This was an action against a sleeping-car company by a passenger for the alleged loss of property, and resulted in a nonsuit. The substance of the material evidence is stated by the reporter.
1. We shall not undertake in the present ease to state definitely the precise relation existing between a sleeping-car company and its patrons, nor to draw a limit as to the value or kinds of property which a passenger may properly have and carry about his person when traveling in a sleeping-car. The character of the business in which the company is engaged necessarily imports a duty on its part to exercise some watch-care over the passengei’, and, within certain reasonable limits, over his property as well. He is invited to enter the car for *814the purpose of sleep, and is expected to sleep. He may properly take with him a reasonable amount of .money, .and such baggage as his comfort and convenience may require. 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 a 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. Although it does not affirmatively appear in the present case that the plaintiff’s property was lost while he was asleep, yet as the evidence -warranted an inference that it was, the •company was-called upon to present its defense, and in so doing, to carry the burden, above indicated. Under the facts disclosed by the plaintiff’s evidence, the question as to when the loss did in fact occur ought'to have been left to the determination of the jury..
2. The main contention of the defendant was, that the plaintiff’s own evidence showed affirmatively that the loss of his money and papers resulted from a failure •on his part to take the proper care of them, and that •consequently he should not be allowed to recover their value from the company. The reply to this is, that if the plaintiff failed to exercise the care requisite to insure *815the safety of his effects, the acts on his part alleged to be negligent seem to have been brought about by the wrongful conduct of the company itself. His destination was Jacksonville, and before he retired for the night he was assured by the conductor that if the car in which a berth was assigned to him did not go through to Jacksonville, he would be put into another car; and ‘finally, the plaintiff' was positively assured that the car ■in which he ha'd retired would, certainly go through to his destination. It turned out that this was. not true; and the circumstances under which the plaintiff was ■rushed out of that car and into another at an intermediate station, show clearly that he was not allowed a reasonable opportunity to properly look after and take care of his effects; and in the hurry and excitement occasioned by his hasty transfer from one car to another, there was much to excuse him for failing to observe that degree of care which, under ordinary circumstances, he would rightly be expected to exercise. At any rate, the jury should be allowed to determine whether or not, under all the circumstances, the defendant is estopped from claiming immunity because of the plaintiff’s failure to exercise that care which would, beyond all question, have insured the safety of his property.
3. It very frequently happens that a passenger in a sleeping-car, upon leaving the saíne, casually leaves in the car some article of personal property. When this occurs, the article so left does not become the property of the company; but on the contrary, it is under a duty of exercising at least some care in looking out for and taking care of any article thus left, and if possible, of restoring it to the owner when ascertained. We do not think the rule of extraordinary diligence applies in such a case, but certainly it is not requiring too much of the company to hold it bound to be at least ordinarily careful in discovering, taking care of and restoring property *816thus left in a ear. It is unquestionably true that when such property is found by a servant of the company, he is bound to take care of it; for this is nothing more than common honesty requires, a failure to observe which should not excuse the company. A less stringent rule is applicable when it does not appear that the property in question is actually found by a servant of the company, but is left or dropped in such place, or under such circumstances, as would enable the servants of the company, by the exercise of ordinary care, to discover it. In the latter case, the duty would still be upon the company of showing that it did in fact exercise that degree of care in the premises.
Upon a full review of the entire case, we think it one which should have been submitted to a jury, and that the court erred in granting a nonsuit.
Judgment reversed.