58 Colo. 327 | Colo. | 1914
delivered the opinion of the-court:
This action for damages is on account of the failure of the railroad company to produce and deliver a suitcase when it was called for, which it, as a common carrier had received as baggage for transportation.
1. The facts are admitted, and there is no conflict in the testimony. Mary M. Doyle came to Denver August 9, 1911 from her home at Clifton, Colorado, where she had purchased a round trip ticket over the D. & E. G. Eailroad. She started to return on the evening of the-14th and upon arriving at the Union Depot, first checked her suitcase to Clifton, and then went to the Pullman office to secure a sleeper berth, which she was unable to do, -for the reason that they were all sold. Feeling
In the court below, plaintiff tried the case upon the theory that under these facts, the company was accountable as a common carrier and insurer of the baggage, without proof of negligence, and rested without attempting to prove negligence. Defendant then interposed a. motion for a non-suit upon the ground that it was not liable as an insurer or common carrier; that it was only accountable to the plaintiff as a bailee or warehouseman, and no negligence having been shown, plaintiff could not recover. This motion was overruled. Defendant then introduced its evidence, from which it appeared that Clifton was a small day station, the agent remaining on duty from 8 a. m. to 8 p. m. ; that the suitcase in question arrived on the afternoon of the 15th, and being unclaimed, it was stored in the baggage room used for that purpose; that on the night of the 16th, the depot was burglarized and the suitcase, with other property, stolen; that the depot was a substantial building with doors and windows equipped with ordinary locks and fastenings; that when the agent left at 8 o’clock on the night of the 16th, the doors and windows were securely locked and fastened; that the next morning it was discovered that' an
The court, in its instructions, after stating the issues, told the jury that they should determine from the evidence and circumstances whether plaintiff called for her baggage within a reasonable time after it arrived at Clifton; that what constituted a reasonable time for her to remove it after it arrived, was a question of fact which should be determined by the jury, and in that connection that they might consider whether her failure to demand her baggage sooner was because of the inability or failure of the company to furnish her proper and suitable accommodations for travel, considering her state of health at the time; that the liability of the company terminated as a common carrier after her baggage arrived at Clifton, and a reasonable time had elapsed to remove it; that if she failed to remove her suitcase after a reasonable time after it arrived, the liability of the company shifted or changed from that of a common carrier to that of a warehouseman; that as a warehouseman, the company was only bound to use that degree of care and attention which a man of ordinary prudence and diligence would use in reference to the goods, under the circumstances, if they were his own, and if the company used such reasonable diligence in storing and caring for the goods, it would not be liable ih case of loss by burglary; that as a warehouseman, it was its duty to store the baggage in a room reasonably safe and secure, used for that purpose; that where a railroad company places uncalled for baggage in its store-room where it is its custom to place uncalled for baggage, and such room appears to be reasonably secure for its safe keeping, the railroad company will not be liable unless guilty of negligence which caused the loss, and if they found for plaintiff, the measure of damages would be the value,
2. The undisputed testimony shows: August 14, 1911, plaintiff at the Denver Union Depot, checked her suitcase to Clifton, where it arrived August 15th, at 1:45 p. m. ; it was uncalled for on its arrival, and the agent placed it in the baggage room of the depot; during the night of August 16th, the depot was burglarized and the suitcase, with other articles, stolen; August 17th, plaintiff arrived at Clifton at 1:10 p. m., and called for the baggage, which the company failed to deliver, because it had been stolen; that the station was a substantial building, and no negligence was shown in caring for the baggage, which occasioned its loss. Plaintiff tried the case upon the theory of the company’s liability as a common carrier and insurer. The theory of the defendant was that its liability as a common carrier terminated long before plaintiff called for the baggage, and had changed or shifted to that of a bailee or warehouseman before the property was stolen, and that it was only liable as a warehouseman upon proof of negligence which caused the loss.
3. Plaintiff’s railroad fare covered transportation for herself and baggage to Clifton, and ordinarily it is presumed that baggage and passenger will go by the same train, and that the baggage will be called for within a reasonable time after the arrival at its destination.—Marshall v. P., O. & R. R. Co., 126 Mich. 45, 85 N. W. 242, 55 L. R. A. 650; Blumenthal v. R. R. Co., 79 Me. 550, 11 Atl. 605; Wilson v. G. T. Ry., 56 Me. 60, 96 Am. Dec. 435.
4. While the company had charge of the baggage as a common carriér, it was an insurer of the property
5. ’A reasonable time means sufficient time within reason to remove baggage after it, not the passenger, arrives. Where the facts are not disputed, what constitutes a reasonable time for a passenger to remove his baggage after arriving at its destination,, is a question of .law which the court must determine.—D. & R. G. Co. v. Peterson, 30 Colo. 77-87, 69 Pac. 578, 97 Am. St. Rep. 76; Chicago Ry. Co. v. Boyce, 73 Ill. 510, 24 Am. Rep. 268; Schnitzmeyer v. Ill. C. R. R. Co., 147 Ill. App. 101; K. C. Co. v. Patten, 3 Kan. App. 338, 45 Pac. 108; Louisville Co. v. Mahan, 8 Bush (71 Ky.) 184; Graves v. Fitchburg Co., 29 App. Div. 591, 51 N. Y. Supp. 636; Ouimit v. Henshaw, 35 Vt. 605, 84 Am. Dec. 646; Chicago Co. v. Addizoat, 17 Ill. App. 632; Galveston Co. v. Smith, 81 Tex. 479, 17 S. W. 133; Kahn v. Ry. Co., 115 N. C. 638, 20 S. E. 169; Ditman Co. v. K. & W. Ry. Co., 91 Iowa, 416, 59 N. W. 257, 51 Am. St. Rep. 352.
Plaintiff could not recover against the company as a common carrier or insurer of the baggage as a matter of law. She did not demand or take it away within a reasonable time after it arrived, and-she could not recover against the warehouseman, because there was no proof of negligence.
7.' Plaintiff attempted to show, as a special circumstance excusing her from removing the baggage on the afternoon of the day it arrived; that she endeavored to, but could not get a sleeper until the night of the 16th, and did not feel able to travel without one. In this way she sought to extend the reasonable time to remove the baggage after it arrived at Clifton. If plaintiff had used ordinary care, thoughfuless and prudence, it must have occurred to her that if she waited until a few minutes before train time, she might have difficulty at that season of the year in securing a berth. Without making any inquiry or knowing whether or not she could procure a berth, she first went to the baggage room and checked her suitcase, expecting and intending to take the same train upon which it would go. Learning upon inquiry that' she could not get a berth, she decided not to take that train, but to wait until she could secure sleeper accommodations. She allowed her baggage to go on, and
By motion for a non-suit; by requested instructions; by a request for a directed verdict; and by motion for a new trial, the court was given ample opportunity to have disposed of the case according to law. It not having done so, the judgment is reversed, and the cause remanded with directions to dismiss the action.
Reversed.
Chief Justice Musser and Mr. Justice Hill concur.