The plaintiff was a cloak and suit manufacturer who had been traveling in his business for eighteen years. On the 10th *757of January, 1913, he took passage on a train on the Baltimore and Ohio Southwestern Railway Company at Cincinnati, for Wheeling, W. Va. He purchased a Pullman berth for $2. He had a handbag containing his personal belongings which was too large to go under the berth when made up. It was agreed that the bag and its contents were of the reasonable value of $120, with the exception of a diamond scarf pin, the value of which was testified to as from $200 to $225. He boarded the train at about ten or ten-thirty at night. The porter preceded the plaintiff into the car, carrying his bag, which he placed beside his berth and there left it. Afterwards, before going to bed, at about eleven o’clock, plaintiff went to the washroom taking his bag with him, because, as he testified, the train was due at Wheeling so early, five-thirty A. m., he thought best to change his linen and put his studs in his shirt that night. After this he returned his things into the bag, took it back and put it alongside of his berth and went to sleep. When he got up in the morning his bag was gone. The porter and the Pullman conductor were notified. They looked for it and could not find it. He had to get off, as he was at Wheeling. He reported his loss to the Pullman Company and then brought this suit.
The trial court at the close of plaintiff’s case held that he had not established any cause of action and dismissed the complaint for failure of proof. The Appellate Term affirmed the judgment and granted leave to appeal to this court.
Sleeping car companies are not insurers of the baggage, money or other personal effects of a passenger, and courts have almost universally refused to impose upon them the absolute liability attaching to innkeepers and common carriers of goods. While the law, however, does not make a sleeping car company the insurer of the effects of the occupants of its berths, it does not absolve it from all liability, but the ground of this liability rests upon negligence. In Carpenter v. N. Y., N. H. & H. R. R. Co. (124 N. Y. 53) the court said: “ The negligence complained of is that none of the defendant’s employees were continually on guard in the car in a position to observe the movements of all persons in the passageway between the sections.
“A corporation engaged in running sleeping coaches with *758sections separated from the aisle only by curtains is bound to have an employee 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.”
There is a line of cases holding the carrier or the sleeping car company responsible where there has been a delivery to a trainman or a porter of the passenger’s property, either directly or constructively, by a notification to and a promise by such employee of watchfulness or care, and such direct or constructive delivery has been held to satisfy the requirement of establishing a prima facie case of negligence.
In Arthur v. Pullman Co. (44 Misc. Rep. 229) the baggage was put into the stateroom in the car and the porter was asked if it would be safe to leave the baggage while the party went to the dining car and he replied, “ Why certainly it is safe.” And he was told, “ I have put my things in the stateroom so all the baggage is together, keep your eye on it. ” To which the porter replied, “I will.” Mr. Justice Freedman, writing for the Appellate Term, held there was sufficient evidence of negligence to raise the question of fact and a judgment for the plaintiff was affirmed.
In Croll v. Pullman Co. (61 Misc. Rep. 265) the baggage was left in the car upon the assurance of the conductor that it would be all right. The Appellate Term held a prima facie case of negligence was made out.
*759In Sherman v. Pullman Co. (79 Misc. Rep. 52) plaintiff endeavored to put her handbag under the berth, but the porter said, “I will take care of this for you,” and she delivered the bag to him. The next morning she found the bag in front of her berth and her jewelry missing. The Appellate Term held a prima facie case had been made.
In Hasbrouck v. N. Y. C. & H. R. R. R. Co. (202 N. Y. 363) a trainman a few minutes before the train reached the passenger’s destination took her baggage to the forward end of the car. After she received it she found that jewelry and money had been taken therefrom. The Court of Appeals held a prima facie case had been made.
It is argued in the case at bar the said cases apply because the porter took the bag into the car and placed it by the passenger’s berth. With this we cannot agree because the custody of the bag by the porter was but temporary; it was retaken immediately by the plaintiff and remained absolutely under his immediate control, he having taken it to the washroom and back and himself put it by his berth immediately before retiring. So the case must rest, not upon delivery to an employee of the company, or a special assurance from him that it would be safe, or a promise by him to look after it, but Upon the general obligation of the defendant as a sleeping car company to protect the personal belongings of its passenger while using its berths for the purposes for which it received its compensation. The question, therefore, is, was there enough to put the defendant to its proof. In the Carpenter Case (supra) the court said: “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 Tan 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 employee 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 facts hereinbefore referred to, that the car ran over an important *760route 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.”
In Williams v. Webb (27 Misc. Rep. 508) Mr. Justice Leventritt, writing for the Appellate Term, said: “ The very powerlessness of the passenger and the impossibility of his retaining manual control or possession of his wearing apparel, valuables or money while asleep imposes a duty of active watchfulness on the car proprietor, for the violation of which the law will compel it to respond in damages. The contract for the sale of a berth ticket involves the implied invitation to sleep, and, reasonably, the implied agreement to guard property from depredations by theft by the exercise of a degree of vigilance commensurate with the danger to which the passenger is exposed. A sleeping car company is bound to maintain a reasonable watch during the night while the passenger is asleep, or using the necessary conveniences of the car, and it is bound so to manage its car as not unreasonably to expose his property to an unusual risk of loss by thieves or otherwise. In the case at bar sufficient evidence of negligence was introduced to raise a question of fact for the jury, whether or not the defendant was remiss in its duty to the plaintiff’s assignor. The latter testified that when he went to the toilet the only two employees present in the coach were asleep.”
I am of the opinion that when the plaintiff had proved that some time after the train had started and at about eleven o’clock at night the bag was by the side of the berth in the place where the porter had first put it, as an appropriate place, that the *761porter was in charge of the car, that when the plaintiff awoke at about five o’clock in the morning the bag was gone, that he reported its loss to both the porter and the conductor, that upon a search made by them it could not be found, and that it never has been delivered to him, he made out a prima facie case of negligence which the defendant was bound to meet.
I am in accord with the rule stated in Kates v. Pullman's Palace Car Co. (95 Ga. 810) and reiterated in Pullman Co. v. Schaffner (126 Ga. 609): “While asleep he cannot, in the nature of things, look after the safety of his effects, and, therefore, the company is bound to maintain such watch and guard during the hours of the night as may be reasonably necessary to secure the safety of the passenger’s property. If a loss occurs the burden of proof is on the company of showing that it exercised this degree of diligence, and that the loss was not occasioned because of a failure on the part of its employees to do so. This rule of evidence rests upon the general and well-recognized principle that where it is peculiarly within the power of one of the parties to á case to produce evidence he is under an obligation to do so. The plaintiff, while asleep, could not possibly know what became of his lost effects. The employees of the company, or at least one of them, presumably would know all about it; or, if not, ought to be in a position to explain the cause of his ignorance.”
It seems to me this is a wholesome and a fair rule. It does not put upon the defendant the obligation of an innkeeper or carrier of goods. The plaintiff is only required to give such evidence as he can. It is conceded that the duty of care and watchfulness is placed upon the defendant. All it is required to do is to show the reasonable performance of that duty. To the same effect Pullman, etc., Co. v. Freudenstein (3 Col. 540); Lewis v. New York Sleeping Car Co. (143 Mass. 267).
The determination of the Appellate Term and the judgment of the Municipal Court dismissing the complaint should be reversed and a new trial ordered, with costs to appellant in all courts to abide the event.
McLaughlin, Laughlin and Scott, JJ., concurred; Ingraham, J., P., dissented.