Butler v. Hudson River Railroad, 3 E.D. Smith 571

Butler v. Hudson River Railroad

3 E.D. Smith 571 | New York Court of Common Pleas | 1854

By the Court. Ingraham, First J.

The right of the plaintiff to recover is not upon the ground that the package was personal baggage, but that it was property placed in charge of the baggage master to be transported to Albany. There is nothing in the case showing any attempt to deceive by representing it to be baggage. On the contrary, the evidence shows that the baggage master knew it was not baggage when he refused to check it; and it being a package instead of a trunk, he had no reason to suppose it to be baggage.

*573Hor is it necessary to entitle the plaintiff to recover that he should pay the freight at the' time of delivery. (See Allen v. Sewell, 2 Wend. 327.) The defendants had a right to charge the freight before delivery, but no refusal to deliver was put on that ground. The package evidently was sent to a wrong destination or lost on the passage.

The cases cited by the defendants, Pardee v. Drew, 25 Wend. 459, and Hawkins v. Hoffman, 6 Hill, 586, establish the doctrine that common carriers are not liable for goods which are placed in their charge as the baggage of passengers, instead of being forwarded as freight. It may be that the defendants will be able to show that such was the case as to the package in question. In both of the cases referred to the goods were carried by the travellers in trunks, and treated by them as forming part of their baggage, thereby avoiding the payment of freight.

It appears to me also that the rule as laid down in those cases cannot be so strictly applied to* railroads. The traveller is not precluded from carrying packages and boxes with him on the same train as that in which he travels. The place of deposit for goods or baggage is the same, and if not represented to be baggage, or if not so packed as to assume that appearance, there is no reason why freight should not be charged or why the carrier should not be responsible.

I do not intend to express any opinion on the merits of the plaintiff’s claim in this case further than to say the evidence does not warrant the conclusion that the traveller intended to defraud the carrier by passing as baggage what was subject to freight. If that had been the case the defendants would be entitled to judgment. It was not, however, proven on the trial, and the judgment in that respect was erroneous.

I think, however, there is not sufficient evidence of a delivery of the property to the defendants or their agent to make them liable. The only evidence is that of the assignor of the claim, who says he delivered the parcel to a person he supposed to be a baggage man. Whether he supposed him to be in such a situation or not made no difference. The defendants are not to *574"be held liable on the mere supposition of the traveller. He should show the delivery of the' property to an officer of the company, or at least that it was delivered to a person acting as stich, or that it was placed in the car or place for the reception of such property.

Although the judgment was improperly rendered for the defendants on the merits, still I think the plaintiff’s case was not made out, and the complaint should' have been dismissed; and ás we are required to render the proper judgment on appeal,’ I think the judgment should be for dismissal of the complaint, and should be modified accordingly, without costs of appeal to either party.

Adjudged accordingly.