Dawley v. Wagner Palace Car Co.

| Mass. | Oct 21, 1897

Knowlton, J.

The general propositions of law applicable to this case are not in dispute. The questions raised depend for their determination upon the view to be taken of the facts in their relation to the principles of law established in like cases. It is agreed that the plaintiff’s travelling bag was not in .the custody of the defendant in such a sense as to create the ordinary-liability of common carriers of merchandise, and the jury were so instructed. Lewis v. New York Sleeping Car Co. 143 Mass. 267" court="Mass." date_filed="1887-01-07" href="https://app.midpage.ai/document/lewis-v-new-york-sleeping-car-co-6422269?utm_source=webapp" opinion_id="6422269">143 Mass. 267, 273. On the other hand, upon the view of the relations of the parties most favorable to the defendant, the defendant was under some obligation to the plaintiff in reference to his property. It was bound so to manage its car as not unreasonably to expose the plaintiff’s property to an unusual risk of loss by thieves or otherwise. The evidence of negligence on the part of the defendant was slight, but we think it entitled the plaintiff to go to the jury. The defendant’s servant, after putting the plaintiff’s travelling bag and other articles in a seat on the side of the car opposite to that on which passengers were received, opened the window opposite the seat. The jury might have found that he did this without request from anybody, in violation of a rule of the company which forbids the opening or leaving open of a window or windows of its cars opposite to the side on which the porter is receiving passengers while standing in the station at Chicago, unless opened at request. It was done at about ten o’clock in the evening. The jury might have found, from the existence of this rule, that there were peculiar risks at that place, from lack of light or from other causes, and that the violation of the rule by the defendant’s servant was an act of negligence that exposed the plaintiff’s property to a peculiar risk, which the plaintiff did not know or appreciate.

The jury might have found that the plaintiff was in the exercise of due care. It was a question of fact whether the plaintiff was negligent in leaving the car while his wife remained near the seat, and it was also a question of fact whether she was negligent in walking down the length of the car and back again, and in sitting down in the section forward of her own, and in walking to the platform of the car to speak to the porter and then sitting down again in the section forward of her own, and facing toward her own, and sitting there until the train started. The jury might well believe that she was in a position to exercise reasonable care and vigilance in reference to possible thefts by persons in the car, and that she and the plaintiff had reason to believe, from the act of the porter in opening the window opposite the seat, that there was little or no danger of the taking of the travelling bag by a person outside, on account of the presence of the servants of the defendant, or of other trainmen or officers about the station.

For the reasons stated above, the judge rightly refused to instruct the jury that it was not negligence for the porter to open the window if the plaintiff or his wife were sitting or about to sit in the section, and if he had no reason to expect that the section would be left unoccupied by either of them. He opened the window about half an hour before the time for the train to start, and if the plaintiff or his wife were sitting or about to sit there, his having no reason to expect that they would leave the section unoccupied would not be equivalent to an assurance, or even an affirmative belief, that they would remain in that section constantly for half an hour.

The next three requests for instructions were rightly refused, for the reasons stated above, in connection with the question whether the plaintiff and his wife were in the exercise of due care.

It was not the duty of the judge to instruct the jury that the travelling bag was not in the custody of the defendant, but of the plaintiff. The jury were instructed that there was no such custody by the defendant as to create the ordinary liability of a common carrier. The relations of the respective parties to the property at this time were all in evidence, and were matters of fact to be determined by the jury. Whether the travelling bag was strictly in the custody of the plaintiff or not was of no consequence except as a part of the evidence. The judge was not called upon to instruct the jury as to the effect of the evidence in this particular. If it was in the custody of the plaintiff rather than that of the defendant, the defendant was still in such relation to it as to owe certain duties to the plaintiff in reference to the management of its car. The questions arising on the testimony were questions of fact, which were submitted to the jury under proper instructions.

Exceptions overruled.