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is no necessity for the testimony on this
point of the interested party." Illinois
Cent. R. Co. v. Taylor, 24 III. 323. See
also Illinois Cent. R. Co. v. Copeland, 24
111. 332, 76 Am. Dec. 749; Davis v. Michi-
gan, etc., R. Co., 22 111. 278, 74 Am. Dec.

"There is other evidence in every town
and city in the state quite accessible to
the party; and the jurors themselves,
when the property is described, may have
a proper measure of damages in their
own knowledge of values." Illinois Cent.
R. Co. V. Copeland, 24 111. 332, 76 Am.
Dec. 749.

62. Illinois Cent. R. Co, v. Taylor, 24
111. 323.

63. Testimony restricted to articles of
baggage.^ — Mad River, etc., R. Co. v. Ful-
ton, 20 O. 318.

The testimony of the plaintiff in an
action against a common carrier for the
loss of a package, in respect to the con-
tents, should be limited to clothing and
personal ornaments. Pudor v. Boston,
etc., Railroad, 26 Me. 458.

64. Johnson v. Stone, 30 Tenn. (11
Humph.) 419.

65. Pudor v. Bostoii, etc.. Railroad, 26
Me. 453.

66. Passenger incompetent in Louisi-
ana.— Block V. Trent, IS La. Ann. 664.

58. Value of baggage. — Alabama. —
Douglass v. Montgomery, etc., R. Co., 37
Ala. 638, 79 Am. Dec. 76.

Missouri — By statute the plaintiff is a
competent witness. R. C. 1855, p. 435, §
45. Nolan v. Ohio, etc., R. Co., 39 Mo.
114; Williams t-. Frost, 39 Mo. 516.

Ohio. — Mad River, etc., R. Co. v. Ful-
ton, 20 O. 318.

Pennsylvania. — Whitesell v. Crane (Pa.),
8 Watts & S. 369; McGill z^. Rowand, 3
Pa. 451, 45 Am. Dec. 654.

Tennessee. — Johnson v. Stone, 30 Tenn.
(11 Humph.) 419.

59. Mad River, etc., R. Co. v. Fulton,
20 O. 318; Dibble v. Brown, 12 Ga. 217,56
Am.. Dec. 460.

60. Battle v. Columbia, etc.. Railroad,
70 S. C. 329, 49 S. E. 849.

61. Illinois Cent. R. Co. v. Taylor, 24
111. 323; Illinois Cent. R. Co. v. Copeland,
24 111. 332, 76 Am. Dec. 749.

See Parmelee v. McNulty, 19 III. 556,
wherein it appeared from the evidence
that the necessity did not exist; as the
value of articles might have been proved
by a witness, he being acquainted with
thern; and, of course, their value could
have been proved by him, or at least the
reason should have been given why he
could not state their value.

And see Davis v. Michigan, etc., R. Co.,
22 111. 278, 74 Am. Dec. 151, holding that
the owner of lost baggage should not be
permitted to prove the value of the arti-
cles in which it is packed, or of other
articles, the value of which m.ay be es-
tablished from description.


passengers' effects. §§ 3523-3524

a competent witness as to the contents and value of the trunk, though he has
no other evidence.*^' But b}^ a subsequent statute it was provided that in any
action brought by a passenger against any common carrier, the plaintiff, after
proof of the bailment of his trunk to the defendants, and of its loss "by the fault
of such carrier, or of the agents of such carrier," shall be allowed to put in evi-
dence a descriptive list of its contents, sworn to by himself; and such statute
applies to the case of the loss of a trunk left by the passenger with the baggage
master of a railroad corporation after arriving at his place of destination.'^*^

In North Carolina, a passenger suing to recover for the loss of his trunk is
not a competent witness to prove the loss of the trunk or its contents, though he
oft'ers to swear that he has no means of proving these facts or either of them
except bv his own oath.*^^

Affidavit of Plaintiff. — In an action against a railroad company by a passen-
ger to recover the value of a lost trunk, the ex parte affidavit of plaintiff is not
competent evidence to prove the contents of the trunk."-"

§ 3524. Admissibility of Evidence.— Contract for Transportation.—

In an action for delay of carrier in delivering baggage, the owner thereof may
testify that he contracted with the carrier to transmit it to a certain point with-
out producing his check."^^

Parol Evidence of Passage Over Railroad Lines. — Where a passenger
seeks to recover for the loss of her baggage, the fact that she boughta ticket to
pass over various lines of railroad from her starting point to her destination, the
ticket having coupons attached, and that she did so pass may be shown by parol
independently of the ticket as the contents of the ticket are not involved."^ -

Delivery to Carrier. — In an action to recover for baggage lost by defend-
ant, evidence that plaintiff, who was being transported over the lines of several
connecting carriers, gave his checks to defendant's station agent, and that the
agent promised to forward his baggage over defendant's line, is admissible as
tending to show that defendant received the baggage.''^

Delivery to Passengers. — Evidence that the personal baggage of a passen-
ger on a railroad, who took passage in July, had been seen at the place of his
destination in November following, can not be given as proof of proper transpor-
tation and delivery of such baggage in a suit against the company for the loss
of it.'-'

Declarations and Admissions of Agents. — In an action against a carrier
by a passenger for the loss of his trunk, the admissions of the conductor, bag-
gage master, or station master, as to the manner of the loss, made in answer
to inquiries in behalf of the passenger the next morning after the loss, are ad-
missible in evidence against the carrier.'-^ And where a passenger, as soon as
practicable after his arrival at destination, presented to the agent in charge of
the baggage room a check for his baggage and demanded the same, but the

G7. Massachusetts rule. — Snow v. East- 1)y consent, after the court '.lad dcter-

ern R. Co. (Mass.), 12 Mete. 44, holding mined that the plaintiff was a cunipetcnt

that the rule only applied where the de- witness."

fendant or its employees, had been con- 71, Contract for transportation.—

victcd by other evidence of an act of will- Strange v. Atlantic, etc., R Co., 77 S. C.

ful snoliation, or of felony. is;>, 57 S. E. 7;24.

68.*St. is.^1, c. 1:57, § .-5; Harlow z/. Fitch- ^g. Parol evidence of passage over

burg R. Co. (Mass.), s Cray 2:!7. And railroad lines.— Central U. Co. 7-. Wolflf,

see St. 1870, c. WX.',. -^ (-.j ,;i;.,

69. Rule in North Carolina. — Smith v. ' '' ,•' ^ • t -d
North Carolina K. (%.., r.o X. C. 202. „ 73. Delivery to carrier.-Kansas Pac.

70. Affidavit of plaintiff.— Indiana Cent. ^- Co. v. .Montelle. 10 Kan. 110.

R. Co. V. Gulick, 10 Ind. 8:5, wherein the 74. Delivery to passenger.— Glasco r.

court, in referring to Doyle v. Kiscr, G New N'<>rk CciU. R. d). ( N. Y.), .'JO Rarh.

Ind. 242, said "In that case, tho affidavit .'5.''>7. . .

of the plaintiff was admitted in evidence, 75. Declarations and admissions of

but the facts, which do not appear in the agents.— Morse t'. Connirtuut i-^iver K.

report arc, that the affidavit was admitted Cn. (.Mass.), G Gray 4^)0.

§§ 3524-3525 carriers. 3192

agent, being unable to find the baggage, took the number of the check and re-
quested the passenger to call again, which he did on the same evening, when
the agent informed him that he had made further search and the baggage could
not be found, such acts and declarations of the agent were competent evidence
for the passenger in his action against the carrier for loss of such baggage.'*^

Nature and Value of Baggage. — In an action for the loss of a trunk, slight
and prima facie evidence of the contents of the trunk is admissible and compe-
tent."" And the testimony of one who saw the trunk packed, six or eight weeks
before the shipment, is admissible evidence to show the contents and their value
at the time of shipment, although the lapse of time between the two periods
would weaken the force of such testimony J ^ The value of any article contained
in lost baggage may be shown by the opinion of witnesses, and it is not neces-
sary that such witnesses should be experts. If they have any knowledge of such
value they may give their opinions in respect thereto.^ '^

Testimony of Owner or Wife as to Nature and Value of Baggage.—
See ante, "Witnesses," § 3523.

Custom. — In an action against a carrier to recover for merchandise contained
in a commercial traveler's trunk, evidence that defendant transports large num-
bers of commercial travelers, that trunks similar to the one in question are of
special construction, and known as sample trunks, and that such travelers re-
ceive checks for their trunks and are transported for the price of the tickets, is

The pauper affidavit made by plaintiff in a suit in a justice's court brought
to recover against a railway company for the loss of a trunk and contents in
order to appeal the case to the superior court is not admissible on the trial of
the case in that court to show that the plaintiff's financial condition was such
that she did not probably own the property claimed to have been contained in
the trunk. ^1

Evidence as to Damages. — In an action against a railroad for delay in de-
livering baggage of a traveling salesman, whereby he was unable to sell goods,
evidence that the time of the year was that in which such business was most
active was admissible.*^- But in an action against a transportation company for
the loss of a trunk, it was error to admit testimony as to expenditures by plain-
tiff for wearing apparel, as leading the jury to consider such expenditures out-
side of the value of the contents of the trunk. ^s

Evidence Admissible under Pleadings. — See ante, "Evidence Admissible
under Pleadings," § 3519.

§ 3525. "Weight and Sufficiency of Evidence.— Contract for Trans-
portation. — Evidence that a passenger purchased a ticket for herself and her
baggage from one who purported to be an agent of the carrier for the sale of
tickets, that the conductors accepted it as evidence of her right to ride in the
cars, marked it, and finally took it, shortly before arrival, and demanded no other
fare of her, is sufficient proof of an undertaking on the part of the carrier to
transport her and her goods. ^"^

76. Baltimore, etc., R. Co. v. Campbell, Stimson v. Connecticut River R. Co., 98
3G O. St. 647, 38 Am. Rep. 617, 3 Am. & Mass. 83, 93 Am. Dec. 140.

Eiig. R. Cas. 346, affirming 6 Wkly. L. gl. Pauper affidavit. — Southern R. Co.

Bull. 208. ■ ^,. White, 108 Ga. 201, 33 S. E. 952.

77. Nature and value of baggage.- g^ Evidence as to damages.-Webb v.
Peixotti z;. McLaughhn (S. C), 1 Strob. Atlantic, etc., R. Co., 76 S. C. 193, 56 S.
468 47 Am. Dec. 563. ^ .^ , , ^ E. 954, 9 L. R. A., N. S., 1218, 11 Am.

78 Sugg V. ^remphis, etc.. Packet Co., ^ ^ j^^^^ ^^^ g34_
40 \1 o 44

79. Opinion evidence.-Central R. Co. 83. Merrill v^ Pacific Transfer Co., 63
V. Wolff 74 Ga. 664. Pac. 915, 131 Cal. 582.

80. Custom to carry sample trunks as 84. Contract for transportation. — Glasco
baggage.— Ailing r. Boston, etc., R. Co., v. New York Cent. R. Co. (N. Y.), 36
126 Mass. 121, 30 Am. Rep. 667, citing Barb. 557.

3193 passengi;rs' effects. § 3525

Joint Contract of Transportation. — Where in a joint action against three
railroad companies, operating connecting lines, to recover for baggage lost at
some unknown point on their lines, the evidence showed that plaintiff purchased
for a single fare from another company, a common agent of defendants, a
through ticket over its own and defendants' lines, with coupons attached, on each
of which were the initials of all of defendants ; that when plaintiff' reached the
end of the line of the initial company, which had expressly limited its liability
to such injuries as might occur to plaintiff''s baggage while on its own line, she
received from the next company a through check for her baggage over all of de-
fendants' lines and. was charged for extra weight ; that the baggage was carried
through to the end of the journey on the same train, with plaintiff, the evi-
dence was sufficient to authorize a finding that defendants jointly undertook to
carry the baggage safely through to the end of the journey. •"'^ Evidence that a
company operating a railroad and a company operating a line of boats advertised
that they had formed a line between certain points, and that they had a common
agent, who sold through passenger tickets and another common agent who checked
baggage through, was held to support a finding that they had entered into an
arrangement for carrying passengers and baggage between such points, render-
ing them jointly liable for the loss of a passenger's baggage. ^<^

Delivery to Carrier and Custody of Baggage. — In an action against a
carrier for loss of baggage, the testimony of its transfer agent, to whom plaintiff
delivered it at his house that he delivered the same at its (the carrier's) freight
depot, is sufficient proof that the baggage came into the custody of the carrier.^'''
Where in an action against a street railroad for the loss of a passenger's bag-
gage, there was no evidence that the railroad held itself out as undertaking to
assume the control of baggage, and the conductor was not requested to take the
passenger's baggage into his charge, and he took it when it was handed to him,
and placed it in the car within sight and control of the passenger, while assisting
her. the evidence was insufficient to justify a finding that the conductor assumed
the custody of the baggage so as to render the railroad liable for its loss.^^

Knowledge of Nature of Baggage. — Where plaintiff had traveled over de-
fendant's road for six years, carrying samples of merchandise in trunks different
in style from the ordinary, and a witness testified that on the last of these trips
the baggage master stated that plaintiff was a dress man, and that he had ladies'
dresses, but tiie trunks were received as passenger's baggage, and some of the
contents stolen, there was evidence from which the jury might infer knowledge
on defendant's part as to the character of the contents, and a verdict for i)lain-
tiff will not be disturbed. *^'^ But when a passenger presents a valise containing
merchandise to the baggage master to be checked, but does not notify him of its
contents, the company is not rendered liable because there is evidence tending to
show that baggage masters at other stations on the same line had previously
checked the same valise, with a knowledge of its contents.'"'

Rebuttal of Presumption of Negligence. — The inference of negligence aris-
ing from ilie failure of the carrier to account in some manner for the loss of
a trunk which it had agreed to store over night and deliver on the following morn-
ing is not sufficiently met by evidence showing that the building used for the
storage of baggage was safe and secure, in charge of trusty agents and servants,
and projjcrly guarded both day and night. ''^ .And the presumption of negligence

85. Joint contract of transportation. - -Xtl. W.l, U) L. R. A., \. S., 1)07.
Peterson 7'. Chicago, etc., K. Co., K() Iowa 89. Knowledge of nature of baggage.
92, 4.-i N. W. .'■.7.'}. .^Inory v. Wal)asli R. Co., liJO Mich.

86. Wolf V. Graiul Rapids, etc.. Railway, 404, 90 N. W. 22. 4 R. R. R. 40,s. 27 Am.
112 X. W. 7:!2, 149 Mich. 75. cSj l-.n^. R. Cas.. N. S., 408.

87. Delivery to carrier. — Wolf v. Grand 90. Blumenthal v. Maine Cent. R. Co.,
Rai)ids. etc., Railway, 149 Mich. 75, 112 79 .Mc. .'550, 11 At!. 005.

N. W. 7:'.2. 91. Rebuttal of presumptions of negli-

88. Custody of baggage. Sperry v. gence. Rome K. ("o. 7'. W inil)ei!y, 7."> Crd.
Consolidated R. Co., 79 Conn. 505, C5 .ilf,, .is Au\. Rej). 408.

§§ 3525-3526 carriers. 3194

arising from the derailment of a train, by reason of which a passenger's baggage
was destroyed, is not rebutted by the fact that the deraihnent and wrecking of
the train were caused by a slide of dirt and rocks on the track. '*2

Conversion.— Evidence of the retention of plaintiff's baggage by defendant
after a refusal to give him checks therefor, and a subsequent faihire to dehver
it to him at a certain point on the road, as promised, make out a case of conver-
sion sufficient to entitle plaintiff to a verdict.^^

Where a carrier holds baggage as warehouseman only, proof that it was
received and deposited in the baggage room, and, when the traveler claimed it,
could not be found, will, if no explanation is given, warrant a verdict in his
favor.^-^ And evidence showing that the agent of a carrier undertook, in com-
pliance with a passenger's request, to store her trunk at the point of her destina-
tion until she should send for it, but that he failed to do so and the trunk was
stolen, is sufficient to warrant a recovery.^^

Custom to Carry Bundles of Merchandise. — Evidence that passengers on
a railroad have been in the habit of carrying with them bundles of merchandise
without objection has no legal tendency to prove an agreement on the part of the
company that such bundles are to be regarded as part of the passenger's bag-

§ 3526. Questions for Court or Jury. — Delivery to Carrier. — The ques-
tion of the delivery of baggage to the carrier is for the jury, where the evidence
is conflicting as to whether the baggage, which was stolen, was delivered at the
usual and proper place at the depot."" And whether the custom has been es-
tablished that delivery of baggage at the station without notice to the carrier is
regarded by the latter as a delivery to its servants binding upon itself, is also a
question for the jury."'^

Delivery to Passenger. — Where in an action by a railroad passenger to re-
cover for loss of her baggage, there was proof that on her arriving at her destina-
tion she delivered the checks therefor to the baggage master on his assurance that
the trunk would be "just as safe without the checks as with them ;" that a few
days after, on her calling for her trunk, it could not be found, he having deliv-
ered it to a stranger ; and that he was prohibited by the company from thus keep-
ing baggage, the question whether there was a delivery of the trunk to her by
the company was for the jury."" And where, upon a passenger arriving at the
end of his journey, his hand baggage was taken from him by a railway porter
to be placed in one of the cabs standing at the station, but was never seen again,
and it was shown that it was the custom of the railway company to have their
porters assist in transferring baggage from the coaches to cabs at its stations, it
was held that there was evidence that the company has contracted to deliver the
carpet bag to the cab, and that whether the plaintiff' had accepted a delivery on
the platform was a question for the jury.^

Whether Person Receiving Baggage Agent of Carrier or Passenger. —
In an action against a railroad company to recover the value of certain baggage,
on evidence that the baggage was delivered by the railroad company to the bag-
gage master of a connecting steamboat line to be delivered to the boat, the ques-

92. Thomas v. Southern R. Co., 131 N. 96. pustom to carry bundles of mer-
C 590 42 S E 964 chandise. — Smith v. Boston, etc., Railroad,

■ „ '^ ' • \f n 1 -D -l-l N. H. 325.

93. Conyersion.-McCormick v^ Penn- ^^ Delivery to carrier.-McKibbin v.

^^^ T'L .t ^ \ r 1- «n'M Great Northern R. Co.. 78 Minn. 232, 80

N. E. 99, 52 Am. Rep. 6, overrulmg 80 N. ^ ^j ^^^^

98. Question as to custom. — Green v.

94. Carrier liable as warehouseman.— Milwaukee, etc., R. Co., 41 Iowa 410.
Fairfax v. New York, etc., R. Co., 67 N. 99, Delivery to passenger.— Matteson
Y. 11, reversing 40 N. Y. Super. Ct. 128. .^, New York, etc., R. Co., 7ti N. Y. 381.

95. Georgia R., etc., Co. :'. Thompson. 1. Butcher v. London R. Co. (Eng.),
86 Ga. 327, 12 S. E. 640. 16 C. B. 13.

3195 passengers' effects. § 3526

tion whether such baggage master was the agent of the railroad company or the
agent of the passenger is a question for the jury.^

Negligence of Carrier. — In an action against a steamship company for dam-
ages for the loss of certain baggage, where it appears that the vessel stopped
nowhere until the port of destination was reached, that all the baggage was then
placed on the dock without system, and that the baggage in question was never
delivered to the owner, the question of negligence is for the jury.^ Where a
passenger kept his baggage in his state room, which, by the custom of the ship,
was kept open ; and the state room opened on a passage connected with the cabin,
and lights were kept burning, and a watchman was on duty at night in the cabin,
who was required to report every hour; and the passenger's baggage was stolen
while he was asleep ; and the watchman had stopped temporarily when reporting
at the bridge, and state rooms on both sides of the cabin were robbed that night;
and there was some evidence that a fellow passenger, wdio had a state room
near, was the thief, whether the company was negligent should have been sub-
mitted to the jury.'* The question whether a room in which a carrier stored the
personal baggage of a passenger on reaching its destination was in a reasonably
safe condition for the storage of baggage is for the jury.^ But whether a car-
rier used ordinary care to protect a passenger's baggage while in a warehouse
after it had reached its destination is for the court, rather than the jury, where
the facts are undisputed.^

What Constitutes Baggage. — See ante, "Questions for Court or Jury,"
§ 3445.

Reasonable Opportunity to Call for and Receive Baggage. — What con-
stitutes a reasonable opportunity for passengers to call for and receive their
baggage after its arrival at destination is a question of fact for the jury, depend-
ent upon the circumstances of the particular case.*^

Reasonable Time to Call for Baggage. — See ante, "What Constitutes Rea-
sonable Time," § 3501.

Reasonable Time for Checking Baggage. — Plaintiff, who took his trunk
to defendant's station at night, 12 hours before train time, intending to check
it as baggage the next morning, and knowing that defendant's rules prohibited
the checking of baggage till half an hour before train time, can not complain that,
in an action to hold defendant liable as carrier — it having been burned during
the night — the court submitted to the jury the question whether the limit of 30
minutes was unreasonable, or the 12 hours a reasonable time.^

2. Whether person receiving baggage a waybill, after they had been rcweighed.
agent of carrier or passenger. — Mobile, He went to his hotel without attempting
etc., R. Co. V. Hopkins, 41 Ala. 486, 94 to get them, and in the niglit they were
Am. Dec. 007. burned with the depot. It appeared that

3. Negligence of carrier.— Wheeler v. the depot was closed very soon after
Oceanic Steam Nav. Co., 125 N. Y. 155, that tram left, and that it was the cus-
26 N. E. 248, 21 Am. St. Rep. 729, 3 Sil- tom of travelmg men to leave their trunks
vernail Ct. App. 276, reversing 52 Hun at the depot over night. The hotel por-
75, 5 N. Y. S. 101, 22 N. Y. St. Rep. 590. ter testified that on special request, and

... e, \ ■ f^ D „ surrender of checks, trunks were some-

4. American Steams nn Lo. v. cryan, ,. i r, i. .^i i ^r i xu

„ y,, . ' -^ ' times left out on the platform when the

e ^r'^„.i';*:^„ ^f Ko„,xo„» -^^^ v«n station closed. There was some testi-

5. Condition ot baggage room. — Aea- ^\ ^ \ • ,.■ ex i i i l^ i •„
, , ,, , , I, 1 1 ,..i M niony that plaintiff could have gotten his
land V. lioston. etc., Kailroac , Ifil .Mass. , r -.i .^ • i fV i i .i 4.
.._ „„ -^^T p rno trunks without siiecial pams. Held, that
1./. JO i\. n. o3i. j^ ^^^.^^ f^j. j,j^ j^jj.^, j^ ^,^y wlicthcr rea-

6. When facts undisputed.— Kahn v. sonable facilities were extended to him,
Atlantic,^ etc., R. Co., li:. X. C. r,;{s, 20 j|,^. special arrangemein (lescril)ed by the
''• ''•• "''•^- porter being unreasonable. Dittman, etc.,

7. Reasonable opportunity to call for Shoe Co. v. Kcokiik, etc., R. Co.. 91 Iowa
baggage.— Zciglcr Bros. v. Moljile, etc., K. IK",, 59 X. W. 2r)7, ")! .\\\\. St. Rep. ;i52.
Co.. s7 Miss. 367, 39 So. 811. 8. Reasonable time for checking bag-

i'laintiff's traveling agent arrived at K. gage, (loldl)erg v. .Minapee, etc., R. Co.,

on December 5tli by the 7:40 p. m. train, so X. W. 920, 105 Wis. 1, 47 L. R. A. 221,

with two trunks, for which he would have li\ Am. St. Rep. H99, 17 .\\w. d<. R.

to pay overweight charges and surrender Cas., N. .S., 65.

§§ 3526-3527 carriers. 3196

Notice of Contents of Receipt. — W^hether a passenger, wh.o has accepted

Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 17 of 214)