for 10 minutes, and then went into the smoking compartment of the car, which was at the rear end. He remained there half an hour, and then returned to his section, took something out of his bag, and returned to the smoking compartment, and remained there until the train was approaching Boston. He then went to his section, and his bag was gone. Search was made for it, but it could not be found. The train made three stops between Albany and Boston, namely, at Pittsfield, Springfield, and Worcester. The porter testified that he received one passenger at Pittsfield, but none at the other two stations; that two passengers left the car at Springfield, neither of whom had a hand bag; that no passengers left at the other stations; and that, while the train was in motion, passengers walked back and forth from the other coaches. He further testified that there were three sleeping cars on the train, and it appeared that there were also ordinary

cars.

The principles of law which govern these cases we consider to be well settled. In the first place, neither a railroad company, a steamboat company, a sleeping-car company, nor a palace-car company owes to a passenger, in regard to baggage, the duty imposed by law on carriers or innkeepers, where the passenger keeps the baggage in his own custody and control. The only obligation imposed upon them is that of exercising reasonable care, and they are liable only when the loss is due to the negligence or misconduct of the servants or agents of the carrier. Railroads: Tower v. Utica & Schenectady Railroad Co., 7 Hill, 47; Henderson v. Louisville & Nashville Railroad Co., 123 U. S. 61; Illinois Central Railroad Co. v. Handy, 63 Miss. 609. Steamboats and steamships: Clark v. Burns, 118 Mass. 275; Steamboat Crystal Palace v. Vanderpool, 16 B. Mon. 302; Abbott v. Bradstreet, 55 Me. 530; American Steamship Co. v. Bryan, 83 Pa. St. 446; Gleason v. Goodrich Transportation Co., 32 Wis. 85; The R. E. Lee, 2 Abb. (U. S.) 49. In New York, however, a steamboat is regarded as a floating inn; but we believe this view is peculiar to that state. Adams v. New Jersey Steamboat Co., 151 N. Y. 163,1 affirming several earlier cases in that state. Sleeping Cars: 2 Lewis v. New York Sleeping Car Co., 143 Mass. 267, 273; Pullman Palace Car Co. v. Smith, 73 Ill. 360; Woodruff Sleeping & Parlor Coach Co. v. Diehl, 84 Ind. 474; Carpenter v. New York & Hartford Railroad Co., 124 N. Y. 53; Welch v. Pullman Palace Car Co., 16 Abb.

1 The court says at page 166: "The relations that exist between a steamboat company and its passengers, who have procured staterooms for their comfort during the journey, differ in no essential respect from those that exist between the innkeeper and his guests."

2 Note, 2 Minnesota L. Rev. 223.

Prac. (N. S.) 352; Root v. New York Central Sleeping Car Co., 28 Mo. App. 199. It is obvious that a higher degree of care is required during the night, when a passenger is asleep, than is required in the daytime, when he can look after his own effects. See cases supra. Palace-car day coaches: Whitney v. Pullman's PalaceCar Co., 143 Mass. 243.

It is also well established that the mere loss of an article is not evidence of negligence on the part of the defendant. Something more must be shown. Carpenter v. New York, New Haven, & Hartford Railroad Co., 124 N. Y. 53; Sessions v. New York, Lake Erie & Western Railroad Co., 78 Hun, 541; Efron v. Wagner Palace Car Co., 59 Mo. App. 641; Stearn v. Pullman Car Co., 8 Ont. 171. In Lewis v. New York Sleeping Car Co., 143 Mass. 267, relied upon by the plaintiff, there were two larcenies the same night, and the porter, who was required to be on duty continuously for thirtysix hours, including two nights, was found asleep in the early morning. These facts were held to be evidence of negligence.

There is no occasion to cite many cases on the point that the plaintiff must show that he was in the exercise of reasonable care. In Whitney v. Pullman's Palace-Car Co., 143 Mass. 243, the plaintiff, a woman, was traveling on a day car of the defendant company. At Portsmouth she and her husband left the car for ten minutes, leaving her satchel 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." It was held that her own negligence contributed to the loss, and that she could not recover. See, also, Henderson v. Louisville & Nashville Railroad Co., 123 U. S. 61; Efron v. Wagner Palace-Car Co., 59 Mo. App. 641.

Applying these principles to the facts of this case, we are of opinion that the judge rightly directed the jury to return a verdict. for the railroad company. The plaintiff, instead of having his bag checked, chose to retain the control and custody of it. If it had been lost through any fault or negligence of the agents or servants of the railroad company, and the plaintiff had been in the exercise of due care, the case would be different.

In Kinsley v. Lake Shore & Michigan Southern Railroad Co., 125 Mass. 54, the defendant's servants and agents, while the passengers were at dinner at a way station, removed the sleeping car, in which the plaintiff and others had left their baggage, from the train, and the baggage was put on another car. Part of the plaintiff's baggage was lost in removal. This case differs essentially from the one at bar.

As to the liability of the last-named defendant, we are of opinion

that the judge erred in submitting the case to the jury. The bag was in no just sense delivered into the sole custody of this defendant. While its servant was carrying the bag into the car, it may have been in the sole custody of the defendant for the moment, but the plaintiff renewed his custody and control over it. Instead of looking out for it, he abandoned it for over five hours. It seems to us that the case falls clearly within that of Whitney v. Pullman's Palace Car Co., 143 Mass. 243, and is very similar in its facts to Efron v. Wagner Palace Car Co., 59 Mo. App. 641.

Nor do we see any evidence of a breach of any duty which the last-named defendant owed the plaintiff, or what there was for the jury to pass upon. The car was equipped with its usual force of servants. It was running in the daytime as a day car. There was no necessity for the care required in a sleeping car when passengers are asleep. All that was required was the exercise of reasonable care. As has been before stated, the mere loss of the bag was not evidence of a want of such care. There was no evidence of a breach of the defendant's rules by the porter, as in the case of Dawley v. Wagner Palace Car Co., 169 Mass. 315. The porter in the case before us, for aught that appears, in every way performed his duty, and we see no ground for holding the last-named defendant responsible.

The result is that the plaintiff's exceptions must be overruled, and the exceptions of the last-named defendant be sustained.

So ordered.

3 In Hasbrouk v. New York C. & H. R. R. Co. (1911), 202 N. Y. 363, it appeared that a passenger's hand bag had been taken by a trainman to carry off for the passenger, this being part of his duty, and was in his custody for some time at the end of the car. The court said (p. 373): "Therefore, the plaintiff's property was lawfully in the possession of the defendant and the question arises what was its duty in reference thereto. Its possession was not that of a carrier, because the suit case had not been checked as baggage nor intrusted to it for the journey, but only for the special purpose of aiding a lady passenger in getting off the train in accordance with a custom established by itself and, hence, it was not liable as an insurer. Its possession was that of a bailee, Cf. Bergheim v. Great E. Ry. Co. (1878), 3 C. P. D. 221, and Great W. Ry. Co. v. Bunch (1888), 13 App. Cas., H. of L. 31.

99

MASON v. THOMPSON.

9 Pick. 280. 1830.1

WILDE, J., delivered the opinion of the Court. . . . Nothing is better settled than the general principle, that innkeepers are

1 The statement of the case, argument of counsel and part of the opinion are omitted.- ED.

chargeable for the goods of their guests lost or stolen from their inns. This liability is imposed upon them from considerations of public policy, for the security of travellers, and to protect them not only against the negligence, but also against the dishonest practices of the innkeeper or his servants. And from long experience it has been found to be a salutary principle of public policy. It may undoubtedly, in some cases, subject the innkeeper to losses, without any negligence or fault on his part. This may seem hard and unjust, but hard cases are not always to be avoided, and a wholesome rigor is sometimes necessary, to insure public security. It is however no more hard for an innkeeper than for his guest, to sustain a loss, neither party being in fault; especially when the former undertakes a trade with a full knowledge of his liabilities, for he may so regulate his charges as to indemnify himself. Innkeepers, as well as common carriers, are regarded as insurers of the property committed to their care, and are bound to make restitution for any injury or loss not caused by the act of God, or the common enemy, or the neglect or fault of the owner of the property.2

It is not denied that this is the law of England, but it is said that here the same motives of policy do not exist, the innkeepers here being generally trust-worthy and men of integrity. If this were true without any exception, it would by no means show that the same favorable state of things would continue under a more lax system of policy. Let a door be opened to fraudulent and dishonest practices, and we may expect to see them soon creep in and prevail. To prevent new evils from springing up, is no less important than to suppress those which already prevail. The law therefore rests on the same principles of policy here as it does in England and other countries, and it is wise and reasonable. Innkeepers have peculiar privileges and great facilities to abuse their trust, if they are so disposed, and therefore it is that some peculiar liabilities are imposed upon them in order to prevent, as far as possible, any such abuse.

It is objected that the defendant kept a livery stable as well as an inn; but the evidence was satisfactory that the property was delivered to an innkeeper, and the jury were warranted in so finding.

Judgment of C. C. P. affirmed.3

2 See Richmond v. Smith, 8 Barn. & Cressw. 9: Story's Comm. Bailments (2d Ed.) 308, 309, 314; 2 Kent's Comm. (3d Ed.) 592 et seq. 3 Accord Butler v. Quilter (1900). 17 T. L. R. 159: Hulett v. Swift (1865), 33 N. Y. 571; Jalie v. Cardinal (1874), 35 Wis. 118; Cunningham v. Bucky (1896), 42 W. Va. 671.

"We therefore adopt what is known as the rule of prima facie liability." All losses of property incurred by guests at a public hotel or inn by fire are prima facie due to the negligence of the proprietor, but he may dis

NUGENT v. SMITH.

L. R. 1 C. P. D. 423. 1876.1

COCKBURN, C. J. This case involves a question of considerable importance as regards the law relating to carriers by sea, but the facts are few and simple. The plaintiff, being the owner of two horses, and having occasion to send them from London to Aberdeen, shipped them on board a steamship belonging to the company of which the defendant is the representative, plying regularly as a general ship between the two ports. The horses were shipped without any bill of lading. In the course of the voyage a storm of more than ordinary violence arose; and partly from the rolling of the vessel in the heavy sea, partly from struggling caused by excessive fright, one of the animals, a mare, received injuries from which she died. It is to recover damages in respect of her loss that this action is brought.

The jury, in answer to a question specifically put to them, have expressly negatived any want of due care on the part of the defendant, either in taking proper measures beforehand to protect the horses from the effects of tempestuous weather, or in doing all that could be done to save them from the consequences of it after it had come on. A further question put to the jury was, whether there were any known means, though not ordinarily used in the conveyance of horses by people of ordinary care and skill, by which the defendant could have prevented the injury to the mare but to this question the jury returned no answer. The question is, whether, on this state of facts, the shipowners are liable.

For the defendant, it was insisted that the storm, which was the primary, and in a partial degree the proximate, cause of the loss, must be taken to have been an "act of God" within the legal

charge or relieve himself from liability by showing that the loss happened by an irresistible force or unavoidable accident, such as a fire originating upon premises over which he had no control, without fault or negligence on his part. This doctrine does not infringe upon the common-law rule, which makes him responsible for all thefts from within his house, or unexplained, whether committed by guests, servants, or strangers, upon the general principle that an innkeeper guarantees the good behavior of all who may be under his roof particularly his servants." Johnson v. Chadbourn Furnace Co. (1903), 89 Minn. 310.

Cf. Metcalf r. Hess (1852), 14 M. 129: Baker v. Dessauer (1874), 49 Ind. 28; Woodworth v. Morse (1866), 18 La. Ann. 156; McDaniels v. Robinson (1854), 26 Vt. 316.

As to liability for goods not owned by the guest see Berkshire Woollen Co. v. Proctor (1851), 7 Cush. 417.

1 Argument of counsel, parts of the opinion of COCKBURN, C. J., and the concurring opinions of MELLISH, L. J., and CLEASBY, B., are omitted. ED.