No. 3.

VOL. III.

Sleeping and parlor cars have assumed great prominence in railway travel. They are to be found on all important railroads, either owned and operated by the railroad company or some distinct company, such as the Pullman Palace Car Company or Wagner Drawing Room Car Company. When these cars are not owned by the railroad company, they are drawn in its trains under a contract with the other

company. When a distinct company own and operate these cars upon the railroads, the respective rights and liabilities of the different companies must be considered. But before treating of their relative rights and liabilities, they must be treated separately and their exact status to the public set forth.

STATUS OF THE RAILROAD COMPANY.

A railroad company is a common carrier of goods and passengers. (1) As a carrier (1.) 14 How., 468.

of goods it is an insurer liable for any loss except that occasioned by the act of God or the public enemy. (1) As a passenger carrier it is not an insurer; its undertaking is to provide for the safety of its passengers as far as human care and foresight can go. (2) For the "baggage" of the passenger actually delivered into the custody of the carrier, it is liable like a common carrier of goods as insurer. (3) Interesting questions sometimes arise as to what is included within the meaning of the term "baggage," but it is unnecessary to discuss the question, as the object of this paper is to determine the liability of the various companies in regard to property which the passenger has within his own control in sleeping and parlor cars, such property not coming within the technical meaning of term "baggage."(4) The (1.) 11 Parson's Cont., 158. (2.) 14 How., 468. (3) 30 N. Y., 609. (4.) 7 Hill, 47.

"animo custodiendi" of the property by the passenger relieves the railroad company from any liability except such loss or damage as is occasioned by its negligence. (1)

The relation of passenger and carrier is created by contract-by the purchase of a ticket from the railroad company entitleing the passenger to transportation over its road to a particular place. The ticket is a token, mere evidence of a contract between the passenger and the railroad company. It is issued to the passenger for the benefit and protection of the carrier, and does not express the terms of the contract. The terms of the contract of carriage are implied by law and impose upon the carrier the obligation to transport the passenger and his baggage safely and properly, and to deliver the baggage at the end of the route to the passenger or his duly authorized agent. (2) This obligation requires the carrier to provide safe and roadworthy vehicles, and to protect the passenger from violence and insult from whatever source arising. (3) The obligation to furnish safe and roadworthy vehicles is not absolute. It is not responsible for all defects therein, but only for such as could have been ascertained by the exercise of the highest degree of vigilance, or in other words for defects which could have been detected by a reasonable degree of care and skill either in the course of manufacture or afterwards. (4) It is no defence for the carrier from liability for injuries resulting from defects in its vehicles, that it purchased them from skillful and competent manufacturers, but it is responsible for defects resulting from the negligence of the manufacturer, precisely the same as it would be if it manu

7 Hill, 47; 6 L. R. C. P., 44. 21 Wend., 354: 13 Ill., 748.

3. 34 Conn., 554.

13 N. Y., 9; 58 Id., 126.

factured them itself. (1) It is not a question whether the person is a skillful and careful manufacturer, but whether care and skill was exercised in the construction of the particular vehicle in which the injury happened. This is not the universal rule but is more in accordance with principle and public policy than that which relieves the carrier from liability if the vehicles are purchased from a competent manufacturer and a careful external examination, which is made at the time of purchase, fails to disclose any defects. Under this rule very few railroad companies would manufacture their own vehicles and would evade their responsibility by purchasing them from competent and skillful manufacturers. Many serious latent defects in a vehicle cannot be discovered by the most careful external examination. They can be detected only by the application of some test, known to skilled men in that business, during the process of manufacture. A carrier is bound to exercise this vigilance, and upon principle and reasons of public policy it should not be permitted to escape this responsibility by delegation. (2)

The obligation to protect the passenger from violence and insult may be considered: Ist, as to strangers; 2d, as to co-passengers, and 3d, as to the carrier's servants.

1. From the acts of strangers. The carrier's obligation to transport the passenger safely is violated if by reason of its negligence, or that of its servants, he is injured by the trespass of a third party. (3) It is no defence to an action by a passenger against the carrier that the negligence of a stranger concurred with that of the carrier or its servants causing the injury. (4)

1.) 9 Metc., 1; 18 N. Y., 534. (2.) 13 N. Y., 9.

(3.) 11 Allen, 500.

54 N. Y., 230.

2. From the acts of passengers. While the carrier is obliged to receive all proper persons who apply for transportation, it must not allow improper persons to enter its cars, and if it knowingly received such improper persons it would be responsible for any loss or damage to a passenger in consequence thereof. Who are improper persons is sometimes a difficult question, but as a general rule they are intoxicated persons, thieves, criminals, etc. (1) What degree of intoxication will warrant the carrier in refusing to carry the person must depend upon the circumstances. The carrier is not obliged to keep and maintain a police power sufficient to quell any disturbance and to protect its passengers from all danger, but it is bound to exercise the utmost vigilance and care in maintaining order and guarding them against violence from fellow passengers, which might be reasonably anticipated or naturally expected to accur in view of all the circumstances and of the manner and character of the persons on board. (2)

3. From the acts of its servants. If the carrier intrusts the performance of its obligation to its servants, the law holds it responsible for the manner in which they execute the trust. (3) The willfulness of the servants' act is no excuse so long as it amounts to a breach of the contract; nor the fact that the act is wholly disconnected from his duties, and a purely wanton assault. (4) The carrier's liability arises from the contract of carriage, and does not depend upon the consideration whether at the time of the commission of the tort, the servant was acting within the scope of his employment. (4)

STATUS OF THE SLEEPING CAR COMPANY. Various theories have been advanced as to the status of a sleeping car com

pany. They have been said to be liable as a common carrier, as a passenger carrier, and as an inn-keeper, but none of these views are tenable. Is a sleeping car company a common carrier? A common carrier is bound to receive all goods of the nature and kind which it holds itself out as carrying, while a sleeping car company is not bound to receive any goods whatever, except such personal articles as a passenger usually carries about his person; and this is merely incidental to the carriage of the passenger. (1) Is a sleeping car company a passenger carrier? The company does not contract with the passenger to carry him, but to supply him with a bed. supply him with a bed. The contract of transportation is made with the railroad company and the contract between the passenger and the sleeping car company is based upon the presumption that such a contract with the railroad company has been entered into, and that the passenger is entitled to a first-class railroad passage by virtue of such contract. This is a condition precedent and dispels the theory that a sleeping car company is a passenger carrier. (2)

Is a sleeping car company an innkeeper? It would seem to be unnecessary, from the uniform decision of the courts, to enter into a discussion of the question that a sleeping car company is liable as an inn-keeper, but the argument will be justified from the point of view that this is constantly urged upon the courts, notwithstanding that all the adjudicated cases in courts of last resort are opposed to this theory. The extraordinary liability of an inn-keeper grew up out of a state of society no longer existing. The reason for the rule having ceased it should not be extended to new cases, but the justice of

23 Amer. Law Reg., 788. 16 C. L. N., 238.

the principle when ennunciated is not questioned. Then it was that the "wayfaring" traveller was compelled to stop at whatsoever inn he might chance to find at the end of his day's journey. The temptation of the inn-keeper to plunder his guest, or to collude with others to do so, led the courts to the wise policy of holding him liable as insurer, except for the act of God or the public enemy, for the value of all the property which the guest brought with him, "infra hospitium." (1) The innkeeper could limit his liability by any reasonable rules and regulations, made known to his guest, requiring him to deposit his goods in a particular place, and to put his valuables and money in a safe kept for that purpose. Negligence of the guest or his servant or companion causing the loss, would relieve the inn-keeper from his extraordinary liability; but subject to these qualifications the rule was absolute, and the inn-keeper would be liable for the value of any property lost or stolen while "infra hospitium."(2) This severe responsibility has been modified in most States by a statute. “An inn,” as defined by Chancellor Kent, (3) “must be a house kept open publicly for the lodging and entertainment of travellers in general for a reasonable consideration. If a person lets lodgings only, and upon a previous contract with every person who comes, and does not afford entertainment for the public at large, indiscriminately, it is not an inn." Does a sleeping car come within this definition? "It is evident that these flying nondescripts do not come within the definition of an inn," says Judge Thompson, (4) but it has been said that if not within the letter within the spirit of the definition. (5)

There are several good reasons why this extraordinary liability of an inn-keeper should not come within that of a sleeping car company. The most cognent of which is that the inn is a public necessity, while, although the sleeping car is a great convenience, it is not a necessity. (1) In the one case people are compelled to stop at an inn, while no one is compelled to ride in a sleeping car-it is a privilege merely. Other reasons are as follows: The inn-keeper must receive all who apply for entertainment, and the law gives him a general lien on the goods of his guest "infra hospitium" for his compensation. Standing alone a sleeping car company would not be compelled to receive all persons who might apply for accommodation. The railroad company in exchange for its valuable right of eminent domain is obliged to serve the public indiscriminately, and to furnish equal facilities and accommodations to all passengers, and inasmuch as the sleeping cars constitute part of its trains, they are subject to the same obligations. (2) The sleeping car company has no lien on the passenger's luggage brought into the car nor upon his wearing apparel for compensation for the accommodations furnished. (3) The fact that it requires payment in advance does not weaken the argument, as the inn-keeper also is entitled to prepayment. The inn-keeper is not only compelled to receive the guest but his baggage also. The sleeping car company is obliged to receive all first-class passengers who apply for accommodations, but it is not bound to receive their baggage. (4) The inn-keeper must furnish food as well as lodging for the guest. The sleeping car company provides a

bed only, and that, too, usually for a single night. It does not furnish any food. The toilet conveniences are merely incident to the lodging. (1) An inn-keeper may exclude from his house every one but his own servants and guests, while the sleeping car company is obliged to admit the the employees of the railroad company to collect fares and control the movements of the train. The passenger is subject to the rules and regulations of the railroad company, and may be put off of the train for violation thereof or for non-payment of fare. (2) The guest at an inn may lock his door to protect himself and property, and this strong safe guard protects the inn-keeper by reducing the risk of loss. The passenger has no door to lock. The construction of sleeping cars is well known. It would be almost impossible for the company, even with the most careful watch, to protect its passengers from being robbed by occupants of adjoining berths. (3) This the passenger knows as well as the company, and should be the one to take the risk, having the right, of course, to demand that the company keep a vigilant watch to protect him.

What then is the true status of a sleeping car company? It is a bailee for hire, and, like any person who lets vehicles for hire, it impliedly guarantees that its cars are sound, safe, and roadworthy. (4) Its obligations are peculiar to the nature of its business, and are: to exclude improper persons from their sleeping cars; to provide passengers a berth, and to keep watch during the night to prevent the loss of the passengers' effects. (5) The obligation to provide sound, safe and roadworthy cars is not absolute, nor is it

(1.) 62 Ill., 395.

(2.) 17 Rep., 24.

(3.) 143 Mass., 273.

(4) 102 U. S., 451; 76 N. Y., 402.

(5.) 143 Mass., 273; 3 Penny Parker, 178.

as stringent as in the case of a railroad company, but it must use all reasonable care and precaution in this particular. The obligation to keep a reasonable watch during the night to protect the passenger and his property from danger is absolute and must be strictly complied with. The invitation to make use of its bed carries with it an invitation to sleep and an implied undertaking to take reasonable care of the passengers' effects while he is in such a state that care on his part is impossible. (1) The passenger is thus invited to lay aside all care and precaution which he must exercise at his peril in an ordinary railroad coach, and is necessarily dependent upon the company for protection. The law raises the duty on the company to afford him this protection, the faithful performance of which is the measure of its liability. (2)

STATUS OF THE PARLOR CAR COMPANY.

A parlor car company is an ordinary bailee for hire. (3) Like a sleeping car company it impliedly guarantees that its cars are sound, safe and roadworthy, but unlike the sleeping car company it does not hold out an invitation to the public to make use of its cars for sleeping purposes and accordingly is not under any obligation to keep watch over its passengers' effects. If a passenger should fall asleep it would be at his peril, just the same as if he was in an ordinary coach of the railroad company. (4) For its negligence or that of its servants which caused injury or loss to a passenger or his property, the company would be liable in damages, provided always that the passenger himself is free from contributory negligence. (5)

(1) 84 Ind., 474; 143 Mass., 273.
(2.) 23 Amer. L. Reg., 788.
(3.) 143 Mass., 243.

(4.) 7 Hill, 47.

143 Mass., 243.