Carpenter v. New York, N.H.&H.R. Co.

• Decision Date: 14 January 1891
• Citation: 26 N.E. 277,124 N.Y. 53
• Parties: CARPENTER v. NEW YORK, N. H. & H. R. CO.
• Court: New York Court of Appeals Court of Appeals

124 N.Y. 53

26 N.E. 277

CARPENTER

v.NEW YORK, N. H. & H. R. CO.

Court of Appeals of New York,

Second Division.

Jan. 14, 1891.

Appeal from an order of the general term of the court of common pleas in the city of New 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 New 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 New York to Boston, and took passage on a train that left the Grand Central station at half past 10 o'clock in the evening. He was assigned the lower berth in section 10 of the sleeping-car ‘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 pocket-book, containing $40 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 6 o'clock in the morning, when the train was near Boston. Seeking his vest, he found it under the pillow next to the passage-way, with his pocketbook in the pocket, but the money had been stolen. His watch, which was in another pocket of the garment, and about $3 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.

Henry W. Taft, for appellant.

Jabish Holmes, for respondent.

FOLLETT, C. J., ( after stating the facts as above.)

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. Railroad Co., 73 N. Y. 167; 2 Redf. R. R. 59. But carriers do not undertake to carry and safely deliver the effects of traveles 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 corporation which carries and furnishes travelers with berths in sleeping-coaches. Lewis v. Sleeping-Car Co., 143 Mass. 267, 9 N. E. Rep. 615; 2 Ror. R. R. 987. 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...