Root v. New York Cent. Sleeping Car Co.

• Citation: 28 Mo.App. 199
• Parties: A. K. ROOT, Respondent, v. NEW YORK CENTRAL SLEEPING-CAR COMPANY, Appellant.
• Decision Date: 06 December 1887
• Court: Court of Appeal of Missouri (US)

28 Mo.App. 199

A. K. ROOT, Respondent, v. NEW YORK CENTRAL SLEEPING-CAR COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

December 6, 1887

APPEAL from the St. Louis Circuit Court, SHEPARD BARCLAY, Judge.

Reversed and remanded.

PATTISON & CRANE, for the appellant: If the loss occurred after the respondent had arisen and left his berth, and all the evidence shows such to have been the case, the respondent was then the custodian of his own valuables, and the demurrer to the evidence should, therefore, have been sustained. Scaling v. Pullman Co., 24 Mo.App. 33; Bevis v Railroad, 26 Mo.App. 19; Whitney v. Pullman Co., 28 A. & E. R. R. Cas. 147; Pullman Co. v Gardner, 16 A. & E. R. R. Cas. 324. The respondent's testimony establishes the fact that his own negligence directly contributed to his loss, and for this reason, too, the demurrer to the evidence should have been sustained. Whitaker's Smith on Negl. 324-28, notes. The instructions as to the appellant's liability in case of theft by the porter were erroneous; and it was error to refuse the instruction asked by the appellant on this point. See authorities cited above; also, Blum v. Pullman Co., 3 Cent. Law Jour. 591; Pullman Co v Smith, 73 Ill. 360; Diehl v. Woodruff Car Co., 84 Ind. 474; Welch v. Pullman Car Co., 16 Abb. Pr. [N. S.] 262; Dargan v. Pullman Car Co., 26 A. & E. R. R. Cas. 149; Lewis v. Sleeping-Car Co., 28 A. & E. R. R. Cas. 148; Batterson v. Vogel, 10 Mo.App. 235.

DYER, LEE & ELLIS, for the respondent: An erroneous instruction on the measure of damages, which did the appellant no harm, is not reversible error. Nance v. Metcalf, 10 Mo.App. 183, 191; Gaty v. Sack, 19 Mo.App. 470, 477-8. " The fact that the passenger retains the custody of his baggage relieves the carrier of his extraordinary liability as insurer only; for all losses in consequence of the negligence of the carrier or his servants he still remains liable." Thompson on Carriers, 518. And the company is liable for the negligence of its servants. Railroad v. Katzenberger, 1 S.W. 4.

OPINION

THOMPSON J.

This action is brought to recover the sum of $464, which the plaintiff alleges was stolen from him, " by the fraud or negligence of the defendant," while the plaintiff was a passenger on one of the defendant's cars. It appeared, from the evidence, that the plaintiff, going to join his family at a watering-place near Boston, and intending to return with them, purchased a railway passage ticket from St. Louis to Boston over the line of associated railways known as the Bee Line, and also bought of the defendant a ticket which entitled him to a berth, toilet accommodations, etc., in one of its sleeping cars running between a junction near St. Louis and Boston, over the said Bee Line. Besides about fifteen dollars, in his vest-pocket, the plaintiff took with him $464 in currency, which he carried in a small purse. According to his evidence, when he retired for the night in the berth which had been made up for him in the sleeping car, he deposited this purse, with its contents, in the side-pocket of his vest, and placed it under his pillow. On getting up in the morning, he felt for it, and found it safe where he had placed it. He then put on his pants and shoes, and, leaving his vest under his pillow, and this purse of money in the vest-pocket, where it had been during the night, he went to the ladies' toilet-room, at the forward end of the car, to wash himself and prepare for the putting on the rest of his clothes. When he left his berth for the ladies' toilet-room, the porter of the car was sitting on the seat next to the foot of his berth, with his back toward his berth. He did not notify the porter that he had left any valuables under his pillow, nor request him to watch his berth during his absence. He remained in the ladies' toilet-room about five minutes, and, on returning, discovered that his pocketbook was missing from his vest-pocket. He began a search for it, and, while so searching, the porter came up and said to him, " You have lost something, haven't you?" The plaintiff replied that he had lost his purse. The porter responded, " Here it is," handing it to him. It was in a collapsed condition, all the money abstracted from it. Search was made for the conductor of the sleeping car, and he was found, according to the plaintiff's testimony, in an ordinary passenger coach, but, according to his own testimony, in the other sleeping car which was upon the train. He telegraphed to the defendant's superintendent at St. Louis, stating the fact of the robbery and asking for instructions. Such instructions were given and proceedings had thereafter that, about seven hours after the robbery had taken place, an officer came on board the car and searched the porter, but without finding anything. On the arrival of the car at Boston, a search was made of the car. The porter soon after quit the defendant's service, but, as the testimony shows, without contradiction, in pursuance of a notice that he had previously given them, for the purpose of engaging in another employment. The uncontradicted evidence shows that the porter was and is a man of good reputation for honesty, and that, at the time of the trial, he was engaged in a business which involved trust and responsibility. The state of facts presented by the plaintiff's testimony, as to the circumstances surrounding the theft, was considerably modified by testimony presented by the defendant; but, as the jury have found for the plaintiff, the propriety of the instructions on which the case was submitted to them must be considered in relation to their application to the state of facts made by the plaintiff's evidence.

The court submitted the case to the jury upon the following instructions:

" 1. The defendant was not an insurer of the safety of the plaintiff's money while he was upon the said sleeping car; nor is the mere fact that the plaintiff lost his money thereon, or was robbed of his money thereon, of itself sufficient to create any liability of the defendant herein, unless you should find, from the evidence, that the plaintiff's money was stolen by the defendant's porter; and, if you should find that fact, then it would be necessary to a verdict in the plaintiff's favor, that you should, also find from the evidence, the other facts described in instruction numbered two."

" 2. If you find, from the evidence, that, on the second day of October, 1883, while the plaintiff was a passenger on the sleeping car of the defendant, a sum of money was stolen from him by the defendant's porter, Sylvester, then you should find for the plaintiff."

" 3. If you do not find the facts to be as stated in instruction numbered two, but find, from the evidence, that, on October 2, 1883, while the plaintiff was a passenger on the defendant's sleeping car, his money was otherwise taken or stolen by reason of the omission of ordinary care on the part of the defendant and its employes in charge of the said car, to guard the plaintiff against such theft, or taking thereof; and further find, from the evidence, that the plaintiff was exercising ordinary care on his part, to avoid danger of theft, at and just before the time of such alleged theft, then your verdict should be for the plaintiff."

" 4. If you find from the evidence that the defendant's porter did not take the plaintiff's money, then you should find for the defendant, if you find, from the evidence, that the plaintiff, by the exercise of ordinary care on his part, could have avoided said loss of his money, as alleged, or find, from the evidence, that the defendant and its employes exercised ordinary care in the premises to guard the plaintiff from theft of his money while a passenger on said sleeping car."

" 5. What constitutes ‘ ordinary care,’ as mentioned in these instructions, depends on the facts of each particular case. It is such care as a person of ordinary prudence would exercise (according to the usual and general experience of mankind) in the same situation and circumstances as those of the person or persons in this case, with reference to whom the term, ‘ ordinary care,’ is used in these instructions."

" 6. Unless you find the facts to be as mentioned in instruction numbered two, or instruction numbered three, then your verdict should be for the defendant."

" 7. If you find for the plaintiff under instruction numbered two, you will assess his damages at the sum you find, from the evidence, he so lost; but if you find for the plaintiff under instruction numbered three, then the plaintiff's recovery should be limited to such amount of the money you find, from the evidence, to have then been in his possession, as you find, from the evidence, to have been a reasonable sum necessary for the traveling expenses of the plaintiff and family on the journey he then had in contemplation, and had started upon."

Thereupon, the case was submitted to the jury, who retired for consultation. On the next day, the jury, not having agreed upon a verdict, were recalled into court, and, after a short statement from the jury, the court stated to counsel that certain further instructions would be given, and gave the counsel the opportunity of submitting any additional requests for instructions. One additional instruction was requested by the defendant and refused, but this need not be considered. The court thereupon gave, of its own motion, the following instructions, among others:

" 1. The defendant was not an insurer of the safety of the plaintiff's money while he was upon the said sleeping car; nor is the mere fact that the plaintiff lost his money therein, or was robbed of his money thereon, of itself sufficient to create any liability on the defendant's part in this cause, unless you should find, from the

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