#### Ernest Williams, Appellant, v. William Seward Webb, as President of the Wagner Palace Car Co., Respondent.

(Supreme Court, Appellate Term.

May, 1899.)

Common carriers — Liability of sleeping-car company to passenger ,— Measure of damages.

A sleeping-car company Is not an insurer of the effects of, pas- - sengers, but is bound to maintain a reasonable watch during the night while the passenger is asleep" or is using the necessary..con-, veniences of the car, and must so manage the car as not to expose unreasonably the property -of the passenger to unusual risk or loss by thieves or otherwise.

The measure of liability is" the' samé .as that of a carrier for the loss of a pasSenger’s baggage and, while the latter may recover the .reasonable amount of the. expenses of his " trip, he cannot recover the value of a sum of money which he was carrying'separately .in' a fob-pocket and which he expected to deposit in a bank - when he . reached his final destination.

Williams v. Webb, 22 Misc. Rep. 513, modified and affirmed.

*509. Appeal from a determination of the General Term of the City Court of the City of Hew York, reversing a judgment in favor of •the plaintiff, rendered at the Trial Term on the verdict of a jury, and dismissing the complaint.

Campbell & Hance (Herbert H. Walker, of counsel), for appellant.

Saunders, Webb & Worcester (Edwin D. Worcester, Jr., of counsel), for respondent.

Leventritt, J.

In the fall of 1894, Richard W. Bates, plaintiff’s assignor, who'had theretofore carried on business as an architect and interior ‘decorator in the city, of Chicago, decided to transfer his business and residence to the city of Boston.: After 'consummating his arrangements he proceeded to Detroit, where he purchased from the Michigan Central Railway Company a ticket to Hew York, and from the defendant company a ticket,. entitling him to a berth on the sleeper. “ Waterford.” Prior to his departure from Chicago he drew, from the bank his balance of $1,250, receiving two $500-bills, two $100-bills, and a $50-bill. When he hoarded the.. sleeping-car, at Detroit, this money was securely fastended by means.of a safety-pin in the fob-pocket of his trousers-, if being..his intention to open a bank account with this entire sum ■ upon his arrival in- Boston. He exercised more than the usual care in keeping this .money distinct and separate from a small fund carried in his. purse in another pocket, and which he intended to devote to the incidental expenses, of his journey. Immediately before retiring he counted the $1,250, restored the bills to his pocket, secured as before, and placed his trousers in the berth between the mattress and the side of the car. He had occasion to arise during the night, and, without examining his trousers, proceeded to the toilet. He claims- that- the only employees in the car at the time were two colored porters, who were sitting at the rear of . the car, near the gentlemen’s toilet, and that both were asleep. Returning to his berth he slept the balance of the night. He left the. sleeping car in the morning, without further examination of his-trousers,, and proceeded forthwith to the Pall River Steamboat Line to purchase, a ticket and secure a stateroom for Boston. Discovering that his purse contained only $5, a sum insufficient to pay for his passage, stateroom and incidental outlays, he states that he *510had recourse to his fob pocket, removed the safety-pin, and found that his money had been stolen and a wad of toilet paper substituted. This action was brought" to recover for the loss of' that $1,250. ,

Upon an appeal from a judgment for the full amount, the General Term of the City Court reversed the judgment and dismissed the complaint On the. merits. From that- determination the plaintiff appeals. '

Two questions, are presented for review:

First, to what extent is the defendant liable; second-, was the General Term of 'the City Court justified in dismissing the complaint on the merits.

The determination of the first question depends on the obligation . which rested on the defendant, arising out of the relation of the defendant, ás a sleeping car company, and the plaintiff’s" assignor, as. a passenger.'- -’

While.the principles of law governing the reciprocal rights and duties of-sleeping car companies and their, passengers, are, owing to the comparatively recent introduction of such sleeping accommodations, still in a state of development, certain rules.applicable to the case at bar must, by the weight of authority in this and other states, be regarded as definitely settled.

Sleeping car companies are not insurers Of the baggage, money, or .-other personal effects of a passenger, and courts have almost universally refused to impose Upon them the absolute liability at-' taching-' to innkeepers and common carriers of goods! Carpenter v. *N.*Y., N. H. *&*H. R. R. Co., 124 N. Y. 53; Blum v. Southern Pullman Palace Car Co., 1 Flippin, 500; Pullman Palace Car Co. v. Smith, 73 Ill. 360; Woodruff Sleeping Car Co. v. Diehl, 84 Ind. 474; Lewis v. New York Sleeping Car Co., 143 Mass. 273; Root v. N. Y. Central Sleeping Car Co., 28 Mo. App. 199; Pullman Palace Car Co. v. Adam's, 24 So. Rep. (Ala.) 921; Belden v. Pullman Palace Car Co., 43 S. W. Repr. (Texas) 22; Falls River *&*Machine Co. v. Pullman Palace Car Co., 6 Ohio Dec. 85; Pullman Palace Car Co. v. Gardner, 3 Pennyp. (Pa.) 78. Though the contrary doctrine, imposing this onerous common-law. liability, has been" enunciated" (Pullman Palace Car Co. v. Lowe, 28 Neb. 239), yet we think’ that' it fails "fiyrecognize. that the introduction of this modern convenience of- travel- has created novel relations between carrier and' passenger unknown to the common law, and which, were they dis*511regarded for the purpose of enforcing that rigorous obligation, would oftentimes work both hardship and injustice.

The accommodation furnished on a sleeping car is unlike that provided by an innkeeper. In place of a private room,' safe from intrusion and for the guest’s exclusive use, the passengers on a sleeping car all occupy one common room, with sections containing an upper and a lower berth on either side of a central aisle, and separated ¡therefrom.merely by curtains. Hot only does this arrangement of the car forbid absolute privacy and security, but the company cannot exclude persons, not in its employ, from using the common passage-wáy and interfering, to some extent, with the passengers. It must admit the employees of the railroad company to collect fares and control the movements of the train, and it cannot prevent ejectment for nonpayment of fares.

While the law, however, does not make a sleeping car company the insurer of the effects of the occupants of its berths, it does not absolve it from all liability. But the ground of this liability rests simply and solely in negligence. Carpenter v. N. Y., N. H. & H. R. R. Co., 124 N. Y. 53; Sessions v. N. Y., L. E. & W. R. R. Co., 78 Hun, 541; Pullman Palace Car Co. v. Gardner, 3 Pennyp. 78; Dawley v. Wagner Palace Car Co., 169 Mass. 315. The very powerlessness of the passenger and the impossibility of his retaining manual control or possession of his wearing apparel, valuables or money while asleep imposes a duty of active watchfulness on the car proprietor, for the violation of which the law will compel it to respond in damages. The contract for the sale of a berth ticket involves the implied invitation to sleep, and, reasonably, the implied agreement to guard property from depredations by theft by the exercise of a degree of vigilance commensurate with the danger to which the passenger is exposed. A sleeping-car company is bound to maintain a reasonable watch during the night while the passenger is asleep, or using the necessary conveniences of the car, and it is bound so to manage its. car as not unreasonably to exx ose his property to án unusual risk of loss by thieves or otherwise.

In the case at bar'sufficient evidence of negligence was introduced to raise a question of fact for the jury, whether or not the defendant was remiss in its duty to the plaintiff’s assignor. The latter testified that when he went to the toilet the only two employees present in the coach were asleep. The jury evidently believed the plaintiff’s version and found in his favor in the sum of $1,250.

*512While, however, the defendant is liable under this finding 'of the . jury, it is not answerable for the full amount awarded the plaintiff and the verdict should have been set aside as excessive.

, We think that the liability of the defendant for the negligent loss of the money should be limited to that imposed on a "common carrier for the loss of a traveller’s baggage: While the ground of the common carrier’s liability arises primarily out of the fact of its custody of the baggage (Merrill v. Grinnell, 30 N. Y. 594); and while the sleeping car company’s liability is predicated on ■negligence, yet in both cases, the same rule as to the extent of the liability should govern. ' Shearman *&*Bedfield on Negligence (5th ed.), § 526; Hampton v. Pullman Palace Car Co., 42 Mo. App. 134; Blum v. Pullman Palace Car Co., 1 Flippin, 500. The reasons underlying the limitation of a common carrier’s liability.to money necessary for the payment of the journey undertaken, are, first, that no additional compensation is' made for the transportation of money in excess of such sum, or for the increased -risk incurred, and, second, the justice of protecting the carrier against, fraudulent and collusive claims that might be foisted upon him by dishonest and unscrupulous travellers: In the case "of a sleeping car company, money carried on the person of one contracting for sleeping privileges being in no sense in its custody (Carpenter case, *supra;*Lewis v. N. Y. Sleeping Car Co., 143 Mass. 267). the small fee paid for a berth constitutes' compensation simply for the accommodation and the attendant watchfulness the coim pany impliedly agrees to furnish'; and though its responsibility rests solely in negligence, it should not be exposed to the -hazard of false or exaggerated claims which designing men may-attempt to enforce. This limitation of liability need work no hardship on the traveller as he can protect himself against loss by sending per express the money in excess of the requirements of his trip, or by..availing himself of banking facilities, such as purchasing a draft on some banking-house at the' place of his destination.

In our opinion the reasonable and "just rule is: Where'money is lost by the occupant of a berth in a sleeping car through the negligence of the company and without any contributory fault on his part, the amount of recovery is limited to such sum as under the particular circumstances o-f. each case" is reasonably necessary to defray the. expenses of his .trip, "taking into consideration his station in life, the length, duration and purposes of His- journey, -as well as the probable emergencies that may be expected to arise en route.

*513While we find no case in the courts of this state defining a sleeping car company’s liability under a state, of facts similar to that here disclosed, there is abundant authority in other jurisdictions for the rule announced.

In Barrott v. Pullman Palace Car Co., 51 Fed. Repr. 196, the plaintiff, travelling from Hoboken, N. J., to Binghamton, N. Y., was robbed of the sum of $4,114, which he carried in an envelope in an inside vest pocket, and which he purposed devoting to the purchase of cattle. He also had $35 or $40 in a purse for use on his journey. Recovery of the $4,114 was not permitted on the. theory that it was not necessary to provide for his wants and comforts during his' contemplated journey.

In Wilson v. Baltimore & Ohio R. R. Co., 32 Mo. App. 682, the plaintiff travelling from Franklin, FT. Y., to Benton Ark., where he intended purchasing a farm, carried two pocket-books, one in his trousers’ pocket, containing money sufficient to defray the outlays of his journey, and another in his inside vest pocket, containing $610, which he placed under his pillow at night. The latter sum was stolen and though there was evidence of negligence on the part of the company, a verdict for that amount was set aside on the ground that the defendant could not be held liable for a greater sum than was reasonably necessary for travelling expenses.

To like effect' are Hillis. v. Chicago, Rock Island & Pacific R. Co., 72 Iowa, 228; Blum v. Pullman Palace Car Co., *supra,;*Root v. N. Y. Central Sleeping Car Co., *supra;*Pfaelzer v. Pullman Palace Oar Co., 4 Weekly FTotes of Cases, 240 (Pa.); Pullman Palace Car Co. v. Gaylord, 23 Am. Law Reg. (N. S.) 788 (Ky.).

In the case at bar the evidence of the plaintiff’s assignor unmistakably discloses that he was carrying the $1,250 in the fob pocket of his trousers as a separate fund with the intention of depositing it in a bank in Boston and without expectation of being obliged to resort to it for any of the purposes of the journey. It is clear that he anticipated that the money in his purse would suffice to take him to his destination, and while this division is strongly indicative of his estimate of the amount necessary for his journey, and affords perhaps a' cogent argument as to the true measure of the defend- . ant’s liability, yet, under the rule laid down, it is not conclusive and the plaintiff is not estopped from proving miscalculation on his part of the pecuniary demands of his trip. The fact that he was compelled to resort to his separate fund makes it evident that he did miscalculate. . Hnder all the circumstances of the case it was *514for the jury to say what portion, if any, of the $1,250 was required , to complete his journey to Boston, and, therefore, in what sum the ,.defendant was liable. -Merrill v. Grinnell, 30 N. Y. 534; R. R. Co. v. Fraloff, 10 Otto, 24; Root v. N. Y. Central Sleeping Car Co., 28 Mo. App. 199.

Our conclusion, then, is that the General Term of the City ■ Court properly reversed the judgment hut that it erred in dismissing the complaint on the merits. It is not clear that on a new trial • the plaintiff could not establish'the right to some recovery, ánd final -■ judgment- should, therefore, not have "been directed against him. Iselin v. Statin, 144 N. Y. 453; Benedict v. Arnoux, 154 N. Y. 715. The judgment of the General Term of the City Court must be. modified so. as to grant a new trial.

Judgment affirmed, in so far as it reverses, the judgment of the , Trial Term, hut -reversed in' so' far as it dismisses the complaint - on the merits, and a new trial is ordered, without costs of this appeal . to, either party..

Freedman, P. J., and MaoLean, J., concur.

Judgment of General Term modified.' Judgment affirmed in so far. as it reverses judgment of Trial Term, reversed in so far ' as it dismisses complaint on the merits, and new trial ordered without costs of this appeal.