Hillis v. Chi., R. I. & P. R. Co.
| Decision Date | 27 June 1887 |
| Citation | 72 Iowa 228,33 N.W. 643 |
| Parties | HILLIS v. CHICAGO, R. I. & P. R. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Polk county.
Action to recover for money alleged to have been lost by plaintiff through the negligence of defendant. Verdict and judgment were rendered for defendant, and plaintiff appeals.Cole, McVey & Clark, for appellant.
Wright, Cummins & Wright, for appellee.
Plaintiff, with his sister, was a passenger on the night train of defendant, March 1, 1881, from Des Moines to Keokuk, Iowa. They were in the sleeping car, which was owned and operated by defendant, and were the only passengers in the car. The plaintiff testified that, when he entered the car, he had in his overcoat pocket $500 in bills in an envelope. He expected to give this money to a brother to invest in cotton for him. The plaintiff had ample money elsewhere about his person for all traveling expenses. Soon after entering the car, he took off his overcoat, and gave it to the porter, leaving the $500 in the pocket, as he says, and the porter hung it in plaintiff's berth. Soon after, and when about three miles from Prairie City, by some accident, the sleeping car and another car were derailed, and the sleeping car was thrown upon its side. It took fire, but the fire was soon extinguished.
The plaintiff testified that, after he made his way out of the car, he told the brakeman and the porter that his overcoat, with $500 in it, was in the sleeping car, and that he tried to go into the sleeping car, but that the porter would not permit him to do so. Both the porter and brakeman deny that they prevented him from going into the sleeping car. When the overcoat was delivered to him, no money was found in the pocket. There is no evidence that the plaintiff intimated to any of the defendant's employes that he was carrying the money in question until after the accident, or that the plaintiff paid for the risk of its carriage, or that any of the defendant's employes had any authority to assume any responsibility whatever with reference to this money, either before or after the accident, or that any of them took the money, or any of it. The verdict of the jury was for the defendant, and on this appeal is decisive against the plaintiff as to the facts upon which there was conflict in the evidence. We consider the law well settled that the defendant, as a common carrier of passengers, is not liable for this money. The plaintiff carried it at his own risk, so far as the acts of third persons, or even ordinary negligence on the part of the defendant, or of its employes, was concerned. National Bank v. Railroad Co., 20 Ohio St. 259;Weeks v. Railroad Co., 72 N. Y. 50;Alling v. Railroad Co., 126 Mass. 131;Michigan Cent. R. Co. v. Carrow, 73 Ill. 348.
Up to the time of the accident, plaintiff had the money in his own custody. Nothing had occurred to change the nature of the risk or liability. The occurrence of the accident, and the alleged notice given by plaintiff to the porter and brakeman of defendant that this money was in the car, put no liability on defendant that did not exist before the accident; for there is no evidence whatever that they had authority to assume any liability for this money. The occurrence of the accident did not extend the contract, because in that event defendant would have been responsible for this money immediately on the occurrence of the accident.
The plaintiff's position is that, after the accident, the defendant became a gratuitous bailee of this money; and while, in case of gratuitous bailment, it is admitted that the bailee is ordinarily liable for only gross negligence, yet it is claimed that the defendant became such bailee by reason of this accident, and hence by reason of his own wrong, and that,...
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