On Petition for Rehearing.
Reinhard, J.The learned counsel for appellee Palace Oar Company have filed able and exhaustive briefs in support of their petition for a rehearing in which they seek to convince us in strong but courteous language that the conclusion reached in our former opinion is radically at variance with the doctrine as declared in the best considered American cases and should, therefore, not be permitted to stand. In view of the earnestness and evident sincerity with which counsel have discussed the questions in dispute, no less than the high regard we entertain for the learned *284counsel and their standing in the profession, and the importance of the questions involved, we have devoted much time and careful study to a second examination of the case in its various phases and are constrained to say that we still regard the result reached in our original consideration as just and proper.
Counsel insist that we were in error with regard to the fact stated in the former opinion, that there was any agreement between appellant and the porter of the car company that the latter was to remove the appellant’s cape or coat from the car, or that there was a complete delivery of the garment to the porter.
While the writer may have been a little unfortunate in the use of the word “agreement” respecting the circumstances of the removal of the property from the sleeping-car, it still remains true, we think, that the special findings of the court show fully and conclusively that the appellant’s luggage, including the garment referred to, was given in charge of the porter just before the train stopped at the Union Station in Indianapolis, and that he took the same in charge and undertook to remove it from the car for the appellant in accordance with the rules of the company. In support of this statement we refer to the following findings of the court:
“VIII. — That said train arrived at Indianapolis on the day aforesaid about one hour late, and just before the arrival at the Union Station in the city of Indianapolis, the porter of said car, assisted by the plaintiff, collected all of said luggage together, including said seal skin cape or coat, in said section convenient for removing from the train. The porter, with the knowledge of the plaintiff, placed the seal skin cape on the back of the seat she occupied, and arranged the balance of her luggage in two bundles, preparatory to carrying all of the same out of the car.
*285“IX. — Without the station the sun was shining brightly and the day was very warm, and the plaintiff was suffering from a temporary headache and fatigue owing to her long journey, at the time of such arrival, but was fully conscious of everything going on; and upon the train coming into the Union Station at said city from the lightness without and the darkness within, the plaintiff was unable to see objects within the car readily and distinctly, owing to the construction and extent of the train sheds and station at said point, but with the use of some additional effort and care all objects in the car were visible. After said luggage was so collected and arranged the plaintiff paid no further attention to it, but left it all to the care of the porter.
“X. — During all of said journey plaintiff was traveling alone, and upon the arrival of the train at the station at Indianapolis, the porter of said car attempted to remove from the car to the station all of the said luggage of the plaintiff, including said seal skin cape or coat, which was so unílertaken with the knowledge, consent and express permission of the conductor of said car, and in accordance with the usual rules and custom of said Wagner Palace Car Company in such case.”
If this was not an express agreement it was so by the fairest implication arising from the conduct and acts of the parties. These acts and conduct not only import an agreement but an actual attempt to execute the same by the removal of the property, in furtherance thereof, and they lack no element whatever which goes to make a complete delivery. This is true, unless it can be said that when the porter took charge of the luggage he had no authority to do so and was acting entirely outside of the apparent scope of his employment. That, however, cannot be, if for no *286other reason than the one contained in the finding last above set forth that “the porter attempted to remove from the car to The station all of the said luggage of the plaintiff, including said seal skin cape or coat, which was so undertaken with the knowledge, consent and express permission of the conductor of said car, and in accordance with the usual rules and customs of said Wagner Palace Car Company in such case. ”
If, as counsel insist, “there is nothing in the record to show that sleeping-car companies make a common practice of removing the baggage of passengers from their cars to stations,” there is nevertheless here an express finding that this sleeping-car company made such a practice and that it was in accordance with “its usual rules and customs” to do so. It will hardly do to say that in spite of this custom and rule the appellant Avould be bound by some rule of the company to the contrary, of which the passenger had no actual knowledge or information, so far as the findings disclose, although it may have been posted in a conspicuous place in the car.
But if there were no such finding, as that the porter undertook to remove the cape in accordance with the rules of the company, we think we could still take judicial knowledge of the fact that sleeping-car companies have porters whose' duty it is to assist the passengers with their baggage on and off the cars, and we apprehend that if the appellee’s porter had refused to remove the luggage of the appellant, under the circumstances of this case, and she had reported him to the company he would have been promptly dismissed from appellee’s employment. We have not said, and do not now declare that the porter must remove all the luggage of every passenger from the car, but we do say, and in this we think every official of the appellee who is connected with the sleeping-car service *287will bear us out, that if a lady passenger is about to leave the car at the end of her journey, having traveled all the way from Ne;w York to Indianapolis, and being the only passenger in the car, and having with her a considerable quantity of luggage which it would be burdensome and difficult for her to carry, it is the duty of the porter to assist her by removing such luggage or as much thereof as she cannot conveniently carry, from the car; and we are further of the opinion that when any portion or article of such luggage has been thus taken in charge by the porter, the car company, in whose service such porter is engaged, becomes responsible therefor, and if after it has gone into the custody of such servant such article is lost or stolen, the. company is bound by every principle of right and justice to account for its value. If it be said that the strict rules of law rendering an ordinary carrier of passengers liable as an insurer of baggage consigned to its exclusive care and custody on the journey cannot be applied, we answer that the company is nevertheless liable as the ordinary railroad company would be liable for the baggage of its passengers not given into its exclusive possession, by reason of the negligence of the servant in the handling of the baggage. We think not only the English cases, but the American decisions cited in our former opinion abundantly support this doctrine. The facts upon which the court below rendered judgment in favor of the company are all before us in the special finding, and they are, in our view, such as can lead to but one conclusion, that being the negligence of the company’s servant.
Counsel, in the printed brief submitted, earnestly contend that the porter in such a case as this is “a mere gratuitous bailee.” We do not so regard it. We are here dealing with a loss which was the direct re-*288suit of the negligent performance of an act of a servant which the trial court finds was performed in accordance with the usual rules and customs of the master in whose service he was then engaged, and hence, within the scope of the servant’s employment. The performance of this act was by the clearest implication included in the accommodations for which the injured party had contracted with and paid the master. To say that such an act was but the result of a private arrangement between the injured party and such servant, for which nothing had been paid, is, in our judgment, radically unsound. Indeed, it appears to us that the application of the rule governing mandates or gratuitous bailments to a case like this would be a perversion of an otherwise wholesome doctrine to the accomplishment of a most unconscionable result, enabling a party to escape a responsibility which by every consideration of justice it ought to bear.
Counsel also contend that the mere loss of personal effects by a passenger on a sleeping-car is not prima facie evidence of negligence on the part of the servants of the company. While this may be a correct rule in the abstract, it does not apply to the case in hand. The facts offered show more than “the mere loss” of the appellant’s property. They also disclose the circumstances under which the loss occurred, and we think they are such as to conclusively render the company guilty of negligence.
But counsel complain that we did not state in the former opinion in what manner the porter was negligent. We thought we had made this sufficiently plain. He undertook to remove the appellant’s cape from the car, according to the rules and customs of the company. He took the cape in charge for that purpose, but failed to do so, and it was lost. This was negligence. Moreover, it is difficult to conceive, how *289the cape could have been lost without the collusion of appellee’s servants, or the positive wrong of one of them, while the porter was out of the car with appellant’s baggage, or a portion of it, without being watched by the conductor. We are not required to presume that the appellant’s garment vanished away in some supernatural manner. If the facts found are true, no human being had access to it without being observed by the servants of the appellee, save the porter and the conductor, during the time the train stopped at the station. The appellant’s property was lost without any fault on her part No one knew or or could reasonably be held to have known what became of it but the porter and conductor. The inference is obvious and irresistible that it was lost either through the positive wrong or the inexcusable negligence' of the company’s servants, for which the company should respond in damages.
The petition is overruled.