Pinkus v. Pittsburgh, C., C. & St. L. Ry. Co.

• Decision Date: 09 November 1916
• Docket Number: No. 9090.,9090.
• Citation: 65 Ind.App. 38,114 N.E. 36
• Court: Indiana Appellate Court
• Parties: PINKUS v. PITTSBURGH, C., C. & ST. L. RY. CO. et al.

65 Ind.App. 38

114 N.E. 36

PINKUS

v.PITTSBURGH, C., C. & ST. L. RY. CO. et al.

No. 9090.^*

Appellate Court of Indiana, Division No. 2.

Nov. 9, 1916.

Appeal from Circuit Court, Marion County; Charles Remster, Judge.

Action by Leah G. Pinkus against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company and another. From judgment for defendants, plaintiff appeals. Affirmed.

L. E. Ritchey, of Franklin, for appellant.

MORAN, J.

On February 1, 1913, appellant and her husband took passage at Indianapolis on a Pullman car sleeper reserved for Jacksonville, Fla., en route to the Panama Canal. The car was owned and in charge of the servants of appellee the Pullman Company, to be transported over appellee Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company's line of railroad. Upon reaching Louisville, Ky., in the course of her journey, appellant discovered that a small box and its contents consisting of four rings and a lavaliere, all set with diamonds, which appellant carried with her as a part of her luggage, and of the probable value of $5,000, were missing. This action was instituted to recover the value thereof. The complaint as filed was in three paragraphs; the first was upon the theory that appellant purchased transportation and Pullman accommodations for a direct and continuous trip from Indianapolis, Ind., to Jacksonville, Fla., in the Pullman car; and on account of the negligence of appellees, appellant and her husband were compelled to hastily leave the train and Pullman car at Louisville, Ky., and by reason of the negligence of appellees in not carrying appellant to her destination, as agreed, appellant was compelled under stress of haste and excitement to leave the car and prevented from removing her jewelry therefrom. The theory of the second paragraph is that the jewelry was removed and stolen from an upper berth in the car, where it was placed with the assistance and knowledge of the porter of the Pullman car, through the negligence of the servants in charge of the car in failing to keep the proper watch and to exercise due care of appellant'sproperty. The third paragraph charges appellees with the conversion of the jewelry.

An issue of fact was joined as to each paragraph of complaint by an answer of general denial being addressed thereto, and upon submission of the issues, thus joined, to a jury for trial, a verdict was returned for appellee the Pullman Company. From a judgment on the verdict, appellant seeks a review thereof, assigning as error the overruling of her motion for a new trial.

The court on its own motion, after the close of the argument of counsel, and by an instruction, withdrew from the consideration of the jury the first paragraph of complaint, and directed a verdict in favor of appellee the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company.

[1][2] Appellant in her brief under points and authorities seeks to question the action of the court in withdrawing from the consideration of the jury the first paragraph of complaint, in the following manner:

“Where there is some evidence in support of one or more paragraphs of complaint, an instruction given to the jury as above is erroneous.”

This as an abstract proposition of law may be well conceded, but there is no attempt to apply it to the question sought to be raised, nor has our attention been directed to any evidence in support of the same. It is therefore waived. Further, it must be presumed that there was no evidence supporting the issue joined as to the first paragraph of complaint, as the ruling of the trial court must be regarded as correct until it affirmatively appears to the contrary. Elliott on Appellate Proc. § 710.

As to the giving of the instruction directing a verdict in favor of appellee, the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, appellant presents the same for our consideration under her motion for a new trial, having properly excepted to the giving thereof.

The complaint alleges that both appellees are separate corporations, and upon trial of the cause it was agreed by the parties that appellee Pullman Company was the owner of the car upon which appellant took passage, and that the car was in charge of the employés of this company.

It has been held upon good authority that:

“A railroad company is not relieved from liability for the loss of the baggage of a passenger upon its train by the fact that, at the time of loss, he occupied space in the sleeping car, which belonged to another company, if the car was in fact a part of the train, and was employed by it in performing its contract of transportation, for the agents and servants of the sleeping car company are regarded by the law as agents of the railroad company for the purpose of the contract for transportation, and the law will not permit a railroad company through any device or arrangement with the sleeping car company, whose cars constitute a part of its train, to escape the liability incurred by its contract.” 5 R. C. L. 183; Kinsley v. Lake Shore, etc., Co., 125 Mass. 54, 28 Am. Rep. 200;Nelson v. Illinois Central R. Co., 98 Miss. 295, 53 South. 619, 31 L. R. A. (N. S.) 689;Louisville, etc., R. R. Co. v. Katzenberger, 16 Lea (Tenn.) 380, 1 S. W. 44, 57 Am. Rep. 232;Calder v. Southern Ry. Co., 89 S. C. 287, 71 S. E. 841, Ann. Cas. 1913A, 894.

In Pennsylvania, etc., Co. v. Roy, 102 U. S. 451, 26 L. Ed. 141, in speaking of the relation that the conductor and porter of a Pullman car bore to the railroad company, Justice Harlan said:

“Their negligence, or the negligence of either of them, as to any matters involving the safety or security of passengers while being conveyed, is the negligence of the railroad company.”

And further it is said in 5 R. C. L. supra:

“In cases where an injury occurs on a sleeping car the railroad and the sleeping car company are held to be jointly and severally liable.”

The evidence discloses that appellant throughout her journey from Indianapolis to Louisville was under the care of the servants of appelle the Pullman Company, and so far as the duties to be performed within the car where appellant and her husband were being transported were concerned, the evidence does not disclose that the servants of appellee railroad company proper had anything to do in this connection whatever. In Pullman Palace Car Co. v. Pollock, 69 Tex. 120, 5 S. W. 814, 5 Am. St. Rep. 31, which is cited with approval in Voss v. Wagner Palace Car Co., 16 Ind. App. 271, 279, 43 N. E. 20, 44 N. E. 1010, it was held that a sleeping car company was liable if it failed to exercise reasonable care in protecting the baggage of a passenger where the same was stolen, although the train to which the car was attached belonged to another company. See, also, Pullman Car Co. v. Gavin, 93 Tenn. 53, 23 S. W. 70, 21, L. R. A. 298, 42 Am. St. Rep. 902.

[3] Although the parties in charge of the sleeping car in the case before us be regarded as the servants of appellee railroad company, under the law (Dwinelle v. N. Y., etc., R. Co., 120 N. Y. 117, 24 N. E. 319, 8 L. R. A. 224, 17 Am. St. Rep. 611; Railroad Co. v. Ray, 101 Tenn. 1, 46 S. W. 554), they would have to be guilty of the negligence charged in order to sustain a verdict under the second paragraph of complaint as against appellee railroad company. And the jury having exonerated the Pullman Company and its servants from negligence by its verdict, appellant was not harmed by the court directing a verdict in favor of the appellee Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. That is, if the Pullman Company was the servant of the railroad company, and was free from negligence as found by the verdict of the jury, then the railroad company, if it be treated as the master, could not have been found guilty of negligence, had it remained as a party defendant throughout the entire proceedings, considering, of course, that the jury was properly instructed, as to this issue, and no other errorintervened, which hereafter will receive further consideration.

In New Orleans & N. R. Co. v. Jopes, 142 U. S. 18, 12 Sup. Ct. 109, 35 L. Ed. 919, it was said:

“It would seem on general principles that if the party who actually causes the injury is free from all civil and criminal liability therefor, his employer must also be entitled to a like immunity.”

In Doremus v. Root et al., 23 Wash. 710, 63 Pac. 572, 54 L. R. A. 649, it was held that a verdict in favor of the...