Davis v. Cayuga & Susquehanna Railroad

10 How. Pr. 330 | N.Y. Sup. Ct. | 1854

By the court—Shankland, Justice.

I am of opinion, the possession of the check by the plaintiff, and the testimony of the baggage-master, that, when required by passengers, he puts checks on their baggage, and gives duplicates to passengers, is suEcient evidence that plaintiff was a passenger on the cars, and that he had baggage checked on that occasion. But the defendants now object, that the complaint does not allege that the plaintiff was a passenger, and that none but passengers having checks can be sworn as to the contents, of lost trunks, by the statute. (Laws of 1850, p. 232.)

But no such objection to the complaint was made at the time of the trial, nor on .the plaintiff’s being offered as a witness; when it would have been competent for the party to have amended his complaint, and to have offered additional evidence of his having been a passenger, if required. It is a rule always applied by appellate courts, to judgments and proceedings of inferior courts, that objections which might have been obviated on the trial if raised then, shall be considered waived by non-objection. On the trial, the only objection made to witness was, that he had not proved the trunk in defendants’ possession. Admitting the defendants’ construction of the statute to be the correct one¿ (which is unnecessary to decide in this case,) that none but passengers can claim to have baggage checks, and therefore none.but passengers can be witnesses, as to contents thereof, yet the. evidence was sufficient to prove the fact in this case, even if the defendants had raised the objection; but if not sufficient, the point was waived by non-objection. The same answer, of non-objection in the court below, applies to the want of proof of payment of fare as a passenger, or for the trunk. The case cited from 9 Barb. S. C. Rep. 160, is not an authority for saying, that proof necessary to support the action may not be waived by non-objection, nor that facts necessary to maintain the action may not be.proved, if not objected to, although omitted in the complaint. (1 Com. R. 90; 5 How. P. R. 223.)

The judgment includes the value of the gun and tools of the plaintiff’s trade, in the trunk, at the time of the loss. No objection was made to the recovery of- these articles before the justice, specifically, as not being baggage ;■ and the justice was not called upon to discriminate between the several articles of baggage; and I am inclined- to think that the defendant has waived this- objection, if it is one. But . the case, of Hawkins agt. Hoffman is an authority for the recovery, of the gun, and I think for the tools also; they were of small value, and few in number, probably, and, it was proved, usually. carried by persons of the plaintiff’s trade, from place to place, in their trunks. In Brooke agt. Peckwick, (4 Bingham, 218,) the carrier was held diable for jewels in the trunk lost. But he is not liable for a large sum of money in the trunk; (9 W. R. 85;) and it is somewhat doubtful whether the carrier is. liable for any sum of money in the trunk; nor are they liable for merchandize in a trunk, as baggage of, the passenger. (25 W. R. 459.) But the carrier is liable for the watch- of the passenger deposited in his trunk. (10 Ohio R. 145.) He is not liable for samples of goods carried in the trunk. (6 Hill’s R. 586.)

In Maine, (26 Maine R. 458,) it was held, that a. party may be sworn to prove the contents of his trunk or box, but only as to clothes and personal ornaments. In Bonner agt. Maxwell, (9 Humphrey’s R. 623,) it was held, that the term “ baggage ” might include money to defray the expense of the journey, but not a w-atch, nor locks, nor hand-cuffs, nor medicine. In Porter agt. Hildebrand, (2 Harris R. 129,) it was held to include the tools of a carpenter, valued at $55, together with clothing in his trunk. In M‘Gill agt. Rowand, (3 Ban. 451,) it was held to include the wife’s jewelry in the trunk. In Jordan agt. Fall River Railroad, (5 Cush. R. 69,).it was held to include money for the journey. (See also 11 Humphreys R. 419, to same effect.) In Woods agt. Devin, (13 Illi. R. 746,) it was held to include a pocket-pistol and a case of duelling pistols.

I am of opinion the tools were, under the circumstances of the case, properly included under the term “baggage,” and recovered for as such; and that the judgment should be affirmed with costs.