p. 475for Albany, but the plaintiff declined. The agent suggested that the plaintiff allow the trunk to go by the way of Athens, as it would reach New York the same time as by the way of Albany, to which the plaintiff assented, and he received a check for the trunk to New York by the way of Athens. This check was one belonging to the People’s Line of Steamers, and was stamped as follows: “New York, People’s Line of Steamers, No. 5, Little Falls.”
It did not appear on the trial that there was any partnership or community of interest between the defendant and the People’s Line of Steamers, but it was shown that the two companies were in the habit of exchanging checks.
The plaintiff paid no fare or passage money nor engaged any passage at Little Falls for any place, but when on the defendants’ cars, on the way to Albany, paid his fare to that place. Defendants delivered his trunk to the Peoples’ Line at Athens, but it was lost or destroyed the next day by the sinking of their steamboat “Dean Richmond,” on her passege from Athens to New York.
Plaintiff first presented a claim for his loss to that line, but afterwards made a claim against the defendants for the value of his lost baggage. On the trial he was permitted to testify, against defendants’ objection and exception, that on its presentation to defendants’ superintendent, that person said, “ You (plaintiff) have a very good claim.”
A motion to dismiss the complaint was made, which was denied, and an exception taken. A verdict was rendered for seven hundred and seventy-seven dollars and eighty-two cents, for the value of the lost baggage, and the exceptions ordered to be heard in the first instance at general term.
Theron R. Strong, for defendant, appellant.
p. 476The rule is well settled that independent of statute, a carrier receiving property which is to be transported beyond his own line, discharges his responsibility by carrying it over his own route, and delivering it to the next carrier on the way to its destination (Van Santvoord v. St. John, 6 Hill, 157 ; Hempstead v. N. Y. Central R. R. Co., 28 Barb., 485 ; Salinger v. Simmons, 2 Lans., 325 ; S. C., 57 Barb., 513 ; M’Donald v. Western R. R. Corporation, 34 N. Y., 497 ; Dillon v. N. Y. & Erie R. R. Co., 1 Hilt., 231; Jacobs v. Hooker, Edm. Cas., 472; Pratt v. Ogdensburgh & L. Champ. R. R. Co., 102 Mass., 557 ; Darling v. Boston & Worcester R. R. Co., 11 Allen, 295 ; Grass v. N. Y., Providence & Boston R. R. Co., 100 Mass., 26 ; Nutting v. Connecticut R. R. Co., 1 Gray, 502 ; Judson v. West. R. R. Co., 4 Allen, 520 ; Perkins v. Port Saco & Ports. R. R. Co., 47 Me., 573 ; Brintnall v. Saratoga & Whitehall R. R. Co., 32 Vt., 665 ; McMillan v. M. S. & N. I. R. R. Co., 16 Mich., 119 , 120; Hood v. N. H. & N. Y. R. R. Co., 22 Conn., 1 ; Bowman v. Hilton, 11 Ohio, 303 ; Bissell v. Price, 16 Ill., 408 ; 2 Redf. on Railways, 112, 123). In eases of connecting railroads, it is provided by statute, that “ whenever two or more railroads are connected together, any company owning either of said roads, receiving freight to be transported to any place on the line of either of the said roads so connected, shall be liable as common carriers for the delivery of such freight at such place” (Laws of 1847, ch. 270, p. 298). This statute recognizes the rule at common law as above stated, and was designed to modify it as to connecting railroads, to which alone it is applicable. It has no application to a case of connecting routes of transportation by other modes, or by a railroad and steamboats. Ror is this statute applicable to any case unless the facts requisite to constitute the liability are averred in the complaint (Hempstead v. N. Y. Central R. R. Co., 28 Barb., 502 ).
p. 477Charles M. Da Costa, for the plaintiff, respondent.
I. Whether or not the defendant’s line extended all the way to Hew York was immaterial, for the rule is now well settled in our State that, when several separate carriers, owning distinct portions of a continuous route, between two termini, employ the same agents to sell passage tickets, and to receive baggage to be carried over the entire route, an action may be maintained as against one of them for loss of baggage received at one terminus to be carried on the whole route (Hart v. R. & S. R. R. Co., 8 N. Y. [4 Seld.], 37; Quimby v. Vanderbilt, 17 Id., 306). See also the article entitled “ The responsibility of common carriers beyond their own lines,” in the Albany Law Journal, vol. 3, p. 485, where all the authorities, English and American, are cited and ably commented on.IT. Whether the plaintiff did or did not pay his fare on the day in question, was entirely immaterial. The defendants would still be liable. For the delivery of a trunk into the possession of a railroad station master at his station, for transportation, and his reception of the same for that purpose, imposed upon the corporation the obligation of a common carrier, even thougli the passenger go by another conveyance. In the latter case, however, the carrier receives the baggage as freight, and has a lien for his charges thereon. In the case of the Elvira Harbeck, 2 Blatchf. C. Ct., 336, 339, the court (Helsoe, J.) said: “In cases where the passenger accompanies his baggage, the fare charged for his passage includes compensation for its transportation, and the carrier becomes responsible for its safe delivery. If the passenger does not accompany it, the carrier may claim compensation in advance for its transportation, or may postpone his claim till the delivery, and rely on his lien, or on the personal responsibility of the owner. And I do not see why the rule
p. 478of responsibility for .the safe-keeping and delivery should not be the same in both cases. The actual payment of the freight in the one case, and the actual liability and lien for its payment in the other, constitute the consideration for the undertaking.” And the above doctrine was cited with approval and followed by the supreme court of Maine, in a case somewhat similar to the case at bar (Wilson v. Grand Trunk Railway Co. of Canada, 57 Maine, 138).There was no proof to maintain the issue raised by the pleadings, that defendants were common carriers of passengers and their baggage, between Little Falls and New York, or that they had any authority, as a corpoartion, to contract for the carriage of passengers or their baggage by steamboat, on the Hudson river. Although forming a connecting line with the Peoples’ Line of steamboats, running from Athens to Hew York, there was no evidence of the existence of any agreement between defendants and that line, by which they had any community of interest in, or management or control over, the carriage of passengers on the Hudson river, either from Albany or Athens to Hew York, by force of which, had they been carriers at large, they would, within the principle of Champion v. Bostwick ( 18 Wend., 175 ), have been liable for the default of their associates.
As a general rule, the responsibility of a railroad corporation (such as the defendants’), established for the transportation of freight or passengers between certain places, commences when the freight or passenger is accepted for transportation, and terminates by a safe delivery at the end of the route; and it is not liable, except as a forwarder, for goods marked or shipped for a remoter point, unless it is authorized to make a contract extending its liabilities and contracts accordingly
p. 479(Redf. on Railways, §§ 181, 183; Burroughs
v. N. & W. R. R. Co., 100
Mass., 26 ; Hempstead
v. N. Y. Central R. R. Co., 28
Barb., 485 ; Dillon
v. N. Y. & Erie R. R. Co., 1
Hilt., 231; Johnson
v. N. Y. Central R. R. Co., 33
N. Y., 610 ; Sallinger
v. Simmons, 2
Lans., 497 ; Root
v. Great Western R. R. Co., 45
N. Y., 524 ; Straiton
v. N. Y. & N. Haven R. R. Co., 2
E. D. Smith, 184).
In the absence of any express contract to carry the plaintiff or his baggage to Hew York, or of evidence of defendants being common carriers between Athens and Hew York, via the Hudson river, the mere fact of their affixing to plaintiff’s trunk a baggage check of the Peoples’ Line, furnished no proof by way of implication of any assumption of such duty. Ho fare was received for his passage to Hew York, nor any agreement made to carry his trunk as freight. It was accepted as baggage and as an incident to his becoming a passenger on defendants’ road to Albany, and the undertaking to carry it to Athens and there deliver it to the Peoples’ Line, was a substituted service agreed on by the parties.
Under the general railroad act (3 Rev. Stat., 5 ed., 634, § 34), the plaintiff might have insisted upon a check on- defendants’ road to Albany, but accepted one of the steamboat company, which was only properly issuable when the passenger purchased a through ticket of that line to Hew York, on their steamboats (see subsequent act of 1868, ch. 573; 7 Rev. Stat., Edmond’s ed., 317, which recognized previous practice and obligations). If he became a passenger on their boat at Albany, the liability of that company probably attached ; if not, he became liable to them, and not to defendants, for freight on the trunk from Athens to Hew York.
By the act of 1847 (ch. 270, § 9), “ whenever two or more railroads are connected together, any company