compelled her to leave that berth and take another, and this, in my judgment, gave cause of action. In estimating the damage to which appellee would be entitled, a cause of action existing, it would be proper to take into consideration on the one side the rude, unnecessary, and offensive behavior of the company's servants, and on the other the acts of appellee or his wife, tending to induce the belief on the part of the servants that their relation was not that of husband and wife. I think the motion for rehearing should be granted, and, there being no claim that the damages awarded are excessive, that the judgment should be affirmed.

Duty of Sleeping Car Companies to sell Berths. A sleeping car company has the right to sell a whole section to one person, and no cause of action arises from the refusal of its conductor to sell the upper berth in such section to another passenger, though that berth was in fact unoccupied. Where a berth in a sleeping car has been sold for occupancy to a certain point, no cause of action arises for the refusal of the conductor, before that point is reached, to sell another person a ticket entitling him to such berth from there to the end of the journey. Searles v. Mann Boudoir Car Co., 45 Fed. Rep. 830.

Liability of Sleeping Car Company for Torts of Servants-Discharging Pas sengers at Place not a Station.--In Pullman P. Car Co. v. Smith, (Tex., Dec. 12, 1890), 14 S. W. Rep. 993, it appeared that plaintiff and his wife occupied berths in a sleeping car. At 5 o'clock A. M. the train stopped at a water tank a half mile from their destination. The porter and conductor of the sleeping car awoke them suddenly, and told them they were at the depot. They were hurried off, partially dressed, and the train left them before they discovered where they were. The exposure resulted in injury to the wife's health. Held, that the sleeping car company having offered no evidence of the duties of its servants, and the usages and rules in force on its cars, it will be presumed that the conductor and porter were acting within the scope of their employment and that the company was liable. The court said: "While it is true that the contract for carriage was with the railroad company, and not with the defendant, and that the railroad company was under obligations to plaintiff, as a carrier, for which it would have been liable to him for damage if it had failed in its duty, it still remains to be said that the defendant also owed certain duties to the passengers. Pullman Palace Car Co. v. Pollock, 69 Tex. 120, 34 Am. & Eng. R. Cas. 217; Pullman Palace Car Co. v. Matthews, 74 Tex. 654. The evidence shows that the Pullman car was hauled by the railroad company, and that the porter and conductor on the sleeping car were the servants, and under the control, of the sleeping car company. The record contains no evidence with regard to rules, regulations, or usages relating to the transportation of passengers on such cars. It does show that the defendant, and not the railroad company, received the compensation for and undertook to furnish the sleeping accommodations, and that they at least were under the exclusive control of the defendant. Whatever may be the duty of the railroad company with regard to notifying its passengers, including such as may be in the sleeping car, of its arrival at the station to which they are destined, we are not able to conclude that the servants of the defendant owe no such duty to the sleeping passenger; on the contrary, we think that the obligation to awake and notify the passen ger in time for him to prepare to safely and comfortably leave the train at

the point of his destination is directly involved in the contract for the use of the sleeping berth. In this case, the servant of the defendant assumed the discharge of that duty, and from that fact, as well as the failure of the defendant to introduce any evidence explaining what the duties of its servants were, or as to what are the usages and rules in force on its cars, it may properly be presumed that the servant of defendant was acting within the scope of his employment. There can be no doubt that the negligent discharge of the duty resulted in damage to the plaintiff. The judgment is affirmed."

CARPENTER

V.

NEW YORK, NEW HAVEN & HARTFORD R. Co.

(New York Court of Appeals, Second Division, January 14, 1891.) Sleeping Car--Loss of Passengers' Valuables-Negligence. A corporation engaged in running sleeping cars, with sections separated from the aisle only by curtains, is bound to have an employe charged with the duty of continually watching the interior of the car while berths are occupied by sleepers. Accordingly, where a passenger's money is stolen from his berth, and it appears that the only employe kept in the car while it ran from New York to Boston, making frequent stops, was a man who acted as conductor, porter and bootblack, the company is liable to an action therefor.

APPEAL from an order of the general term of the court of common pleas in the city of New York reversing a judgment of the general term of the city court, which affirmed a judg ment dismissing the complaint on the merits, with costs, entered on an order at the trial term. The defendant, a railroad corporation, is a carrier of passengers over its line between the cities of New York and Boston, and runs sleeping cars, with the usual accommodations. July 6, 1885, the plaintiff paid his fare, and $1.50 for a berth from New York to Boston, and took passage on a train that left the Grand Central station at half past 10 o'clock in the evening. He was assigned the lower berth in section 10 of the sleeping car "Boston," and went immediately to bed. A colored porter was in charge of the car, to whom the plaintiff gave his passage and sleeping car tickets. He testified that he undressed and placed his pocket book, containing $40 in money, in his inside vest pocket, and then placed that garment under the pillow next to the window. He slept soundly and without waking until about 6 o'clock in the morning, when the train was near Boston. Seeking his vest, he found it under the pillow next to the passage way, with his pocket book in the pocket, but the money had been stolen. His watch, which was in another pocket of the garment, and about $3 in silver, in a third pocket,

were not taken. When the plaintiff went to bed the berth over him was occupied by a stranger, but it was unoccupied when he got up. On discovering his loss, he called the porter, and acquainted him with the fact.

Henry W. Taft, for appellant.
Fabish Holmes, for respondent.'

loss of pas

senger's money

FOLLETT, C. J.-Money necessary for the payment of the expense of a journey undertaken, which is carried in the trunk of a passenger, is part of his baggage, and if Liability for lost while in the custody of a carrier for transportation, it is liable. Merrill v. Grinnell, 30 N. Y. 594; Fairfax v. New York Cent. & H. R. R. Co., 73 N. Y. 167; 2 Redf. R. R. 59. But carriers do not undertake to carry and safely deliver the effects of trav elers not delivered into their custody, and it cannot be held that money in a passenger's clothing worn during the day, and placed under his pillow at night, is in the custody of the corporation which carries and furnishes travelers with berths in sleeping coaches. Lewis 7. New York Sleeping Car Co., 143 Mass. 267, 28 Am. & Eng. R. Cas. 148; 2 Ror. R. R. 987. 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. The negligence complained of is that none of the defendant's employes were continually on guard in the car in a position to observe the movements of all persons in the passage way between the sections. A corporation engaged in running sleeping coaches, with sections separated from the aisle only by curtains, is bound to have an employe charged with the duty of carefully and continually watching the interior of the car while berths are occupied by sleepers. Car Co. z. GardNegligence of ner, 3 Penny (Pa.), 78. These cars are used by company run 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. Ä traveler 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 trav elers are exposed, the rule of diligence above declared is not

ning sleeping

car.

too onerous. Did the plaintiff give evidence which would have authorized the jury to have found that the defendant did not discharge this duty to the plaintiff? The car in which the plaintiff rode was constructed with a passage way through the centre, with sections on each side, each section containing two berths. These sections were separated from each other by movable wooden partitions, and from the aisle by two curtains, which were closed when a berth was occupied. At one end of the car was a toilet for ladies, shut off from the passage way by a swinging door. On one side of the other end of the car was a toilet for gentlemen, opposite to which was the porter's closet. A full view of the main aisle could not be had from all parts of the space at the end last described. The train stopped at eight cities, to take up and set down passengers, staying at New Haven twelve minutes, and at Springfield four. The undisputed evidence is that the entire force employed on the sleeper, which ran over an important thoroughfare, and made frequent stops, was one man, who acted as conductor, as porter, and was also engaged for his own profit in blackening the shoes of the passengers. Whether this employe had that part of the sleeper which is for the common use of passengers and the servants of the corporation constantly in view during the trip is not shown by the evidence except inferentially. The facts hereinbefore referred to-that the car ran over an important route, through and stopping at eight considerable cities; that but one person was employed on the car; the services rendered by him for the defendant, and those which he was at least permitted to render to passengers for his own profitaffirmatively appear, and in addition, it may well be presumed that he assisted passengers in entering and leaving the coach at intermediate stations. The existence of these facts was not denied, nor was any explanation of them offered. The defendant gave no evidence. Under the circumstances the evidence was sufficient to put the defendant to proof of the care which it took of the occupants of the sleeper on this trip, and, in the absence of any explanation on its part, it was sufficient to require the question whether the loss was caused by the defendant's negligence to be submitted to the jury. The order should be affirmed, and judgment absolute rendered against the appellant with costs. All concur.

Liability of Sleeping Car Company for Loss or Theft of Passenger's Effects -See Pullman P. Car Co. v. Lowe (Neb.), 40 Am. & Eng. R. Cas. 637, note 644 and authorities cited.

CHICAGO, ST. LOUIS & NEW ORLEANS R. Co.

Contract Between Sleeping Car Company and Railroad Company-Loss by "Accident or Casualty"-Fire.-A railroad company is liable for the loss of sleeping cars by fire, originating from a cause unknown, under a contract with a sleeping car company which owns such cars, by which the railroad company running them assumed responsibility for damages to the cars occasioned by "accident or casualty."

Same-Effect of Collection of Insurance by Sleeping Car Company.—The collection by a sleeping car company of the insurance money for cars destroyed by fire while in the possession of a railroad company liable for such destruction, does not affect or impair the right of the sleeping car company to recover the amount of the loss according to the contract with the railroad company. Upon payment of the loss, or to the extent of any payment by them on account of the loss, the insurance companies were subrogated to the rights of the insured, and could, in his name or in their joint names, maintain the action against the railroad company for indemnity.

Same-Stipulation for Exclusive Rights--Restraint of Trade-Public Policy. A stipulation in a contract between a sleeping car company and a railroad company, that the former shall have the exclusive right for fifteen years to furnish drawing room and sleeping cars for the railroad company's use, does not render the contract void as being in general restraint of trade, or against public policy. The contract is to be interpreted in view of the condition implied by law, that the sleeping car company should furnish cars not only adequate and safe, but sufficient in number for the use of the public travelling over the lines of the railroad company,

Same-Destruction of Car in Railroad Company's Yard-Liability of Rail road Company Under Contract.-Under this contract, the sleeping car company was to place a designated number of cars at the disposal of the railroad company, which became responsible for damages to such cars while they were on its road or in its shops undergoing repairs. Held, that the railroad company is liable for the destruction by fire of a car which had a few hours before come from active service on the road, and which had been placed in the railroad company's yard awaiting a trip the following day.

Same-Liability for Destruction of Car in Exclusive Possession of Sleeping Car Company. The railroad company was not responsible for the loss of a car which at the time of the fire, was in the exclusive possession of the sleeping car company, namely, in a shop set apart to it by the railroad company for the purpose of making repairs; such car when burned not being subject to be used by nor under the supervision of the railroad company.

IN error to the Circuit Court of the United States for the Eastern District of Louisiana.

This action was brought by the Pullman Southern Car Company to recover from the Chicago, St. Louis & New Or