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looking at the new one, and where such merchant, whose duty it is to exercise some care over the old cloak of a customer, which has been removed for the purpose of trying on a new one, while the customer's attention is engaged with the new cloak, provides no place where the old cloak can be left, fails to notify the customer to look out for it and makes no rules requiring employés after seeing it placed on a counter to keep watch of it, he is liable to the customer for its value if it is lost.'

Carpenter v. New York, N. H. & II. R. Co. 11 L. R. A. 759, 124 N. Y. 53, was an 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 porier 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 $10 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 passageway, with his pocket book in the pocket, but the money had been sto. len. 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. It was ruled that the mere proof of the loss of money by a passenger

a while occupying a berth does not make out a prima facie case, and, to sustain a recovery, some evidence of negligence on the

'Bunnell v. Stern, 10 L. R. A. 481, 122 N. Y. 539.

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part of the defendant must be given. In that case the negligence complained of is that none of the defendant's employés were continually on guard in the car in a position to observe the movements of all persons in the passageway between the sections. It is said that a corporation engaged in running sleeping coaches, with sections separated from the aisle only by curtains, is bound to have an employé charged with the duty of carefully and continually watching the interior of the car while berths are occupied by sleepers.' These cars are used by 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. A traveler who pays for a berth is invited and has a 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 travelers are exposed, the rule of diligence above declared is held not too onerous. Upon the issue whether the plaintiff gave evidence which would have authorized the jury to have found that the defendant did not discharge this duty to the plaintiff, it is said that the car in which the plaintiff rode was constructed with a passageway 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 passageway 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 stopper at eight cities, to take up and set down passengers, staying at New Haren 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.

Pullman Palace Car Co. v. Gardner, 3 Pennyp. 78.

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was one man, who acted as conductor, as porter, and was also engaged for his own profit in blacking the shoes of the passengers. Whether this employé 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 fact 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 profit, -affirmatively 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 considered 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 subunitted to the jury.

The order was affirmed, and judgment absolute was rendered against the carrier.

In the case already cited, the fact that the money of two passengers was taken from their clothing in the berths and that the sleeping car porter was found asleep in the early morning and that he was required to be on duty for thirty-six hours continuously, which included two nights, .was held to be evidence of negligence sufficient to go to the jury.'

"Lewis v. New York Sleeping Cur Co. 3 New Eng. Rep. 358, 143 Mass. 267.

CHAPTER XIII.

TRANSPORTATION UPON OTHER THAN PASSENGER TRAINS.

$ 75. Carrying Passengers upon Freight, Mixed or Construction

Trains. $ 76. Traveling on Freight Train or Baggage Car with Knowledge of

Conductor. $ 77. Removal of Trareler from Freight Train, $ 78. Stopping Freight Train at Stations.

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$ 75. Carrying Passengers upon Freight, Mixed

or Construction Trains. In many of the states legislation has been hed in regard to railroads, which either in terms re-enacts the rule at common law, or to which the courts in its practical application give this effect. Where extra accommodations for passengers are furnished, inviting them to travel in a caboose attached to a freight train, the statutory exemption against liability for injury to passengers on a freight train cannot avail the company, but the damages should not be as much for an injury to a passenger by a sudden jerk of the train when attempting to get off as for a similar injury occasioned by the same negligence on a passenger train.'

If the business done by a railroad company is so small as not to warrant the running of separate trains for freight and passengers, it will not be required to do so; but if it is sufficiently large and profitable to warrant it, and the safety of the passengers is endangered or diminished by having the passenger coaches mixed in the same train with the freight cars, it is the duty of the company to run separate trains. Mansf. (Ark.) Dig. § 5477, requires that in the formation of mixed trains, baggage and freight cars shall be placed in front of passenger coaches; but bell-pulls and air brakes are not required to be used on mixed trains unless it is practicable and they are necessary to the security of the passen

yers.'

'Reber v. Bond, 38 Fed. Rep. 822.
Arkansas M. R, Co. v. Canman, 52 Ark. 517.

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Railroads running passenger trains are not bound to carry passengers on freight trains;' and the rule that passengers shall be allowed to travel on such trains only upon a written permit from the superintendent or assistant superintendent in charge of the district, is a reasonable one. A railway company allowed passengers to ride on way freight trains, under a rule that "passengers will not be carried on any way trains unless they are provided with tickets. Way freights will not stop at stations where tickets are not sold to receive nor to let off passengers." This was a reasonable rule.

A contract between a railroad and a construction company, allowing the latter company to operate the road and receive its earnings for a certain time, does not relieve the railroad company from liability for the negligence of the construction company in carrying passengers. But the liability which a construction company assumes, or which a railroad is chargeable with on its behalf will depend somewhat upon the circumstances. Where the railroad company substitutes a construction company in its own place to discharge its duty to the public, the responsibility of the railroad corporation will of course be much greater than will be the liability of a construction company, when in the progress of its work, it consents, as a matter of public convenience, to transport persons willing to accept of such accommodations as the building company is able to offer. It does not hold itself out as capable of carrying passengers with the same safety that regular passenger trains profess. It has no arrangements for passenger service, and it is not required to make provisions for the protection of the road such as are usually adopted and exacted of railroad companies. It does not own the road and has no interest beyond its construction. It is not its duty to fence the road or cut away bushes or overhanging trees or to adopt for its cars the air brakes and bellpulls and other devices to secure as far as possible absolute safety. Illinois Cent. R. Co. v. Nelson, 59 Ill. 110; Murch v. Concord R. Corp. 29

N. HI. 9. 2 Thomas v.

Chicago & G.T.R. Co. 73 Mich. 355. 3 Lake Shore & M. S. R. Co. v. Greenwood, 79 Pa. 373; Indiannpolis & St. L.

R. Co. v. Kennedy, 77 Ind. 507, 3 Am. & Eng. R. Can. 467; Fulkner v.
Ohio & M. R. Co.55 Ind. 369, 16 Am. Ry. Rep. 262; St. Louis & S. E. R.

Co. v. Myrtle, 51 Ind. 566.
*Chattanooga, R. & C. R. Co. v. Liddell, 85 Ga. 482.

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