[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 55 Money necessary for the payment of the expense of a journey undertaken, which is carried in the trunk of a passenger is part of his baggage, and if lost while in the custody of a carrier for transportation it is liable. (Merrill v. Grinnell, 30 N.Y. 594; Fairfax v. N.Y.C. H.R.R.R. Co., 73 id. 167; 2 Red. R.R. 59.) But carries do not undertake to carry and safely deliver the effects of travelers not delivered into their custody, and it cannot be held that money in a passenger's clothing worn during the day and placed under his pillow at night is in the custody of the corporation which carries and furnishes travelers with berths in sleeping-coaches. (Lewis v. N YSleeping Car Co., 143 Mass. 267; 2 Rorer R.R. 887.)
The mere proof of the loss of money by a passenger while occupying a berth does not make out a prima facie case, and to sustain a recovery some evidence of negligence on the part of the defendant must be given.
The negligence complained of is that none of the defendant's employes were continually on guard in the car in a position to observe the movements of all persons in the passage-way between the sections.
A corporation engaged in running sleeping-coaches with sections separated from the aisle only by curtains is bound to have *Page 58 an employe charged with the duty of carefully and continually watching the interior of the car while berths are occupied by sleepers. (Pullman Car Co. v. Gardner, 3 Pennypacker, 78.)
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 the 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 not too onerous. Did the plaintiff give evidence which would have authorized the jury to have found that the defendant did not discharge this duty to the plaintiff? The car in which the plaintiff rode was constructed with a passage-way through the center 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 women, shut off from the passage-way by a swinging door. On one side of the other end of the car was a toilet for men, 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 stopped at eight cities to take up and set down passengers, staying at New Haven 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 was one man who acted as conductor, as porter, and was also engaged for his own profit, in blackening the shoes of the passengers. Whether this employe had that part of the sleeper which is for the common use of passengers *Page 59 and the servants of the corporation constantly in view during the trip is not shown by the evidence, except inferentially. The facts hereinbefore referred to, that the car ran over an important route between two great cities, through and stopping at eight considerable ones, 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 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 submitted to the jury.
The order should be affirmed and judgment absolute rendered against the appellant, with costs.
All concur.
Order affirmed and judgment absolute for the respondent.