Beard, Justice.
Action by defendant in error against plaintiff in error to recover the value of a suit case alleged to have been lost through the carelessness of defendant. Judgment for plaintiff, and defendant brings error.
Plaintiff below alleged in his petition (so far as necessary to here state) “That on or about the 12th day of January, 1910, plaintiff purchased for himself and for his wife first-class passenger tickets from the Union Pacific Railroad Company, a common carrier, which tickets entitled plaintiff and his wife, with their baggage, to be conveyed from Denver, Colorado, to Cheyenne, Wyoming, over the railroad of the defendant. That on said dat,e, in consideration of the sum then paid to it by plaintiff, the plaintiff and his wife were received by the defendant as passengers for the purpose of being carried, with their baggage, on the railroad in a certain train from Denver to Cheyenne. That plaintiff and his wife boarded said train at Denver, at said time, with his baggage consisting of a suit case and contents thereof,” (describing the same and values) “and placed said suit case and contents thereof in a car of said train in which *458plaintiff and his wife were located, as aforesaid, for the purpose of conveying said baggage from Denver to Cheyenne. That upon the arrival of the train in Cheyenne, the defendant, by its said agent and emploj^ee, took plaintiff’s said baggage from plaintiff and carried it out of the said car, and plaintiff and his wife got off of said car, but the defendant, through its said servant and agent, negligently and carelessly lost or retained said baggage and did not deliver said baggage to this plaintiff when plaintiff got off of said train, or within a reasonable time thereafter, or at all, although plaintiff was then and there ready and willing to receive said baggage, and demanded the same.from defendant. That on account of the negligence and carelessness of the defendant, through its said employee, as above set forth, plaintiff’s baggage has been wholly and totally lost, and plaintiff has not been reimbursed for the value of the same.” The answer of defendant was a general denial.
The case was tried to the court, without a jury, and there was a general finding in favor of plaintiff. The only witness on behalf of plaintiff was the plaintiff himself. He testified, in substance, that he did not check the suit case, but had it in his possession on the floor near his seat in the parlor car in which he was riding until the train arrived in Cheyenne. That he paid extra fare for riding in the parlor car, and thought he paid it to the train conductor. That he did not remember of seeing any Pullman conductor. That there was a person on the parlor car he supposed was a porter because he looked after the people on the car and was the only person on there to look after people. That he (said porter) carried our„suit cases in, and he served meals and lunches on the car and waited on us in general as porters do on trains; that he did the cooking, and plaintiff and wife had dinner served by him, and when the train arrived at Cheyenne, he took off the suit cases. “Pie come to me along about the last, and I says: ‘I’ll carry it out;’ and he said: ‘I’ll take it out.’ I had been sick and I supposed he saw I was sick and wanted to carry it out for me, so I let him take it. He took the suit case out of my hand and *459started toward the door with it.” Witness did not remember seeing him any more until he got off the train. Did not see where he placed the suit cases of passengers, including plaintiff’s, when he carried them toward the door, nor did he see other passengers take their suit cases from the vestibule of the car when he got off. That he was about the last one, if not the last one out, and when he asked this porter who was standing where he got off for his suit case it was gone. Over the objection of defendant, the witness was permitted to testify, that when he got off the car and asked for his suit case and it was not there, the porter remarked in words to the ,effect “that he saw somebody that might have taken the suit case, and that he would run and see if he could see him.” That he returned in three or four minutes and said: “He could not find the man he referred to.”
On the trial to avoid a continuance applied for by defendant, the plaintiff admitted that if Mayweather, the person mentioned by plaintiff in his testimony as the porter, were present he would testify that he (Mayweather) was employed on the parlor car in which plaintiff was riding, as cook; that his only duty was to cook any meals which passengers might order from him; that it was no part of his duty to receive any baggage for and on behalf of the defendant; that he did not at any time receive the suit case from plaintiff for and on behalf of defendant; that when the train reached Cheyenne, he gratuitously assisted the passengers, at their request, in carrying their hand baggage •from their respective seats into the vestibule of the car, at the end of the car from which all passengers made their exit; that he assisted plaintiff by carrying his suit case into the vestibule, and deposited it there with the hand baggage of other passengers, and having done so went back into the car to assist other passengers in like manner; that he did not steal the suit case; that if it was stolen, it was while he was attending to other duties as cook in said car; that plaintiff followed him to the vestibule when he had said suit case and other hand baggage and saw him deposit it there *460and saw him return into the car; that he does not now, nor never did know what became of it after he deposited it in the vestibule; that he never thought he saw somebody other than plaintiff with it; that he did not run off to see if he could get some one, or come back and say he did not see the fellow; that he never asked plaintiff to place the suit case in his charge; and that the train left Denver about four o’clock p. m. and arrived in Cheyenne about eight o’clock the same evening. The foregoing is, we think, a fair summary of all the evidence in the case.
There are two reasons apparent from the pleadings and the evidence in this case why the railroad company cannot be held liable as a common carrier. The plaintiff alleged in his petition that the contract entitled himself and wife, with their baggage, to be conveyed from Denver to Cheyenne, “and were conveyed on said train from Denver to Cheyenne”; thus alleging full performance by the company of its contract. In the second place, both the petition and the evidence negative a delivery of the suit case to the company for transportation; but discloses that if delivered to it at all it was for the special purpose of assisting the plaintiff to remove his baggage from the car. Numerous cases bearing upon the question involved have been cited by respective counsel, but one more nearly in accord with the facts of this case than any of those cited is the recent case of Hasbrouck v. N. Y. C. & H. R. R. Co., 202 N.Y. 363" court="NY" date_filed="1911-06-13" href="https://app.midpage.ai/document/hasbrouck-v--nyc-hrrr-co-3604967?utm_source=webapp" opinion_id="3604967">202 N. Y. 363, 95 N. E. 808, 35 L. R. A. (N. S.) 537, Ann. Cas. 1912 D, 1150. In that case a lady passenger requested the conductor to send some one to take her suit case off the train at Rochester, where she was to take another train. About ten minutes later a trainman wearing, the usual badge of his position on his cap, came to her and asked if she was the lady who had made the request of the conductor and if she was through with her suit case, when she asked: “Is this Rochester?” he said: “Yes, if you are through with your suit case I will take it.” Believing the train was about to stop at Rochester she allowed him to take her suit case, which he carried to the rear of the car, as she was facing *461toward the front. Soon after she saw him pass through to the front of the car, lock the door to the toilet room and walk back again* to the rear. During this time the train was in motion and ten or fifteen minutes elapsed between the delivery of the suit case and the arrival of the train at Rochester. When the train stopped the trainman stood at the foot of the step at the rear of the car, which was not a Pullman, but an ordinary coach. In the case here the car was a parlor car, but was running in the daytime as a day car. It was not a sleeping car. (Whicher v. Boston & Albany Railroad, 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, 57 N. E. 601, 79 Am. St. Rep. 314). He did not help her off, but handing her the suit case, said: “Here’s your grip.” The suit case was not locked. A little later she found it had been rifled of part of its contents. The plaintiff introduced in evidence certain rules of the company and other evidence as to the duties of the trainmen. The court in its opinion said:
“The conclusion of the trial court that the trainman was acting within the line of his duty when he took the suit case of the plaintiff in order to help her off the train was warranted by the evidence. ***** In furnishing the assistance which he assumed to afford to the passenger he was obliged only to discharge that duty so as not to conflict with a similar obligation to other passengers, and if for that reason he could not have given the suit case undivided attention and it had been rifled without any negligence on his part the defendant would not have been negligent, but in this case there is no explanation offered whatever of how the loss occurred.”
The trial court found that the defendant negligently cared for the suit case; and on that question the court said:
“There is nothing to show what care the trainman bestowed upon the suit case, and in the absence of any proof on the subject the trial court or the jury would be allowed to infer that it had been occasioned by negligence. * * * * As the trainman was acting within the scope of his employment when he took the suit case, in legal effect it was the same as if the defendant, personified, had taken it. *462(Bunnell v. Stearn, 122 N.Y. 539" court="NY" date_filed="1890-12-02" href="https://app.midpage.ai/document/bunnell-v--stern-3621133?utm_source=webapp" opinion_id="3621133">122 N. Y. 539, 543, (25 N. E. 910, 10 E. R. A. 481, 19 Am. St. Rep. 519). Therefore, the plaintiff’s property was lawfully in the possession of the defendant and the question arises what was its duty in reference thereto. Its possession was not that of a carrier, because the suit case had not been checked as baggage nor entrusted to it for the journey, but only for the special purpose of aiding a lady passenger in getting off the train in accordance with a custom established by itself and, hence, it was not liable as an insurer. Its possession was that of a bailee, and the law of bailments measures its obligation to the plaintiff in regard to her property.” In that case the defendant offered no evidence. How the loss occurred was in no way explained, nor was it shown what care was taken of the suit case by the trainman. In the case before us the plaintiff’s suit case was not delivered to the defendant for transportation as baggage, but was retained in the possession and under the control of plaintiff until the train arrived at Cheyenne ; and the service offered by Mayweather and accepted by plaintiff was to assist him in removing his hand baggage from the car, a service which, in the circumstances, the defendant was under no contractual obligation to render. Had Mayweather been requested by plaintiff to carry his suit case out of the car and he had refused to do so, we think it quite clear that no action for damage for a breach of the contract alleged in the plaintiff’s petition could be maintained. It was admitted on the trial, that, if present, May-weather would testify that he was not authorized to receive baggage for and on behalf of defendant and that he did not receive the suit case as baggage for and on its behalf. The only evidence of his authority or of any custom established or permitted by defendant authorizing, him to do so was the testimony of plaintiff that on this occasion he carried our suit cases in, and looked after the passengers in general as porters do on trains; that he was the only person on the car to look after the passengers; and that plaintiff supposed he was a porter. But assuming the evidence sufficient to establish the fact that he was a porter on the *463car for whose acts in relation to passengers’ hand baggage the defendant was responsible, the question still remains, was he negligent in doing what he did?' When the train arrived at Cheyenne he assisted the passengers, including plaintiff, by carrying their hand baggage from their respective seats in the car to the vestibule at the end of the car at which they made their exit, and placed the baggage there. It is apparent that he could not have given any particular piece of baggage his undivided attention; and it is probable that plaintiff’s suit case was taken by some one else in passing through the vestibule on leaving the train. To hold the defendant liable for the loss of the suit case in this case would in effect be a holding that it was an insurer, which it was not. Ordinary care did not require the defendant to see to it that no passenger took from the car other baggage than his own. It was so held in Springer v. Pullman Co., 234 Pa. St. 172, 83 A. 98" court="Pa." date_filed="1912-01-01" href="https://app.midpage.ai/document/springer-v-pullman-co-6250988?utm_source=webapp" opinion_id="6250988">83 Atl. Rep. 98. .“To so hold would be to impose upon the company the duty of seeing that no passenger left the car with any baggage except his own, which again would be virtually making the carrier an insurer, besides subjecting the passengers to a scrutiny and surveillance which the ordinary traveler would have a right to resent. We cannot think that the ordinary care exacted of the carrier requires any such officious interference as this.” There is no evidence in the present case showing, or tending to show, that the cafe taken of the suit case by May weather was not such as is usually and ordinarily taken of such property under similar circumstances. It may be that, in the absence of any evidence as to the care taken of the property while in the possession of a bailee, the proof of its loss creates an inference of negligence; but when it is made to appear what care was taken, and it is not shown that such care was not reasonable care, no such inference can be indulged in. We have not deemed it necessary to determine whether the defendant was a gratuitious, or an ordinary bailee, as in our opinion the evidence is insufficient to warrant the conclusion that reasonable and ordinary care was not exercised in this instance.
*464As to the error assigned in admitting the remarks of Mayweather after the loss was discovered, we do not think the evidence was material. The first remark was the mere expression of an opinion as to how the loss might have occurred, and the other remark had no connection with the circumstances of the loss, and was evidently not considered at all important by the court, for in ruling on the objection the court remarked: “I cannot see that it is very material.” There were no special findings of fact or conclusions of law made by the court, and we are not advised upon what theory the court based its judgment; whether it considered that the suit case was in the possession of defendant as a common carrier and therefore liable as an insurer, or that defendant had not exercised reasonable care. In either case we are of the opinion that the evidence is insufficient to support the judgment. ,
The judgment of the District Court is reversed and the cause remanded.
Reversed.
Scow, C. J., and Potter, J., concur.