59 Mo. App. 641 | Mo. Ct. App. | 1894
On July 9, 1890, on which day the sun set at 7:40 p. m., the plaintiff bought a ticket for a sleeping berth on one of defendant's cars from St.
The defendant gave evidence tending to show that, while the car was standing at the Union depot to receive passengers, its front door and its windows on the off side were closed; that during the whole time the porter stood near the platform atthe rear door of the ear, receiving passengers and their luggage, and carrying the latter, when directed, into the car; that the front door of the car was opened, when the train started, to enable the bridge conductor to pass through the train; that the train stopped at the relay depot in East St. Louis for a few minutes, both doors of the car being open then, and the porter standing at the rear of his car, and the porter of the Cincinnati car at the rear end of his own car, the latter joining the front end of the car on which plaintiff was traveling. The defendant’s evidence tended to show that these are the usual and ordinary precautions which are used under these circumstances
The cause was tried by the court without the intervention of a jury. At the close of all the evidence, the defendant demurred to it, but the churt overruled the demurrer. The defendant then prayed for the following declaration of law, which the court gave:
“If the court believes, under the evidence, that the valise of plaintiff was deposited in plaintiff’s berth by plaintiff or an agent of defendant during daylight, and before the starting of the train from the Union Depot, and the plaintiff, after going to his berth and seeing his property there, voluntarily left his property in the car, and left (without notifying any agent of defendant) to smoke while walking up and down the depot, and that plaintiff knew that the agents of defendant were not at the time watching the interior of the car, and that plaintiff’s property was taken while plaintiff was so absent, then the court declares the law to be that plaintiff is not entitled to recover.”
We are at a loss to see on what theory of the evidence the court found for'the plaintiff after .making this declaration of law. As we said in Root v. Sleeping Car Company, 28 Mo. App. 199, 209: “The custody of the passenger’s hand baggage and money is, saying the most that can be said in his favor, a mixed custody, partly his custody and partly that of the sleeping car company.’'’ No case decided in this state goes any further, and most cases decided in other jurisdiction do not go even so far. Hutchinson on Carriers [2 Ed.], sec. 700; Pullman Palace Car Company v. Smith, 73 Ill. 360; Railroad v. Handy, 63 Miss. 609. While we
It may readily be conceded that the company is bound to exercise such reasonable care in guarding the traveler’s baggage in the ease of his temporary absence from the berth as is customary in such cases. If a certain guard is customary, the traveler has a right to rely on the custom, and the omission of a customary guard would constitute negligence. But there is no evidence in this case that the company omitted the customary precautions. The plaintiff’s evidence on that subject is a blank. The defendant’s evidence, as far as it proves anything on that subject, tends to prove that the company observed them. The testimony was all in depositions, and there is nothing to cast any suspicion on the credit of the defendant’s witnesses. Even if the burden of showing diligence was on the defendant, which we do not concede, yet the defendant discharged the burden by showing, without contradiction, that it observed customary care. Customary care in such cases, unless the custom itself is negligent, must be deemed reasonable care. As the evidence was in depositions, and there was nothing in the surrounding circumstances which rendered the testimony of the defendant’s witnesses improbable, it could not be rejected by the trial court. Church v. Railroad, 119 Mo. 203, 213.
The plaintiff, upon the retrial of the cause, may be able to show, affirmatively, a disregard of the usual and
Reversed and remanded.