The appellee sued the appellant for the value of a trunk and contents. The facts appear to be that appellee sent a trunk to the depot of appellant railroad company at Ellisville, Miss., by a negro at night; the negro drayman stating that the trunk was for train No. 41 of appellant railroad company, which train was due to pass Ellisville at about five o'clock the following morning. The drayman stated that he did not know the name of the owner of the trunk. The porter of the railroad company at the depot took the trunk into the baggage room of appellant's depot, where it was locked in when the depot was closed at night. It appeared, further, that one of the agents or employees of the railroad company was at the depot subsequent to the receipt of the trunk at about one o'clock at night for the purpose of attending *Page 676 to the business of the company; a train being due to pass at that hour. The owner of the trunk failed to appear at five o'clock a.m., and failed to meet appellant's train No. 41, but appeared later in the morning for the purpose of taking another train going north. When he got to the depot it was discovered that the depot had been entered and the trunk taken away, and it could not be found. Consequently the appellee, not finding his trunk, did not in fact purchase a ticket and make the trip, which he had intended to make.
The case was submitted to the jury under instructions that it was the duty of a bailee for hire to furnish a reasonably safe place for the keeping of plaintiff's trunk, and that unless the jury believed from the evidence that defendant, on the night in question when the depot was robbed, had a reasonably safe place to keep the trunk, they should find for the plaintiff. The jury was further instructed, for the plaintiff, that if the defendant received the trunk, expecting to sell a ticket and transfer this trunk the next day, this was a consideration, and defendant is responsible, if it did not take reasonable care in caring for the trunk. For the defendant, the court instructed the jury that the mere fact that the trunk was stolen from defendant's baggage room in the depot, if the evidence so shows, is not to be taken as proof that defendant was guilty of any negligence in that regard; that negligence must be proven by the plaintiff to entitle him to a verdict. It was further instructed, for the defendant, that it is not liable to the plaintiff unless the trunk was lost because the defendant failed to exercise ordinary care to keep it safely. The defendant requested, and was refused, an instruction that the facts show that it was a gratuitous bailee of plaintiff's trunk, and, unless the jury believed from the evidence that the trunk was lost by some gross negligence of defendant, the jury should return a verdict for the defendant. *Page 677
We think the principles announced in Birmingham Terminal Co. v. Thomas, 207 Ala. 363, 92 So. 803, are proper, and that these principles control the case. The judgment of the court below will be affirmed.
Affirmed.