Error to the Court of Common Pleas No. 1 of Allegheny County.

Case by William Gardner against The Pullman Palace Car Company, to recover damages for losses occasioned by the alleged negligence of the defendant and its employés, in not exercising proper care for the protection of plaintiff and his personal effects. Plea, not guilty.

The facts as they appeared at the trial before Stowe, J., were as follows: On April 8, 1881, the plaintiff purchased for two dollars a sleeping-car ticket, entitling him to a berth in the sleeping coach “ Bordentown,” running from Philadelphia to Pittsburgh. The berth designated by the ticket was the upper one in the second section from the rear door on the left of, the car. The plaintiff retired immediately upon the train leaving Philadelphia, which was at 11.50* p. m. He took off his coat and vest, and put his watch, which was valued at $250, and his pocket-book, containing about $55, into the inside pocket of his vest. He then wrapped his vest up and placed it under the corner of the mattress farthest from the aisle outside. He was soon asleep, and did not wake until the train reached Huntingdon at seven o’clock in the morning. He was then aroused by the passenger conductor asking for his railroad ticket. He found the ticket outside the pocket-book. The money had been taken. The watch was also gone. He called the conductor, and a dispatch was sent forward to Tyrone, where detectives met the train and searched part of the passengers, but the missing property could not be found. There were two Pullman cars on the train, one sleeper and a hotel car. Five men wrere in charge of these cars, the conductor, a porter for the sleeper, and a cook and two waiters for the hotel car. The conductor kept watch, in accordance with the company’s regulations, sitting on a camp-stool at the end of the aisle next to the large state-room until three o’clock. He then went to sleep, leaving the car in the sole charge of the porter.

Two passengers had taken berths at Philadelphia for Altoona, and they left the train at Harrisburg. One of them had the lower berth in the section next to the plaintiffs.

The plaintiff testified, inter alia, under objection.

‘ ‘ I commenced talking to the porter, and General Boss was with me. I picked him out, and he recognized me, and then says he: £ This is a very careless way of taking-care of people’s property.’ Says I: ‘It is a very careless way of taking care of the cars.’ The porter says: ‘ How can I take care of two cars together ? ’ The porter said he could not take care of two cars, and says I: £ Where is the conductor ? ’ He says: £ The conductor is here.’ Says I: £ How is this ? Is there no care to be taken of us while we are asleep?’ With that another man sung out, says he: £I am robbed.’ . . . Yes, sir; he (the porter) said one of the men w7ho got off at Harrisburg went back to get his boots blacked, and the other went in the car.

By counsel for plaintiff.

Q. Where did he say he blacked the boots ?

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