having been established, it was then open to | renders further proceedings with the first either party to urge any valid claim based jury impracticable, and necessitates a retrial upon the avoidance of the order. Error hav- of the whole case. ing been found in the proceedings, the question is whether there shall be a new trial of the whole case, or whether a part of the verdict can be saved. Lisbon v. Lyman, 49 N. H. 553, 600.

The plaintiffs insist that, when the error is corrected, the application of the correction shall be limited to such phases of the case as will be favorable to them. Argument is not necessary to show the unsoundness of this contention. The effect of the error must be wholly removed from the case. This involves a new trial of all that was based upon the error. The error consisted in holding that the contract was conclusively established, and the liability found was one growing out of the contract. If there was no contract, there was no liability as a common carrier. The question how the horse was shipped-whether under a valid limited contract, or under a general common carrier's liability, or under no contract at all beyond a mere bailment-is still open, and involves (or may involve) material issues as to the duty imposed upon the defendant. The invalidity of the special contract, because of which the former order was set aside, consisted in the time and manner in which the contract was entered into, and not in the substance of the contract itself. The evi

The ruling at the last trial assumed that it had been settled that the limited contract was invalid; but, as before pointed out, all that was determined was that the evidence was not conclusive that the contract was valid. Its validity still remains to be tried on such evidence as the parties may produce and subject to the legal rules laid down in the former decision.

Exception sustained. All concurred.

(234 Pa. 172)

SPRINGER v. PULLMAN CO. (Supreme Court of Pennsylvania. Jan. 2, 1912.)

1. CARRIERS (§§ 413, 397%*) — BAGGAGE· CARE REQUIRED.

Where baggage is delivered into the possession of a carrier, it becomes an insurer against all loss, except such as results from the loss of personal effects which a passenger the act of God or the public enemy, but for retains in his own possession while occupying a berth in a sleeping car the carrier is only liable for negligence.

Cent. Dig. §§ 1583-1588, 1519-1528; Dec. Dig. [Ed. Note.-For other cases, see Carriers, §§ 413, 397%.*]

2. CARRIERS (§ 417*)-SLEEPING CAB COMPANY-LOSS OF PERSONAL EFFECTS.

Plaintiff, on entering defendant's car, placfects under his berth, and, when he awakened next morning, the grip was missing. When he retired, the upper berth in his section was unoccupied, but was occupied during the night by a passenger who left the car at an intermediate point while plaintiff was asleep. There was no evidence explaining how the grip disappeared, and the only evidence of negligence was that of another passenger that, when he the porter was on the platform, and later durboarded the train after plaintiff had retired, ing the night he saw the porter in the washroom of the car. There was no proof, however, that while the porter was absent his post cient as a matter of law to show actionable was not filled by the conductor. Held insuffinegligence.

dence not being conclusive that the contracted a grip containing valuable personal efwas not made in violation of Vermont law, and a subsequent ratification not having been proved beyond question, it followed that it was error to take the question of the existence of the contract from the jury. This was all that the former trial and transfer of the case settled. Whether at that trial a verdict that the defendant was liable as a common carrier and for unlimited damages could have been ordered and sustained is a question which has never been decided by or presented to either court. The proposition presented was that the evidence was conclusive in the defendant's favor. The denial of this contention did not establish the antithetical one that the evidence was conclusive in favor of the plaintiffs. After the former decision, the case stood precisely as it would have if at the first trial the

presiding justice had denied the defendant's

motion for a directed verdict. Unless fur. ther proceedings were then had, the whole

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1590-1600; Dec. Dig. § 417.*]

Appeal from Court of Common Pleas, Allegheny County.

Action by Carl Springer against the Pulltain personal baggage lost from a sleeping man Company to recover the value of cercar in transit. Verdict for plaintiff for $2,000, and defendant appeals. Reversed.

Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ.

Richard H. Hawkins and Howard T. Wilcoxon, for appellant. Churchill B. Mehard, W. H. Falls, and Samuel S. Mehard, for ap pellee.

trial would have gone for nothing. That the motion was granted in the superior court, which ruling was later set aside here, does not change the ultimate effect of what was done. In the end the motion was denied. If this had happened at the trial, the cause could then have proceeded to a verdict of the jury, in accordance with their views of the weight of the evidence. The lapse of time between making the motion in the su- STEWART, J. The damages here sought perior court and its final denial in this court to be recovered are not for loss of baggage

which the passenger had intrusted for trans- | sleeping car companies.
portation to the carrier's exclusive posses- facts in this case?
sion, but for the loss of personal effects
which the passenger retained in his own pos-
session while occupying a place in the sleep-
ing car. The distinction with respect to the
carrier's liability in the two cases is well es-
tablished.

[1] In the one where the baggage is delivered into the possession of the carrier, the carrier becomes insurer against all loss, except such as results from the act of God or the public enemy; in the other, liability only attaches when the loss is shown to have resulted from the carrier's negligence in failing to use reasonable care in the protection of the passenger's property. This distinction is too familiar to require any citation of authorities in its support. It results from this established rule of law that mere proof of loss of baggage which is taken by a passenger into a sleeping car does not make out either an absolute or prima facie case of liability against the car company. Our own case of American Steamship Company v. Bryan, 83 Pa. 446, although the action there was against a steamship company, while here it is against a sleeping car company, is quite as illustrative of the principle as any of the cases called to our attention, and more authoritative here since it is an adjudication of our own court. In that case the claim was for loss of personal luggage which the passenger had not intrusted to the steamship company, but which he had taken with him into his stateroom, and which had been stolen therefrom. On the trial of the case the jury was instructed that the company, with respect to this particular luggage, was not responsible as common carrier-that is to say, insurer-but was answerable only for negligence; and the one question in the case was whether the company had exercised the ordinary care and caution which it owed to its passengers. This court on review of the case entered into a full and careful consideration of the evidence to determine the one question whether there was any evidence of negligence that is, want of reasonable care and diligence that warranted a submission to the jury; and the final determination of the case rested on that one question alone. In the latest New York case on the subject Adams v. New Jersey Steamboat Co., 151 N. Y. 163, 45 N. E. 369, 34 L. R. A. 682, 56 Am. St. Rep. 616-the court puts the liability of the steamboat company in such cases on the same footing with that of the innkeeper, distinguishing the carriage by the steamboat company from that by sleeping car, but that only gives greater emphasis to what was decided in American Steamship Co. v. Bryan, supra. If in Pennsylvania we apply to steamship companies a rule which holds them liable only for loss of luggage through negligence on their part, for so much the greater reason should the rule apply to

Now what are the

[2] The plaintiff, having secured in New York City his transportation over the Pennsylvania Railroad to New Castle, Pa., purchased a lower berth in one of the Pullman sleeping cars which went to make up the train on which he proposed to travel. When entering this car at Jersey City he was carrying two pieces of luggage, a suit case and a satchel. The latter contained personal jewelry which he valued at $2,203, and wearing apparel of the value of $63.50. Both pieces of luggage he gave to the porter, who placed the suit case underneath the seat occupied by the plaintiff, and the satchel on the seat, because too large for the space under the seat. Plaintiff retired about the time the train reached Trenton. Before retiring, he opened and examined the satchel, found its contents safe and undisturbed, and then placed it under the berth as far as it would go. Its size preventing it going entirely under the seat, he left it protruding in the aisle; but to what extent does not appear. Plaintiff testified that he soon thereafter fell asleep, and remained asleep until the train next morning was approaching Greensburg, when he arose to find that the satchel was missing. Having been continuously asleep, he knew nothing as to occurrences during the night. When he retired at Trenton, the upper berth in his section was unoccupied, and not made up. He was informed the next morning by the porter that this had been occupied by a passenger who must have got aboard at an intermediate point after plaintiff had gone to sleep, and who had evidently left the car at an intermediate point while plaintiff was asleep; for it was unoccupied when plaintiff awaked. Diligent but unrewarded search was made for the satchel through the entire car; all the baggage in the car undergoing examination. Plaintiff himself testified to no fact or circumstance which could in the remotest way explain the disappearance of the satchel. If the case rested on his testimony alone, it could hardly be contended that there was sufficient evidence of negligence to warrant a submission to the jury, except as we were to apply the rule of res ipsa loquitur, which, in effect, would be to hold the company an insurer against theft. From his own testimony it appears that the company adopted the same precaution against loss of luggage which like companies everywhere adopt. It had placed in charge of the car a conductor and a porter whose duty it was to be watchful and vigilant. The testimony of plaintiff does not suggest a suspicion that either of these appropriated the satchel, nor for that matter does any of the evidence, nor does plaintiff's own testimony, involve either in any negligence whatever.

On this branch of the case we have the testimony of a single witness. When the

Can

train reached Philadelphia, a Mr. Patterson, | as the porter. If his testimony was intro-
an acquaintance of plaintiff, became a fel- duced to show negligence because of the por-
low passenger, occupying the berth immedi- ter being on the platform when he entered
ately opposite the plaintiff's. It is the testi- the car, why was he not interrogated as to
mony of this witness that is relied upon as conditions inside the car with respect to
showing negligence on the part of the porter. watchfulness and supervision when he en-
His testimony adds nothing by way of ex- tered it? We may not presume negligence
plaining how or in what manner the satchel on the conductor's part, and yet the porter
disappeared. The sole purpose for which it being subordinate to him, if it were negli-
was offered was to show that the porter had gence in the porter to be on the platform,
not been continuously and uninterruptedly it would be the conductor's negligence in
in the aisle of the car or some corresponding permitting it, except as he took upon himself
position where he could have had a view of the duty of the porter within the car.
the car from the one end to the other be- there be any reasonable inference from the
tween Jersey City and Greensburg. The wit- evidence that he did not do so? In the case
ness testified that when he boarded the train of American Steamship Co. v. Bryan, supra,
at Philadelphia, as he recalled the circum- the facts which were adjudged sufficient to
stances, he gave his grip to the porter, who warrant a submission of the question of neg
was then on the platform. He was asked if ligence were much stronger than we hay
he had any recollection of seeing the porter here, and yet two of the judges dissented
elsewhere during the night, and he replied: from the decision of the court. In that case
"Why, I believe in the washroom." This it was shown that, under the rules of the
question followed: "Do you remember seeing company, a watch was kept during the night
him more than once?" The answer was: in the saloon of the boat by the stewards or
"No; I do not." Outside this testimony waiters taking turns. To secure their vigi-
there is absolutely nothing in the case upon lance, they were required to report every hour
which a charge of negligence could rest. to the officer on deck, and, of course, for this
The evidence that in the morning the pas-purpose they had to leave their posts. The
senger's shoes were found to have been pol-
ished during the night does not connect the
porter with the polishing, and if it did, it
fails to show that, when he polished them,
he was not in a place where he could have
had a full view of the car. Were we to con-
cede, which we cannot, that reasonable care
and vigilance to protect against loss of bag-
gage requires that the porter should through-
out the entire route be standing as sentry in
the aisle of the car, or constantly moving
back and forward through the car as guard
or watchman, even then the testimony of Mr.
Patterson would be insufficient to establish
negligence. The negligent act relied on must
have some relation to the loss, and it must
appear to have been the proximate cause.
Was the jury to be left to infer that plain-
tiff's satchel was stolen while the porter was
on the platform at Philadelphia admitting
passengers to the car, or to infer that it was
stolen while he was in the washroom? The
length of time the porter was in either place
dose not appear. For all that does appear,
it may have been but momentarily. Not
only so; but, as against an intruder, it was
quite as much a protection to passengers
for the porter to be on the platform with the
rear door of the car fastened, as it would be
were he in the car. If the rear door were
unlocked when this occurred, it was for the
plaintiff to show the fact. Plaintiff testified
that besides the porter there was a Pullman
conductor on the car. Was the jury to be
left to infer that, while the porter was on
the platform or in the washroom, no em-
ployé of the company was exercising surveil-
lance of the car? The witness Patterson

court held that it was a question for the jury
to say whether this amounted to ordinary
vigilance which the company owed the pas-
sengers, inasmuch as the watchmen might be
expected to take some time to make such
report, "to loiter on their way, to stop and
have a few words with the officer about the
weather and the speed of the vessel." It
there appeared that on the morning the lar-
ceny was committed the steward had stopped
on his way at the cook's galley, and there
drank a cup of coffee. "There was ample
time in the interval as the fact showed,"
says Mr. Justice Sharswood, in his opinion,
"for some one to enter the stateroom of
the plaintiff and other passengers and car-
ry off several valises." Was this ordinary
and proper diligence? he inquires; could not
some other mode have been adopted of watch-
ing the watchmen than this which might
leave the saloon entirely unguarded at con-
siderable intervals? No such questions arose
in this case. Not only was there no evi-
dence here as to the length of time the porter
was absent from his post, or that when ab-
sent his post was not filled by another, but
no question was made as to the rules, regu-
lations, and requirements of the company be-
ing entirely sufficient to meet the require-
ments of ordinary care. The only negligence
asserted was that of the porter in having
been seen once in the washroom and once
when the car was at rest upon the platform.
In view of all the facts of the case, it
seems impossible that the theft, for theft it
undoubtedly was, was committed by an in-
truder. The person who took the satchel
must have been either a passenger or an em-

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. & 648-651; Dec. Dig. § 222.*]

Appeal from Court of Common Pleas, Washington County.

latter class, since their attention had not | whereby he was injured, justifies a verdict for been called in any way to the fact that the plaintiff. satchel contained valuables of any sort. Why should one of them without opportunity of knowing the contents select for plunder the one satchel in the room that carried such rich treasure? We may assume from the unusual value of its contents that this satchel Action by Thomas Glew against the Pittswas the richest, and, so far as appears, it burgh Railways Company. Judgment for was the only one disturbed. The evidence plaintiff, and defendant appeals. Affirmed. affords a more reasonable explanation. It The facts appear in the following opinion does not appear how many passengers left by McIlvaine, P. J., overruling motion for that car that night at the intermediate stop-judgment non obstante veredicto: ping places; but the evidence shows that "This motion raises but a single question, some did. To any one so leaving the car the and that is, Did the court err in refusing plaintiff's satchel was exposed, since it pro- the defendant's request to give the jury bindtruded into the aisle. Certainly such a one ing instructions to find in its favor? had larger opportunity to take the satchel, "The plaintiff was an employé of the deand escape with it undetected than any pas- fendant company. He was a motorman ensenger who remained in the car, or any serv-gaged to run a freight motor car whenever ant; and the evidence to our mind makes and wherever directed by the superintendent it most likely that it was taken in this way. of the department in which he was employIf it was so taken, will it be contended that ed. The defendant company operates the that was an occurrence which ordinary vigi- street railways in the city of Pittsburgh and lance on the part of the company would have the neighboring boroughs, and the interurprevented? To so hold would be to impose ban cars that run into Washington county. on the company the duty of seeing that no It has a department known as the supply depassengers left the car with any baggage ex-partment, with a store at Homewood. J. A. cept his own, which again would be virtually Laughlin is the superintendent of that demaking the carrier an insurer, besides sub-partment, and has entire control of it. jecting the passengers to a scrutiny and surveillance which the ordinary traveler would have a right to resent. We cannot think that the ordinary care exacted of the carrier requires any such officious interference as this. On the whole, we are of opinion that the evidence of negligence as the proximate cause of the plaintiff's loss was not sufficient to warrant a submission of the case to the jury. As the case was submitted the jury was left to conjecture that which the plaintiff was required to prove This being our conclusion, it is unnecessary to consider and decide the several other questions which have been raised. The second specification of error complains of the refusal of the court to enter judgment non obstante.

In

his department he has three motor freight cars, which he uses in distributing the supplies which he keeps in his store to the different points on the defendant's system at which they may be needed. As the calls for supplies come at irregular intervals and whenever needed, the services of the plaintiff in running the motor car are rendered upon the express order of the superintendent, and he comes and goes as the superintendent directs. On the 5th day of May, 1909, the plaintiff was sent out with his motor car from the Homewood store for the purpose of getting some old car wheels at Rankin station, and also of getting a gondola load of coal at Glenwood station, the gondola car when loaded with coal to be attached to the

This assignment is sustained, and the judg- freight motor car. While at Glenwood stament is accordingly reversed.

(234 Pa. 238)

GLEW v. PITTSBURGH RYS. CO.
(Supreme Court of Pennsylvania. Jan. 2,
1912.)

MASTER AND SERVANT (8 222*)-INJURIES TO
SERVANT-ASSUMPTION OF RISK-ORDERS OF

PRINCIPAL EVIDENCE.

tion he was called by telephone by the store at Homewood, and the superintendent, through his assistant, directed him, after he had gotten his load as ordered in the morning, to proceed to Braddock avenue in Turtle Creek borough, go along that avenue to the factory of the Westinghouse Air Brake Company, and there get certain castings, and then return with his load to Homewood. The railway tracks on Braddock avenue were In an action by a servant for personal in- out of repair, and the plaintiff when talking juries, evidence showing that plaintiff, a motor- over the phone to the store at Homewood man in defendant's employ, on the day of the accident, was instructed to run his car loaded suggested this fact to the superintendent or with old wheels over a certain track which his representative, and said it would be danwas out of repair, that on suggestion that it gerous to run the kind of a load that he was would be dangerous so to do he was told by hauling over those tracks, when he was told, the superintendent that he should do as he was ordered, or he would "learn what would as he claims, that he should proceed to do happen to him," and that the track separated as ordered, or he would learn in the mornFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

road company in providing or maintaining a reasonably safe track, and are not so serious but that with care and prudence the track may be safely used, and at the request of the master the servant continues to use them and is injured, notwithstanding the exercise

ing what would happen him. He carried out the directions of his superintendent, loaded the old car wheels at Rankin station into the box car, and took the loaded gondola of coal hooked to his freight car, and started for Braddock avenue for the purpose of getting the castings as directed. When on Braddock of care and prudence, he may hold the masavenue, as he alleges, the track separated, and allowed his gondola car, which was running in front, to drop down and break an axle, and this sudden stop of the gondola car caused a shock to the freight motor car which was running behind it, and this shock displaced the old car wheels and caused one of them to fall on the plaintiff's foot and injure it. He alleged at the trial that the negligence of the company in not keeping their tracks in repair was the proximate cause of the injury to his foot. No defense was made by the defendant company as to the charge that it was negligent in not keeping its tracks on Braddock avenue in proper repair. They rested their whole defense on what they claimed was the contributory negligence of the plaintiff in running his car over tracks which he himself knew were dangerous; and at the close of the testimony their request to the court was to charge the jury as a matter of law that the plaintiff was guilty of contributory negligence in running his car over Braddock avenue with the knowledge he had of its condition, and that their verdict should be for the defendant company on that account. The refusal to so charge and leaving the question of whether or not the plaintiff was guilty of contributory negligence to the jury is the matter that now is complained of.

"In arguing this case the counsel for the defendant stated expressly that the tracks on Braddock avenue were out of repair, and they had no defense to make against the plaintiff's charge that they were negligent in this regard. They claimed, however, that, the plaintiff having himself said in his conversation over the telephone to his superintendent that it would be dangerous to run his cars over that track and then afterwards having done it, this was negligence on his part, and the court should have found as a matter of law that it was negligence.

"Now, there can be no dispute about the rules, first, that an employé of a railway company, such as the defendant, assumes all the risks that are incident to the business in which he is engaged; second, that where he knows of a dangerous condition in the tracks of the company, and voluntarily runs his car over the dangerous tracks, he assumes all the risks of doing so, unless the danger is so slight or the risk so little that a man of ordinary prudence would have assumed it. But these general rules to which we have just referred have their limitations. First, if the defects grow out of a want of ordinary

ter liable. Again, if the servant suggests the danger and the master says or does that which leads the servant to believe that his fears are not well founded, and that the master's judgment is that, notwithstanding the defect, the tracks can be safely used, the servant has a right to rely upon the superior judgment of his master, and, if he does and injury happens, the master is liable, notwithstanding the servant's previous knowledge of the defect. Now, applying these limitations to the general rule to the facts in this case, it appears to us that it clearly raised a question of fact for the determination of the jury. It is true that the plaintiff said on cross-examination that he knew that the Braddock avenue tracks were in a dangerous condition, and that he protested against running his cars loaded as they were over those tracks, but he alleges that the superintendent or his representative insisted on his doing it, and added that he knew what would happen if he would disobey these orders. Now, what is the proper construction to be put upon this conversation? The defendant claims that the proper construction is that the plaintiff knew of the dangerous situation, and that he took the language of the superintendent or his representative to be a threat that he would be discharged if he did not run over the dangerous track, and that rather than lose his job he risked being injured as he was. The plaintiff's contention was that his conversation simply meant that the Braddock avenue track was out of repair, but that the superintendent thought it was not necessarily dangerous to run over, as the company at that time was running many trains a day over it of heavy interurban cars, and that there had no accident happened, and it would be as safe to run the plaintiff's cars over it as it was to run these heavy cars, and that the plaintiff had a right to infer from what the superintendent said that he believed that he, by exercising care, could safely do what he was ordered to do, and that he would not have said what he did had he thought he was placing an extra hazardous risk upon the plaintiff, and after having had this conversation with his superintendent that he concluded he would do the best he could, never thinking that he would be injured as he was, and that what happened to him was not what he expected. Under these contentions, it struck us at the trial, and does yet, that the court would have erred had it said as a matter of law that the plaintiff was guilty of contributory