Scaling v. Pullman's Palace Car Co.

• Decision Date: 21 December 1886
• Citation: 24 Mo.App. 29
• Parties: SAMUEL SCALING, Respondent, v. PULLMAN'S PALACE CAR COMPANY, Appellant.
• Court: Missouri Court of Appeals

24 Mo.App. 29

SAMUEL SCALING, Respondent,

v.PULLMAN'S PALACE CAR COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Dec. 21, 1886.

APPEAL from the St. Louis Circuit Court, DANIEL DILLON, Judge.

Affirmed.

CHARLES F. JOY, for the appellant: The defendant's instruction number one should have been given, for the reason that there is no proof tending to show that the loss resulted from the alleged negligent act. Nolan v. Shickle, 3 Mo. App. 300; Ward v. Andrews. 3 Mo. App. 275. The plaintiff's instruction number one was erroneous and should have been refused, for the reason that it is too general, and does not state what facts, if found, will constitute negligence. Goodwin v. Railroad, 75 Mo. 73; Yarnall v. Railroad, 75 Mo. 575. The defendant's instruction number six should have been given, for the reason that the acts stated in said instruction do not constitute such negligence as will make the defendant liable. Pullman v. Smith, 73 Ill. 360; 16 Abb. Pr. [N. S.] 252. The defendant's instruction number seven is a perfect instruction on the case as made by the defendant, and should have been given. Gaylord v. Pullman, 6 Ky. Law Reporter, 279.

ROWE & MORRIS, for the respondent: Sleeping car companies are liable for property lost while under the control of the passenger upon proof of some fault or negligence on their part. Pullman v. Gaylord, 6 Ky. L. R. 279; Blum v. Pullman, 3 Cent. L. J. 592; Palmeter v. Wagoner, 11 Albany L. J. 149; Woodruff v. Diehl, 84 Ind. 483; Stearne v. Pullman, 21 Am. & Eng. R. Cas. 443.

LEWIS, P. J., delivered the opinion of the court.

The plaintiff sues for two hundred and forty-five dollars, the value of a gold watch, a pair of pantaloons, twenty-five dollars in money, and some smaller articles, all of which were stolen from him while he was a passenger in the defendant's sleeping car, on a trip from Waco, Texas, to St. Louis, Missouri. The testimony tended to show that the plaintiff, on retiring to a lower berth on the night of March 26, 1886, placed his watch and other articles in the pockets of his pantaloons, and then put the pantaloons under his pillow. That, at about three o'clock A. M., the plaintiff was lying with his face toward the window of the car, when he felt his head jerked back and immediately discovered that the pantaloons, with their contents, were gone. He quickly arose and looked up and down the aisle of the car, but saw no one. His berth was near the foremost end of the car. He hurried to the rear end, where there was a closed swinging door leading to the vestibule, or washroom. He opened this door, and found the porter in the wash room, blacking boots. The porter, on being told of the loss, went back to the plaintiff's berth, examined it, made no discovery, and then awakened the conductor, who made another examination of the berth, without result. The porter's testimony in the trial contradicted that of the plaintiff in some particulars. He declared, in the most positive terms, that the swinging door mentioned was opened back against the wall, where it was kept fastened by a catch, and that it was so kept all night, in obedience to the rules of the company; that he sat blacking boots, with his face toward the aisle, of which he had a clear view along its entire extent; that he saw the plaintiff leave his berth and approach him down the aisle; that he could not have failed to observe any person who should have been in the aisle at any time during the half hour previous, but he saw no one. Both the porter and the conductor saw some indications that the window at the plaintiff's berth had been open, but the plaintiff asserted positively that such was not the fact, and that he was habitually careful never to sleep with any window near him open. There was testimony tending to show that the theft occurred about the time when the train was leaving Fort Scott Junction, where it had stopped for a couple of minutes, and that at that place there was a platform on the same side of the car with the plaintiff's berth, upon which a person might stand and thrust his arm into the berth, if the window were open. The jury gave a verdict for the plaintiff.

The gist of the action, as developed in the petition, is negligence of the defendants and its servants, which occasioned the plaintiff's loss. The only matters of complaint brought to our attention arise upon the instructions given and refused. The defendant's demurrer to the evidence was properly overruled. There was evidence tending to sustain the material allegations of the petition. The court refused to give the two following instructions for the defendant:

“The jury are instructed that the fact, if found to exist, that the porter of the car, Revere, was temporarily out of sight of the sleeping berth occupied by the plaintiff, but was at that time attending to his duties in said car, and ministering to the requests of the occupants thereof, this is not such proof of negligence as will entitle the plaintiff to recover in this action.”

“The jury are instructed that the fact that the plaintiff was an occupant of the sleeping car, Revere, and that while such occupant he lost by theft of some person unknown the property mentioned in his petition, is not sufficient to entitle him to recover in this case.”

Both these instructions were objectionable for vagueness, and a lack of necessary completeness in their respective hypotheses. Under the first, it was possible for the jury to understand that the porter, while “attending to his duties in said car, and ministering to the requests of the occupants thereof,” might have wilfully or negligently closed the swinging door and thus put himself “temporarily out of sight of the sleeping berth occupied by the plaintiff,” thus making the theft possible, and that yet there would be no proof from which negligence might be inferred. The second instruction, literally interpreted by a person skilled in the use and force of words, might impart a correct proposition of law. But the average juror, not thus skilled, might be misled into the supposition that, on general principles, there can be no recovery for money stolen by an unknown person on a sleeping car. The instruction should have brought clearly into view, as adjuncts of the general proposition, the conditions of due watchfulness and care on the part of the defendant's servants.

Sleeping car companies are not held to the responsibilities of common carriers, or of inn-keepers. But there is a peculiar responsibility...