It is conceded in the prevailing opinion that the defendant is not an insurer of its customers’ baggage or property; nor does there exist the obligation of a common carrier or innkeeper to its customers; but liability for loss of passengers’ baggage or property must depend solely upon negligence of the sleeping car company or its servants. In this case there was no proof of negligence, except the fact that some time after the train had started and about eleven o’clock at night plaintiff placed the bag by .the side of his berth in the place where the porter had first put it, as an appropriate place, that the porter was in charge of the car, that when the plaintiff awoke at about five o’clock in the morning the bag was gone, was evidence of negligence. It seems to me that if this constituted negligence on the part of the defendant, there is really no difference in the liability of an innkeeper or common carrier and a sleeping car company. Such proof would be necessary to charge an innkeeper or common carrier. To that proposition I do not assent. It seems to me that the plaintiff has to go further and show that the porter absented himself from the car or, by some act of his, relaxed the vigilance and care that was imposed upon him as the porter of the car in looking after the plaintiff’s baggage. In this case there is no evidence that the porter was not in the car attending to his duties, awake and vigilant, and if the action is based upon negligence, there is nothing in the relation between the parties that allowed a presumption of negligence to arise, or which justified the application of the principle of res ipsa loquitur.
In all the cases cited by my brother Clarke, as I read them, there was some evidence which justified the jury in finding that the person in charge of the car did not exercise the vigilance and care that was required and that the result was the loss of the baggage. Here, we have nothing to justify such a finding, except that the plaintiff put his baggage alongside of his berth, went to sleep, and when he awoke the baggage had disappeared. It is clear that there was no bailment, for the baggage was never delivered to the porter, except for the purpose of carrying it upon the car, and the plaintiff afterwards took possession of it and undertook to care for it himself. *763There was, therefore, no bailment, no delivery of possession of the baggage to the defendant or its employees for safekeeping. The plaintiff undertook to care for it himself, placed it in a position selected by himself and left it there when he went to sleep. To hold the defendant for the disappearance of the baggage under such circumstances would make the defendant an insurer or, at any rate, make the mere loss of the baggage evidence of negligence, which I do not understand to be the law of this State.
In Carpenter v. N. Y., N. H. & H. R. R. Co. (124 N. Y. 53) it is said: “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.” In Adams v. New Jersey Steam Boat Company (151 N. Y. 163) the court, after citing the Carpenter case, says: “Sleeping-car companies are neither innkeepers or carriers. A berth in a sleeping car is a convenience of modern origin, and the rules of the common law in regard to carriers or innkeepers have not been extended to this new relation. * * * While the company running sleeping cars is held to a high degree of care in such cases, it is not liable for a loss of this character without some proof of negligence. * * * But it is only upon the ground of negligence that the railroad company can be held liable to the passenger for money stolen from his person during the journey. The ground of the responsibility is the same as to all the passengers, whether they use sleeping berths or not, though the degree of care required may be different. Some proof must be given that the carrier failed to perform the duty of protection to the passenger that is implied in the contract before the question of responsibility can arise, whether the passenger be in one of the sleeping berths or in a seat in the ordinary car.” I think that in the absence of proof of some fact that would justify a finding of negligence of the porter, there was no cause of action; and as there was no such proof in this case, the judgment is right and it should be affirmed.
Determination and judgment reversed and new trial ordered, with costs to appellant in all courts to abide event. Order to be settled on notice.