Welding v. Wagner

gers, their horses and attendants, for a reasonable compensation” (Story on Bailments, § 475). Innkeepers are held to a strict liability for the goods of their guests. They are responsible for all loses occurring through the acts or omissions of their servants, or the dishonesty of their guests. In return for this liability, they are accorded peculiar privileges,—e. g., they are entitled to a lien for the amount due them from guests on the personal goods of the latter. It is manifest that defendants’ company does not come within the foregoing definition of an “ innkeeper,” and there can be no better test of this than asking the question: Would it have been entitled to a lien on the personal effects of the plaintiff, had he failed to pay for his berth in advance ? Neither can it be, nor is it claimed, that the sleeping car company were common carriers, and, as such, responsible for all losses not occurring through the act of God or the public enemies. Their contract is not to carry either goods or passengers, but to furnish sleeping accommodations to passengers carried by another and independent company.

Defendants’ company, more nearly than anything else, resembles a lodging-house keeper (Story on Bailments, § 475 ; Edwards on Bailments, 392 ; citing Calye’s case, 8 Coke, 32). They agree to furnish a sleeping place in a railroad car where it is known other passengers, strangers alike to the company and to each other, are to be admitted. To hold them insurers against the acts of all whom they may receive into their apartments, would be like holding a common lodging-house keeper liable, at all events, for a theft committed by one lodger upon the property of another occupying the same or a contiguous room. If the company was neither an innkeeper nor a common carrier it is clear that, in the absence of negligence, it incurs no liability for a loss of the property of its patrons (See Pullman Palace Car Company v. Smith, 73 Ill. 360 ). Now, un

less negligence on the park of the company be a necessary inference from the mere fact of a theft, or loss of the plaintiff’s property-, it is manifest that the case affords no proof of negligence. Negligence, consisting, as it always must, of a wrongful act or omission, where it is an essential element in a cause of action, can never, in the absence of proof, be presumed. The presumption is that all men do their duty, and it requires affirmative proof to rebut that presumption. The mere fact of an injury having been suffered is not enough to establish a charge of negligence (Sherman & Redfield on Neg. § 5). “No submission of an action for negli-gence to a jury,” say the court of appeals (Baulec v. New York & H. R. R. Co., 59 N. Y. 356 ), “isauthorized where a plaintiff’s evidence is equally as consistent with the absence as with the existence of negligence, as in such case the evidence fails to establish negligence.” In Welsh v. Pullman Palace Car Co. (16 Abb. Pr. N. S. 352), it was laid down by the superior court of Buffalo :at general term that ‘ ‘ the liability of a palace car company to passengers for loss of articles which the passengers carry with them into the car, is not, in the absence of special - contract, any greater than that of .any other carrier of passengers,” and that “ such companies arm not to be held to the strict liabilities of innkeepers.” The duties and liabilities of carriers of passengers, with respect to the goods of travelers, are well defined. The luggage actually delivered to the -carrier, provided it be not unreasonable in amount, is insured to be safely delivered on demand, while as to articles of which the traveler himself retains the custody, the carrier is held to no responsibility unless negligence can be shown (Tower v. Utica and Schenectady R. R. Co., 7 Hill, 47 ; Tally v. Great Western R. R. Co., 6 L. R. C. P. 44). In short, it is apparent, I think, upon authority and principle, that in the absence of some affirmative proof of negligence on the

part of the defendant’s company or its employees, there was no right of action shown in the • plaintiff. No such proof is shown in this case. For this reason the motion of- defendant to dismiss the complaint should have been granted, and its refusal was error, for which the judgment should be reversed and a new triál ordered. This view of the case renders unnecessary the examination of the other questions.

Ordered accordingly.

Shea and G-oepp, JJ., concurred.