of privacy for the passenger upon his retirement to rest, an intrusion on which by the servants of the company would be rightfully resented by him. If the company should be held liable to one passenger for a theft committed by another, it must be either upon the ground that it is under the common. law liability of an innkeeper, a view not sanctioned by any court, so far as we are informed, or because, by its contract, it may be fairly said to bind itself to keep watch upon each traveler on its car, which would result in the establishment of a system of intolerable espionage."

It is clear that the decision in the principal case is not in harmony with the authorities above cited. In a note to section 617 d of the second edition of Hutchinson on Carriers it is said of it: "This case is clearly opposed to the great weight of authority, and its force is lessened by the fact that the court treated the question as a new one, which it obviously was not."

LIABILITY FOR FAILURE TO EXERCISE REASONABLE CARE. But while a sleeping-car company is not held to the strict liability of a common carrier or of an innkeeper, it is bound to exercise reasonable care and vigilance to guard the persons and property of its passengers, especially while they are sleeping. It is an obvious fact that a sleeping passenger is exposed to dangers to which he is not exposed when awake, and the sleeping-car company which has invited him to sleep in its car is bound to exercise care in guarding him, commensurate with the danger to which he is exposed. It must therefore keep a vigilant and continuous guard over the aisles in its cars during the night, while its passengers are asleep. 3 Wood's Railway Law, 1448; Blum v. Southern Pullman Palace Car Co., 1 Flip. 500; Woodruff etc. Co. v. Diehl, 84 Ind. 474; 43 Am. Rep. 102; Pullman Palace Car Co. v. Gaylord, 23 Am. Law Reg., N. S., 788; Lewis v. New York S. C. Co., 143 Mass. 267; 58 Am. Rep. 135; Scaling v. Pullman Palace Car Co., 24 Mo. App. 29; Bevis v. Baltimore etc. R. R. Co., 26 Mo. App. 19; Hampton v. Pullman Palace Car Co., 42 Mo. App. 134; Palmeter v. Wagner, 11 Alb. L. J. 149; Carpenter v. New York etc. R. R. Co., 124 N. Y. 53; 21 Am. St. Rep. 644; Pullman Palace Car Co. v. Gardner, 3 Penny. 78; Pullman Palace Car Co. v. Pollock, 69 Tex. 120; 5 Am. St. Rep. 31; Pullman Palace Car Co. v. Matthews, 74 Tex. 654; 15 Am. St. Rep. 873. In the case of Carpenter v. New York etc. R. R. Co., 124 N. Y. 53, 21 Am. St. Rep. 644, Follett, C. J., delivering the opinion of the court, said: "These cars are used by both sexes of all ages, by the experienced and inexperienced, by the honest and dishonest, which is understood by the carriers, and though such companies are not insurers, they must exercise vigilance to protect their sleeping customers from robbery. A trav eler who pays for a berth is invited and has the right to sleep, and both parties to the contract know that he is to become powerless to defend his property from thieves, or his person from insult, and the company is bound to use a degree of care commensurate with the danger to which passengers are exposed. Considering the compensation received for such services, and the hazards to which unguarded and sleeping travelers are exposed, the rule of diligence above declared is not too onerous." Richards, J., in delivering the opinion of the court in Pullman Palace Car Co. v. Gaylord, 23 Am. Law Reg., N. S., 788, 794, said: "These cars are in themselves an invitation to the traveling pub lic to enter and protect themselves against the weariness of a long journey by disrobing and sleeping. The passenger in buying and the company in selling the ticket contemplate that this privilege will be improved. The company accepting compensation under these circumstances impliedly undertakes to keep a reasonable watch over the passenger and his property. The faithful performance of this undertaking is the limit of its duty in this respect. Its

"

breach must be the foundation of every action seeking to charge the company with the loss of articles the passenger has taken with him upon the car.' And Morton, C. J., in delivering the opinion of the court in Lewis v. New York S. C. Co., 143 Mass. 267, 273, said: "A sleeping-car company holds itself out to the world as furnishing safe and comfortable cars, and when it Bells 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 prop. erty he has with him from danger from thieves or otherwise. The law raises the duty on the part of the car company to afford him this protection. While it is not liable as a common carrier or as an innholder, 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 company; and the decided weight of authority supports it."

LIABILITY FOR NEGLIGENCE. - It is well settled that a railway company which accepts and adopts a sleeping-car belonging to a sleeping-car company as a part of its train is liable for the safe carriage of passengers traveling in such car, and if a passenger is injured by reason of the defective condition of the car, he may have his remedy against the railway company as well as against the sleeping-car company. And in the performance of the duties of the railway company under its contract, the servants of the sleeping-car company are to be regarded as the servants of the railway company, for whose acts it is responsible: 3 Wood's Railway Law, 1446; Pennsylvania Co. v. Roy, 102 U. S. 451; Williams v. Pullman Palace Car Co., 40 La. Ann. 417; 8 Ain. St. Rep. 538; Kinsley v. Lake Shore etc. R. R. Co., 125 Mass. 54; 28 Am. Rep. 200; Thorpe v. New York etc. R. R. Co., 76 N. Y. 402; 32 Am. Rep. 325; Dwinelle v. New York etc. R. R. Co., 120 N. Y. 117; 17 Am. St. Rep. 611; Railroad Co. v. Walrath, 38 Ohio St. 461; 43 Am. Rep. 433; Louisville etc. R. R. Co. v. Katzenberger, 16 Lea, 380; 57 Am. Rep. 232. Mr. Justice Harlan, in delivering the opinion of the court in Pennsylvania Co. v. Roy, 102 U. S. 451, 457, said: "The law will not permit a railroad company engaged in the business of carrying persons for hire, through any device or arrangement with a sleeping-car company whose cars are used by the railroad company and constitute a part of its train, to evade the duty of providing proper means for the safe conveyance of those whom it has agreed to convey.' But in Williams v. Pullman Palace Car Co., 40 La. Ann. 87, 8 Am. St. Rep. 512, it was held that the porter of a sleeping-car has no authority to enforce the rules and regulations of the company, or to forcibly prevent any person from entering the car, or to expel him therefrom after he has entered, and that if he wantonly assaults and beats one who enters the car for a lawful purpose, his act is outside of the functions in which he is employed, and the company will not be liable therefor, unless it had expressly or impliedly authorized the act, or been guilty of knowingly employing a dangerous servant. In this case it was held that the sleeping-car company was not liable for a wanton and unprovoked assault made by its porter upon a person who came into the sleeping-car to ask permission to wash his hands; although in the same case, reported in 40 La. Ann. 417, 8 Am. St. Rep. 538, a judgment

for one thousand dollars was rendered against the railroad company for the same act. And where a passenger is wrongfully expelled from the train by the officers of the railroad company operating the road, the sleeping-car company is not liable: Paddock v. Atchison etc. R. R. Co., 37 Fed. Rep. 841. For negligence on the part of a sleeping-car company in the performance of those duties which the law imposes upon it in reference to the care and protection of the persons and property of its customers it is undoubtedly liable. But negligence is the foundation of its liability, and without evidence of negligence on its part it cannot be held responsible: 3 Wood's Railway Law, 1448; Woodruff etc. Co. v. Diehl, 84 Ind. 474; 43 Am. Rep. 102; Lewis v. New York S. C. Co., 143 Mass. 269; 58 Am. Rep. 135; Illinois Central R. R. Co. v. Handy, 63 Miss. 609; 56 Am. Rep. 846; Root v. New York S. C. Co., 28 Mo. App. 199; Tracy v. Pullman Palace Car Co., 67 How. Pr. 154; Carpenter v. New York etc. R. R. Co., 124 N. Y. 53; 21 Am. St. Rep. 644; Pullman Palace Car Co. v. Pollock, 69 Tex. 120; 5 Am. St. Rep. 31; Pullman Palace Car Co. v. Matthews, 74 Tex. 654; 15 Am. St. Rep. 873; Pullman Palace Car Co. v. Smith, 79 Tex. 468; 23 Am. St. Rep. 356. In Lewis v. New York S. C. Co., 143 Mass. 269, 58 Am. Rep. 135, it was held that proof that the porter was found asleep in the early morning, and that he was required to be on duty for thirty-six hours continuously, which included two nights, was sufficient evidence of negligence on the part of the sleeping-car company to justify the submission of the question to the jury. In Carpenter v. New York etc. R. R. Co., 124 N. Y. 53, 21 Am. St. Rep. 644, it was held that evidence that the only person employed on the sleeping-car, which ran over an important thoroughfare, and made stops at several large cities during the night, was a man who acted as conductor and porter, and blacked the passengers' shoes for his own profit, and that this man's closet was at one end of the car, and so situated that he could not from it have a full view of the aisle, was sufficient, in the absence of explanation or evidence by the defendant, to require the question of negligence to be submitted to the jury. And in Pullman Palace Car Co. v. Smith, 79 Tex. 468, 23 Am. St. Rep. 356, the company was held liable for the neglect of its servants to awake the plaintiff and his wife in time to enable them to dress and get off the train at the station of their destination, and for causing them to get off the train at a water-tank half a mile from the station, before daylight, on a damp, cold morning in winter, where they were compelled to stand for a long time in the rain, mud, and cold, not knowing where the station was, the train having moved off before they ascertained that they had not reached the station. NEGLIGENCE NOT PRESUMEd from Mere FACT OF LOSS. From the mere fact of loss of property by a passenger while traveling in a sleeping-car, the negligence of the company cannot be presumed. There must be some proof of negligence to establish its liability: 2 Beach's Law of Railways, sec. 909; Tracy v. Pullman Palace Car Co., 67 How. Pr. 154; Carpenter v. New York etc. R. R. Co., 124 N. Y. 53; 21 Am. St. Rep. 644. In delivering the opinion of the court in the case last cited, Follett, C. J., said: "The mere proof of the loss of money by a passenger while occupying a berth does not make out a prima facie case, and to sustain a recovery some evidence of negligence on the part of the defendant must be given." But see Railroad Co. v. Walrath, 38 Ohio St. 461, 43 Am. Rep. 433, where it was held that upon proof of injury sustained by a passenger on a railroad train, by the fall of a berth in a sleeping-car, and that the passenger was without fault, a presumption arises that the railroad company is liable.

CONTRIBUTORY NEGLIGENCE ON PART OF PASSENGER DEFEATS RECOVERY. - If a passenger, by his own negligence, contributes to the loss of his property, he cannot recover from the sleeping-car company for such loss: Hillis v. Chicago etc. R'y Co., 72 Iowa, 228; Whitney v. Pullman Palace Car Co., 143 Mass. 243; Illinois Central R. R. Co. v. Handy, 63 Miss. 609; 56 Am. Rep. 846 Pullman Palice Car Co. v. Matthews, 74 Tex. 654; 15 Am. St. Rep. 873. In the' case of Hillis v. Chicago etc. R'y Co., 72 Iowa, 228, the plaintiff had five hundred dollars in an envelope in his overcoat pocket. He handed the overcoat to the porter of the sleeping-car, who hung it up in his berth. Afterwards an accident occurred, and the car was thrown on its side and set on fire. The plaintiff then informed the conductor and the porter that the money was in his overcoat pocket. After the fire was extinguished and the car was righted, the coat was recovered, but the money was gone. It was held that the plaintiff could not recover, there being no evidence of gross negligence on the part of the defendant. In Whitney v. Pullman Paluce Co., 143 Mass. 243, the plaintiff, at a stopping-place, left a small satchel on the ledge of the window of the sleeping-car, where it could be reached froin the outside, through the adjoining window, which was open. Without placing the satchel in the care of the servants of the company, the plaintiff left the car, and remained outside for ten minutes, and when he returned the satchel was gone. He was held to have been guilty of such contributory negligence as would bar a recovery. In the case of Illinois Central R. R. Co. v. Handy, 63 Wis. 609, 56 Am. Rep. 846, Cooper, C. J., delivering the opinion of the court, said: "If the appellee carelessly and negligently left his pocket-book on the car when he reached his des tination, and its contents were abstracted by persons other than the servants of the company, there would be no liability on the part of the company." And in Pullman Palace Car Co. v. Matthews, 74 Tex. 654, 15 Am. St. Rep. 873, Henry, A. J., in delivering the opinion of the court, said: "The position in which plaintiff left his money was unquestionably an act of negligence on his part, and if the evidence did not so conclusively exclude the idea of its having been taken by anybody except the servants of defendant, who were in charge of the car, he ought not to have had a recovery because of his own negligence."

THEFTS BY SERVANTS OF COMPANY, LIABILITY FOR. A sleeping-car company is, however, liable for property stolen from its customers, whether such customers have been negligent or not, where the property stolen consists of articles such as are usually carried by travelers on a journey, or of a sum of money reasonably necessary for the expenses of the journey: Illinois Central R. R. Co. v. Handy, 63 Miss. 609; 53 Am. Rep. 846; Root v. New York Central S. C. Co., 28 Mo. App. 199; Pullman Palace Car v. Matthews, 74 Tex. 654; 15 Am. St. Rep. 873. Thompson, J., delivering the opinion of the court in Root v. New York Central S. C. Co., 28 Mo. App. 207, said: "A sleepingcar company. . . . is liable for the thefts of its servants to the extent of the necessary baggage or money of the traveler, regard being had to the character, duration, and purposes of the journey, whether the traveler has been negligent in exposing such baggage or money so as to tempt the cupidity of its servants or not. In such a case contributory negligence of the passenger would not be regarded as the proximate or juridical cause of the injury. The luty of the defendant, through its servants, would be to protect the passenger's property, although discovered in an exposed situation where his carelessness may have left it." And Cooper, C. J., delivering the opinion of the court in Illinois Central R. R. Co. v. Handy, 63 Miss. 609, 56 Am. Rep. 846, said: "The company is responsible to its patrons for the conduct of its em

ployees as to any property as to which it is brought into contract relations with its owner. But as to any other property, whether owned by a passenger or a stranger, it has no sort of connection, and as to such it lies under no greater obligation than it owes to property of all other persons, the measure of which is fixed by the maxim, Sic utere tuo ut non alienum lædas. The extent to which liability has been fixed in cases of this sort has not been held to include anything except the clothing, ornaments, and such articles as are usually carried by travelers in their hands, together with a sum reasonably sufficient for the expenses of the journey in which one is engaged."

For

LIMIT OF COMPANY'S LIABILITY. - A sleeping-car company's liability for loss through its negligence 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. the loss of anything beyond this the company is not liable: Rorer on Railroads, 987; 2 Beach's Law of Railways, sec. 909; Hutchinson on Carriers, 24 ed., sec. 617 f; 13 Alb. L. J. 221; Blum v. Southern Pullman Palace Car Co., 1 Flip. 500; Bevis v. Baltimore etc. R. R. Co., 26 Mo. App. 19; Root v. New York Central etc. R. R. Co., 28 Mo. App. 199; Wilson v. Baltimore etc. R. R. Co., 32 Mo. App. 682; Hampton v. Pullman Palace Car Co., 42 Mo. App. 134; Illinois Central R. R. Co. v. Handy, 63 Miss. 609; 56 Am. Rep. 846. In Hampton v. Pullman Palace Car Co., 42 Mo. App. 134, the plaintiff sued to recover for the loss, among other things, of certain articles of dress which she had intended to use while on a visit which she contemplated making, but which she did not make because her friend failed to meet her at the railway station. The company contended that it was not liable for the loss of those articles, but Ellison, J., who delivered the opinion of the court, said: "But the point is made that she can only recover of a sleeping-car company for what was necessary or convenient for her use while traveling upon the car and while making the journey. If this point were allowed, it would certainly restrict the liabilities of these companies to an exceedingly narrow limit. If a female passenger is only to be protected in the property which is necessary and convenient for her use while making the trip, her necessities, for all ordinary trips, would be restricted to the clothes, jewelry, and necessary expense money which she would have on her person when entering the car, with the addition of a sleeping-robe. Nothing is, perhaps, better known than that the traveling public carry with them valises containing articles of baggage, not merely necessary for use while on the car, but for use after leaving the car. And so it is known and understood throughout the country that sleeping-car companies invite travelers into these cars with such baggage, receiving the passenger with it, as a part of his belongings. They say to him, in effect: Bring such baggage into our car, and trust to us while you sleep. I am, therefore, satisfied that the liability of sleeping-car companies should extend to, and be made to cover, such articles of baggage as are ordinarily or usually carried by travelers, in like situation, in valises which they carry with them into the car under such invitation."

PROPERTY NOT IN CUSTODY OF COMPANY WHEN. - Money in a passenger's clothing worn during the day, and placed under his pillow at night, is not to be considered as in the custody of the sleeping-car company which furnishes the passenger with a berth in its car: 2 Rorer on Railroads, 887; Lewis v. New York S. C. Co., 143 Mass. 267; 58 Am. Rep. 135; Carpenter v. New York etc.

R. R. Co., 124 N. Y. 53; 21 Am. St. Rep. 644.

AM. ST. REP., VOL. XXVI-22