Whitney v. Pullman's Palace Car Co. , 143 Mass. 243 ( 1887 )

Morton, O; J.

The plaintiff bought of the Eastern Railroad Company a ticket which entitled her to ride from Boston to the White Mountains in a day parlor car owned by the defendant, and in use by the Eastern Railroad Company under a contract with the defendant. She had with her a small satchel or reticule, which she did not deliver to the defendant or any of its agents, but which she kept in her personal control. There was evidence tending to show that it was stolen while the train in which she was riding was stopping at Portsmouth, Few Hampshire, for refreshments.

It is clear that she cannot hold the defendant liable as a common carrier. She can only hold it liable upon the ground that her property was lost by some negligence of the defendant, and without any fault on her part. Clark v. Burns, 118 Mass. 275. Kinsley v. Lake Shore & Michigan Southern Railroad, 125 Mass. 54.

We are of opinion that, upon the evidence, the plaintiff fails to show the exercise of due care on her part. When the train stopped at Portsmouth, she and her husband left the car for ten minutes, leaving her reticule upon the sill of one of the car windows, a conspicuous and exposed place, which could be reached from the outside through an adjoining window, which was open. This was not the exercise of common prudence or proper care of her property, and thus her own negligence contributed to the loss. This is decisive against her right to recover, and we need not consider the question whether there is any evidence of negligence on the part of the defendant. For is it necessary to consider whether the liability of the defendant is different from that of a railroad using its own cars.

Judgment for the defendant.