Tower v. Utica & Schenectady Rail-Road — 7 Hill & Den. 47

Majority

p. 47

Tower vs. The Utica and Schenectady Rail-Road Company.

Headnote

In an action brought to charge a rail-road company as common carriers for the loss of an overcoat belonging to a passenger, it appeared that the coat was not delivered to the defendants, but that the passenger, having placed it on the seat of the car in which he sat, forgot to take it with him when he left, and that it was after-wards stolen. Held, that the defendants were not liable.

Action of trespass on the case, tried.at the Herkimer circuit in April, 1843, before Willard, C. Judge. The plaintiff claimed to recover against the defendants as common carriers for the value of an overcoat which had been lost under the following circumstances: In October, 1842, the plaintiff took passage in the evening train of cars at Utica, for Frankfort Bridge, some eight miles east of the former place, and paid his fare. When he entered the car he had the coat in question upon his arm, and laid it down by his side. On the arrival of the cars at Frankfort Bridge, he left them, but forgot his coat until the train had started for Schenectady. When the cars arrived at St. Johnsville, some thirty miles east of Utica, a passenger told the conductor of the train that the coat had been left, but the latter

p. 48

made no reply. The coat was still in the cars when they arrived at Schenectady, and the conductor then sent a hand to take care of it; but before he got to the car, the coat was stolen. The circuit judge ordered a nonsuit, to which the plaintiff excepted, and he now moved for a new trial on a bill of exceptions.

6r. B. Judd, for the plaintiff.

N S. Benton Sp M. T. Reynolds, for the defendants.

By the Court,

I am of opinion that the nonsuit was properly granted. The overcoat was not delivered into the possession or custody of the defendants, which is essential to their liability as carriers. Being an article of wearing apparel of present use, and in the care and keeping of the traveller himself for that purpose, the defendants have a right to say that it shall be regarded in the same light as if it had been upon his person. No carrier, however discreet and vigilant, would think of turning his attention to property of the passenger in the situation of the article in question, or imagine that any responsibility, attached to him in respect to.it. Even an innkeeper is not liable where the guest takes the goods to his room for the purpose of having the care of them himself. (Burgess v. Clements, 4 Maule & Selw. 306; Jer. Law Of Carr. 150, 156.)^[1]

Again, all the books agree that if the negligence of the passenger conduces to the loss of the goods, the carrier is not responsible. (Whalley v. Wray, 3 Esp. Rep. 74; Jer. Law Of Carr. 55, 156.) Now the loss in this case occurred through the gross neglect of the plaintiff. Common care and attention on his part would have prevented it. A passenger might as reasonably complain

(a) (a) See 2 Kent’s Comm. 596, 4th ed.; Farnworth v. Packard, (1 Holt’s N. P. Rep. 209,) and the note; Story On Bail. 491, 2d ed.

p. 49

because he had forgotten to leave the cars at the point of destination, and been carried beyond it,. as to do so in a case like the present. The carrier is not bound to act as guardian for his passenger, and treat him as a ward mider age. The passenger must at least assume the responsibility of taking ordinary care of himself, including the wearing apparel about his person. There is certainly no hardship in this,- unless he is to be regarded by the law as becoming at once inops consilii the moment he enters a car or stage coach.

If the defendants were under any obligation to take charge of the article in question after it was discovered to have been left in the car, (and it is not necessary to deny that they were,) ordinary care is all that can be exacted, and that was sufficiently established.

New trial denied.