Hyperlawhypertext legal database Fairfax v. New York Central & Hudson River Railroad 37 N.Y. Super. Ct. 516

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Fairfax v. New York Central & Hudson River Railroad

37 N.Y. Super. Ct. 516 5 Jones & S. 516 Court N.Y. Super. Ct. Decision date 1874-06-01 English

Decision Majority — By the Court.—Speir, J. · Dissent — Curtis, J.

Contents

Majority

p. 516
THOMAS E. FAIRFAX, Plaintiff and Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Defendant and Appellant.

Headnote

L 'CARRIER OF PASSENGERS.
Baggage.
1. Duty of carrier to take, outside of any special agreement,' is incident to the carriage of the passenger to whom it belongs.
2. Loss of. liability of carrier for, as carrier, rests on.
a. The carriage of the passenger and the payment of his fare for such carriage, where there is no special agreement.
2. Agreement special.
1. lleceipt by train baggags-masPr.
a. Tiie receipt by a train baggage-master of a carrier by railroad plying between two points, of the baggage of a traveler, who is a passenger by another carrier plying between the same points by different routes, and who has paid no fare to the first carrier, does not constitute a special agreement with the first carrier, and render him liable as carrier for the loss of the baggage.
3. Connecting lines.
1. One carrier can make arrangements with connecting lines so that he may undertake to give a pissenger, who desires to be carried between two points, an option between several different routes as to which he will take, or to carry the passenger by one route and, his baggage by another.
But,
where there are two distinct lines running between two points, A. and B., the testimony of the agent of a carrier plying from a third point, C., in connection with several lines, one of the termini of the last of which was at B., that the carrier of which he was agent was in the habit of chocking baggage through to A., under some arrangment with connecting lines, that baggage checked with a cheek which indicated that it was not issued by either of the lines between B. and A., but rather that it was issued by one of the roads founing the connection between C. and B., might come by either of the lines between B. and A., and that the passengers might come by one of those lines and his baggage by the other, '
p. 517
is not sufficient to establish an arrangement between the line plying from C. with either of the lines between B. and A. to take the baggage of a passenger who has not paid for his passage on its line.
a. The receipt by an employee of one of the lines between B. and A. of the baggage of a traveler who lias not paid for his carriage on that line will not impose on such Une a liability as carrier for the loss of the baggage.
IL Application op above principles.
■ When A. purchased a ticket at Montreal from the agent of the Grand Trank R. R. Go., which on it's face purported to carry him to New York by the connecting lines of the Grand Trunk R. R., Plattsburg and Montreal, R. R., Champlain Transportation Co., Rensselear and Saratoga R. R., and the Peoples’ Line of Steamboats, and at Montreal he had his baggage checked by checks which did not purport to be checks of the Central and Hudson River Railroad Company, and he came to the city of New York not oh the C. and H. R. R. R. Co.,but via the Peoples’ Line of Steamboats’; avhilc at Troy the carrier who brought him from Whitehall delivered his baggage to the train baggage-master of the Central and Hudson R. R. R. Co., which company brought the baggage to the city of Now York; and a passenger agent of the Grand Trunk Railroad testified as above stated.
Held,
that the Central and Hudson R, R. were not liable as carriers for the loss of his baggage.
Before Monell, Ch. J., Curtis and Speir, JJ.
Decided June 1, 1874.
Appeal by defendant from judgment entered on a verdict.
The plaintiff being in Montreal, purchased a series of tickets from Montreal to Hew York, and left Montreal October 8,1870. The plaintiff was unable .to state the corporation he purchased the tickets of. He says, however, that he purchased them at an office adjoining St. Lawrence Hall, on October 7. 1870, and from the inscription on the check, “ H R. & ft. It.” meaning Hudson River and Railroad,” and the fact that he
p. 518
landed from a steamboat plying between Albany and New York, and other evidence, it is plain that he purchased them in Montreal of the Grand Trunk Railway, and that his route was by the Rensselaer & Saratoga. Railroad to Albany, and from thence by the People’s Line of Steamboats to New York. He procured, on leaving Montreal, seven pieces of baggage to be checked to New York, including the lost portmanteau, the subject of the action, for which last he received a check, which indicated on its face, and from the usual course of transportation of passengers and their baggage, that the baggage was to be taken over the same route. The carrier between Whitehall and Albany brought the plaintiff’s baggage to Troy, and there delivered the seven pieces to a train baggage-master of the defendants, on October 9, 1870, and it was carried through to New York- by the defendants, arriving between three and four o’clock P. M'., unloaded into defendants’ baggage-room in Twenty-ninth-street in the city, and held ready for delivery.
Statement of the Case.
The tickets consisted of a book of coupons available until the first day of November to the holder, to stop at various places, including Albany and Plattsburg. Leaving Montreal in the afternoon of October 8, he arrived at the usual pier of the landing of the People’s line of steamers on October 11, at six or seven o’clock P. M., having stopped over at Albany and Plattsburg ; and on the following morning, between eight and twelve o’clock, sent to the station in Twenty-ninth-street for his baggage. Six pieces were delivered. The-portmanteau had been stolen from the defendants’ baggage-room, between six o’clock of that morning and the time of demand, it having been on hand at the hour of six. The baggage-room was occupied by the Wesfccott’s Express Campan}'-, for the purpose of receiving and delivering baggage for the defendants, under an agreement with the Hudson River Railroad Company,
p. 519
and they were to take charge of baggage not called for within twenty-four hours after its arrival on the train. The room was a proper place for the receipt and storage of baggage, and due care was exercised in respect to it.
On the question as to whether there was any arrangement or agreement between the Grand Trunk Bailroad and the New York Central and Hudson River Railroad, whereby the latter company was bound to take at Troy, and transport to New Yovk the baggage of a passenger who bought from the former company a ticket from Montreal to New York, via The Rensselaer <& Saratoga Railroad, and the People’s Line of Steamers, and who traveled to New York by that route, the following was the only evidence adduced,
Isaac F. Hicks, a passenger agent in New York city for the Grand Trunk Railway, testified :
‘•'The Grand Trunk Railway Company’s northern terminus is Montreal. It issues tickets, and did in October, 1870, to carry passengers and their luggage from Montreal to New York. That (ticket shown witness) is the style of the tickets they used in October, 1870, over the Rensselaer & Saratoga Railroad as it reads.”
The ticket was offered and received in evidence, and is as follows :
p. 520
“ Cross-examined. The coupon attached to this ticket from Whitehall to Albany, passes a passenger over the Bensselaer and Saratoga R. R.
“ Q. A.nd over any part of the ST. Y. Central and Hudson R. R. R. Co. ?
“ A. Yes, sir.
“ Re-direct. The Rensselaer & Saratoga R. R. Co. operate the railroad between Albany and a point north of Troy called the Junction. That ticket takes a passenger from Whitehall to Albany, by the Rensselaer & Saratoga R. R.—not going first to Troy, not necessarily—to West Troy, and then coming down on that side of the river to Albany. That ticket reads from Albany to New York by the People’s Line of Steamers, which is a separate corporation from .the Hudson River Railway. Our company would sell, that and other kinds of tickets, also at Montreal. Passengers are privileged to stop over at the terminus of
p. 521
either of the coupons. It is not stated on the ticket' itself, but it is customary.
‘■'Re-cross. They were in the habit of checking their baggage through from Montreal to Hew York, under some arrangement of connecting lines. They used to give checks like this one at Montreal,' when they sold through tickets of either kind.
“ Re-direct. This check can be used at either end of the line. The letters H. B. & B. B. seem to be a misprint, so far as I can understand it, it means undoubtedly the Hudson Biver, or Hudson Biver arid Bensselaer & Saratoga or Butland line, whichever you might call it.
“ Re-cross. The route was not the H. Y. C. & H. B. but the Hudson Biver. I do not understand it to mean the Hudson Biver B. B. either. It is probably the designation of a route rather than a railroad. Baggage with those checks might come by the Hudson B. B. or by the steamer. A man might come down in the steamer and the baggage might come down on the Hudson Biver B. B.
■ “ Re-direct. Coming by the steamer it is the duty of the proprietors of the steamers to take up the last ticket. The several coupons would be surrendered to the several railroad companies over which the passen-' gers were carried.”
’ Charles H. Kendrick, general ticket agent of the. Hew York Central and Hudson Biver B. B., testified : “ I suppose the agents of other roads have in the general course of their business, authority to sell tickets over our road.
“ The defendants had no agent in Montreal in October, 1870, authorized to sell tickets for them. If the Grand Trunk. Bail way Company should sell a ticket, running over the Hudson' Biver Bailroad, the defendants' would accept it. They had no agent for the sale of tickets for them- over any line of railways from.
p. 522
Montreal. The way the business was conducted at that time was, if the Grand Trunk Bail way sold', a-ticket running over the defendants’ road, they accepted it and charged the Grand Trunk Bailway with the price of it.
“ Cross-examined. Other roads in other places where we had no agents sold tickets, which allowed passengers under our rules to travel over oar road with their baggage.
ii lie-direct. If there was a coupon attached to the ticket entitling the passenger to a passage over the New York Central or Hudson Biver Boad, we would accept it as entitling him to a passage with his baggage over our road.”
One of defendant’s train baggage-masters testified, that he had often seen checks similar to the one held by plaintiff, and had often had under his charge as such baggage-master baggage so checked ; and one of the employees of Westcott’s Express Co. testified, that he had often seen such checks on baggage that came from the Hudson Biver Bailroad.
The defendants’ counsel requested the court to charge as follows:
1. That the reasonable time within which the plaintiff was bound to call or procure his baggage to be called for, began to run after the arrival of the train with the baggage, and the readiness of the defendants to deliver it.
2. That the defendants did not hold the plaintiff’s baggage as common carriers, and are not liable as such therefor.
3. That the reasonable time within which the plaintiff was bound to call for his baggage can not be enlarged or prolonged by the act ,of the plaintiff in omitting to travel an 1 ve upon the same train with his baggage.
4. That if the jury believe that the defendants did
p. 523
.-not receive any compensation for the carriage of the plaintiff and his baggage, or did not receive that portion of the plaintiff’s ticket which would enable them to claim such compensation from the Grand ‘Trunk Railway Co., then the defendants are not liable, unless they were guilty of gross negligence in respect ¡to the said baggage.
5. That it was the duty of the company selling the plaintiff his ticket to send and procure to be sent his baggage by the lines over which his tickets ran; and if the jury believe there was a failure so to send the plaintiff’s baggage, and the plaintiff’s loss was caused ■or contributed to by such failure, the defendants are not liable.
The court declined so to charge, and thereupon ■defendant’s counsel excepted.
The jury, under the charge of the court, rendered a verdict for plaintiff, and assessed the damages at seven hundred dollars.
From the judgment entered on the verdict defendant appeals.
Frank Loomis, attorney, and of counsel for appellant, urged; I.
The relation of carrier to a passenger and bis baggage, did not exist between the plaintiff and defendant. 1. The carriage of baggage is incidental to the carriage of the passenger (Ang. on Car. §§ 107,110 ; 2 Redfield on Railways, 4th Ed. 39; Laws of 1850, ch. 140, § 28, sub. 9). The obligation of a railroad company is to take whatever is delivered and received as baggage from a passenger in the baggage-car of ¡a passenger train in which the passenger takes Ms passage, and take it along with and deliver ■ it to the passenger at the place of destination in the usual manner of transporting and delivering baggage (Glasco v. N. Y. C. R. R. Co. 36 Barb. 557 ; Jones v. Norwich and N. Y. Trans. Co. 50 Barb. 193 ; Collins v. Boston
p. 524
and Maine R. R. Co. 10 Cush. 506 ). , The defendants did not carry nor undertake to carry the plaintiff with his baggage, and he had no ticket issued by the defendants, or which they would have received for his carriage, or which entitled him to carriage with his-baggage by the defendants. The witness, Hicks, by an evident blunder, states, in answer to a cross-question, th ■ t the coupon ticket between Whitehall and Albany passes a passenger over a part of the defendant's road, but on his re-direct examination he states correctly that the ticket passes the passenger from Whitehall to Albany by the Rensselaer and Sara-toga Railroad. Reference to any railway guide-book will show the same thing, and the court will take-judicial notice of established railroad routes generally known and used (Maghee v. Camden and Amboy R. R. Co. 45 N. Y. 524 ). As, then, the relation of carrier to passenger and his baggage did not exist between the-plaintiff and defendants, it was error to refuse to charge as requested, a. The question of the baggage being carried by the defendants under any arrangement other than incidental to the carriage of the plaintiff as a passenger was not presented by the pleadings. 5. There was no evidence from which any arrangement could be- inferred or to justify the submission to the-jury of the question whether there was such an arrangement, c. Newell, defendants’ train baggage-master, had no authority to receive the baggage, except as incidental to the carriage of the plaintiff (2 Redfield on Railways, 4th Ed. 39). And the delivery to. him of the plaintiff’s baggage by the Rensselaer and Saratoga Railroad, was an implied representation that the plaintiff had a ticket running over defendants’ line. «
: II. Admit, for argument’s sake, that an arrangement existed between the Grand Trunk Railroad Company and the defendants for the carriage of baggage
p. 525
over the defendants’ road,-and for which carriage the Grand Trunk Railway Company was liable to pay another line. 1. The defendants fully' discharged their duties as carriers of-passengers an.d their baggage. That duty is- to carry the baggage safely upon the train upon which it is received and have the baggage ready for delivery on the arrival of the train and for a reasonable time thereafter, and if the owner fails to call for it within such reasonable time, the rigorous liability of carrier ceases, and ordinary care is the measure of duty (2 Redfield on Railways, 4th Ed. 40 ; Ouimit v. Henshaw. 35 Vt. 605 ; Glasco v. N. Y. Central R. R. Co. supra; Jones v. Norwich and N.Y. Trans. Co. supra ; Holdridge v. Utica and Black River R. R. Co. 56 Barb. 191 ; Roth v. Buffalo & State Line R. R. Co. 34 N. Y. 548 ; Burnell v. N. Y. Central R. R. Co. 45 N. Y. 184 ). The defendants safely carried the baggage, and held it ready for delivery for more than a reasonable time after its arrival, and thereafter exercised ordinary care-in respect to it, and the request to charge should have been granted. Plaintiff had no right to suit his own pleasure or convenience to prolong the rigorous liability of the carriers (Hedges et al. v. Hudson R. R. Co. 49 N. Y. 223 ). 2. If there was any arrangement for-the transportation of this baggage between the Grand Trunk Railroad and the defendants, it did not constitute as between the plaintiff and the defendants, the relation of carrier to 'the-passenger and his baggage. That relation calls for the" carriage of the passenger with his baggage by the same" route, and at the same time, and is not severable. If the defendants carried this baggage by an arrangement with the Grand Trunk Railroad in the absence of any proof as to its terms the defendants must be held to have undertaken to early ttie baggage as freight, and they fully performed the duties of that undertaking. The owner or consignee was not-present to'receive the
p. 526
portmanteau on arrival, and he was not known so that notice could be given to him, and the portmanteau was stolen without fault of those having its custody (Northrop v. Syracuse and B. R. R. Co. court of appeals, 5 Abb. Pr. N. S. 425; Fenner v. Buffalo & State Line R. 44 N. Y. 505 ).
Hammond and Stickney, attorneys, and Albert Stickney, of counsel, for respondent, urged :—I.
The first point in the case is whether the defendant received the plaintiff’s luggage as a common carrier. The defendant received the luggáge, under the liability of a common carrier, or under no liabilty whatever. The evidence is undisputed that the Grand Trunk Railway had authority to sell tickets which would carry passengers and their luggage over defendant’s road. They sold' tickets which sent passengers from Albany by either boat, or rail. They gave these same checks when they sold tickets of either kind. And these checks sent the luggage by either route. Clearly, then, the course of business, the “arrangement” between these different lines, was, that the railroad would sometimes be paid without conveying the luggage, and would sometimes carry the luggage, without being paid. And the two cases balanced. The authority of the party in Montreal that sold the plaintiff his ticket being admitted, the question comes, what contract that party assumed to make. The plaintiff made only one con- • tract; he paid his fare, as the consideration of the contract. He received for that consideration, from the agent, for himself the ticket, and for his luggage the checks. There was only one contract; that contract was entire. That contract was for the carrying of both person and luggage. The consideration moving from the plaintiff was his fare. The consideration, moving to the defendant was some other passenger’s fare, when-the defendant did not carry the luggage. Aside from
p. 527
■that view of the case, however, the defendant, by its uniform course of business, recognized these checks delivered by the Grand Trunk Bail way, always under precisely these circumstances. The particular check in this case was delivered by the Grand Trunk Bailway to the plaintiff for the usual valuable consideration. There can, then, be no question but that the relation of common carrier did really exist between the plaintiff and the defendant. The point was, under proper instructions, submitted to the jury.
II. If the defendant was, as to the luggage, a common' carrier, of course the plaintiff was entitled to a reasonable time to call for his luggage. The only point would be, whether the reasonable time began to run from the .arrival of the plaintiff or of the luggage itself. This depends on what contract, in that respect, the plaintiff made. As to this there is no doubt, on the defendant’s own testimony, that the plaintiff was entitled to stop over, at any period, “ at the terminus of either of the coupons,” provided the ticket was all used “within thirty days from date of issue.” He only stopped one day and a night. There was no conflict whatever in the testimony on the point. The “ reasonable time ” is invariably reckoned from the time of the arrival of the passenger, provided he travels and arrives according to the terms of the original contract of carriage. The plaintiff was entitled to have it charged, as matter of law, that the “reasonable time,” in this case, ran from the arrival of the plaintiff himself, if the relation of common carrier existed. This disposes of the first request.
III. The question, what was a reasonable time, was a question for the jury. This has never been doubted.

The complaint states as the cause of action that the defendant, on October 8, 1870, as common carriers of passengers and their

p. 528
baggage, received into its cars the plaintiff with his baggage, to wit: one portmanteau containing wearing' apparel, money for his journey, and other articles, to be carried to the city of New York, and-there to deliver the said baggage ; and that by the negligence and improper conduct of the defendants, said portmanteau and contents were lost, to the plaintiff’s damage, &c.

The answer admits that a portmanteau was received by the defendants on or about October 8, 1870, and ' alleges that the same was by the defendants carried to New York; and then had safely, at the defendants, baggage room, ready for delivery to the owner until after the expiration of a reasonable time, for the owner' to receive the same, and tor a long time thereafter ; but the owner failed to call for it, and it was thereafter, without fault on the part of the defendants, stolen. '

■ It appears to be well settled that the obligation of a railroad company is to take whatever is delivered and received as baggage from a passenger in the baggage car of a passenger train, in which a passenger takes his passage; and take it along with, and deliver it to the passenger at the place of destination, in the usual manner of transporting and delivering baggage (Jones v. Norwich & N. Y. Transportation Co., 50 Barb. 193 ; Glasco v. N. Y. C. R. R. Co., 36 Id. 557).

This is so, though nothing be said about it, or any separate agreement made concerning it; and no compensation be made for carrying the baggage. The contract to carry the ordinary baggage of the passenger is implied from the usual course of the business, and the price paid for fare is considered as including a compensation for carrying the freight (Hawkins v. Hoffman, 6 Hill, 586 ; Powell v. Myers, 26 Wend. 591 ). If the baggage of the passenger be taken, whether ordinary or extra, it is to be carried with the passenger, unless there is some agreement to the contrary.

The obligation is the same whether the baggage is

p. 529
within the quantity allowed to a passenger, to be carried without any charge other than his ordinary, fare, or whether it is an extra quantity for which an additional charge is made. Any other rule would be productive of hardship and inconvenience, and subject travelers to injury by loss and vexatious delays (Glasco v. N. Y. C. R. R. Co, supra). I have extracted this much from the opinions of these learned judges to bring into view the grounds upon which the decisions are based, and to show that it must follow, that the carriage of the baggage is an incident to the carriage of the passenger ; and that agents of companies have no authority to receive baggage on their account, except as incidental to passenger transportation (Redfield on Railways, 4 ed. vol. 2, 39). This leads us to consider the first question presented in the case, Did the relation of carrier to a passenger and his baggage exist between the plaintiff and defendant ?

The tickets which the plaintiff procured do not, on their face, contract to carry the plaintiff over defendants’ road. They do undertake to carry him by another route, viz., by the Rensselaer and Saratoga Railroad and the Peoples’ Line of Steamers ; and he went that way. The check given for the baggage, anjd the testimony shows it was to be taken with the owner and the inference and legal presumptions are that it was to go over his route. The baggage was, in fact, taken to Troy, and over defendants’ road to Rew York, whether by mistake, accident, or intention does not, appear. The Grand Trunk Railway at Montreal, by. its agent, the Rensselaer and Saratoga Road, must be held responsible for this deviation of the route ; for they issued the check and the tickets. It is not shown that the plaintiff passed oyer any part of the defendants’ road, and the inference, both from his ticket and stopping at Albany, is that he went the nearest route by continuing on the Rensselaer and Saratoga Road

p. 530
on the west side of the river. The proof is clear that the baggage at the junction crossed, over the river to-Troy, and passed down on the east side, on defendants* road to New York.

The court may take judicial notice of established railroad routes generally known and used (Maghee v. Camden and Amboy Railroad Co. 45 N. Y. 524 ). -The-defendants’ baggage-master taking possession of the baggage at Troy without any authority to receive it, except as incidental to the carriage of the plaintiff, and the delivery of it to Mm by the Rensselaer and Sara-' toga Railroad, was an implied representation that the plaintiff had a ticket running over defendants’ line. The agent who took the baggage had a right to suppose that the plaintiff was on the same line. This was-not the fact. Nor was it the undertaking between the parties, or cause of action alleged in the complaint; for at no time £ ‘ was the plaintiff received into defendants’ cars with his baggage ” as there alleged. Taking the baggage by an agent through mistake or accident, without authority, can in no legal sense establish that the relation of carrier to a passenger exists between the plaintiff and defendant.

Nor do we think that after rejecting all extraneous circumstances, the evidence can fairly be said to establish that relation, and unless it exists the plaintiff’s case is not made out, and the defendants can only be responsible for ordinary care. The question wh ether the baggage was carried by the defendants under any arrangement other than incidental to the carriage of the plaintiff as a passenger, was not presented by the pleadings. The evidence, we think, showed that the course of business was for the defendants to accept and carry the passenger and his' baggage when his ticket ran over their road. The learned judge told the jury, if from these circumstances they believed, that this baggage was taken by the defendant under some ar

p. 531
rangement which it had made with 'the Grand Trunk Bailroad, then the defendant was a common carrier as respects that trunk.

The facts proved are not only inconsistent with an agency on the part of the Grand Trunk Bailroad to sell these tickets which should carry the plaintiff over defendant’s road, but we think they do not imply such agency. The testimony of the witness, Hicks, on his cross-examination, is “The coupon attached to this ticket from Whitehall to Albany passes passengers over the Rensselaer and Saratoga Railroad.” Then the counsel, not the witness, says, “And over any part of the N. Y. Central and Hudson River Railroad Company,” witness says “Yes, sir.” This is immediately explained by the witness, as follows: “The Bensselaer and Saratoga Bailroad Company operate the railroad between Albany and a point north of Troy, called the junction. That ticket takes a passenger from Whitehall to Albany, by the Bensselaer and Saratoga Bail-road, not going first to Troy, not necessarily, to West Troy, and then coming down on that side of the river to Troy. That ticket reads from Albany to New York by the Peoples’ Line of Steamers, which is a separate corporation from the Hudson River Railway.” This embraces all the testimony on the subject of agency. After this positive evidence relating to the ticket, and the course of travel indicated by it, we think positive proof of agency was required to justify the submission of the question to the jury.

That it was in the power of the Grand Trunk Bail-road Company or its connecting line to do something contrary to the course of business, and that there were instances of that kind testified to by some of the witnesses, is not evidence of an arrangement, nor evidence from which an arrangement can be inferred.

The ticket was evidence of the payment by the plaintiff, to the Grand Trunk Railway, of the fare for

p. 532
the carriage of himself and baggage, from Montreal to New York, to be by the People’s Line of Steamers, and the proprietors of that line received the ticket and the undetached coupon, and charged the Grand Trunk Railway Company with the fare of the carriage of the plaintiff and Ms baggage, between Albany and New' York. It would be most extraordinary to infer that the Grand Trunk Railway had arranged either .to fay another line for the carriage of the plaintiff’s baggage, or to have his baggage carried by another line.

If these views be correct, the examination of the remaining question is not material; but as it was discussed by counsel on the argument, it may be noticed. That question is : Did the owner call within a reasonable time for his trunk % If we admit as claimed by the plaintiff, and charged by the learned judge, that the jury might find from the evidence, and did find that the arrangement above alluded to existed for the carriage of baggage over the defendants’ road, for which the Grand Trunk whs liable to pay another line, I am of the opinion that the defendants fully discharged their duty as carriers of passengers and their baggage. That duty is to carry the baggage safely upon the train upon which it is received, and have the baggage ready for delivery on the arrival of the train, and for a reasonable time thereafter ; and if the owner fails to call for it within such reasonable time, the rigorous liability of the carrier ceases, and ordinary care is the measure of duty (Redfield on Railways, 4 ed. vol. 2, 40; Ovimit v. Harshaw, 35 Vt. 605 ; Roth v. Buffalo & State Line Railway Co., 34 N. Y. 548 ; Burnell v. N. Y. C. R. R. Co., 45 Id. 184 ; Glasco v. N. Y. Cen. R. R. Co., supra ; Holdridge v. Utica & Black River R. R. Co., 56 Barb. 191 ).

The plaintiff’s ticket was good by its terms for thirty days from date of issue. He might make a coritinuous trip between Montreal and New York at any

p. 533
time within thirty days from the date of his ticket. It was customary to allow passengers to stop at the terminus of either of the coupons. He did stop over at Albany and Plattsburg, and came to ¡New York city on the afternoon of Tuesday, and demanded his baggage on Wednesday, between eight and twelve o’clock in the forenoon. It was clearly the plaintiff’s duty, knowing that his baggage would precede him by as many days at least as he stopped over, to have had it checked according to the intervals he tarried on the way. When he checked through to ¡New York, it represented, in effect, that he intended a continous trip to that place. After having misled the carriers by the above representation, he had no right to suit his own pleasure or convenience to prolong their rigorous liability (Hedges v. Hudson River R. R. Co., 49 N. Y. 223 ).

There was no community of interest between the defendants and the Grand Trunk Railroad Company, and it is quite certain that the defendants did not derive any pecuniary benefit from the transportation (Milnor v. N. Y. & N. H. R. R. Co., 53 N. Y. 368 ). Again, the relation as we have seen of a carrier to a passenger and his baggage, did not exist between the plaintiff and defendants. That relation calls for the carriage of the passenger with his baggage by the same route and at the same time, and is not severable. The portmanteau was received on October 9, at defendants’ station in Twenty-ninth - street,, and the defendants either held it in their store-room, by the Westcott’s Express Company as their agents, or deposited it with that company for storage, and due care seems to have been exercised in regard to it until the demand was made for it in the forenoon of October 12. It was on hand at six o’clock in the morning of that day, and stolen after that hour, and before the demand was made. The plaintiff was not present to receive the '

Dissent

p. 534
portmanteau on arrival, and he was not known so that notice could be given to him. The carrier should not, in justice, be held to the strict liability as insurer of the goods for any indefinite time at the plaintiff’s convenience (Fisk v. Newton, 1 Denio, 45 ; Northrop v. Syracuse Railroad Co., 5 Abb. Pr. N. S. 425).

There being no conflict of testimony regarding the time of the receipt of the trunk, the time it was held, the demand and loss, the care exercised in regard to it, it follows, I think, that the submission of the case to the jury, was error.

The judgment should be reversed, a new trial granted, with costs to the defendants to abide the event.

Monell, Ch. J., concurred in reversing the judgment, on the first ground stated in foregoing opinion.

(dissenting).—The defendants sold tickets through the' agency of the Grand Trunk Railway at Montreal, which would carry passengers and their baggage over defendants’ road. These tickets were good for thirty days, from Montreal to New York, with privilege to stop over at various places on the route. They issued checks for baggage at Montreal marked, “H. R. & R. R.” in connection with the passenger-tickets by which baggage might come by the Hudson river or by the railroad. The baggage was thus checked through from Montreal to New York, under some-arrangement with the connecting lines. The evidence is, that under this arrangement, a passenger might come down in the steamer, and his baggage might come down on the Hudson River Railroad. This arrangement existed apparently for the convenience or advantage of the defendants and other parties interested, in the transportation of through passengers, over the two routes, and it did not appear to have depended on the volition of the passenger, over which of the two-

p. 535
routes Ms baggage was carried. The plaintiff arrived in Yew York in the evening, and sent to the defendants’ station between seven and eight o'clock the next morning for the portmanteau in question, presenting his check. It was not delivered to him, and could not be found. It had arrived the afternoon of the day preceding plaintiff’s arrival, and was in defendants’ , •custody at six o’clock the morning he called.

The defendants claim that they did not receive the . portmanteau in the capacity of a common carrier, and also, that the plaintiff did not call for it in a reasonable time.

It was left-for the jury to find if there existed the state of facts claimed to exist by the plaintiff, making the defendants’ relation to the transportation of the plaintiff’s baggage that of a common carrier. It was also left to the jury to determine if, in case the defendants’ relation was that of a common carrier, whether the plaintiff applied for his baggage in a reasonable time.

The jury rendered a verdict for the plaintiff, and it must be assumed that they found for the plaintiff on the two questions submitted. The evidence justifies the verdict.

If the defendants entered into an arrangement with other parties for their own advantage, by which a passenger is transported over a part of his journey separated from his baggage, it should not operate to discharge the defendants from their ordinary liability to a passenger who has paid Ms fare for the transpor- . tation of himself and his baggage, because the defendants have arranged, as their part, to transport only the passenger’s baggage. They had their consideration out of plaintiff’s fare, paid at Montreal, for their share of the transportation, in the general settlements made by the parties engaged in it. The defendants were notified by the check, and if they wished to have avoided the

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usual liability to a passenger, they should have declined taking the portmanteau, and refrained from selling through tickets, and holding themselves out to the public as responsible.

The jury found properly that the plaintiff called for his baggage in a reasonable time. The ticket provides for delay, which he did not avail himself of. It is. not ' desirable to encourage any theory that parties entrusted with the transportation of baggage may, after what they consider a reasonable time, neglect or lose it.

Some question is raised as to the damages. The jury appear not to have been governed much by the statement of value made by the dealer in second-hand garments called by the defendants, but there is ne reason to suppose that it was because they thought his business was the purchasing of this class of missing' and lost or uncalled-for effects. On the contrary, there was evidence of value justifying the finding of the jury in that respect.

My impression of the case is, that the judgment appealed from should be affirmed.

Cases cited