Nevins v. Bay State Steamboat Co. — 17 N.Y. Super. Ct. 225

Majority

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Alexander A. Nevins, Plaintiff, v. The Bay State Steamboat Company, Defendants, (cross-appeals.)

Headnote

A common carrier by steamboat and railroad, received the trunks of a traveler, without question or objection, deposited them for carriage in crates, and delivered to him checks therefor. He then presented himself at the ticket office, paid his fare, and received a passage ticket consisting of two parts, one to be surrendered to the conductor in the railroad cars, the other portion to be used and surrendered in the steamboat. On this passage ticket the following words were printed: “ gF” Passengers are not allowed to

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carry baggage beyond $100 in value, and that personal, unless notice is given, and an extra amount paid, at the rate of the price of a ticket for every $500 in value.” On the journey one of the trunks was lost, containing wearing apparel and articles of ordinary baggage, of the value of $690, and other property of the value of $730:

1. Held, that notwithstanding the memorandum printed on the ticket, the plaintiff is entitled to recover the value of his trunk and of such portion of the contents as is customarily known and carried as travelers' baggage, being reasonable in amount and value, although worth more than $100, and although nothing extra was paid for baggage exceeding in value that sum. In considering what amount of baggage the plaintiff might reasonably have had, the jury might take into view his residence, business, station in life, the place from which he came, and whither he was going.

2. The carrier is not liable for jewelry in the traveler’s trunk, purchased by the latter, and intended as presents for his friends, nor for masonic regalia, nor for engravings.

3. Nor will a jury be justified in allowing to the traveler a round sum for articles of jewelry, which he can neither describe nor identify otherwise than as “ several articles of jewelry, being presents received, $100.”

4. A common carrier may limit his liability by express contract, but not by mere notice.

5. Passage tickets given to passengers by railroad and steamboats, are rather tokens or vouchers that the passengers have paid their fare, and are entitled to their seats, and to be surrendered when that right is recognized, than special contracts fixing and regulating the terms of passage, amount of baggage, &c.

6. It is not negligence in a traveler to go to a hotel in the vicinity of a steamboat landing, and send a servant to the boat for his trunks. The carrier is bound’to take care of the trunks for a reasonable time after arriving at the wharf. v

7. No rule of-law prevents a carrier from prescribing to passengers a tariff of prices varying according to the amount and value of the baggage carried, so as to charge the passenger, having no baggage, less than one who has $100 in value. The only limitation of this right is that the charges be justly and reasonably proportioned to the value of the service rendered and the risk incurred. Per Woodruff, J.

8. An established uniform and notorious usage of business, or an actual notice brought home to the passenger, in such form as to call on him in fairness to the carrier to disclose (when he applies for passage and pays his fare), how much baggage he desires to have carried, or in which class of passengSs he desires to be ranked and charged, would exonerate the carrier from any greater liability than such as corresponds to the classification established by him as above stated, and to the rate of compensation received. . Per Woodruff, J.

(Before Slosson, Woodruff and Pierrepont, J. J.)

Heard, October 11th, 1858;

decided, February 26, 1859.

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These were cross-appeals by both plaintiff and defendants, in an action tried before Mr. Justice Pierbepoht and a jury on the 12th of May, 1858. The action was brought to recover from the defendants as common carriers, for the loss of the plaintiff’s traveling trunk and its contents, under the following circumstances, viz.: The plaintiff, on the 11th day of September, 1855, left Boston for Mew York by the Fall River route. He had with him as baggage two trunks and a carpet bag. On arriving at the railroad depot in Boston, from the hotel, the baggage was received by the baggage master, and put into the baggage crates or cars. It was checked through to Mew York, and the plaintiff received three checks, one for each article.

After the baggage was put into the crates, he purchased and paid for his ticket through to Mew York, and took his seat in the cars. On reaching Fall River he went on board the steamboat Metropolis, owned by the defendants and connecting with the line. The baggage crates were placed on the same boat. The boat landed in the morning near the foot of Morris street, and not far from Delmonico’s hotel.

■ The plaintiff went to look for his baggage, but finding a great crowd and confusion on the boat he went to the hotel, and sent the porter immediately for the baggage; the porter returned with one trunk only, and the carpet bag. The smaller trunk, which contained most of his clothes and various other articles, was missing. He immediately sent the porter back with the check for that trunk, but he returned without it, saying that the baggage master told him he feared it had been stolen, as it could not be found. It turned out that the trunk had been stolen.

It was the plaintiff’s usual traveling trunk, and had been repacked by him just before leaving the hotel in Boston, it being his intention to take it with him by land to Mew Orleans, whither he was bound, and to send the rest of the baggage to the same place by sea. v

He locked and strapped the trunk himself, and it was not reopened to his knowledge until delivered and checked at the railroad depot in Boston.

Among the articles contained in the trunk, besides clothing, was a variety of jewelry, the greater portion of which was intended for his own use, and not exceeding in quantity what he usually traveled with, and which he had owned for a year prior

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to the loss. There was also a gold watch, and a few articles which were subsequently recovered; also a silver match box, and certain masonic regalia, and jewels which he had then recently purchased; also some jewelry received as presents, which the plaintiff could not describe, which he thought worth $100, some intended for presents, and some engravings.

He usually -traveled with his masonic regalia, and had traveled with-the identical jewelry which he claimed to have been in the trunk. The value of the entire contents of the trunk, putting the jewelry which he brought with him from Europe at cost prices, was $1,420. An inventory or list of the contents of the trunk was produced on the trial. The defense is twofold.

1st. That the articles claimed were not personal baggage.

2d. That by an express understanding and agreement with their, passengers, the passengers Were not allowed to carry baggage except for personal use, nor beyond $100 in value, unless notice was given, and an extra amount paid for it at the rate of the price of a ticket -for every $500 in value; that these terms and conditions were expressed in the passage ticket received by the plaintiff, and that the plaintiff never notified the defendants that the baggage in question was worth over $100 and never paid .any extra amount for baggage beyond $100 in value.

The ticket which the plaintiff purchased at Boston, appears to have been divided into two parts, one to cover the land and the other the water conveyance; the former was given up to the conductor in the cars, and the latter to the collector of tickets on the boat.

Upon the ticket received at Boston was the following memorandum, which was uniformly printed on all the tickets:

“Bay State Line, Boston to New York.

“ ¡^Spr” Passengers are not allowed to carry baggage beyond $100 in value, and that personal, unless notice is given and an extra .amount paid at the rate of the price of a ticket for every $500 in value.”

There was no evidence that the plaintiff had read this memorandum, the defendants relying on the assumption that he must have read it, it being on his ticket, or that if he did not read it ¡then there was negligence on his part, and that he must be •chargeable with knowledge of the contents of it.

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The Judge charged the jury:

“ That the plaintiff was entitled to recover his reasonable personal baggage put on board the boat, unless the Company was excused by a contract with him; but that the ticket was not a contract limiting the responsibility of the Company, it was only a notice.

“ That the amount claimed as reasonable personal baggage was very large, but that in considering what amount of baggage the plaintiff might reasonably have had, the jury might take into consideration his residence, business and station in life, and the place from which he came, and whither he was going.

“ That if the plaintiff were a poor laboring man going from Boston to New York, such an amount of jewelry as the plaintiff claimed, it would not be reasonable for the Company to suppose that he had, but that a rich person living in New Orleans, who had been traveling in Europe and was on his way home, would naturally take a larger amount. The law does not fix any precise limit to the jewelry a man may wear, and travel with, except that it must not be unreasonable in amount.

“ That if the plaintiff was negligent in looking after his baggage when the boat reached New York, he was not entitled to recover; but that it could hardly be negligence to go to a hotel in the neighborhood, when the boat landed, to get a porter for his trunks as detailed in the evidence; that the Company was bound to keep the baggage a reasonable time until he called for it.

“ That the plaintiff was not entitled to recover for presents intended for friends.”

To which latter charge the plaintiff’s counsel excepted.

“ Nor for the silver match box, unless the jury believed it reasonable personal baggage, which the Court did not.”

To which latter charge plaintiff’s counsel duly excepted.

“ Nor for masonic regalia.”

“ Nor for engravings.”

“ Also, that he was not entitled to recover for the presents received from his friends, and which he did not specify.

“ That if the plaintiff was entitled to recover, he was. entitled to interest from the time of the loss.”

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The defendant’s counsel excepted to all and every part of the said charge except that part in which his Honor denied the plaintiff’s right to recover sundry articles; and the plaintiff’s counsel excepted to the part last mentioned.

The jury found a verdict for the plaintiff for $690, being the assessed value of the articles which the Court instructed them were proper subjects of recovery; and computed the interest on said amount from the commencement of the action at $128.80, making, altogether, the sum of $818.80. Judgment was entered on the verdict and both parties appealed from the judgment.

Jeremiah Larocque, for the plaintiff.

I. The instruction of the learned Judge to the jury, “ that the plaintiff was entitled to recover his reasonable personal baggage put on board the boat, unless the Company was excused by a contract with him, but that the ticket was not a contract limiting the responsibility of the Company; it was only a notice,” was correct. (Dorr v. The N. J. Steam Nav. Co., 1 Kern., 485.)

1. The statements and pretensions of a carrier set up in a passage ticket delivered to a passenger as evidence when called for of the payment of his fare, never do make a contract. There is no meeting of minds. The passenger does not understand, when the ticket is delivered to him, that it possesses the attributes of a written contract, or that he is to look to it as containing the limits of the carrier's responsibility. (McCotter v. Hooker, 4 Seld., 497.)

2. Much less could the carrier impose such restrictions in this particular case, (having already taken possession of the baggage and placed it beyond the reach of the passenger for transportation,) withput returning it to him.

II. The instructions of the learned Judge to the jury for their guidance in determining what was reasonable personal baggage, were correct. (Hawkins v. Hoffman, 6 Hill, 586 ; Powell v. Myers, 26 Wend., 591 ; Pardee v. Drew, 25 id., 459; Orange County Bank v. Brown, 9 id., 85.)

IH. The instructions as to what did and what did not amount to negligence in the passengers, were also correct.

IV. The instructions of the learned Judge were erroneous as to the articles for which he charged that the plaintiff was not entitled to recover.

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1. Presents for friends are, to a greater or less extent, carried by every traveler who has been for some time absent from Ms family and friends, on his return to them.

2. They are, therefore, within the contemplation of carriers, as articles which they impliedly contract to. carry in consideration of the payment of the passage money, in contradistinction from merchandise, samples of goods for sale, and the like, for wMch a specific contract is to be made as freight.

3. They fairly enter into the definition of baggage, also, as given by the cases.

4. As to amount, they are, of course, to be confined within the same reasonable limits as other baggage.

5. It is not very clear on what principle the silver match box was excluded. A silver match box may have been as appropriate for the use of the passenger on the journey as other valuable articles, wMch were allowed in view of the plaintiff’s circumstances in life.

6. The masonic regalia were eminently appropriate to the convenience of the plaintiff’s journey. They were the evidence of the plaintiff’s membership in that fraternity, entitling him to the hospitality, aid and protection of the brotherhood in all parts of the world.

Daniel D. Lord, for the defendants.

L The Judge erred in charging that plaintiff was entitled to recover unless the Company was excused by a contract with him; but that the ticket was not a contract, but only a notice. This charge was erroneous in both propositions.

1. The ticket was a contract—it contained the mode of transportation agreed upon, viz.: Boston to New York, on the Metropolis, on day of delivery only and that bearer was entitled to berth No. 10. Also that Company would assume liability for $100 of baggage, but no more unless extra- premium paid, and that they would assume more risk at certain rates.

It was as much a contract as any bill of lading.

If it were in form a notice, it is not less a contract; every contract is a notice of what is agreed on each side.

2. Even if the ticket were only a notice it is sufficient to exempt carrier from all liability for over $100.

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(a.) It was fully brought to plaintiff’s knowledge.

He was bound to notice ticket to see that it was a genuine ticket. '

He could not learn either the boat he was to go by or berth he was to occupy without looking at it.

He could not look at it without seeing the terms as to baggage.

If he neglected to read these terms he was negligent, and is not thereby protected from the effect of the notice.

(6.) The Company had a right to impose the terms mentioned on the ticket as the conditions of assuming extra liability for baggage.

The only cases in which it has been decided that a carrier cannot limit his liability by notice brought home to the passenger, is, where the notice was an attempt to avoid entirely all responsibility for baggage; but in all these cases it is conceded that the carrier has the right, by notice, to specify the terms on which he will assume liability. (Hollister v. Nowlen, 19 Wend., 236 ; Cole v. Goodwin 19 id., 257 ; Orange County Bank v. Brown, 9 id., 115; Gould v. Hill, 2 Hill, 624 .) Judge Cowsisr held that a carrier could not, even by express agreement, exempt himself from liability for fire, because it was a common law liability, but it was not held that he could not regulate by agreement reasonable terms on which he would assume such liability.

This case cited is not inconsistent with the principle claimed, but is overruled in Parsons v. Monteath, ( 13 Barb., 353 ;) Moore v. Evans, ( 14 Barb., 524 ;) Dorr v. New Jersey Transportation Company, (1 Kern., 490;) Holford v. Adams. ( 2 Duer, 480 .)

II. The Judge erred also in charging that jury might consider, in fixing amount of reasonable baggage, passenger’s residence, station, in life, whence coming and whither going; and that a rich person living in New Orleans, and returning from European travel, might take more than a poor man.

If a rich man pays no more fare than a poor man, he is not entitled to impose any more risk on the Company than he.

IH. The Judge erred in charging that it was not negligence to leave baggage in port, and go to a hotel. This should have been left to the jury.

IY. The Judge did not err in charging that plaintiff was not entitled to recover the articles specified in the charge. (Orange

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Co. Bank v. Brown, 9 Wend., 115 ; Hawkins v. Hoffman, 6 Hill, 587 .)

No contract implied for articles usually carried on the person and not in trunks. (Pardee v. Drew, 25 Wend., 459 .)

The question is no longer an open one in this State, whether a common carrier can, by a mere notice, though brought home to the owner of goods, limit his common law liability. Although it was at one time held that he could, it is now abundantly settled that he cannot, and the rule is not confined to the case in which the carrier attempts to excuse himself by notice from all liability whatever, but includes a partial/ limitation also, so that the proposition may be considered nq longer a debatable one, that the carrier cannot limit his liability) either in part or whole, by mere notice, though the notice bp proved to have been brought to the knowledge of the owner.

On the other hand, it is equally well settled, though this was formerly doubted, that he may limit his liability, in whole or in part, by express contract. (Orange Co. Bank v. Brown, 9 Wend., 85 ; Hollister v. Nowlen, 19 id., 234 ; Cole v. Goodwin, id., 251; Merc. Ins. Co. v. Chase, 1 E. D. Smith, 115; Dorr v. N. J. Steam Nav. Co., 1 Kern., 485.)

We do not by this intend to say that the carrier is not at liberty to prescribe reasonable rules and regulations for the conduct of his business, to which the owner of goods or the passenger will be subject, or that a notice of such rules and regulations, involving by their terms even a limitation of his common law liability, may not be so communicated to the traveler as under circumstances to justify the conclusion that he assents to them.

On the contrary, it may well be that a special contract may be predicated on the circumstances under which a notice is brought home to a party, but the circumstances must be such as would justify the conclusion, not merely that the party has knowledge of the notice and its contents, but that he assents to its terms and conditions.

The defendants rely upon the memorandum contained in the ticket received by the plaintiff at Boston, as constituting a special contract with the plaintiff, limiting their liability for baggage to $100 in value. It is impossible to hold this.

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We cannot, on principle, regard such a memorandum, or any memorandum, on a passenger’s ticket, as constituting a contract between the carrier and the passenger.

These tickets are usually received and paid for in the bustle of a crowd, and it is unreasonable to suppose that the passenger reads and assents to the terms of a memorandum printed thereon; besides they are surrendered to the conductor of the cars or collector on the boat. If contracts, the plaintiff would be entitled to retain them as evidence of his right, as in the case of a bill of lading, until the safe delivery of his baggage. Such tickets are rather tokens or evidences of the right of the passengers to a seat in the cars or accommodation on the boat, from the fact of having paid the fare, and they have fulfilled all their purpose when that right is admitted by the call for and surrender of the tickets. (Quimby v. Vanderbilt, 17 N. Y. R., 306.)

The utmost that can be claimed for this memorandum is that it was a notice, and as such, even if it be admitted that the plaintiff read it, of which there is no proof, it could not, for anything that appears in this case, create a contract with him.

The price paid for his fare by the plaintiff included the price of the transportation of his baggage.

It is somewhat difficult to define the limit, as to value, within which the liability of the carrier for baggage is to be confined.

The Judge told the jury that “ the plaintiff was entitled to recover his reasonable personal baggage,” and that in considering what amount of baggage the plaintiff might reasonably have had they might take into consideration “his residence, business and station in life, and the place from which he came, and whither he was going.” The plaintiff was a commission merchant, and had just returned from Europe, and was on his way to Hew Orleans, where he resided.

In Hawkins v. Hoffman, (6 Hill’s R., 589,) the Court say that the implied undertaking to carry baggage “ has never been extended beyond ordinary baggage, or such things as a traveler usually carries with him for his personal convenience on the journey, and that the implication cannot be extended beyond such things as the traveller usually has with him as a part of his luggage.”

The Court admitted the difficulty of defining what precise articles were within the rule, since some men carry scarcely any

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luggage at all, while others take with them a great variety of articles for their convenience; that the articles to be allowed were not to be confined to wearing apparel, and other things usually deemed indispensible, but might well include books carried for instruction or amusement, a gun, or fishing tackle, as such articles are usually carried as baggage.

We understand the rule to be, that the jury, in determining' what baggage a traveler is entitled to recover from the carrier in t case of loss, may take into consideration what he has been in the \ habit of carrying in his travels for his personal convenience or \ use within a Reasonable limit, or what a person so circumstanced f is ordinarily in the habit of carrying. It is a question for the jury to decide, under all the circumstances.

The Judge instructed the jury that the plaintiff was not entitled to recover presents intended for friends, nor the silver match box, unless the jury believed it to be reasonable personal baggage, nor the masonic regalia, nor the engravings, nor presents received from friends, the particulars of which he could not give.

The plaintiff’s counsel insists that none of the articles excluded by the Judge were properly so excluded. We think the Judge ruled correctly as to these articles. It would be difficult to include them within any definition of baggage contained in the books. They certainly are not articles intended for the personal convenience of the traveler, and if presents received by him, the particulars of which he cannot give, and which may therefore be supposed not to have been used on his person, or intended for personal convenience or use, or presents intended by him for his friends, were admitted, it would be almost impossible to lay down any rule of limitation, either as to quantity or value.

As to the masonic regalia and jewels, it is clear that they were properly excluded.

The plaintiff has no reason to complain; after deducting all the items excluded by the Judge, and the articles mentioned in the inventory, which are admitted by the plaintiff to have been recovered back before this suit was brought, the verdict is still $70 more than it should have been. The mistake is doubtless owing to an inadvertence, and were we at liberty to do so, we should direct the verdict to be corrected as it ought to be, but the case does not show that a motion for a new trial was made

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at the Special Term, and the appeal to us is from the judgment' only. On such an appeal we can only look into the exceptions taken on the trial, and not into the question whether the verdict is sustained in whole or in part by the evidence.

The exception by the defendants’ counsel to the Judge’s charge is “ to all and every part ” of it, except that in which he denied the plaintiff’s right to recover certain articles.

The exception is too broad. It is abundantly settled that under a general exception to a charge, if any portion of it be correct, the exception must fail. We shall therefore refrain from express ing any opinion on the question of the correctness of the charge, in respect to the plaintiff’s negligence, of which a point was made on the argument, or whether the Judge did or did not properly take that question from the jury, though in saying this we do not intend to intimate any doubt as to the propriety of his so doing, under the admitted facts of the case.

For the like reason, we do not deem it necessary to say whether we should or should not wholly coincide in some of the considerations which the Judge submitted to the jury as their guide in determining what was a reasonable amount of baggage for the loss of which the passenger might hold the carrier. A point was made of this on the argument, but abandoned by counsel as not of sufficient importance to incumber the case.

Upon the exceptions properly before us, we are of opinion that the judgment should be affirmed, with costs.

(1.) Without denying the rule that a common carrier cannot relieve himself from the responsibilities which the common law imposes upon him as a common carrier, by merely giving notice that he will not be so liable, I desire, in order to avoid misapprehension, to say that, in my judgment, the common law does not prescribe the rates or prices, or terms and conditions under which the carrier shall perform his services otherwise than that he shall carry the passenger and his baggage at a reasonable price and under regulations respecting the manner in which the business shall be done which are themselves reasonable. And the law does not .forbid the carrier’s prescribing regulations designed to protect him against unusual hazards or against imposition or fraud, nor forbid his requiring the payment of rates of

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passage varying according to the varying magnitude of the risks he assumes.

I know of no rule of law which prevents a carrier from prescribing to passengers a tariff of prices, according to which he will charge to the passenger who has no baggage a specific sum; to the passenger who carries baggage of the value of $100 an additional amount; to the passenger who carries baggage of the value of $500 a further sum, and so on, increasing the price for passage according to the increase in the value of the service and the hazards of loss. The only limitation of this right is the requirement that the charges be justly and reasonably proportioned to the varying value of the actual service rendered and to the risk incurred. And when it is said that the carrier receives compensation for carrying the traveler’s baggage in the price charged for passage money, this is not a denial of the carrier’s right to discriminate, and if he please, consent to carry passengers who have no baggage for a less compensation than he charges passengers with baggage; nor when it is said that the carrier who receives passage money is responsible for the safe carriage and delivery of a reasonable amount of baggage, does this proposition deny the right of the carrier to graduate his charges with reference to the actual value of the property the carriage and safety of which he insures.

Whether the carriage be by railroad or otherwise, it is obvious that carrying ' the baggage of the passengers necessarily involves an expense and risk greater or less in proportion to the quantity, and value which each passenger has. Labor, baggage cars, and the watchfulness and care requisite to the secure preservation of the property are proper subjects of compensation, and are obviously an addition to the labor and expense of carrying the person of the passenger only. The duty to carry safely involves the duty to provide secure places for the transportation and proper watchfulness and safeguards to prevent loss. These are proportioned to the value at stake and the consequent hazard, and the right to require a disclosure of the value of the goods and a proper rate of compensation obviously follows from these duties.

But the recognition of the legal right of the carrier to make the discrimination above intimated comes far short of sustaining the claim of the defendants in this case, to be exonerated on the

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ground that they placed on ttie passage ticket the notice given in evidence in this case.

Assuming the discrimination in respect to rates of charge to be just- and reasonable, I cannot doubt that an established, uniform and notorious usage of business, or an actual notice brought home to the passenger in such form as to call upon him in fairness to the carrier to disclose, when he applies for passage and pays his fare, how much baggage he wishes him to carry and insure, or in which class of passengers he desires to be ranked and charged, would entitle the carrier to exoneration from any greater liability than such as corresponds with the classification which he has established.

Whether when the baggage is delivered the passenger’s attention should be called to the regulation and inquiry be made respecting its value; or whether, if not at that time, it should be done on the application of the passenger for his ticket and tender of his passage money, or in what precise mode a railroad company may so conduct its business as to make it the duty of the passenger to disclose the value of his baggage and pay accordingly, it is not necessary in this case to say. Frankness, fair dealing, and a clear opportunity to act intelligently on both sides are undoubtedly reciprocally due.

' When proper notice of such a regulation is given so that the passenger is apprised thereof, or when from the uniform and notorious usage of business, he is chargeable with such notice, it is reasonable and just that he be held bound thereby: and that the carrier may require a disclosure of contents and value and charge accordingly, is not, I apprehend, doubtful, whether he be a carrier of goods or of passengers with their trunks. (See cases cited in Cole v. Goodwin, 19 Wend., 270 ; Orange Co. Bank v. Brown, 9 id., 114; Wyld v. Pickford, 8 Mees. & Wels., 443; Batson v. Donovan, 4 Barn. & Ald., 21; Clay v. Willan, 1 H. Black, 298; Izett v. Mountain, 4 East., 370; Mercantile Ins. Co. v. Chase, 1 E. D. Smith, 115, and cases cited; Stanton v. Leland, 4 id., 93, &c.; Holford v. Adams, 2 Duer, 471 .)

I concur with my brethren in the opinion that the defendants here, having received the plaintiff’s trunks, without inquiry, objection or condition, and placed them in their baggage car, and having afterwards accepted his passage money without inquiry

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or condition, were not exonerated from responsibility for such property as properly falls within the denomination of a traveler’s baggage by the mere fact that the indorsement on the ticket which they delivered to the plaintiff stated that “ passengers are not allowed to carry baggage beyond $100 in value, and that personal, unless notice is given and an extra amount paid at the rate of the price of a ticket for every $500 in value.”

Hothing was done before or at the time when the trunks were offered to the defendants, or when the plaintiff tendered his fare, which by actual communication to him, gave him notice of any such price or condition upon which the defendants would carry him and his trunks, nor was there evidence of any other facts which can be said to have made it his duty to state the value or contents of his trunks and pay accordingly.

(2.) It seems to me proper also, to observe that so far as the charge to the jury seems to indicate that in determining for what amount of baggage the defendants were responsible the jury might take into consideration the plaintiff’s residence, business, station in life, the place from which he came and whither he was going, and whether he was a. poor man or a rich man, or where he had been traveling, the charge was not free from exception. If the liability of the defendants depended in any degree upon such considerations, it should appear that they had knowledge of these facts, or some means of knowledge, when they undertook to carry the plaintiff. But I am apprehensive that these considerations do not affect the extent of liability. If travelers practice no fraud or disguise; one may carry as much baggage as another. What is reasonable baggage may be determined independent of any such criteria; and if the claimant have that and no more the carrier is responsible for that, whether the passenger be rich or have no other worldly possessions than his traveling baggage, and whether he have traveled in Europe, or is making his first journey from the most humble birthplace.

On the other hand, if the evidence respecting the actual contents of the traveler’s trunks be contradictory and doubtful, considerations showing that his claim to a very valuable outfit was improbable, and tending to impair confidence in his testimony, might perhaps arise out of proof that he was poor, and that the articles claimed were wholly unsuited to his condition

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in life or his previous history, and so tend to the belief that his claim was exaggerated in respect to the amount and value of the contents of his trunk. In this construction of the charge, (if it bear that interpretation,) doubtless the considerations to which the attention of the jury was called would not be irrelevant.

Upon this branch of the case, however, my concurrence rests upon the generality of the exception taken to the charge, and on that ground I concur in the affirmance of the judgment.

. Judgment affirmed, with costs.