McMurray v. Pullman's Palace Car Co.

Mr. Justice Adams delivered the opinion of the court. “ The mere proof of the loss of money by a passenger while occupying a berth, does not make out a prima facie case, and to sustain a recovery some evidence of negligence on the part of the defendant must be given.” Carpenter v. N. Y., N. H. & H. R. Co., 26 S. E. R. 277. To the same effect is Pullman Car Co. v. Smith, 73 Ill. 360. Hone of the cases cited by appellant is to the contrary. It is true, as contended by appellant’s counsel, that direct proof of negligence is not necessary; that it may be inferred from facts and circumstances in evidence; but the court, whose province it was, sitting as a jury, to exercise the functions of a jury as to the facts, has found that the facts do not justify the inference that appellant’s money was lost by reason of appellee’s negligence, and the sole question presented for decision is, whether this finding is manifestly against the evidence. We can not say that it is. On the contrary, we think it sustained by Pullman Pal. Car Co. v. Smith, supra. The judgment will be affirmed.