Simpson v. New York, New Haven & Hartford Railroad

The plaintiff, on November 22, 1892, became a passenger on defendant’s cars for a business trip from New York to Hartford. The defendant took charge of his trunk, and, although often demanded, it has never been delivered to the plaintiff.

Whether the action be regarded as in tort or on contract (Catlin v. Adirondack Co., 11 Abb. N. C. 377 ), the defendant’s liability for the loss has been legally established. Zinn v. Steamboat Co., 49 N. Y. 442 ; Canfield v. Railroad Co., 93 id. 532 ; Curtis v. Railroad Co., 74 id. 116; Fairfax v. Railroad Co., 67 id. 11; 73 id. 167; Matteson v. Railroad Co., 76 id. 381; Stewart v. Stone, 127 id. 500; 40 St. Rep. 314 . The extent of the liability will next be considered. The trunk contained personal baggage; also, merchandise valued at $1,249, consisting of silk mufflers and handkerchiefs, such as the plaintiff was then selling in his business as a dealer in such goods. If the trunk had been accepted as freight, the defendant would have collected charges commensurate with the care required and the risk assumed; but it was accepted without charge, simply as passenger’s baggage, or as -containing goods intended for personal use on that particular journey. In such case the carrier is not liable for merchandise intended for sale, or even for samples to effect sales. Hutch. Carr. § 685. The plaintiff undertook to avoid this feature of the ■defense, and bring himself within Stoneman v. Railroad Co., 52 N. Y. 429 ; Perley v. Railroad Co., 65 id. 374; Sloman v. Railroad Co., 67 id. 208; and Glovinsky v. Steamship Co., 4 Misc. Rep. 266 ; 53 St. Rep. 528 , by testifying that he told the baggage-man the trunk contained merchandise. The usual demand for compensation did not follow, nor was any suggestion made as to paying freight or extra charges. and the testimony as to notice is altogether too vague and unsatisfactory to warrant an affirmative finding thereon in plaintiff’s favor. See Talcott v. Wabash Railroad Co., 50 St. Rep. 423 .

The plaintiff is, nevertheless, entitled to recover for the loss of his personal baggage, which had not been long in use, and cost $54.50. The legal measure of compensation as to the articles lost is what they were worth for use by the plaintiff, not the market value. Fairfax v. Railroad Co., 73 N. Y., at page 172. The original cost may be considered after allowing a reasonable sum for age and depreciation. Jones v. Morgan, 90 N. Y., at page 11; Bird v. Everard, 4 Misc. Rep., at page 106, 53 St. Rep. 210 .

It was suggested, at the close of the trial, that the plaintiff, in his pleading, itemized his loss, placing a separate value on each article of about so much, making an aggregate of about $43, and that the recovery should not exceed that sum, especially as the defendant had made an offer of judgment founded upon the items and values so enumerated ; the contention being that it would be prejudiced by a disregard of the plaintiff’s allegations, which were relied upon as controlling against him. 1 Bigelow, Estop. (4th