| Ky. Ct. App. | Oct 10, 1912
Opinion of the Court by
Affirming.
Harvey Myers, a member of the Kenton County bar, brought suit against the Pullman Company for $500, the value of a diamond stud lost by bim through theft, on March 28, 1908, while in the act of boarding a train at Hot Springs, Ark., for Shreveport, La. The record shows that the plaintiff, -being unable to make direct connection to Shreveport, bought for himself railroad' and sleeping car tickets to intervening points within the State of Arkansas. The train that was to convey him to his destination contained two sleeping cars, connected and attached to the rear, the property of the defendant, and their internal management entrusted to a conductor and porter, the agents and servants of defendant. Immediately upon the arrival of the train, plaintiff exhibited his ticket to the Pullman conductor, who assigned him space in the sleeping car second from the rear and directed the porter to take and deposit plaintiff’s baggage in the car, which he did. Desiring to spend the time, before the train should leave, with his wife and daughter, who were then sojourning with him for-a season at Hot Springs, he walked with them up and down the platform near the train. At signal for the train to depart, plaintiff hurriedly left his family to catch the train and found the entrance to his car impeded by three men, one of whom was on the steps, the others moving with the car holding to the brass railing on the sides of the vestibule door. He repeatedly urged them, and with emphasis, to allow him to get on the car, finally pushing and forcing himself past then into the inside. During these efforts to board the car, these men pressed closely around his person, the one on the steps passing or shoving his hand in front of plaintiff, then all three quickly left the ear and disappeared. Plaintiff at once discovered that his diamond was missing from his tie, reported the loss to the Pullman conductor and directed him to-stop the train, which
Appellant asserted as the foundation of appellee’s liability to him for his loss, that it, its agent and servants in charge of said car, were aware of the presence of thieves and of their purpose to commit depredations upon the passengers in said car, against which they negligently failed to give him protection and warning, and to prevent which he himself was in the exercise of due care.
It is well settled, both upon principle and authority, that sleeping car companies are not innkeepers, and cannot be held to the responsibilities of innkeepers, nor were, they common carriers until expressly so declared to be by act of Congress of June 29, 1906, one of the several amendments to the Interstate Commerce Act, and they cannot be held to the responsibilities of common carriers in intrastate transactions. For ground and measure of their liability we must, therefore, look to the nature of their specific and implied engagements with their patrons. In the performance of their duty thus ascertained, the law imposes a care commensurate with such undertaking. For extra compensation, they provide advantages not to be had in the ordinary coaches. Their luxuriously appointed and completely manned cars are an offer to the traveler of, not only comfort and protection against fatigue, but also safety to his person and such personal effects retained in his. possession as he might reasonably cany with him. The traveler, who accepts that offer and pays for the proposed accommodation to a given point, has the right to
“A sleeping car company holds itself out to the world as furnishing safe and comfortable cars, and, when it sells a ticket, it impliedly stipulates to do so. It invites- passengers to pay for, and make use of, its cars for sleeping, all parties knowing that, during the greater part of the night, the passenger will be asleep, powerless to protect himself or to guard his property. He cannot, like the guest of an inn, by locking the door, guard against danger. He has no right to take any such steps to protect himself in a sleeping car, but, by the necessity of the case, is dependent upon the owners and officers of the car to guard him and the property he has with bim from danger from thieves or otherwise.”
‘' The law raises the duty on the part of the car company to afford him protection. While it is not liable as a common carrier or as an innkeeper, yet it is its duty to use reasonable care to guard the passengers from theft, and if, through want of such care, the personal effects of a passenger, such as he might reasonably carry with him, are stolen, the company is liable for it. Such a rule is required by public policy, and by the true interests of both the passenger and the car company, and the decided weight of authority supports it.”
It is true that, at the time of the loss, appellant had his property in his custody, and that it was taken from him while he was awake and in full possession of his faculties. This fact, however, does not absolve appellee from the duty of exercising that degree of care to prevent the loss, as the circumstances of the loss required. If it could have reasonably anticipated the presence of pick-pockets at the time and place, when and where appellant was robbed, it would have been its duty to have used the means at its command to have prevented the theft. The law imposes no stricter duty.
In the case of Whicher v. Boston & Albany R. R. Co., 176 Mass., 275" court="Mass." date_filed="1900-06-05" href="https://app.midpage.ai/document/whicher-v-boston--albany-railroad-6427134?utm_source=webapp" opinion_id="6427134">176 Mass., 275, which was an action for the loss of a handbag taken from a sleeping car during the day time, while plaintiff, a passenger thereon, was temporarily in the smoking compartment of the ear, the defendant was
“The principles of law which govern these cases we considered to be well settled. In the first place, neither a railroad company, a steamboat company, a sleeping car company, nor a palace car company owes to a passenger in regard to baggage the duty imposed by law on carriers or innkeepers, where the passenger keeps the baggage in his own custody and control. The only obligation imposed upon them is that of exercising reasonable care, and they are liable only when the loss is due to the negligence or misconduct of the servants or agents of the carrier. Tower v. Utica, Etc., R. R. Co., 7 Hill, 47; Henderson v. Louisville, Etc., R. R. Co., 123 U.S., 61" court="SCOTUS" date_filed="1887-10-31" href="https://app.midpage.ai/document/henderson-v-louisville--nashville-railroad-92022?utm_source=webapp" opinion_id="92022">123 U. S., 61; Illinois Central R. R. Co. v. Handy, 63 Miss., 609" court="Miss." date_filed="1886-04-15" href="https://app.midpage.ai/document/illinois-central-railroad-v-handy-7986372?utm_source=webapp" opinion_id="7986372">63 Miss., 609. * * * It is obvious that a higher degree of care is required during the night, when a passenger is asleep, than is required in the day time, when he can look after his own effects. Whitney v. Pullman Palace Car Co., 143 Mass., 243" court="Mass." date_filed="1887-01-06" href="https://app.midpage.ai/document/whitney-v-pullmans-palace-car-co-6422261?utm_source=webapp" opinion_id="6422261">143 Mass., 243.”
In the case of Pullman Palace Car Co. v. Gavin, 93 Tenn., 53" court="Tenn." date_filed="1893-06-21" href="https://app.midpage.ai/document/pullman-palace-car-co-v-gavin-8298694?utm_source=webapp" opinion_id="8298694">93 Tenn., 53, in which plaintiff sought a judgment for the loss of $150 in money, stolen from his berth while he was asleep, the court said:
“The law is well settled that a sleeping car is not a common carrier. They differ radically in the kind of service rendered the public. The contract of the sleeping car company is to lodge the passenger, while that of the carrier is to carry him. Sleeping car companies are not liable as innkeepers for the loss or theft of articles from a guest, for the reason that the passenger on a sleeping car retains the exclusive personal possession and control of his valuables. The company does not undertake to receive the property of the guest, but expressly declines to do so, and, for this reason, is absolved from the liability of an innkeeper. It has been so-difficult to define the precise legal status of this class of public servants, and the measure of their accountability, that they have been facetiously characterized as “flying nondescripts.” It is, however, universally recognized by the courts that it is the duty of a sleeping car company to maintain-a careful and continuous watch; over the interior of .the car while the berths are occupied by sleepers. If the property is stolen by a fellow passenger or by an intruder on the train, in consequence*781 of the failure of the company to maintain this careful and continuous watch, the company will be liable for its value. Carpenter v. New York, Etc., R. R. Co., 124 N. Y., 58.”
While sleeping car companies are answerable fori ordinary negligence resulting in loss, liability extends only to such reasonable articles of baggage as a traveler usually takes with him on a journey and to such reasonable sum of money as may be necessary for his traveling expenses, taking into consideration his condition in life and the surrounding circumstances. Hampton v. Pullman Palace Car Co., 42 Mo. App., 134" court="Mo. Ct. App." date_filed="1890-11-10" href="https://app.midpage.ai/document/hampton-v-pullman-palace-car-co-6616368?utm_source=webapp" opinion_id="6616368">42 Mo. App., 134.
The negligence of appellee, if any, in respect to the loss of appellant’s diamond, was that of the ticket agent or conductor or porter in charge of its car. Appellant was the only witness introduced at the trial, and he testified that the ticket agent of appellee was also the ticket agent of the railroad company. He failed to testify to any fact that, directly or by inference, showed that the ticket seller, as agent of appellee, exercised any control over the depot or grounds or approaches thereto, or had the power to remove objectionable persons therefrom. In the absence of proof, we must presume that the functions of the ticket agent of appellee were limited to the sale, delivery and collection of the price of tickets. He was not charged with the custody of the persons or property of the patrons of appellee, and he was under no obligation to warn them of the presence of thieves or of their unlawful purposes. Besides, there was nothing in the personal appearance of appellant to suggest to the ticket seller the propriety or necessity of such warning. Commanding in stature, intelligent, alert and betraying the mannerisms of an extensive traveler, the; ticket agent was justified in the belief that appellant could, equally as well as he, anticipate the presence and purpose's of such characters, and in fact, that he would be at no disadvantage in any situation save when confronted by a superior physical force. If there was any negligence on the part of the ticket seller, it is not, and cannot be attributable to appellee.
The diamond which was worn by appellant for his adornment, at the time of its loss, was of a value suitable to his station in life. The conductor and porter, appellee’s agents in charge of its car, were chargeable with the duty of exercising reasonable care to prevent its
From the time appellant was assigned to a section in the car up to the time immediately before it started, the servants of appellee were at their post of duty and prepared to afford him an unimpeded entrance. Had he, during, that interval, boarded the car, the loss would probably not have been sustained. A natural and commendable devotion to his family caused him to linger beyond the time of a reasonably safe ingress. The carrier having afforded him reasonable and ample opportunity for safe ingress, and he failing to avail himself of that opportunity, but waiting and attempting to board the train as it was moving, providing the pick-pockets with the only opportunity they would have had to relieve him of his valuables, it would not be consonant with any rule of law or any proper idea of justice to hold appellee liable in damages for the loss of this diamond.
■ The manner of the robbery was so. explicitly set forth by appellant in his testimony as to leave no doubt as to how the loss occurred. There was no duty, therefore, upon appellee to explain the circumstances of the loss. There was a total failure of testimony showing culpable
Judgment affirmed.