Pinkus v. Pittsburgh, etc., R. Co.-65 Ind. App. 38. pellant the advantage of the statute to which she is entitled, and render unnecessary her third paragraph of answer. For the reasons indicated, the judgment below is reversed, with instructions to the trial court to overrule the demurrer to said second paragraph of answer to the third paragraph of complaint, and for such other proceedings as are consistent with this opinion. NOTE.-Reported in 116 N. E. 748. Limitation of actions: note barred by statute, effect on mortgage, 60 Am. St. 201, 25 Cyc 1001. PINKUS V. THE PITTSBURGH, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY ET AL. [No. 9,090. Filed November 9, 1916. Rehearing denied April 20, 1917. Transfer denied June 20, 1917.] 1. APPEAL.-Briefs.-Sufficiency.-Waiver of Error.-Where appellant's briefs set forth a mere abstract proposition of law which is not applied to a question sought to be raised, the question is waived. p. 41. 2. APPEAL.-Review.-Presumption.-A ruling of the trial court is presumed to be correct until the contrary is affirmatively shown. p. 41. 3. APPEAL.-Review.-Harmless Error.-Directing Verdict.—In a passenger's action against a railway company and a sleeping car company for the loss of jewelry through the negligence of the sleeping car company, error, if any, in directing a verdict in favor of the railway company was harmless to plaintiff where the jury by its verdict exonerated the sleeping car company from negligence, since the sleeping car company, the railroad's servant, being free from negligence, the master could not have been found negligent. p. 43. 4. CARRIERS.-Carriage of Passengers.-Passenger's Effects.Conversion.-Sufficiency of Evidence.-Delivery to Carrier.— Where a passenger on a sleeping car did not part with the possession of a box containing jewelry, but merely placed it, with the knowledge of the carrier's servants, in an upper berth above the one occupied by herself, the carrier was not liable for conversion for loss of the jewelry. p. 44. 5. CARRIERS.-Carriage of Passengers.-Transportation of Passenger's Personal Effects.-Duty of Carrier.-Where a pas Pinkus v. Pittsburgh, etc., R. Co.-65 Ind. App. 38. senger's ordinary personal effects are retained in his possession, the carrier is not an insurer of their safety, but is liable only for loss occasioned by failure to exercise reasonable care and caution to protect the same from loss or injury. p. 46. 6. CARRIERS.-Carriage of Passengers.-Transportation of Passenger's Personal Effects and Money.—Duty of Carrier.—When a passenger, without the knowledge of the carrier, has in his possession and control large sums of money or other property of exceptional value, the carrier is not liable for loss or injury thereto, as the carrier, under its contract of carriage, assumes no obligation as to articles of property which form no part of the passenger's ordinary luggage or personal effects. p. 46. 7. APPEAL.-Review.-Harmless Error.-Argument of Counsel. -Reading from Document Not in Evidence.-The fact that counsel in argument, over objection, read questions to and answers by the opposing party on cross-examination from an examination taken out of court before trial, and commented upon the same, was not prejudicial error, although the examination itself was not put in evidence, where the identical questions and answers referred to by counsel had gone into the record on cross-examination of the party at the trial. p. 48. 8. APPEAL.-Review.-Harmless Error.-Limiting Argument of Counsel.-In a passenger's action against a carrier to recover for the loss of personal effects, it was not prejudicial to plaintiff to refuse her counsel permission to discuss the law relative to the validity of a provision in a passenger's check issued by defendant that "property taken into car will be entirely at owner's risk," where counsel was informed that he could read the instructions of the court as the law of the case and apply it to the facts, such instructions, although not referring specifically to the check or its contents, having correctly stated defendant's liability for the loss of the passenger's effects. p. 48. From Marion Circuit Court (22,440); Charles Remster, Judge. Action by Leah G. Pinkus against The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company and another. From a judgment for defendant, the plaintiff appeals. Affirmed. L. E. Ritchey, for appellant. MORAN, J.-On February 1, 1913, appellant and her husband took passage at Indianapolis on a Pullman car Pinkus v. Pittsburgh, etc., R. Co.-65 Ind. App. 38. sleeper reserved for Jacksonville, Florida, enroute to the Panama Canal. The car was owned and in charge of the servants of appellee The Pullman Company to be transported over appellee The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company's line of railroad. Upon reaching Louisville, Kentucky, in the course of her journey, appellant discovered that a small box and its contents, consisting of four rings and a lavaliere, all set with diamonds, which appellant carried with her as a part of her luggage, and of the probable value of $5,000, were missing. This action was instituted to recover the value thereof. The complaint as filed was in three paragraphs; the first was upon the theory that appellant purchased transportation and Pullman accommodations for a direct and continuous trip from Indianapolis, Indiana, to Jacksonville, Florida, in the Pullman car; and on account of the negligence of appellees, appellant and her husband were compelled to hastily leave the train and Pullman car at Louisville, Kentucky, and by reason of the negligence of appellees in not carrying appellant to her destination, as agreed, appellant was compelled under stress of haste and excitement to leave the car and prevented from removing her jewelry therefrom. The theory of the second paragraph is that the jewelry was removed and stolen from an upper berth in the car, where it was placed with the assistance and knowledge of the porter of the Pullman car, through the negligence of the servants in charge of the car in failing to keep the proper watch and to exercise due care of appellant's property. The third paragraph charges appellees with the conversion of the jewelry. An issue of fact was joined as to each paragraph of complaint by an answer of general denial being addressed thereto and, upon submission of the issues thus joined to a jury for trial, a verdict was returned for appellee The Pullman Company. From a judgment on Pinkus v. Pittsburgh, etc., R. Co.-65 Ind. App. 38. the verdict appellant seeks a review thereof, assigning as error the overruling of her motion for a new trial. The court on its own motion, after the close of the argument of counsel, and by an instruction, withdrew from the consideration of the jury the first para1. graph of complaint, and directed a verdict in favor of appellee The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. Appellant in her brief under points and authorities seeks to question the action of the court in withdrawing from the consideration of the jury the first paragraph of complaint, in the following manner: "Where there is some evidence in support of one or more paragraphs of complaint, an instruction given to the jury as above is erroneous." This as an abstract proposition of law may well be conceded, but there is no attempt to apply it to the question sought to be raised, nor has our attention been directed to any evidence in support of the same. It is therefore waived. Further, it must be presumed that there 2. was no evidence supporting the issue joined as to the first paragraph of complaint, as the ruling of the trial court must be regarded as correct until it affirmatively appears to the contrary. Elliott, App. Proc. §710. As to the giving of the instruction directing a verdict in favor of appellee The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company, appellant presents the same for our consideration under her motion for a new trial, having properly excepted to the giving thereof. The complaint alleges that both appellees are separate corporations, and upon trial of the cause it was agreed by the parties that appellee The Pullman Company was the owner of the car upon which appellant took passage, and that the car was in charge of the employes of this company. It has been held upon good authority that: "A railroad company is not relieved from liability for Pinkus v. Pittsburgh, etc., R. Co.-65 Ind. App. 38. the loss of the baggage of a passenger upon its train by the fact that, at the time of loss, he occupied space in the sleeping car, which belonged to another company, if the car was in fact a part of the train, and was employed by it in performing its contract of transportation, for the agents and servants of the sleeping car company are regarded by the law as agents of the railroad company for the purposes of the contract for transportation, and the law will not permit a railroad company through any device or arrangement with the sleeping car company whose cars constitute a part of its train to escape the liability incurred by its contract.” 5 R. C. L. 183; Kinsley v. Lake Shore, etc., R. Co. (1878), 125 Mass. 54, 28 Am. Rep. 200; Nelson v. Railroad Co. (1910), 98 Miss. 295, 53 South. 619, 31 L. R. A. (N. S.) 689; Railroad Co. v. Katzenberger (1886), 16 Lea (Tenn.) 380, 1 S. W. 44, 57 Am. Rep. 232; Calder v. Southern Railway (1911), 89 S. C. 287, 71 S. E. 841, Ann. Cas. 1913A 894. In Pennsylvania Co. v. Roy (1880), 102 U. S. 451, 26 L. Ed. 141, in speaking of the relation that the conductor and porter of a Pullman car bore to the railroad company, Justice Holmes said: "Their negligence, or the negligence of either of them, as to any matter involving the safety or security of passengers, while being conveyed, is the negligence of the railroad company." And further, it is said in 5 R. C. L. 183: "In cases where an injury occurs in a sleeping car the railroad and the sleeping car company are held to be jointly and severally liable." The evidence discloses that appellant throughout her journey from Indianapolis to Louisville was under the care of the servants of appellee The Pullman Company, and, so far as the duties to be performed within the car where appellant and her husband were being transported were concerned, the evidence does not disclose |