Marmonstein v. Pennsylvania Railroad

— Whatever the law in other jurisdictions, it is settled in this state that “the receipt of goods marked for a place beyond the terminus of the carrier’s route does not import a contract to carry them to their final destination. Such a contract will not be inferred from the simple address of the goods. There must be other facts and circumstances sufficient to show a special contract.” Condit v. Railroad Co., 54 N. Y. 500 , 502; Berg v. Steamship Co., 5 Daly, 394 ; Rawson v. Holland, 59 N. Y. 611 ; Jennings v. Grand Trunk Railway Co., 127 id. 438; 40 St. Rep. 318 . The principle is so prevalent in the United States as to be denominated the “ American Rule,” in distinction from the English doctrine. Note to Wells v. Thomas, 72 Am. Dec. 236 . Before, therefore, the defendant could be affected with liability for the loss of the baggage on the connecting line, it was incumbent upon the plaintiff to prove that the defendant had engaged to transport the passenger beyond its route. It is only when the carrier so contracts that he must show a limitation of liis common law liability. Jennings v. Grand Trunk Railway Co., 127 N. Y. 438 ; 40 St. Rep. 318 . But the trial court disregarded the presumption of irresponsibility in favor of the initial carrier, and instructed the jury that the burden was upon the defendant to prove that by a special agreement it was exempt from liability, except for loss upon its own line. Thus, in the opening sentence of his charge, the' learned judge said that “the Pennsylvania Railroad Company as a common carrier, has the right to limit its liability by limitations on its ticket; but, before they become binding upon a person treating with the railroad as a common carrier, there must be some notice brought to that person.” Again, in response to a re

Irrespective of the charge, the appeal depends upon whether the evidence authorized the jury to find a contract by defendant to carry beyond its terminus. The baggage check was not, but the passage ticket was, evidence of such contract. Hyman v. Central V. Railroad Co., 49 St. Rep. 313 ; Isaacson v. Railroad Co., 94 N. Y. 278 ; Milnor v. Railroad Co., 53 id. 363, 368, 369 ; Quimby v. Vanderbilt, 17 id. 306, 314 . In the Milnor Case, the court said: “The face of each ticket spoke for itself. One was the defendant’s ticket, and the other was a Housatonic ticket; and persons purchasing such tickets would not infer that the defendant was operating the latter road, or had any other arrangement than an agency to sell tickets.” In the Quimby Case, perDENio, J.: “We do not say that the receiving of separate tickets for the different lines is not evidence of some weight upon the question whether the contract was entire.” The passage ticket, in terms, was on account. of the connecting lines, and expressly stipulated against a liability for loss on those lines.

The court charged, and plaintiff now insists, that, to constitute the ticket a contract, its limitations must have been known and assented to by him, and that this fact must be established by the defendant. True, perhaps, of a restriction upon a carrier’s common-law liability on its own route; and all the cases cited by plaintiff are authority only for that proposition. But, as we have said, the question here is whether the defendant undertook to-transport over the connecting lines. The presumption is of a carrier’s common-law liability for goods in his custody; and to escape-this prima facie responsibility, the cases require a special contract. The presumption is against a carrier’s responsibility for other companies ; and to impose such liability, an agreement to assume it must be shown. It was for the plaintiff, therefore, to prove a contract with the defendant to carry his baggage beyond its terminus ; and if the passage ticket constituted no such contract, what is the evidence of its existence ? In all cases in which such a oon

The argument hitherto has proceeded on the postulate that the plaintiff had no notice of the terms of the passage ticket, but he himself testifies he knew it well enough to indentify it on the trial. And the Hebrew Charity Association, his admitted agent in the purchase of the ticket, had such custody of it as to warrant the inference of an acquaintance with its conditions. In Steers v. Steamship Co., 57 N. Y. 1 , the court of appeals says:

“The rule that in the absence of fraud, concealment, or improper practice (and none such is imputed to this • defendant) the legal presumption is that stipulation contained in a common carrier's receipt for freight limiting his common-law liability, were known and assented to by the person receiving it, applies to the carriers of passengers with their baggage.”

If such presumption prevails to overcome the common-law liability of a carrier on his own route, a fortiori is it sufficient to repel the inference that he has assumed a liability against which another presumption already operates?

Failing all other resources, the plaintiff adduces a conversation with defendant’s baggage master as evidence of a contract to carry beyond its terminus. Seeing the names of other companies on the check, plaintiff asked the baggage master: “How is this?/’He answered: “ Do not be afraid. The Pennsylvania Bailroad will bring you to Black Bock, Arkansas.” That this was no contract is apparent upon several grounds : First, it does not purport to be such; secondly, the contract for the carriage of plaintiff was "already complete, — Lechowitzer v. Hamburg A. Packet Co., 59 St. Rep. 486 ; and thirdly, “in the absence of special authority, a baggage master cannot bind the company by a contract to carry baggage beyond the terminus of its road.” Isaacson v. Railroad Co., 94 N. Y. 278 , — in which case, be it observed, the point decided is not repugnant to the dictum.

The conclusion is that the trial court erred in declining to dismiss the complaint, and in its charge to the jury.

Judgment and order reversed, and new trial granted, with costs to abide the event.

All concur.