NOTICE TO PASSENGERS. 233 took to carry Roy over its line, and, in view of its obligation to use only cars that were adequate for safe conveyance, the sleeping car company, its conductors and porter, were, in law, the servants and employees of the railroad company. Their negligence, or the negligence of either of them, as to any matters involving the safety or security of passengers while being conveyed, was the negligence of the railroad company. The law will not permit a railroad company, engaged in the business of carrying persons for hire, through any device or arrangement with a sleeping car company whose cars are used by the railroad company, and constitute a part of its train, to evade the duty of providing proper means for safe conveyance of those whom it has agreed to convey." NOTICE TO PASSENGERS OF SEPARATE CONTRACTS. In several of the cases previously referred to, the court did not pass upon whether or not actual notice. to the passenger that the sleeping or palace cars were run by a separate company would have any effect on the liability of the railroad company. In Wood's Railway Law, the case of Roy just cited is commented upon, and the writer observes: "From the grounds upon which Harlan, J., placed the liability of the railway company, it is doubtful whether that circumstance would have any influence upon the question of liability. The real ground of liability being the duty which the railway company owes to passengers of running none but sound and sufficient cars, and that by consenting to haul the cars, the passenger has a right to regard it as an assurance by 1, Pennsylvania R. R. Co. vs. Roy, 102 U. S., 451; I it that the car is safe. It is not believed that notice or knowledge of the real status of the two companies would effect the liability of either.” In a foot note he again refers to this case and says: "We have no hesitancy in saying, that in the absence of notice that the company will not be liable for defective appliances in the sleeping car or negligence of servants of the sleeping car company, a passenger may well assume that the train is under one general management. How far a railway company may, by agreement with a sleeping car company, known to the passenger, exonerate itself for liability for such injuries, is a question concerning which we express no opinion." 2 2 DUTY TO RECEIVE PASSENGERS IN SLEEPING CARS. The considerations of public policy would seem to require that sleeping car companies should receive and accommodate all passengers who are willing to pay the customary charges for lodging, but as these cars occupy an anomalous position, their owners being neither inn-keepers nor common carriers, it is a matter of some doubt whether they are at liberty to refuse to accommodate a passenger or not. In an Illinois case, a dictum was expressed that any passenger who applies for a berth. against whom no objection exists, is entitled to have it upon paying, or offering to pay therefor.3 This view is taken by Mr. Wood, who says that the obligation of sleeping car companies grows out of the obligation of the railway company to the traveling public, and of the relation I, 2, 3, Wood's Railway Law, Vol. III., p. 1443; TRAVELING ON FREE PASS. 235 of the palace car company to the railway company, and that they must be subject to the obligations which the law imposes upon the railway company, in reference to its cars, and the equal accommodations and facilities therein which the railway company is bound to afford its passengers, and the palace car company must be regarded as impliedly contracting that it will be subject to these obligations.' In the Illinois case previously referred to, the court held that a sleeping car company, operating and running sleeping cars over railroads, by force of law, independently of contract, owes duties to the public, as a common carrier, one of which is that it shall treat all persons whose patronage it has solicited, with fairness and without unjust descrimination, and is liable for a breach of such duty to the party injured thereby." A dictum of Judge Sheldon of the Superior Court of Buffalo is to the effect that a sleeping car company cannot be compelled to receive and entertain passengers.3 PASSENGER TRAVELING ON FREE PASS. The general rule is that a passenger who accepts a free pass from a railway company is bound by its conditions, which usually are that the passenger has no claim against the company for accident or loss. We now have to consider how the relations are changed by the free pass passenger purchasing a ticket for a drawing-room or sleeping car. In a recent case, the plaintiff, who had a free pass, bought a palace car I, Wood's Railway Law, Vol. III., p. 1450; 2, Nevin vs. Pullman Co., supra; 3, Welch vs. Pullman Co., 16 Abb. Pr., 352–7; ticket, and was injured while riding in this car. The court held that while, if he had been riding in the ordinary cars of the train, he might not have been entitled to maintain his action, yet, by purchasing a palace car ticket and riding on it, he became entitled to the same rights as any other passenger. The court said: "The pass entitled him to ride in one of the common cars of the company, but the plaintiff wished accommodations of a better kind, and therefore he applied for transportation in one of the drawing-room cars that form a part of the defendant's trains. He was accepted as a passenger in the drawing-room car called the 'Empire,' and paid one dollar for transportation in that car to New York. If the free pass gave him the right to travel on the train, it gave him no right to travel in that car, and it is evident that the rights and relations of the parties were changed by the sale to him of the ticket for the drawing-room car. He became a passenger for hire. Of that there can be no doubt, nor can there be any doubt that he was at the same time using a free pass. As a passenger for hire, who, in bargaining for transportation in the drawing-room car, had made no contract that relieved the company for its liability for damages if he were injured through its negligence, the plaintiff has all the rights that the law gives to ordinary passengers; and having paid for a ticket he is not to be considered as one who, in consideration of a free pass, has agreed not to hold the company liable for injuries. The defendant voluntarily made a new contract, and cannot now ignore it and insist that the rights of the parties shall be measured by a contract that was intended to operate upon a condition of MUTUAL OBLIGATIONS-ACCIDENTS. 237 affairs that it has seen fit to change. The defendant has taken money from the plaintiff for carrying him, and it has no right to say that he was a free passenger, and to ask the court to incorporate into the drawing-room ticket the provisions of the free pass." OBLIGATIONS OF CARRIER AND PASSENGER. When a berth in a sleeping car is engaged, the passenger implicitly agrees to conduct himself in a quiet and orderly manner, and to take proper care of the berth while in his possession, and to give up the same at the end of the journey. The company impliedly stipulates to use all reasonable and proper means to preserve order and decorum in the sleeping coaches, to furnish and keep on hand such supplies and conveniences as are usually found in like sleepers, and are necessary to the health, comfort and safety of passengers, and also to permit the passengers to quietly and peaceably occupy the berth for the time engaged.' ACCIDENTS ON SLEEPING CARS. Should the upper berth of a sleeper give way, through negligence of the company, and the person occupying the lower berth sustain injuries thereby, the company is liable in damages. The company cannot excuse itself from liability by saying that the berth fell by reason of defective manufacture, and that it did not manufacture the sleeping coach in which the accident occurred, for if it purchase its rolling stock from manufacturers, it is responsible for negligence in manufacture to the same extent as I, Ulrich vs. N. Y. C. R. R. Co., 31 Alb. L. J., 302; 2, Nevin vs. Pullman Co., 106 Ill., 222; 3, DeLong vs. D. L. & W. Co., 37 Hun, 282; |