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asleep, but its duty also extends to keeping a reasonable watch over the passenger's necessary baggage and belongings which he cannot conveniently take with him or watch himself while he is absent from his berth in the washing room or toilet place.11

Sec. 1134. (§ 617g.) Same rules apply to parlor-car companies. The rules applicable to a sleeping-car company apply also to a parlor-car company. It is not a common carrier of the passenger's effects, but is bound to use reasonable care and caution, and is liable for a loss arising from its negligence unless the passenger's negligence contributed to cause the loss.12

Sec. 1135. (§ 617h.) Railroad company liable as common carrier to passenger of sleeping-car. But the fact that the sleeping-car company is not liable as a common carrier for the loss of the goods of the passenger does not relieve the railroad company from its liability as such to the passenger on its train while he is riding in the sleeping-car which the railroad company has permitted or procured to be run as a part of the train.13 Under such circumstances it is the railroad com

11. Morrow v. Pullman Palace Car Co., 98 Mo. App. 351, 73 S. W. 281.

It is a question of fact for the jury as to the negligence of a sleeping-car company when the porter opens a window in violation of a rule of the company, placing a valise of a passenger on a seat near the open window, and the valise is stolen while the passenger is away from his seat. Dawley v. Wagner Palace Car Co., 169 Mass. 315, 47 N. E. Rep. 1024.

12. Whitney v. Pullman Car Co., 143 Mass. 243; Duval v. Pullman Palace Car Co., 62 Fed. 265, 10 C. C. A. 331, 23 U. S. App. 527, 33 L. R. A. 715; petition for writ of certiorari denied, 163 U. S. 684. (In this latter case it was held

that if the railroad company refuses on any account to convey the car beyond a certain point, and turns it back before it has reached its journey's end, those are not the acts of the parlor-car company, and they form no basis for a suit for damages against it.)

13 Pennsylvania Co. v. Roy, 102 U. S. 451; Railroad Co. v. Katzenberger, 16 Lea, 380; Cleveland R. Co. v. Walrath, 38 Ohio St. 461; Thorpe v. New York Cent. R. Co., 76 N. Y. 402; Kinsley v. Lake Shore R. Co., 125 Mass. 54; Jones v. Railway Co., 125 Mo. 666, 28 S. W. Rep. 883, 46 Am. St. Rep. 514, 26 L. R. A. 718; Railroad Co. v. Ray, 101 Tenn. 1, 46 S. W. Rep. 554; Blake v. Railway Co.

pany's duty to see that sleeping-cars which are run over its road are properly equipped, in good condition, and properly managed.14 Nor can the railroad company limit its commonlaw liability for negligence by any arrangement which it may make with the sleeping-car company, because, as between the passenger and the railroad company, the agents of the sleeping-car company are the agents of the railroad company.15 But the liability of the railroad company in this case is, like that of the sleeping-car company, limited to reasonable baggage and traveling expenses,16 although the former company will be liable for the torts of the latter company's servants.17

Sec. 1136. Railroad company entitled to determine who shall occupy sleeping-cars.-The cars of the sleeping-car company, being under the control of the railroad company except as to furnishing lodging to those who pay for it, the agents of the railroad company are entitled to determine who shall occupy the sleeping-cars, as part of the train. Thus an agent of the railroad company may, under its regulations, refuse to sell a berth ticket to one not holding a first class ticket.18

Sec. 1137. Sleeping-car company not responsible for train connections. Since the railroad company is responsible for the running of trains, a statement in the official guide of a sleepingcar company that certain trains connect with others at specified times is not a warranty of punctuality, but a mere representation that the proper times of those trains are mentioned therein, and impose no duty on the company to see that such trains arrive on time.19

(Tex. Civ. App.), 85 S. W. Rep. 430.
14. Robinson V. Railroad Co.,
135 Mich. 254, 97 N. W. Rep. 689.
15. Railroad Co. v. Katzenberger,
16 Lea, 380; Kinsley v. Lake Shore
R. Co., 125 Mass. 54; Pullman Co.
v. Norton,
Tex. Civ. App.

N. Y. 117; Bayley v. Railway Co., L. R. 7 C. P. 415. But see Paddock v. R. R. Co., 37 Fed. Rep. 841.

18. Lemon v. Pullman Palace Car Co., 52 Fed. 262; Lawrence v. Pullman Car Co., 144 Mass. 1; Pullman Palace Car Co. v. Lee, 49

91 S. W. Rep. 841. 16. Hillis v. Ry. Co., 72 Iowa. Ill. App. 75. 228.

17. Dwinelle v. Railroad Co.. 120

19. Lockyer v. Sleeping Car Co., (1892) 61 L. J. Q. B. 501.

Sec. 1138. Responsibility of sleeping-car company where sleeping-car does not go over the same line of railroad that passenger's ticket calls for.-But if, after inspection of a passenger's railroad ticket, an agent of a sleeping-car sells the passenger a ticket for a berth on the sleeping-car, it is a representation to the passenger that the sleeping-car will go by the same line of railroad that the passenger's ticket calls for. Such representation is in the nature of a warranty, and the contract may therefore be treated as embodying it as a part of its terms. It is plain that this contract is broken if the passenger is compelled by the sleeping-car company, or by those for whose acts it is responsible, to leave the car at any time before reaching his destination because his railroad ticket calls for a different line than that over which the sleeping-car passes; and, in that event, he is entitled to recover for the breach of contract, as he could do if he had been wrongfully ejected by a common carrier of passengers or by an innkeeper. For such ejection the sleeping-car company is liable not only for the direct, but also for the consequential damages, which should have been anticipated as the natural and probable result of its breach of contract, subject to the limitation that the damages recovered could not be enhanced by the negligence or wilful conduct of the passenger.20

Sec. 1139. (§ 6171.) Duty of sleeping-car company to furnish berth. The sleeping-car company, having a vacant berth in its car, is bound to furnish it to any proper person who enters at the proper time and place, and tenders the fare fixed for the same;21 but the company is not liable for refusing to sell sleeping-car accommodations to a person not having a proper railroad ticket to entitle him to such accommodations.22 So,

20. Pullman's Palace Car Co. v. King, 99 Fed. 380, 39 C. C. A. 573. 21. Nevin v. Pullman Car Co., 106 III. 222; Searles v. Car Co., 45 Fed. Rep. 330.

Car

22. Lawrence v. Pullman Co., 144 Mass. 1; Pullman Palace

Car Co. v. Lee, 49 Ill. App. 75; Lemon v. Pullman Palace Car Co., 52 Fed. 262.

Nor is the company liable in damages for refusing to furnish accommodations to one who has neglected to procure a ticket

it is said, the company has the right to sell to one passenger a whole section, and that no cause of action will arise against it because it refuses to sell the upper berth in that section to another passenger, though such upper berth is not in fact ococcupied.23 Neither is the company liable for giving the preference in the sale of a berth to the one first applying for it.24 In fact, when a passenger has made a demand for a berth and the company promises to furnish or reserve one for him, there is a valid contract, the mutual promises being a consideration. The fact that another person demands such berth before the passenger has presented himself to pay for it will not excuse its failure to comply with its undertaking, and if such passenger is excluded from the berth which the company has contracted to furnish him, the company will be liable for whatever inconvenience and mortification the passenger suffers in consequence of its wrongful act.25

which he would have been entitled to without further payment, but who enters the train without any evidence of his right to occupy a berth. And if another passenger gives up his berth to the one so refused, the passenger so giving up his berth cannot demand other accommodations from the sleepingcar company without further full payment for the same. Pullman Palace Car Co.' v. Marsh, 24 Ind. App. 129, 53 N. E. Rep. 782.

23. Searles v. Car Co., 45 Fed. 330.

24. Searles v. Car Co., supra. 25. Pullman Palace Car Co. v. Booth (Tex. Civ. App.), 28 S. W. Rep. 719.

After a passenger has paid for and been assigned a berth in a sleeping-car, to be offered his money back does not furnish sufficient redress for being told that the berth is occupied by some one else, and to be compelled to sit up

all night in an ordinary day coach to secure such rest as he might therein. The jury is entitled to allow the passenger a reasonable compensation for his discomfort. Brawn v. Webb, 65 N. Y. Supp. 668, 32 Misc. 243; s. c. 62 N. Y. Supp. 1037.

If by a standing order of the railroad company certain berths are reserved for passengers from a certain station, and the conductor erroneously sells one of the berths so reserved, the conductor may, within a reasonable time before reaching that station, notify the passenger of his error and offer the occupation of another berth in the car equal to the first berth in accommodation; and if the passenger refuses to accept the other berth, and leaves the car without being compelled to do so by the conductor, the passenger is not entitled to damages. Mann Boudoir Car Co. v. Dupre, 54 Fed.

But in all cases, the right of the passenger to a berth in a sleeping-car is subject to such reasonable rules and regulations as the company may prescribe for the safety and comfort of its passengers. 26

Sec. 1140. Duty of sleeping-car company to furnish means of getting into or out of berth. It is not alone the undertaking of a sleeping-car company to provide the bed to sleep in, but also reasonably safe means of getting into and out of bed. If it furnishes upper berths, which common observation and experience teaches are difficult, if not dangerous, to alight from when the car is in rapid motion, it is not carrying its obligation any too far to require it to have steps, as it usually does, or other mechanical contrivances, to assist in that act. And having steps, if they are movable, servants should be employed to bring them to the aid of the passenger, and in the night time such servants should be alert and awake, ready to respond to the ring of the bell provided to call them.27

Sec. 1141. (§ 617j.) Passenger entitled to occupy only the berth he pays for. The passenger is entitled to occupy only the berth he pays for and which his ticket specifies. This was held in a late case where a man and his wife, not known to the car officials to be such, having bought separate berths, sought to occupy the one paid for by the husband, and were prevented

v. Dupre, supra.

646, 4 C. C. A. 540, 13 U. S. App. evidence. Mann Boudoir Car Co. 183, 21 L. R. A. 289. If the sleepingcar company contracts to furnish a berth to the passenger, but breaches the contract before his destination is reached, it will be liable for such breach notwithstanding its having been caused by the failure of the railway company to haul the sleeper. Pullman Co. v. Hocker, Tex. Civ. App.

The berth check furnished a passenger by the conductor of a sleeping-car, so far as it designates a particular berth as the one assigned to the passenger, does not become, as soon as it is furnished to the passenger and received without immediate objection, a written contract as to that subject-matter, the terms of which cannot be varied by parol testimony. There is no necessity of the sleeping-car service for giving a berth check conclusive force as

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