26 Mo.App. 19 (Mo.App. 1887), Bevis v. Baltimore & O. R. Co.

Citation:26 Mo.App. 19
Opinion Judge:THOMPSON, J.
Party Name:ALFRED BEVIS, Respondent, v. BALTIMORE & OHIO RAILROAD COMPANY, Appellant.
Attorney:POLLARD & WERNER, for the appellant: DYER, LEE & ELLIS, for the respondent.
Judge Panel:Rombauer, J., concurs; Lewis, P. J., is absent.
Case Date:May 03, 1887
Court:Court of Appeals of Missouri
 
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Page 19

26 Mo.App. 19 (Mo.App. 1887)

ALFRED BEVIS, Respondent,

v.

BALTIMORE & OHIO RAILROAD COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

May 3, 1887

APPEAL from the St. Louis Circuit Court, AMOS M. THAYER, Judge.

Reversed and remanded.

POLLARD & WERNER, for the appellant: The burden of showing want of care rests upon the plaintiff. Welch v. Car Co., 1 Sheldon (N. Y.) 459; Palmeter v. Wagner Car Co., 11 Alb. Law Jour. 149; Blum v. Car Co., 1 Flipp. (U. S.) 500; Car Co. v. Gardner, 16 Am. and Eng. R. R. Cases, 324; Tracy v. Car Co., 67 How. Pr. (N. Y.) 154; Woodruff Car Co. v. Diehl, 84 Ind. 474; Scaling v. Car Co., 24 Mo.App. 29, and numerous other cases. Proof of the loss alone is not sufficient to entitle the plaintiff to recover, nor does it shift the burden of proving negligence on the defendant; but the plaintiff must go further and establish the fact that the loss was caused by the negligence of the defendant. Stearne v. Car Co., 21 Am. and Eng. R. R. Cases, 443; Dargen v. Car Co., 5 Texas App; Texas Law Review, 619; Tracy v. Car Co., 67 How. Pr. 154; Scaling v. Car Co., 24 Mo.App. 29. The testimony of the respondent and his witness, Edwards, as to what the conductor and porter said, on the morning after the alleged theft, was incompetent, and should have been excluded from the jury. These declarations were merely the recitals of past transactions. 1 Greenleaf on Evid., sect. 113; McDermott v. Railroad, 73 Mo. 516; Adams v. Railroad, 74 Mo. 553; Albridge v. Furnace Co., 78 Mo. 559; Fairley v. Hastings, 10 Vesey, Jr., 123 to 136; Langham v. Allunt, 4 Taunton 511.

DYER, LEE & ELLIS, for the respondent.

OPINION

THOMPSON, J.

This action is brought to recover the value of a diamond scarf pin and five dollars in currency, alleged to have been stolen from the plaintiff while a passenger on the defendant's railway, and asleep in one of its sleeping cars. The right of recovery is predicated upon the negligence of the servants of the defendant, in failing to keep the proper watch during the night. The value of the pin is alleged in the petition to have been four hundred and ninety-five dollars. The damages claimed were five hundred dollars. The answer was a general denial. A trial took place before a jury, and the plaintiff recovered a verdict for five hundred and twenty dollars damages--twenty dollars more than he claimed in his petition, and judgment was entered thereon, from which this appeal is prosecuted.

At the trial, the plaintiff gave evidence tending to show that he took passage on the defendant's railroad from Cincinnati to St. Louis; that he purchased a sleeping car ticket of the defendant, and thereupon was permitted to enter one of the defendant's sleeping cars as a passenger; that he wore a diamond scarf pin on his scarf, which he had bought in 1862, and which he had then worn continuously for twenty-two or twenty-three years, which pin was of the value of five hundred and fifty dollars; that, when he went to bed, he saw that the pin was upon his scarf; that he wrapped the scarf up, with the pin sticking in it, on the inside, put it inside his vest, and, also, put his pocket book inside his vest, and then put his vest under his pillow, back as far as he could put it. He slept in the upper berth; for, although his ticket called for the lower berth, in the particular section, he had given the lower berth to an old lady whose ticket called for the upper berth, taking the latter berth to oblige her. He slept all night, and, when he got up in the morning, he put on his vest, took his collar, cuffs, and satchel, and went into the washroom, where there were two gentlemen. When he had washed, he put his hand in to take out his scarf, when he discovered that his pin was gone, and that his pocket book was gone, also. He made an exclamation, " Gentlemen, I...

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