dissenting. Under the view I take of this case, the question decided by the first headnote is not involved. There is no error of law complained of on account of any ruling or view of the court below to the effect that a sleeping-car company is liable to its passenger for loss by theft of his baggage, to the same extent as an innkeeper would be for the loss of the goods of his guest, or a common carrier for the loss of baggage entrusted to it by a passenger for transportation. The case was tried on an agreed statement of facts before a jury in a justice’s •court. The petition for certiorari complained simply that the verdict was contrary to law and evidence. The order of the judge overruling the certiorari does not indicate that he entertained a different view of the degree of diligence required of the •company than is expressed by a majority of this court. That *774order is as follows: “After hearing and considering this case, the verdict and judgment in the magistrate’s court are affirmed and the certiorari dismissed. Negligence and diligence are peculiarly questions for the jury; and they may not only consider the facts admitted, but may draw inferences therefrom. Whether the porter was negligent in placing the valises where he did place them, whether the agents exercised due diligence in guarding the property, whether the window itself had proper catches or safeguards, — in fact all questions touching the conduct of the company and its employees were for the jury. I think there was enough to sustain their finding.” In addition to the suggestions contained in the above judgment, attention is directed to the following points in the evidence: The sleeping-car porter placed the two valises in the stateroom of the two-passengers. At this room was a window in the side of the car,, which was open, and the passengers closed it down — probably to protect their goods from thieves. They then went into the-smoker and never left there till after the larceny; hence never opened the window. The inference is reasonable that it was opened either by the porter or the thief. If by the former, he voluntarily and unnecessarily removed the protection given the baggage by the passengers. If by the latter, the evidence negativing the fact that the thief was inside of the car, he must have opened the window by force from the outside of the car while it was in motion — a very improbably theory; and if that was done, it does seem that the porter standing in the aisle by the exercise of ordinary diligence would have had his attention attracted to the elevation of the window by the trespasser in time to have prevented the theft, it being admitted that the porter was at the time standing in the aisle. The train started from the central depot of Cincinnati. It had gone but a mile and was running at a slow rate of speed, and the presumption is it. had not gone to the limits of a populous portion of that large-city. Besides these facts, it does not appear where the conductor was at this time and what he was doing. It is true it is stated that he and the porter were at the door where they were receiving passengers who were entering. If it refers to the entire "time, then it contradicts other" facts admitted. In one por*775tion of the admission it is stated that the porter at the time of the theft was in the aisle and seized the larger valise, thus preventing the thief from getting that also. In another portion it is stated that at that time he saw two tramps on the outside of the car and ran them off. It is difficult to understand how he could do so many things at the same time and be in different places. As I understand it, it is conceded by my brethren that the burden of proof was on the company to show the exercise of reasonable care and diligence. Could not the jury have inferred both from the evidence and the want of evidence that this burden had not been successfully carried? I only allude to some of these points on the facts with a view of showing, to say the least of it, that whether the company was negligent or not is a reasonably debatable question; and this should be an end of the matter so far as the power of this court is concerned, after the jury have passed upon that issue, and the judge of the superior court, having carefully considered their finding and the evidence upon which it was based, has approved their verdict. I therefore believe that the judgment of the court below should be affirmed, and respectfully dissent from the decision rendered by a majority of the court.