Hasbrouck v. New York Cent. & H. R. Railroad

■either that the trainman did not rifle the bag, or how or where he left .it the few minutes that it was under his control.

A rule of the defendant prescribed that conductors of trains should be responsible for the movement and care of the train and for the vigilance and conduct of the men employed thereon, and contained an admonition that the reputation of the road depended greatly upon the •attention and courtesy shown to its patrons. The rule with respect to the duties of trainmen prescribed that they were subject to the orders •of the conductor, and that they should take position at the car steps to assist passengers on and off the train, and generally look after their •comfort.

The complaint is framed in two aspects, one charging the defendant with liability as common carrier, and the other as bailee. The decision •of the learned trial court, as evidenced by his findings, places the responsibility upon the defendant as common carrier, although in his opinion, which we cannot consider, he speaks of negligence on the part of the defendant.

The defendant insists that the plaintiff in surrendering her suit •case to the trainman before she arrived at the station, and permitting him to have it in his custody before she alighted from the train, constituted him her own agent or bailee, and that such service, to the knowledge of the plaintiff, was so far outside the scope of his employment by the defendant that it is not responsible for his negligence, or theft, or failure to deliver back the property in the condition in which it was delivered to him.

Of course, if the trainman was the agent or bailee of the plaintiff •and not acting as the servant of the defendant, that is the end of the ■controversy, and the defendant is not liable. We are of the opinion, however, that such was not the situation. The conductor was in •charge of the defendant’s train. He was under no obligation to direct a trainman or any other person to take care of the plaintiff’s baggage. He assumed, however, to send to her one of the defendant’s employés, a trainman under his control, and a servant of the defendant. In taking the bag from the plaintiff and thus exercising control •over it, he must be assumed to have acted for the defendant. Such an act was not so outside the scope of his employment as to make it •an individual act of his own and constitute him the servant of the ■plaintiff. If this view be correct, it makes no difference whether the defendant thus had possession of the plaintiff’s property as bailee or as common carrier. If such possession was as common carrier, the defendant was an insurer and was bound to redeliver what he received. Powell v. Myers, 26 Wend. 591 ; Merrill v. Grinnell, 30 N. Y. 594 . There being no explanation respecting the loss of the goods or ■endeavor to account for their nondelivery, if the defendant be deemed •a bailee, the plaintiff made a prima facie case of negligence. Fairfax v. N. Y. C. & H. R. R. Co., 67 N. Y. 11 . Notwithstanding the rule that in case of bailment the burden is upon the bailor to establish negligence in the care of goods, an unexplained failure to deliver on •demand is prima facie evidence of negligence. Claflin v. Meyer, 75N. Y. 260, 31 Am. Rep. 467 . If the plaintiff had retained the bag

in her own possession and had not delivered it to the trainman, the burden would have been on her to show affirmatively that the loss of it or of its contents was the result'of some negligence bn the part of the defendant. The situation presented is similar to that of the liability of parlor car companies, except that those companies employ porters specially to look after the luggage of passengers who pay extra compensation to ride in their cars. Even in such case, where the passenger retains the custody of his luggage, he cannot recover for theft by a fellow passenger or by an intruder unless he shows negligence on the part of the employes of the car company in the management or control of the car. Where the passenger places his luggage in the custody of the employé, however, the company is liable not only for theft by the employé, because it is bound to employ faithful servants, but for his negligence. 4 Elliott on Railroads, § 1623.

The ticket which the plaintiff purchased contained a provision (which the plaintiff did not observe) that no risk was assumed on baggage except for wearing apparel of $100 in value only, and the defendant insists that the plaintiff’s recovery, if she is entitled to recover at all, is limited to that sum, or at most to the $150 prescribed by section 38 of the public service commission act. Laws 1907, c. 429. The contract embraced in the ticket and the law referred to manifestly refers to baggage which is checked, and not to luggage which the passenger personally carries and delivers temporarily to the carrier’s servant. Holmes v. North German-Lloyd S. S. Co., 184 N. Y. 280 , 77 N. E. 21 , 5 L. R. A. (N. S.) 650 .

' While the holding of the defendant liable may be onerous and unusual, we see no escape from liability. It is true that the fastening of liability upon the defendant may open the door to gross fraud which will require courts in such cases to closely scrutinize the evidence. In the present case the defendant does not attack the truthfulness of the plaintiff’s testimony, assuming if she was mistaken, that she was honestly so, but relies upon its legal effect on the assumption that it was truthful.

The defendant further complains of the refusal of the trial court to find certain requests respecting plaintiff’s negligence in delivering the suit case unlocked to the trainman, and that she paid him for his services in connection therewith. If- the plaintiff is entitled to recover at all, she is not precluded by the fact that she delivered unlocked a suit case to the defendant’s servant. Nor did the fact that she presented him with a small amount of money establish that he was in her employ.

If we are correct in our views of the law, it follows that the judgment must be affirmed, with costs. All concur, except SMITH, P. J., dissenting.