times is such that the subject merits the most careful consideration. The value set by the state on the lives and safety of its citizens has lent, too, an element of very grave responsibility (to which that of the carrier of goods is in no way comparable) to the undertaking of the carrier of passengers.

Common and Private Carriers of Passengers

The same considerations that distinguish the common from the private carrier of goods apply to set apart the common and the private carrier of passengers. As these considerations have already been treated at some length,' no extended comment will be required here. There, as here, the holding out is the distinctive feature. The common carrier of passengers holds himself out to carry all proper persons who apply. The private carrier makes no such profession, and engages in the transportation of passengers only by virtue of special contract made in each individual case, into 1 Ante, §§ 106-107.

2 Murch v. Concord R. Corp., 29 N. H. 9, 61 Am. Dec. 631; Davis v. Button, 78 Cal. 247, 18 Pac. 133, 20 Pac. 545; Thompson Houston Electric Co. v. Simon, 20 Or. 60, 25 Pac. 147, 10 L. R. A. 251, 23 Am. St. Rep. 86; Central of Georgia Ry. Co. v. Lippman, 110 Ga. 665, 36 S. E. 202, 50 L. R. A. 673; Gillingham v. Ohio River R. Co., 35 W. Va. 588, 14 S. E. 243, 14 L. R. A. 798, 29 Am. St. Rep. 827. Among the important common carriers of passengers are: The proprietors of omnibuses, Brien v. Bennett, 8 Car. & P. (Eng.) 724; or stage coaches, Bretherton v. Wood, 3 Brod. & B. (Eng.) 54; Hollister v. Nowlen, 19 Wend. (N. Y.) 234, 32 Am. Dec. 455; BENNETT v. DUTTON, 10 N. H. 481, Dobie Cas. Bailments and Carriers, 322; Peixotti v. McLaughlin, 1 Strob. (S. C.) 468, 47 Am. Dec. 563; Lovett v. Hobbs, 2 Show. (Eng.) 127; railroad companies, Hanley v. Harlem R. Co., 1 Edm. Sel. Cas. (N. Y.) 359; Eaton v. Boston & L. R. Co., 11 Allen (Mass.) 500, 87 Am. Dec. 730; McElroy v. Nashua & L. R. Corp., 4 Cush. (Mass.) 400, 50 Am. Dec. 794; New Orleans, J. & G. N. R. Co. v. Hurst, 36 Miss. 660, 74 Am. Dec. 785; Union Pac. Ry. Co. v. Nichols, 8 Kan. 505, 12 Am. Rep. 475; Nashville & C. R. Co. v. Messino, 1 Sneed (Tenn.) 220; Caldwell v. Richmond & D. R. Co., 89 Ga. 550, 15 S. E. 678; street car companies, Holly v. Atlanta St. R. R., 61 Ga. 215, 34 Am. Rep. 97; Chicago City Ry. Co. v. Mumford, 97 Ill. 560; Isaacs v. Third Ave. R. Co., 47 N. Y. 122, 7 Am. Rep. 418; Spellman v. Lincoln Rapid Transit Co., 36 Neb. 890, 55 N. W. 270, 20 L. R. A. 316, 38 Am. St. Rep. 753; Jackson v. Grand Ave. Ry. Co., 118 Mo. 199, 24 S. W. 192; steamboat companies, White v. McDonough, 3 Sawy. 311, Fed. Cas. No. 17,552; Benett v. Steamboat Co., 6 C. B. (Eng.) 775, 16 C. B. 29; Jencks v. Coleman, 2 Sumn. 221, Fed. Cas. No. 7,258; ferrymen, Le Barron v. East Boston Ferry Co., 11 Allen (Mass.) 312, 87 Am. Dec. 717; Slimmer v. Merry, 23 Iowa, 90.

8 "A wagoner who occasionally carries a passenger upon his wagons, as a matter of special accommodation and agreement, does not thereby become a common carrier of passengers. He only becomes such when the carrying of passengers becomes an habitual business." Murch v. Concord R. Corp., 29 N. H. 9, 61 Am. Dec. 631. See, also, cases cited in preceding note. See Atlantic City v. Dehn, 69 N. J. Law, 233, 54 Atl. 220.

which contract the private passenger carrier can enter or not, as he chooses. He can refuse, either for a bad reason or no reason at all, to transport individuals without incurring any liability for such refusal. As the passenger traffic of the civilized world is practically controlled by common carriers, the private carrier will be dismissed with a paragraph, and only the common carrier of passengers will be considered.

The private passenger carrier is in no sense affected with a public interest, and his rights and duties are solely those of one engaged in a business in which the public, as such, has no interest or concern. He exercises no extraordinary rights, and incurs no extraordinary responsibility. He carries by special contract, and this usually is the measure of his rights and duties. Pursuing no public calling, he can, without contravening public policy, make contracts in a wider range than is permitted to the common carrier of passengers. In the absence of a contract provision on that point, the private carrier owes to his passenger only the duty of exercising due or ordinary care.

Of course, one may be a common carrier of goods and a private carrier of passengers, and vice versa. Thus one holding himself out to carry goods for all who apply (but without such holding out as to passengers) may occasionally take a passenger in special instances. As to the passenger, the carrier in such cases is only a private carrier. Likewise one whose public profession is limited to the transportation of passengers may in an individual case undertake to carry goods (not the passenger's baggage) for hire, and yet the carrier here is merely a private carrier of goods.

The most important common carriers of modern times are railway and steamboat companies, street railways (whether surface, elevated, or underground), and the proprietors of omnibuses, hacks, and taxicabs. The cases are not entirely clear as to the proprietors of passenger elevators. Though a sound public policy seems. to require the same degree of care as to those carried," it is believed to be the better view not to hold these as being (at least for all purposes) common carriers of passengers.

4 See cases cited in note 2.

5 Fox v. Philadelphia, 208 Pa. 127, 57 Atl. 356, 65 L. R. A. 214; Chicago Exch. Bldg. Co. v. Nelson, 197 Ill. 334, 64 N. E. 369; Mitchell v. Marker, 62 Fed. 139, 10 C. C. A. 306, 25 L. R. A. 33; Goldsmith v. Holland Building Co., 182 Mo. 597, 81 S. W. 1112; Perrault v. Emporium Dept. Store Co., 71 Wash. 523, 128 Pac. 1049. Many cases decline to impose the high degree of care required of common carriers of passengers. Seaver v. Bradley, 179 Mass. 329, 60 N. E. 795, 88 Am. St. Rep. 384; Phillips Co. v. Pruitt, 82 S. W, 628, 26 Ky. Law Rep. 831; Hall v. Murdock, 114 Mich. 233, 72 N. W. 150.

SLEEPING CAR COMPANIES

165. Sleeping car companies are not carriers. They pursue a public calling, however, and incur the attendant liabilities of such callings. They are also liable for their negligence in protecting the person of the passenger or his hand baggage properly brought into the car.

Not a Carrier

The sleeping car company is not a carrier, either common or private. It carries no one. The transportation, not only of sleeping car passengers, but of the sleeping car itself, is done by the railway company, which controls the operation and management of the train. It, and not the sleeping car company, contracts for the carriage, issues the ticket to the passenger, and receives the compensation therefor. The railway company alone should therefore assume the responsibilities of a carrier. Neither, as we have already seen, is the sleeping car company an innkeeper. The obviously close connection, both legal and practical, between the passenger carrier and the sleeping car company, however, is ample reason, both on the score of convenience and of clearness, for treating sleeping car companies in this connection. The rules applicable to sleeping car companies apply mutatis mutandis to parlor car companies. In the Interstate Commerce Act it is expressly provided that the term "common carrier" shall include sleeping car companies.

Liability for Goods of Passenger

As the sleeping car company is not a common carrier, it is not liable as an insurer for the goods of the passenger brought within its car. Its duty in this respect is limited to the exercise of ordi

• Dawley v. Wagner Palace Car Co., 169 Mass. 315, 47 N. E. 1024; PULLMAN PALACE CAR CO. v. GAVIN, 93 Tenn. 53, 23 S. W. 70, 21 L. R. A. 298, 42 Am. St. Rep. 902, Dobie Cas. Bailments and Carriers, 294; Pullman's Palace Car Co. v. Hall, 106 Ga. 765, 32 S. E. 923, 44 L. R. A. 790, 71 Am. St. Rep. 293; Pullman Palace Car Co. v. Adams, 120 Ala. 581, 24 South. 921, 45 L. R. A. 767, 74 Am. St. Rep. 53. See, also, Pullman Palace Car Co. v. Lawrence, 74 Miss. 782, 22 South. 53; Calhoun v. Pullman Palace Car Co. (C. C.) 149 Fed. 546.

7 Ante, p. 247.

8 Section 1.

Voss v. Wagner Palace-Car Co., 16 Ind. App. 271, 43 N. E. 20, 44 N. E. 1010; Pullman Palace Car Co. v. Hatch, 30 Tex. Civ. App. 303, 70 S. W. 771; Whicher v. Boston & A. R. Co., 176 Mass. 275, 57 N. E. 601, 79 Am. St. Rep. 314; Pullman Palace Car Co. v. Freudenstein, 3 Colo. App. 540, 34 Pac. 578;

nary or reasonable care, and it is liable only for negligence, which is the breach of that duty.10 What is reasonable care is here, as elsewhere, purely a relative term and is ordinarily a question for the jury.11

In solving this question, the jury takes into consideration all the surrounding circumstances, and great stress is laid on the inability of the passenger himself to guard his property.12 He has no room which he can lock, and while he is asleep he must rely on the efforts of the company's servants to protect his goods. The company must therefore provide servants, sufficient in number and capability, and these, during the night, must maintain a reasonably continuous and effective watch over the car and the persons and things within it.18

The mere loss of goods from a sleeping car does not, it is usually held, fix liability on the company. There must be some affirma

14

LEWIS v. NEW YORK SLEEPING CAR CO., 143 Mass. 267, 9 N. E. 615, 58 Am. Rep. 135, Dobie Cas. Bailments and Carriers, 295; Dings v. Pullman Co., 171 Mo. App. 643, 154 S. W. 446.

10 Pullman Palace Car Co. v. Pollock, 69 Tex. 120, 5 S. W. 814, 5 Am. St. Rep. 31; Pullman Palace Car Co. v. Martin, 92 Ga. 161, 18 S. E. 364; Dawley v. Wagner Palace Car Co., 169 Mass. 315, 47 N. E. 1024; Pullman Co. v. Green, 128 Ga. 142, 57 N. E. 233, 119 Am. St. Rep. 368, 10 Ann. Cas. 893; Godfrey v. Pullman Co., 87 S. C. 361, 69 S. E. 666, Ann. Cas. 1912B, 971; Springer v. Pullman Co., 234 Pa. 172, 83 Atl. 98; LEWIS v. NEW YORK SLEEPING CAR CO., 143 Mass. 267, 9 N. E. 615, 58 Am. Rep. 135, Dobie Cas. Bailments and Carriers, 295. A passenger on a sleeping car may recover damages for money and personal effects stolen from him through the negligence of the sleeping car company in failing to keep such constant watch over passengers asleep as will protect them from robbery or unwarranted intrusion. Hill v. Pullman Co. (C. C.) 188 Fed. 497. It is the duty of a sleeping car company to exercise reasonable care to guard the personal effects of the passengers from theft, and if through want of such care they are lost, the company is liable therefor. Pullman Co. v. Schaffner, 126 Ga. 609, 55 S. E. 933, 9 L. R. A. (N. S.) 407.

11 Hatch v. Pullman Sleeping Car Co. (Tex. Civ. App.) 84 S. W. 246; Godfrey v. Pullman Co., 87 S. C. 361, 69 S. E. 666, Ann. Cas. 1912B, 971.

12 Pullman Palace Car Co. v. Hall, 106 Ga. 765, 32 S. E. 923, 44 L. R. A. 790, 71 Am. St. Rep. 293; Pullman Palace Car Co. v. Hunter, 107 Ky. 519, 54 S. W. 845, 47 L. R. A. 286; Morrow v. Pullman Palace Car Co., 98 Mo. App. 351, 73 S. W. 281.

13 Carpenter v. New York, N. H. & H. R. Co., 124 N. Y. 53, 26 N. E. 277, 11 L. R. A. 759, 21 Am. St. Rep. 644; LEWIS v. NEW YORK SLEEPING CAR CO., 143 Mass. 267, 9 N. E. 615, 58 Am. Rep. 135, Dobie Cas. Bailments and Carriers, 295; Scaling v. Pullman Palace Car Co., 24 Mo. App. 29.

14 Pullman Palace Car Co. v. Hatch, 30 Tex. Civ. App. 303, 70 S. W. 771; Carpenter v. New York, N. H. & H. R. Co., 124 N. Y. 53, 26 N. E. 277, 11 L. R. A. 759, 21 Am. St. Rep. 644; Cohen v. New York Cent. & H. R. R. Co., 121 App. Div. 5, 105 N. Y. Supp. 483; Godfrey v. Pullman Co., 87 S. C. 361, 69 S. E. 666, Ann. Cas. 1912B, 971. But see Kates v. Pullman's Palace Car Co.,

tive showing of negligence, but this may easily be inferred from the facts and circumstances surrounding the loss.15 The contributory negligence of the passenger, as where he recklessly leaves valuable articles in an exposed position, is a good defense to the company's liability.1 The company is liable when the goods are stolen by its servants." The duty of the company continues while the passenger is reasonably absent from his berth, as when he goes to the dining car or to the toilet or wash room.18

The liability of the sleeping car company does not extend to all objects taken into the car, but is limited to the proper hand baggage of the passenger.19 This includes those articles which the passenger would reasonably keep with him for his comfort and convenience during the trip.20 The social position, sex, wealth,

95 Ga. 810, 23 S. E. 186; Pullman Co. v. Schaffner, 126 Ga. 609, 55 S. E. 933, 9 L. R. A. (N. S.) 407; Dings v. Pullman Co., 171 Mo. App. 643, 154 S. W. 446.

15 Hill v. Pullman Co. (C. C.) 188 Fed. 497; Springer v. Pullman Co., 234 Pa. 172, 83 Atl. 98; Cooney v. Pullman Palace Car Co., 121 Ala. 368, 25 South. 712, 53 L. R. A. 690. If a porter neglected to watch a bag which he received from a passenger on her retiring, and permitted its contents to be stolen, or himself stole it, the sleeping car company would be liable therefor. Sherman v. Pullman Co., 79 Misc. Rep. 52, 139 N. Y. S. 51.

16 Kates v. Pullman's Palace Car Co., 95 Ga. 810, 23 S. E. 186; Pullman Palace Car Co. v. Matthews, 74 Tex. 654, 12 S. W. 744, 15 Am. St. Rep. 873; Pullman Palace Car Co. v. Adams, 120 Ala. 581, 24 South. 921, 45 L. R. A. 767, 74 Am. St. Rep. 53.

17 Pullman's Palace Car Co. v. Martin, 95 Ga. 314, 22 S. E. 700, 29 L. R. A. 498; Morrow v. Pullman Palace Car Co., 98 Mo. App. 351, 73 S. W. 281; PULLMAN PALACE CAR CO. v. GAVIN, 93 Tenn. 53, 23 S. W. 70, 21 L. R. A. 298, 42 Am. St. Rep. 902, Dobie Cas. Bailments and Carriers, 294. Here the contributory negligence of the passenger is no defense. Morrow v. Pullman Palace Car Co., 98 Mo. App. 351, 73 S. W. 281; Pullman Co. v. Vanderhoeven, 48 Tex. Civ. App. 414, 107 S. W. 147.

18 Morrow v. Pullman Palace Car Co., 98 Mo. App. 351, 73 S. W. 281. 19 Cooney v. Pullman Palace Car Co., 121 Ala. 368, 25 South. 712, 53 L. R. A. 690; Barrott v. Pullman's Palace Car Co. (C. C.) 51 Fed. 796; Kates v. Pullman's Palace Car Co., 95 Ga. 810, 23 S. E. 186; Blum v. Southern Pullman Palace Car Co., 1 Flip. 500, Fed. Cas. No. 1,574.

20 Pullman's Palace Car Co. v. Martin, 95 Ga. 314, 22 S. E. 700, 29 L. R. A. 498; Blum v. Southern Pullman Palace Car Co., 1 Flip. 500, Fed. Cas. No. 1,574. The personal effects which a passenger may carry on his journey so as to render a sleeping car company liable for their loss through its negligence may include jewelry, and if a piece of jewelry becomes injured during his travels so that he cannot use it in the ordinary way, it does not lose its character as an article which may properly be carried on the person, so as to relieve the carrier of the duty of reasonable diligence in protecting the passenger in its possession. Pullman Co. v. Schaffner, 126 Ga. 609, 55 S. E. 933, 9 L. R. A. (N. S.) 407. While a passenger is entitled to carry with her and retain in her immediate custody as baggage a reasonable