Pullman Co. v. Schaffner

• Decision Date: 09 November 1906
• Citation: 55 S.E. 933,126 Ga. 609
• Parties: PULLMAN CO. v. SCHAFFNER.
• Court: Georgia Supreme Court

55 S.E. 933

126 Ga. 609

PULLMAN CO. v. SCHAFFNER.

Supreme Court of Georgia

November 9, 1906

Syllabus by the Court.

In a suit against a sleeping car company by a passenger for loss of baggage, where it is proved that the plaintiff's baggage or articles of personal adornment were stolen while he was asleep, the burden of proof is shifted to the defendant company, and it is bound to show that it exercised reasonable diligence to prevent the loss.

When one of the disputed issues is as to the observance of proper care on the part of the plaintiff, testimony that he may have been negligent in a previous isolated instance is irrelevant.

It is the duty of a sleeping car company to exercise reasonable care to guard the personal effects of the passengers from theft, and if, through the want of that care, such personal effects as a passenger may properly carry with him on his journey be stolen, the company will be liable therefor. The personal effects which a passenger may carry with him on his journey may include articles of personal adornment, such as jewels. If a piece of jewelry, suitable to be worn for the personal adornment of the passenger, becomes injured or broken during his travels, so that he cannot use it in the usual way, it does not lose its character as an article which he may properly carry on his person, nor will the carrier be relieved of its duty to exercise reasonable diligence to protect the passenger in his possession of the same.

A defendant against whom a verdict has been returned cannot complain that the verdict is for a less amount than that demanded by the evidence.

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by C. E. Schaffner against the Pullman Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Dorsey Brewster, Howell & McDaniel, for plaintiff in error.

Slayton & Phillips, for defendant in error.

EVANS J.

An action was brought against the Pullman Company by C. E Schaffner, who set forth in his petition the following complaint: On the night of August 23, 1903, he took passage from Augusta to Atlanta on one of the sleeping cars of the defendant company. There was no conductor on the car, the company's only representative being a negro porter. Plaintiff went to bed in the berth assigned to him, about 11 o'clock, before leaving Augusta. When he awoke the next morning, he found that he had been robbed of a two-karat diamond worth $300, a $20 bill, $3.65 in silver, and three razors worth $6. The razors were taken from an alligator bag which plaintiff carried in his berth with him, and the money and the diamond were stolen from his pocketbook, which was in his clothes. The defendant company was negligent, plaintiff alleged, in not having a conductor on the car, as was customary, and in not maintaining a watch and exercising proper precautions to prevent his being robbed while asleep. The defendant company filed an answer in which it made a general denial of the liability. The trial having resulted in a verdict for the plaintiff, the Pullman Company made a motion for a new trial, and, to the overruling of this motion, exception is taken.

1. At the conclusion of the plaintiff's testimony, the defendant moved for a nonsuit on the grounds: (1) That the plaintiff had not shown that the articles alleged to have been lost were in his possession at the time he became a passenger, or that they had ever come into the actual or constructive possession of the company; and (2) that the plaintiff had not established any fact from which negligence on the part of the company could be inferred by the jury mere proof of loss being insufficient to create any presumption of negligence against the defendant. The court declined to grant the motion. From the plaintiff's evidence the jury could well find that, after the plaintiff had provided himself with transportation, and had boarded the defendant's sleeping car for the purpose of retiring, he had upon his person and in his hand baggage the valuables alleged to have been stolen. It is also inferable from his testimony that his valuables were taken while he slept. Where a loss to a passenger occurs while he is asleep in a sleeping car, and this fact is established, the burden of proof is shifted to the defendant company, and it is bound to show that it exercised reasonable diligence to prevent the loss. Kates v. Pullman Co., 95 Ga. 814, 23 S.E. 187. This is a rule of evidence which, as was said in the case cited, "rests upon the general and well-recognized principle that, where it is peculiarly within the power of one of the parties to a case to produce evidence, he is under an obligation to do so."

2. Complaint is made that the court excluded from the testimony of the plaintiff the statement, brought out on cross-examination, that he had previously lost a diamond in Augusta, which had been found by a young lady, and that he had paid a reward for its recovery. The defendant contended that this testimony was admissible to show a habit of negligence on the part of the plaintiff. The excluded proof even if admitted, would not have shown negligence on his part on any particular occasion, and certainly not that he was habitually negligent. Furthermore, when one of the disputed issues in a case is as to the observance of proper care on the part of the plaintiff, evidence of his general character for prudence or recklessness is inadmissible for the purpose of illustrating his conduct upon the occasion under investigation. Atlanta & West Pt. R. Co. v. Smith, 94 Ga. 107, 20 S.E. 763. For a stronger...