It cannot avoid its liability by posting in the car a notice disclaiming responsibility for personal property left in berths, if such no tice is not known to the passenger; Lewis v. Sleeping Car Co., 143 Mass. 267, 9 N. E. 615, 58 Am. Rep. 135; Woodruff Sleeping & P. C. Co. v. Diehl, 84 Ind. 474, 43 Am. Rep. 102; negligence of the passenger in losing his property is no defense to the company's liability for it, if stolen by a servant of the company ; Pullman Palace Car Co. v. Mat thews, 74 Tex. 654, 12 S. W. 744, 15 Am. St. Rep. 873; Pullman Palace Car Co. v. Gavin, 93 Tenn. 53, 23 S. W. 70, 21 L. R. A. 298, 42 Am. St. Rep. 902; Pullman Co. v. Vander hoeven, 48 Tex. Civ. App. 414, 107 S. W. 147 ; Root v. Sleeping Car Co., 28 Mo. App. 199 ; but the company is not liable if his property is carelessly left within the reach of persons outside; Whitney v. Pullman's Palace Car Co., 143 Mass. 243, 9 N. E. 619; Florida v. Pullman Palace Car Co., 37 Mo. App. 600; unless it was left with the porter; Chamber lain v. Pullman Palace Car Co., 55 Mo. App. 474 ; or unless an agent of the company knew that it had been so' left; Illinois Cent. R. Co. v. Handy, 63 Miss. 609, 56 Am. Rep. 846; it is not ordinarily liable for property stolen by another passenger ; Woodruff Sleeping & Parlor Coach Co. v. Diehl, 84 Ind. 474, 43 Am. Rep. 102; but it is so liable when the porter takes charge of it to remove it from the car; Voss v. Wagner Palace Car Co., 16 Ind. App. 271, 43 N. E. 20, 44 N. E. 1010.
Negligence on the part of the sleeping car . company's servants is not to be presumed from the mere fact of the loss, but must be shown; Root v. New York Central Sleeping Car Co., 28 Mo. App. 199; Falls. River & Mach. Co. v. Pullman Palace Car Co., 6 Ohio Dec. 85; Carpenter v. R. Co., 124 N. Y. 53, 26 N. E. 277, 11 L. R. A. 759, 21 Am. St. Rep. 644; Tracy v. Pullman Palace Car Co., 67 How. Pr. (N. Y.) 154; Hillis v. R. Co., 72 Ia. 228, 33 N. W. 643 ; Pullman Palace Car Co. v. Pollock, 69 Tex. 120, 5 S. W. 814, 5 Am. St. Rep. 31. Contributory negligence on the part of plaintiff may defeat his recovery; Lewis v. New York Sleeping Car Co., 143 Mass. 267, 9 N. E. 615, 8 Am. Rep. 135; Bar rott v. Pullman's Palace Car Co., 51 Fed. 796; Illinois Cent. R. Co. v. Handy, 63 Miss. 609, 56 Am. Rep. 846; but in the case of theft by a servant of the company or his neglect of duty not requested by the defend ant, this defence is not effectual; Morrow v. Pullman Palace Car Co., 98 Mo. App. 351, 73 S. W. 281; Pullman Palace Car Co. v. Matthews, 74 Tex. 654, 12 S. W. 744, 15 Am. St. Rep. 873. The presumption of negligence arising from proof of loss is rebutted by the porter's uncontradicted evidence that he watched the car till after the loss; Pullman Palace Car Co. v. Freudenstein, 3 Cola App. 540, 34 Pac. 578.
The railroad company is liable to a pas senger who is injured through the negligence of a servant of a sleeping-car company ; Rail road Co. v. Walrath, 38 Ohio St. 461, 43 Am. Rep. 433; Pennsylvania Co. v. Roy, 102 U. S. 451, 26 L. Ed. 141; though riding in a differ ent car from the one in which he has pur chased a seat; id., 102 U. S. 451, 26 L. Ed. 141; even though he knew that the sleeping car was operated by a separate corporation; see id., 102 U. S. 451, 26 L. Ed. 141; Wood, Ry. 1700; though the question of his knowl edge was deemed important in Railroad Co. v. Walrath, 38 Ohio St. 461, 43 Am. Rep. 433.
For an unjustifiable and wanton assault by a porter on a passenger on a railroad train who had not purchased a sleeping-car ticket, it was held that the railway company was liable, but that the sleeping-car company was not; Williams v. Palace Car Co., 40 La. Ann. 87, 3 South. 631, 8 Am. St. Rep. 512, id., 40 La. Ann. 417, 4 South. 85, 8 Am. St. Rep. 538. Whether the latter is to be held liable for the violent act of a porter dependi upon whether the act was done while he was act ing within the scope of his employment ; He enrich v. Palace Car Co., 20 Fed. 100; if it was so the company is liable; id. ; Campbell v. Palace Car Co., 42 Fed. 484, where it was said that the sleeping-car company represents that its cars may be occupied with reasonable safety and comfort and its contract implies ordinary- care to secure them. The porter was held to be the servant of the railroad company in Dwinelle v. R. Co., 120 N. Y. 117, 24 N. E. 319, 8 L. R. A. 224, 17 Am. St. Rep. 611; Pennsylvania Co. v. Roy, 102 U. S. 451, 26 L. Ed. 141. Where a passenger is ejected from a sleeping-car by train hands, their act is the act of the railroad company, not of the sleeping-car company ; Pullman Palace Car Co. v. Lee, 49 III. App. 75.
It cannot be said on demurrer that a com pany is not liable for injury to a passenger caused by the excessively low temperature of a. car; Hughes v. Palace Car Co., 74 Fed. 499.
A railroad company cannot, by any ar rangement with a sleeping-car company, evade the duty of providing proper means for the safe carriage of passengers; Penn sylvania Co. v. Roy, 102 U. S. 457, 26 L. Ed. 141; Kinsley v. R. Co., 125 Mass. 54, 28 Am. Rep. 200.
A passenger travelling on a free pass, by which he waived action for injuries, pur chased a seat in a sleeping-car; and while riding in it was injured ; it was held that he was still bound by his waiver; Ulrich v. R. Co., 108 N. Y. 80, 15 N. E. 60, 2 Am. St. Rep. 369.
A rule of a railroad company requiring a passenger to have a first-class ticket, for his transportation before he can be assigned to a berth in a sleeping-car, is a reasonable one ; Pullman Palace Car Co. v. Lee, 49 111. App. 75.