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the making up of berths, and fixing the time and order of the work. Of course where special reasons, such as illness or infirm
. ity, call for special action, general rules must be suspended. But where a passenger on a sleeping car at 8:30 P. M., without showing any special cause, asked that his berth be made up at once and was told by the porter that it could not be done until certain lunches were served, and then angrily demanded that it be made up at once, and was insultingly refused, and the berth was subsequently made up at 9 o'clock, but the passenger refused to occupy it, and sat up all night, a recovery was refused him.'
The conductor of a sleeping car may sell the use of a whole section or room to one passenger, and cannot thereafter be held liable to another passenger for refusing to sell him the use of an. empty berth in such section. A conductor of a sleeping car is not under obligation to sell to a passenger a ticket for a berth. which is owned by another passenger until a station ahead is reached, and is at liberty to sell it to another man instead, if he applies first after reaching that station.'
The regulations enforced by the sleeping car owners must be such as to promote the personal comfort and safety of the passenger, but mere neglect by directors of a railroad company to act does not render them liable to indictment for the violation by the corporation of a statute passed to protect the lives of passengers and forbidding it to heat cars in motion by stoves, where such directors have not personally participated in the commission of the offense.' Care must also be taken that the regulations made and enforced are such as will tend to prevent the appearance of any immorality in the intercourse of passengers. Thus where a husband and wife separately engage berths in a sleeping car, nothing occurring to indicate their relation or that they intended to occupy the same berth, the refusal by the company's agents to allow them to do so is not ground for an action by the husband for damages.
Where there were no seats in other cars, the railroad company was held liable for the ejection of a passenger who took a seat in a Wagner car, but refused to pay the extra price therefor.'
'Pullman Palace Car Co. v. Ehrman, 65 Miss. 383. ' Searles v. Mann Boudoir Car Co. 45 Fed. Rep. 330. *People v. Clark (N. Y.) 10 Ry. & Corp. L. J. 28. *Pullman Palace Car Co. v. Bales ('Tex.) Dec. 2, 1890.
$74. Liability for Passengers' Loss of Property in
Palace or Sleeping Car. The carrier is responsible for the conduct of the servants employed by the drawing room or sleeping car company to attend to the wants of the passengers, awaken them in time to prepare to leave the car, and preserve order."
. A sleeping car company is liable for injuries to an occupant of a sleeping car by the negligence or willful misconduct of persons placed in charge of the car.' But in states where the carrier may by contract exempt itself from liability to passengers for negligence, the purchase of a seat in a drawing rooip car, will not in any way affect the validity of the contract."
The porter of a sleeping or drawing room car which forms a part of the train of a railroad company under a contract with its owner, who sells separate tickets for privileges upon such cars, and who furnishes his own servants to collect tickets and assist passengers, is the servant of the railroad company, for whose acts done in the performance of a contract to carry a passenger it is responsible, notwithstanding an agreement which may be made upon the subject between the company and the owner of the car. It is no defense to a suit against a carrier to recover damages for an assault committed by its servant upon a passenger, that at the time the assault was committed the servant had finished the temporary and particular service which he had undertaken to render to the passenger, if the contract of carriage was not yet performed and the duty still rested on the carrier to protect the passenger from the violence of its servants. A carrier is liable for an unlawful and improper act, and for the natural and legitimate consequences thereof, which is committed by its servant towards its passenger while such servant is engaged in performing a duty which the carrier owes to the passenger, no matter what the motive is which incites the commission of the act.'
"Thorpe v. New York Cent. & H. R. R. Co. 76 N. Y. 402. ? Pullman Palace Car Co. v. Smith, 79 Tex. 468; Thorpe v. Nero York Cent. &
H. R. R. Co.76 N. Y. 402: Pennsylvania Co. v. Roy, 102 U. S. 451, 26 L. ed. 141; Williams v. Pullman Palace Car Co. 40 La. Ann. 87, 33 Am. &
Eng. R. Cas. 407. 3 Campbell v. Pullmun Palace Car Co. 42 Fed. Rep. 484, 8 Ry. & Corp. L. J.
*Ulrich v. New York Cent. & H. R. R. Co. 10 Cent. Rep. 478, 108 N. Y. 80.
A railroad company is liable for the act of a drawing room car conductor in refusing to accept a ticket agent's card of explanation that the bearer held a seat in the car for that trip, which had been lost, and requiring the latter to pay again, and on his refusal requesting him to leave the car, which he did and completed the journey in a common coach, where the seat appeared in the diagram to have been sold and was claimed by no other person.'
The obligation to awaken and notify a passenger in time for him to prepare safely and comfortably to leave the train at his destination is directly involved in his contract for the use of a sleeping berth. A sleeping car company is liable for the mistake of its servants in awakening passengers in its car, and causing them to get off at a water tank half a mile from the depot in the dark and rain, where they were left by the train, when the consequent exposure resulted in serious damage to them.'
The sleeping car company, as well as the carrier, holds itself out to the world as furnishing safe and comfortable cars, and 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 unconscious, and powerless to protect himself, or to guard his property. IIe 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 offi
, cers of the car to guard him and the property he has with him from danger from thieves and 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, as is said by some of the authorities, although it has been said that
"Duinelle v, New York Cent. & H. R. R. Co. 8 L. R. A. 224, 120 N. Y. 117. * Buck v. Webb, 58 Hun, 185. 3 Pullman Palace Car Co. v. Smith, 79 Tex. 468. Diehl v. Woodruff (Ind.) 10 Cent. L. J. 66. *Crozier v. Boston, N. Y. & N. 8. B. Co. 43 How. Pr. 466. 6 Scaling v. Pullman Palace Car Co. 24 Mo. App. 29; Root v. Nero York Cent. Sleeping Car Co. 28 Mo. App. 199; Pullman Palace Car Co. v. Mattheurs,
in so far as it renders services similar in kind to an innkeeper, it is subject to the same liabilities,' yet the authorities all agree that it is its duty to use reasonable care to guard the passenger from personal injury and his property from theft, and if through want of such care his person is violated or the personal effects of a passenger, such as he might reasonably carry with him, are stolen, the company is liable therefor. 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.' Thus it
, is said that while a sleeping car company is not liable as a common carrier or as an innholder, yet it is his 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;' and the liability is not limited to the value of the articles actually necessary to the passenger upon the journey, but may extend to such articles of baggage as are ordinarily or usually carried by travelers in like situations, in valises which they take with them upon the car.'
The fact that the negligence of a passenger in leaving his money in the berth of a sleeping car furnished the temptation and opportunity to the servants of the company to take the money does not release it from its obligation to use reasonable care to protect such passenger against their wrongful acts.' But that it was negligent for a passenger to have the amount of money in his berth that was stolen therefrom with other property cannot affect his right to recover the value of the other property. But it has been held that the carrier is not liable where the loss was due simply to the servant's negligence. For the loss of a sum of money
74 Tex. 654; Whitney v. Pullman Palace Car Co. 3 New. Eng. Rep. 358, 143 Mass. 243; Lewis v. New York Sleeping Car Co. 3 New Eng. Rep. 358, 143 Mass. 267; Pullman Palace Car Co. v. Smith, 73 Ill. 360; Welch v. Pullman Palace Car Co. 1 Sheld. 457, 16 Abb. Pr. N. S. 352; Keuh v. Pullman Palace Car Co. 17 Chicago Legal News, 196; Pfaelzel v. Pullman Palace Car Co. 4 W. N. C. 240; Pullman Palace Car Co. v. Gaylord Ky.)
23 Am. L. Reg. N. S. 788; Pullman Palace Car Co. v. Bluhm, 109 1ì. zo. Pullman Palace Car Co. v. Lowe, 6 L. R. A. 809, 28 Neb. 239. * Pennsylvania Co. v. Roy, 102 U. S. 451, 26 L. ed. 141; Williams v. Pullman
Puluce Car Co. 40 La. Ann. 87, 33 Am. & Eng. R. Cas. 407. • Whitney v. Pullman Palace Car Co. 3 New Eng. Rep. 358, 143 Mass. 243;
Levix v. New York Sleeping Car Co. 3 New Eng. Rep. 358, 153 Mass. 167; Woodruff Sleeping & P. C. Co. v. Diehl, 84 Ind. 474; Scaling v. Pullman Palace Car Co. 24 Mo. App. 29; Pullman Palace Car Co. v. Love, 6 L. R. A 809, 28 Neb. 239; Pullman Palace Car Co. v. Matthews, 74 Tex. 654; Root v. New York Cent. Sleeping Cur Co. 28 Mo. App. 199; Pulman Pal. ace Car Co. v. Gardner, 3 Pennyp. 78; Pullman Pulace Car Co. v. Gay.
lord (Ky.) 23 Am. L. Reg. N. 8. 788. *Pullman Pulace Car Co. V. Matthews, 74 Tex. 654. "Hampton v. Pullman Palace Car Co. 42 Mo. App. 134. Root v. Nero York Cent. Sleeping Car Co. 28 Mo. App. 199; Pullman Palace
Car Co. v. Muttheus, 74 Tex. 654.
in excess of a reasonable sum for the purposes of the journey, even though stolen by the company's servants, a sleeping car company is not responsible; and leaving in one's berth, in an exposed condition, without notice to the company's servants, a large sum of money which could easily be carried on his person, is, as a matter of law, contributory negligence.'
If a passenger is advised of reasonable limitations upon the liability of the carrier for articles deposited in a cloak room, he will be bound by the conditions. His intentional lack of information on the subject, where he knows there are conditions, will not excuse him.'
In some cases it has been held, in states which permit such limitation of liability by carriers, that the sleeping car company may limit their liability by notice, and under such circumstances they are not liable for clothing or money stolen from the car.' But in others such notice was not held sufficient, no direct proof of knowledge being made to excuse negligence. In the absence of notice the rule governing a bailee would seem to require the car company to answer for negligence, as it invites the removal of the traveler's clothing and effects, and in its own interest undertakes to provide him with covering for comfortable repose.' Thus it has been ruled that a merchant having a store in which he keeps ready made cloaks for sale, who provides mirrors for use of customers in trying on such cloaks, and clerks to aid in the process, thereby impliedly invites customers to remove their old cloaks while trying on new ones, and he is bound to exercise some care over the old cloak while the customer's attention is engaged in
"Dunn v. New Haven 8. B. Co. 58 Hun, 461. 'Root v. New York Cent. Sleeping Car Co. 28 Mo. App. 199. * Watkins v. Rymill, L. R. 10 Q. B. Div. 178. See also Burke v. South East
ern Co. 49 L. J. C. P. 107, L. R. 5 0. P. Div. 1. *Pullman Palace Car Co. v. Smith, 73 Ill. 360; Welch v. Pullman Palace Car
Co. 16 Abb. Pr. N. S. 352. 'Lewis v. New York Sleeping Car Co. 3 New Eng. Rep. 358, 143 Mass. 267. *Blum v. Southern Pullman Palace Car Co. 3 Cent. L, J. 591, 592.