Dings v. Pullman Co. , 171 Mo. App. 643 ( 1913 )

NORTONI, J.

This is a suit for damages alleged to have accrued as .a result of defendant’s negligence. The finding and judgment were for defendant, and plaintiff prosecutes the appeal.

Plaintiff was a passenger on defendant’s sleeping car en route to California and lost his overcoat, said to be of the value of seventy-five dollars, in transit. By this suit he seeks to recover the value of the coat, and avers that its loss occurred through the omission of defendant to exercise due care toward protecting the coat from theft. But one witness gave testimony in the case and that was the plaintiff himself. .

It appears that the train,-of which the sleeping car was a,part, stopped for the evening meal at about six o’clock p. m. at Newton,.Kansas, where the passengers alighted and went into the dining room of the depot for supper. Plaintiff left his overcoat hanging in his berth in the sleeping car, but it does not.appear that he directed the attention of either the Pullman conductor or porter thereto. While eating- his supper in the depot dining room, he noticed defendant’s porter eating at another table therein. Upon his return to the car, he found the overcoat had been taken.

From plaintiff’s evidence it appears that the Pullman conductor stood watch at the forward end of the car upon the depot platform while the passengers were eating supper, and it is to be inferred that the rear door of the sleeper was locked. There is nothing in the case to suggest that any of the car windows were left open or that 'an entrance therein could be had except through the forward door where the conductor stood watch. As the date of the loss was December 25, it may be inferred from this that the windows of the car were closed, as is nsnal in the winter time in the Kansas climate. Upon discovering the loss of his coat, plaintiff called the attention of the porter thereto, who, in turn, called the conductor, but neither of them was able to locate it, and plaintiff said the conductor stated the only way the coat could have' been taken from the car was by some one unlocking and entering the rear door, as he had stood guard in front. In this connection, it is said, the conductor remarked that it might be some discharged Pullman employee probably had keys with which the rear door could have been unlocked and an entry made therein.

The case was tried before the court without a jury and no instructions were asked or given on either side. After hearing the evidence, the court found the' issues for defendant and entered judgment accordingly.

A sleeping car company does not accept the effects of its passengers as a bailee, nor does it undertake to maintain a place where accommodation is furnished for the safety of its patrons’ property, like an innkeeper, and, therefore, it does not assume the exceptional liability of an insurer which the law imposes upon common carriers of goods or innkeepers by reason of engaging in such public callings. On the contrary, the liability of the sleeping car company with respect to the effects of its patrons is analogous to that of a railway carrying passengers in regard to the safety of the personal belongings and baggage which the passenger is' allowed to take with him into the sleeping car. Therefore, the duty which the law devolves upon the sleeping ear company to protect the passenger’s effects is that of due care under the circumstances of the particular case. This being true, mere proof of loss of luggage, which is taken by a passenger into the sleeping car, does not make out either an absolute or prima facie case of liability against the company. However, it is the duty of tlie company to exercise reasonable care toward a vigilant watch by competent persons for the safety of the passenger’s belongings while in the car, and if it omits to exercise snch care thereabout, it may be required to respond for the breach of its obligation on the grounds of negligence. [See 6 Cyc. 659; Efron v. Wagner Palace Car Co., 59 Mo. App. 641; Root v. New York Cent. Sleeping Car Co., 28 Mo. App. 199.]

It is argued by the plaintiff that the facts above set forth afford an irresistible conclusion of negligence, and that as they were uncontradicted, the court erred in giving judgment for the defendant. The question of negligence is always a relative one and is to be determined by reference to the facts and circumstances surrounding the particular matter in judgment. Here it sufficiently appears the porter was absent from the car, being in the depot at supper, but the conductor stood watch at the forward door of the car and the rear door was locked and the windows closed. There is nothing in the case to suggest that all fair-minded men without a difference of opinion would conclude that an ordinarily prudent -person in the exercise of reasonable vigilance should have done more to the end of protecting property within the car. The matter of negligence with respect to the performance of a duty may not be declared as a conclusion of law, even on undisputed facts, where reasonable men may draw different inferences touching the same therefrom. [Gratoit v. Mo. Pac. R. Co., 116 Mo. 450, 466, 21 S. W. 1094.]

Though it devolved upon defendant to use reasonable precaution to keep a strict watch for the safety of the property of passengers in the car, it is clear that fair-minded men may infer from the facts in evidence here that it performed the full measure of this obligation in the circumstances of the case. Obviously, it is a reasonable view that even high care and circumspection would not require more than the keeping of tbe rear door locked, the windows closed and a watchman at the forward entrance, while the train stopped in front of a depot in the ordinary town for a period of twenty or thirty minutes consumed in taking a meal at six o’clock in the evening. However, some persons might take another view on the same facts, and this alone affords a valid reason for sustaining the judgment here. If different minds might disagree on the matter, the question of negligence was one of fact to be determined by the trial court and may hot be reviewed on appeal. The judgment should be affirmed. It is so ordered.

Reynolds, P. J., and Allen, J., concur.