
    Benno Cohen, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    Fourth Department,
    July 9, 1907.
    ITegligence — theft from passenger in sleeping car — liability of company.
    In an action against a railroad company to recover money stolen from the plaintiff while a passenger in a sleeping car, he must establish the negligence of the defendant.
    A railroad company is not an insurer of the property of a passenger not placed • in its charge or custody.
    
      Mere proof that the porter of the sleeping ear was absent at the time the plaintiff, then in possession of his money, went to sleep, and was also absent at the time the plaintiff arose and discovered his loss, is no evidence that the defendant was in any way negligent at the time the money was stolen.
    • Appeal by the defendant, The New York Central and Hudson Biver Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 15th day of August, 1906,- upon án order .entered on the same day, .affirming a judgment rendered by the ■Municipal Court of the city of Buffalo on the 13th day .of June, 1906, -and also from the said order Of affirmance.
    The action was commenced in January, 1906, to recover $120 which the plaintiff lost or had taken from him while a passenger upon defendant’s railroad between the city of New York and the city of Buffalo, the charge being that such loss resulted solely because of the negligence of the defendant. Judgment was rendered for the full amount in the ■ Municipal Court, was affirmed, .with costs, at-Special Term, and from such judgment of affirmance this appeal is taken.
    
      H. E. Rourke, for the appellant.
    
      Eugene Warner, for the respondent.
   McLennan, P. J.:

The facts are not in dispute. The plaintiff purchased a ticket at the office of the defendant in the city of New York, which entitled him to transportation from that point to the city of Buffalo, N. Y., and at the same time purchased a 'ticket,which entitled'him..to sleeping accommodations between such points. The ticket which entitled him to sleeping accommodations was in fact purchased from the. Pullman Company, whose cars, because of an arrangement, between it and the defendant, .were transported over the defendant’s railway for the accommodation and convenience of' its passengers. After entering, the car to which he was assigned, the plaintiff went to the smoking compartment and while -there directed the porter, of the car to prepare the'bevt-li assigned to him for occupancy. The plaintiff soon after went to the berth assigned to him, there being at that timé no porter visible, and. retired, At the time he had $120 in his trousers pocket. He folded his trousers, the $120 being in the pocket, and placed them, in the berth beside him. At the time he went' to bed in his -berth no porter was visible in the car. ’Shortly before-reaching Batavia, several miles from' the place where he left defendant’s train, he was called by the porter to make' ready for leaving the train. He got up from his' berth and started for the lavatory and discovered that the $120 had been taken from his pocket, and at.that time it appears that no porter or other servant of the. defendant was present in the -car. Co'ncedcdly plaintiff’s money was not taken, when the porter, was absent and while the plaintiff was going to bed, because he testifies that at that time he counted his money and found it intact. Neither is there any claim that the money was taken at' the time or after the plaintiff arose from liis berth and while the porter was'absent, because immediately -upon leaving the berth he discovered the loss of- his money.

' Under those circumstances we think-the plaintiff wholly f-ailed to establish’ negligence on the part of the defendant which caused the loss of his money.

. "We will assume that the' defendant is. liable for all negligence resulting in loss to a passenger which occurs because of the negligence of an-employee "of ..the Pullman Company whose cars the defendant is transporting, precisely the same as if such cars had been owned by the defendant; But we understand the rule to be that a railroad -company is not an insurer of the safe transportation of the property or effects of a. passenger when such property or effects are not placed in the charge or custody of such, company. As was said in Carpenter v. N. Y., N. H. & H. R. R. Co. (124 N. Y. 53, 57) : “ The mere proof of the loss of mon.ey 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.” .

In'- that case it was shown that the car in which the plaintiff was riding was left practically alone in its passage from the time it. Started until its destination was -reached, and it was said by the learned court (p. 58) : “ 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.employee 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 inf eren tially.' The facts hereinbefore referred to, that the car ran over an important route between two great cities, through and stopping at eight considerable ones, 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 and 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 inthe 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.” . '

In the case at bar it appears without contradiction that .there was a conductor, who had charge of the sleeping car. It does not apj?ear that the porter was charged with' the duty or had the privilege of blackening shoes. In fact, it does not appear that he was .absent from the- car a single moment except' when the plaintiff retired at night at the outset .of bis journey and when he arose in the morning, at which' times concededly he did not lose his .money. ■

It seems to me that the evidence absolutely fails to disclose a single act or omission on the part of the defendant which can he construed as negligent and which had anything to do with the loss of plaiptiff’s money. The proposition is plain.. The plaintiff went to his berth in the ordinary way.. At that particular time, no porter or other employee of the defendant was present or in -attendance, but at such time concededly plaintiff’s money was not taken. In the morning when the .plaintiff arose his money was gone and at that time no porter or other employee of the defendant was present. But it is also conceded that at such time his money was not taken, and there is no evidence .to indicate that during the time after the plaintiff went to bed and until lie arose the defendant did not do everything which the utmost care and prudence would have dictated in order to have protected the plaintiff’s property.

It seems to me that an affirmance of this judgment would be in effect an attempt to overrule the decision in the Carpenter Case (supra), which holds that a railroad company does not undertake to carry and safely deliver the effects of travelers not delivered into its custody, and is not chargeable for its loss iinless negligence on its part is shown which occasions such loss, In the casé at bar we think that the evidence wholly failed to show that the defendant was guilty of negligence which occasioned or contributed to plaintiff’s loss.

It follows that the judgment and order appealed from should be reversed, with costs. ' ■

All concurred ; Robson, J., not sitting.

Judgment and order of Special Term and judgment of Municipal Court of the city of Buffalo reversed and a new trial ordered in the Municipal Court, with costs in all courts to the appellant to abide the event, new trial to be liad on Tuesday, the 23d day of July, 1907, at ten o’clock in the.forenoon. .  