Plaintiff instituted suit in a justice court of the city of St. Louis, on November 13, 1920, for loss of his traveling bag and contents, of the alleged value of $91.90, while a passenger on defendant's sleeping car between Texarkana and Tyler, Texas.
The cause was tried in the justice court, and thereafter in the circuit court de novo before a jury on the direct and cross-examination of plaintiff alone. The verdict and judgment being for defendant, plaintiff appeals.
The plaintiff on the night of October 15, 1920, having purchased both a railroad and Pullman ticket, became a passenger on the car of the defendant Pullman Company at Texarkana. The porter met him at the door of the car, took his hand-bag, led him to his berth already made up, placing the hand-bag beside or opposite the berth. Taking a few articles from it, plaintiff placed the bag under the berth occupied by him and closed the curtains, which extended to the floor. The sleeping car in which plaintiff was riding was sandwiched between two other cars. The next morning on arising at 5:30 a.m., he looked for his traveling bag, was unable to find it, and then proceeded toward the *Page 285 end of the car, looking as he went. The smoking compartment was situated at one end of the car, with the door thereof located on the side. On the extreme side of the car a short aisle leads from the smoking room with a right-angle turn to the main aisle, which runs through the center of the car. In a search for the traveling bag he found the porter in the smoking room. The Pullman conductor was not in sight, nor were other passengers up. On reporting the disappearance of the hand-bag to the porter, he, with the plaintiff, searched the sleeping car, but was unable to find it. During the night plaintiff several times heard people passing through the aisle of the car.
Plaintiff complains of the action of the trial court in sustaining an objection to the question asked him to state the conversation he had with the porter relative to the passage of people through the car during the night, and to the court's thereupon excluding plaintiff's offer of proof, to the effect that while the porter, the next morning, was helping plaintiff to search for his baggage he said to the plaintiff, that he, the porter, when they let people go through the aisle of the car continually as they did last night, could not be expected to keep a watch on the passengers.
We think the court erred in sustaining the objection and excluding the proof offered. The plaintiff purchased of defendant a contract, the purpose and object of which was to provide a place to sleep, contemplating the consequent loss of consciousness, and while asleep, including the care of his baggage and effects.
Relative to the care of baggage and effects so brought into the sleeping car, it became the duty of defendant to maintain, under these circumstances, the required vigilance. It was charged with the duty of keeping a reasonable watch. As was said in Goldstein v. Pullman Company, 220 N.Y., l.c. 555, "The sleeping car company became a quasi-bailee for hire and a quasi-watchman. In either capacity while passengers sleep *Page 286 at night, it is charged with the duty of watchful care so that baggage may not be lost through inattention." Charged with the correlative duties of quasi-custody and quasi-watching, the porter must, when required, give an account, that duty devolving upon him as the proper person from whom to seek the account. An accounting demanded of him is made within the scope of his employment, and the inquiry for property so placed in hisquasi-care is properly made of him. The baggage having disappeared, it became the duty of the porter to make a search, and while making the search, within the scope of his employment during the continuance of the agency in relation to the transaction then depending, a declaration by him is made dumfervet opus, in the heat of action, and constitutes part of theres gestae.
The case at bar comes within the rule laid down in Hampton v. Pullman Company, 42 Mo. App. 134. The case of Bevis v. Railroad,26 Mo. App. 19, is not apposite, for there the question of admission of evidence related to a past transaction in which the porter, acting without the scope of his employment, was narrating history. The conclusion we have reached is supported by the following cases: Levi v. Railroad, 157 Mo. App. 536-545, 138 S.W. 699; Thompson v. St. Louis S.F. Ry. Co., 59 Mo. App. 37-40; McDermott v. Hannibal St. J.R.R., 87 Mo. 285; Bergeman v. Indianapolis, 104 Mo. 77, 15 S.W. 992; Adams Express Co., v. Berry, 35 App. Dis. Columbia, 208; Morse v. Connecticut Railroad, 6 Gray 450; Lane v. Boston R.R., 112 Mass. 455.
In view of plaintiff's testimony that people were passing through the aisle of the car during the night, the evidence so excluded was again admissible to show the porter's knowledge of the danger of theft and to fix upon him the duty of diligent watch. The rule of law applicable is stated in 22 C.J. 284, par. 302, as follows:
"The existence or absence of knowledge may be shown by the declarations of a person whose knowledge *Page 287 is of importance even though such declarations were made a considerable time before or after the time involved in the inquiry."
It is unnecessary for us to go further than to say this declaration of the porter was made within the scope of his employment while the matter was depending. Plaintiff testified that people were passing down the aisle of the sleeper during the night. His declaration was admissible to prove knowledge of that fact. Knowledge of circumstances tending to increase the hazard or risk of theft, together with the lack of required precaution to circumvent it, is competent to fix responsibility on him charged with a duty or care. The porter was charged with vigilance, and it was negligence for him to omit the necessary care. Our ruling has the sanction of: Chapman v. Erie R.R.,55 N.Y. 583; Louisville Nashville v. Mothershed, 197 Ala. 261; Elledge v. National City, 100 Cal. 282; Baird v. Howard, 89 Tenn. 584; Union Central Life Ins. Co., v. Pollard, 94 Va. 146; Olson v. Seldovia Salmon Co., 88 Wash. 225; Kidd v. Pill and Medicine Co., 91 Iowa 261; 8 Encyclopedia of Evidence, pages 16-18; Woodruff v. Diehl, 84 Ind. 474; Carpenter v. New York, 124 N.Y. 53; 22 C.J. 284, par. 302.
II. Plaintiff complains of instructions Nos. 2 and 3 given at the instance of defendant. They are as follows:
"2. The court instructs the jury that it is not enough for the plaintiff to show that he was rightfully traveling in one of the defendant's sleeping cars and while so traveling certain valuables belonging to him were lost or stolen. Before he can recover, he must go further and show that such loss or theft was due to some negligence on the part of defendant; and if the evidence introduced fails to reasonably explain, or account for the loss or theft, to your minds, then your verdict must be for the defendant."
"3. The court instructs the jury that the defendant, The Pullman Company, was not an insurer of plaintiff's *Page 288 suitcase and contents mentioned in the evidence and a mere loss does not make this defendant liable. Before he can recover he must go further and show that such loss was occasioned by some negligence of the defendant or its agents or servants and the burden of proving negligence is upon plaintiff, and unless he has shown such negligence by the preponderance or greater weight of the evidence, your verdict and judgment must be against the plaintiff and for the defendant."
We will consider them together. Instruction No. 2 was taken from the concurring opinion in Bevis v. Railroad, supra. The verdict and judgment were for plaintiff. While the learned judge characterizes the instruction as correct, it was given at the instance of the there defendant. He says the law announced gave the defendant all to which it was entitled. His concurring opinion was not the opinion of the court, and did not enunciate a rule of law.
A careful examination of the authorities lead us to conclude that the cases are practically in accord in announcing the following propositions of law: That a sleeping car company with respect to the baggage and effects brought into the car by the passenger upon invitation to disrobe and sleep, is neither an innkeeper, common carrier or insurer, but is liable for negligence which arises when it fails to keep a reasonable watch over the baggage and effects of the passenger.
While it may be conceded that defendant is liable only for negligence, yet negligence is shown when evidence appears that the porter failed to keep a reasonable watch. Certain it is, we think, that a reasonable watch was not kept and maintained while the porter was off to other duties in the smoking room or at a place where he could not observe. While the first part of instruction No. 2 may state an abstract proposition of law, it is not applicable to the facts and is misleading, for plaintiff, by showing negligence, has shown more than mere loss or theft. The second part of said instruction is clearly error in casting the burden of explaining *Page 289 the loss on plaintiff. Charged with quasi-custody and a duty to watch, when plaintiff produced evidence of a failure to watch on the porter's part, absent as he was from a place from which he could observe, defendant had the burden of explanation, and was forced to meet the evidence. We do not mean to say, however, that defendant is prevented from testing before the jury upon a re-trial, under proper instructions, the verity of plaintiff's evidence, if it so desires.
Relative to an abstract proposition of law, what we have said regarding the form of the first part of instruction No. 2 applies to No. 3. While it abstractly states a correct proposition of law, it is misleading and probably influenced the jury to arrive at a verdict erroneously conceived. The evidence involved more than mere loss or theft. People passed to and fro through the car during the night. The porter was found at 5:30 a.m. in the smoking room, absent from the place of observation. Proof of negligence having been produced by plaintiff, the instruction failed to take into account the burden of explanation cast, by the evidence, on defendant. We cite as authority: Bevis v. B. O., 26 Mo. App. 19; Scaling v. Pullman, 24 Mo. App. 29; Root v. Sleeping Car. Co., 28 Mo. App. 199; Goldstein v. Pullman Co.,220 N.Y. 549; Kates v. Pullman, 95 Ga. 810; Pullman v. Schaffner,126 Ga. 609; Pullman v. Freudenstein, 3 Colo. App. 540; Robinson v. Southern R. Co., 40 App. Dist. of Col. 549.
Instructions No. 2 and No. 3 were error and should not have been given.
For the foregoing errors, the cause is reversed and remanded, to be re-tried in accordance with the views herein expressed.