Blumantle v. Fitchburg Railroad
1879 Mass. LEXIS 86
Mass.
1879
Check Treatment
Gray, C. J.

The ordinary contract made by a railroad corporation with a passenger, by the sale and purchase of a passenger ticket, is for the transportation of the passenger and of his reasonable personal baggage; and the corporation is liable as a common carrier for such personal baggage only, and not for merchandise delivered by the passenger as baggage, without-clear proof of an agreement to that effect. If merchandise, not disclosed, is included in the passenger’s baggage, the corporation is not responsible for it as a common carrier. Collins v. Boston & Maine Railroad, 10 Cush. 506. Stimson v. Connecticut River Railroad, 98 Mass. 83. Connolly v. Warren, 106 Mass. 146. Macrow v. Great Western Railway, L. R. 6 Q. B. 612. Such an agreement cannot be proved, or such a responsibility- created, by mere evidence of a custom of passengers to take with them, and of railroad corporations to carry, similar packages as personal baggage; or by evidence that the package, delivered by the passenger as baggage, is of such form or appearance as to raise a doubt or suspicion or inference that it contains merchandise. Stimson v. Connecticut River Railroad, above cited. Alling v. Boston & Albany Railroad, 126 Mass. 121. Michigan Central Railroad v. Carrow, 73 Ill. 348. Cahill v. London & Northwestern *325Railway, 10 C. B. (N. S.) 154, and 13 C. B. (N. S.) 818. Belfast & Ballymena Railway v. Keys, 9 H. L. Cas. 556.

It has, indeed, been said by eminent English judges, that, if the carrier accepts for transportation, as personal luggage of a passenger, articles that the carrier knows to be merchandise, he will be liable for their loss, though not arising from his negligence. Parke, B., in Great Northern Railway v. Shepherd, 8 Exch. 30, 38. Cockburn, C. J., in 13 C. B. (N. S.) 819, and in L. R. 6 Q. B. 619. But as the decision in each case was in favor of the carrier, the court had no occasion to consider what would be sufficient evidence of such acceptance.

In Hannibal Railroad v. Swift, 12 Wall. 262, the railroad corporation, at the requirement of a military commander, in time of war, furnished transportation for his troops, their baggage, camp equipments, arms and munitions, and the chattels of himself, as well as of an army surgeon, including a considerable amount of furniture; but no contract for the transportation was made until the arrival of the command at its destination, when the amount of compensation for the transportation of the whole was agreed upon. Such was the case of which the court, in an action brought by the surgeon to recover for the loss of his baggage and furniture, said: “ Where a railroad company receives for transportation, in cars which accompany its passenger trains, property of this character, in relation to which no fraud or concealment is practised or attempted upon the employees, it must be considered to assume, with reference to it, the liability of common carriers of merchandise.” “ If property offered with the passenger is not represented to be baggage, and it is not so packed as to assume that appearance, and it is received for transportation on the passenger train, there is no reason why the carrier shall not be held equally responsible for its safe conveyance as if it were placed on the freight train, as undoubtedly he can make the same charge for its carriage.”

In Sloman v. Great Western Railway, 67 N. Y. 208, additional compensation was demanded and paid, and a special receipt given-at the time of accepting the goods, and no point was made at the trial that the baggage-master was not authorized to receive them as freight. In Graffam v. Boston & Maine Railroad, 67 Maine. 234, the plaintiff’s trunk was not delivered to the defend*326ant corporation as personal baggage, nor for transportation on the same train with him, but to be carried on a subsequent day, and therefore as merchandise for which the corporation would be entitled to charge a reasonable compensation.

In the case at bar, the plaintiff offered and delivered the bundles as his personal baggage, and requested that they might be checked as such; and the baggage-master gave him checks for them accordingly, as he was bound to do for personal bag gage of passengers by the St. of 1874, c. 372, § 136. There was no evidence that either the plaintiff or the baggage-master agreed or intended that they should be carried as freight, or that the baggage-master had any authority to receive freight on a passenger train, or to bind the corporation to carry merchandise as personal baggage. , The case cannot be distinguished in principle from the previous decisions of this court, already cited. Evidence tending to show that the baggage-master knew or supposed the bundles to contain merchandise, or that other passengers had similar bundles, would not warrant the jury in finding that the defendant agreed to transport the plaintiff’s merchandise, or became liable therefor as a common carrier. The instructions under which the case was submitted to the jury were therefore erroneous, and the Exceptions must be sustained.