The charge of the court, that if Mr. Wickham “ permitted his attention to be diverted for one instant, upon any pretext, he was guilty of negligence,” was erroneous ; and if not subsequently corrected, would .be ground for reversal. An examination of the whole chai’ge, however, shows that the court connected these words with what preceded, “ with a lack of watchfulness which he should have exercised ; ” and immediately after the court stated that only for culpable negligence on his part could there be a recovery, defining correctly the term “ culpable negligence.” Any wrong impression was, therefore, removed. Nor was it error for the court to refuse thereafter the requests to charge respecting “ culpable negligence,” and the exercise of judgment and discretion, for tnese matters had been exactly and carefully covered by what the court had already charged.
It is suggested that the plaintiff did not carry out its agreement to pay “ at the expiration of three months,” but this clearly was an option given the plaintiff for protection merely,and upon being fully satisfied that the loss must be paid, it was at liberty to disregard the time limitation. Nor is there any force in the contention that the amount was paid without notice to the defendant. Notice of the loss was promptly given, as required by the contract, and notice was given that payment had been made.
The real question, therefore, was whether the facts show that the payment was justified under the policy, or, in other words, whether it appeared that Mr. Wickham was guilty of culpable negligence, *24which occasioned the loss of the money. It is argued that there is no specific evidence of such negligence or any negligence; that, taking his story as true, and there is no evidence to the contrary, there was nothing shown .that he did or left undone which was an act of negligence, and, moreover, that the testimony proves that everything that he did was in accordance with the custom and rules of the company as to such work. It is not claimed, however, that there was any defect in the manner in which the work was done so far as the method of doing it is concerned, and the case must. turn, therefore, on whether, from the version given, the inference could be drawn that Mr. Wickham was guilty of culpable negligence.
It was unnecessary to prove that Mr. Wickham, who occupied such a respectable position of caring for the money of the company, deliberately left the wagon or was directly implicated in the theft. AH that plaintiff was required to prove was that he was culpably negligent. Culpable negligence, however, may be inferred from the circumstances under which, according to Mr. Wickham’s version and the undisputed facts, the loss occurred. He says he put the canvas bag behind him and that he occupied the seat, and- from there handed out the coin bags to Mr. Battey. At such time, he says,, the bag was taken. As the wagon bed was above the front wheels, and there was no step, and the seat was but three feet and- four inches, and it was eighteen inches wide and had a hinged back behind on which the bag was resting, it will be seen that any one to have taken it must have cfimbed upon the wheel and into the wagon, which rested on the springs, and reached by Mr. Wickham, through the narrow space he did not occupy, over the seat and back to where the large and heavy bag had been placed. All this the thief must have done and escaped with the bag without attracting Mr. Wick-ham’s attention, for he says he never knew of the loss until the last minute, though he saw the bag but a short interval before.
It is inconceivable that the bag could have thus been taken without the culpable negligence or dishonesty of Wickham. Ho direct charge is made that he was dishonest, but the only fair and reasonable inference is that he was culpably negfigent. The fact of the disappearance of the bag under the circumstances described raises-a jiresumption of culpable negligence. As said in Fairfax v. N. Y. C. & H. R. R. R. Co. (67 N. Y. 11,14), where a portmanteau was lost *25while in defendant’s charge: “ When the plaintiff demanded the article it had disappeared, and no account is given of the cause of such disappearance. This is, prima, facie evidence of negligence.”
The probability of a deliberate plan being conceived by dishonest persons to obtain large sums of money, should they be able' at. any time to outwit those charged with making deposits for the street railway company at the bank, imposed upon the employees of the company the duty and necessity of exercising active vigilance and care. The mere recital of how that duty was performed on the day of the loss, in our opinion raises a presumption that care and vigilance were not exercised. The question of whether upon the evidence Wickham'was guilty of culpable negligence, was properly submitted to the jury, and, after an examination of the record, we think that their verdict should not be disturbed.
The judgment and order accordingly should be affirmed, with costs.
Van Brunt, P. J., Rumsey, McLaughlin and Hatch, JJ., concurred.
Judgment and order affirmed, with costs.