ground; and we have no hesitancy in saying that, in the absence of notice, that the company will not be liable for defective appliances in the sleeping-car or negligence of servants of the sleeping-car company, a passenger may well assume that the whole train is under one general management. Thorpe v. Railway Co., 76 N. Y. 402; Kinsley v. Railroad Co., 125 Mass. 54. How far a railway company may, by agreement with a sleeping-car company, known to the passenger, exonerate itself for liability for such injuries, is a question concerning which wo express no opinion.

2 As to the presumption stated in the charge, counsel for plaintiff in error say that there was no evidence that the injury resulted from defect in the car or any part of it. Hence, the injury was occasioned by the negligence°of the porter in securing the berth in its place, or by-the interference of some other person with the fastenings of the berth. This statement is probably correct. Now, in charging that the burden was on "Walrath to show the injury resulted from the negligence of the defendant below, and that he could only recover for negligence traceable to the defendant’s fault, the court virtually charged that he was required to show that he was without fault. This being shown, we think the court might then well say, under the circumstances, that the negligence of the defendant might be presumed. We are aware that upon this subject the authorities are in some conflict. Roscoe’s N. P. Ev. (14th ed.) 695; Thompson on Car. Pas. 209 ; Schouler on Bailments, 642 ; 2 Wait’s Act. & Def. 90 ; Pierce on Rail. (ed. of 1881) 298; Johnson v. Railroad Co., 20 N. Y. 65; Readhead v. Midland Railw. Co., 4 L. R. Q. B. 379; Hyman v. Nyle, 6 Q. B. D. 685; Great West. Railw. v. Fawcett, 1 Moore (P. C.) 101, 116; cf. Czech v. General Steam Nav. Co., 3 L. R. C. P. 14. But tlie general question was carefully considered in Railroad Co. v. Mowery, 36 Ohio St. 418, and we think the principle of that case sustains the court below in the charge given and in refusing the charge' requested. Railroad Co. v. McMillan, 37 Ohio St. 554, was an action for killing a horse on the company’s road, and has no application. Whether the sentence next to the last in the portion of the charge set forth in the statement of this case, was not more favorable to the railroad company than was warranted, we need not determine.

Judgment affirmed.  