Barnet v. Pullman Co. , 1935 N.Y. Misc. LEXIS 1342 ( 1935 )

Keller, J.

I am constrained, under the decided cases, to grant the motion.

My reasons are that a passenger on a railroad train, whether in a Pullman car or in an ordinary coach, may not claim the protection of the hotelkeeper’s or the innkeeper’s liability, under common law or as modified by statute. The liability, under the cases that you have cited in your brief for the plaintiff, are all common carrier cases, wherein there is an insurer’s liability under the statute. In those cases defendants’ liability is more -than a liability for negligence: They are insurers of the safety of the article, subject to certain limitations where there is contributory negligence on the part of the passenger or guest. In railroad cases the courts have held, and the Court of Appeals particularly pointed out in Goldstein v. Pullman Co. (220 N. Y. 549), that there is, in the night time, what they call a quasi-bailment in those cars, of luggage and other personal property while the passengers are sleeping in the Pullman cars. The company is charged with the duty in the night time to keep watch on the baggage and effects of the passenger. The proof here has established that the property sued for disappeared in the day time in a room assigned to a passenger on a Pullman car. There is no evidence that the Pullman porter was given custody of this baggage at that time with instructions to take care of it. That was the case in Arthur v. Pullman Co. (44 Misc. 229). Under the decided cases, I see the liability to be that not of an insurer but liability of negligence. There is no liability for negligence on the part of the Pullman Company, in the day time, unless the property has been bailed with the company, so that the company, through its servants, has taken care of it or has guaranteed to watch over it.

For these reasons the complaint is dismissed.