| NY | May 28, 1872
The Supreme Court reversed the judgment entered upon the report of the referee, and granted a new trial; but as it is not stated to have been reversed upon a question of fact, it is deemed to have been exclusively upon questions of law.
The referee found, upon evidence, that "the plaintiff caused the demand to be made for said trunk and contents within a reasonable time, and made reasonable efforts, and within a reasonable time, to demand and procure the trunk and contents; *550 and that the defendant refused and neglected to deliver the contents of said trunk."
This finding, so stated, includes the finding that there was no delivery at all of the trunk and contents to the plaintiff; that what occurred at the depot some time after eight o'clock in the evening, when the plaintiff's son went there with a wagon for the trunk, was no delivery. Under these findings the defendant still held the trunk as a common carrier.
The responsibility of a common carrier, as to baggage, continues until the owner has a reasonable time and opportunity to receive and take it away.
It is found in the case at bar that the plaintiff did not have such time and opportunity. This was by reason of the absence of the defendant's agent from the depot.
For fifteen minutes plaintiff's wife waited after the arrival of the cars and looked for this baggage. It seems the baggage-master had quietly and quickly put it in the depot room, and left the place for his dwelling, some quarter of a mile distant. It is no answer, it is idle to say she could not have carried home the trunk if she had found it. True; but she could and would have made an arrangement on that subject, and, it is presumed, would have fulfilled it and taken home the trunk that night, and thus prevented the loss.
That was the first and a plain neglect by the defendant. In proper season, immediately after tea, and at eight o'clock, the trunk is sent for; and at this time a wagon and horse are procured. Again the man in charge is absent, and, before the plaintiff's son could get him there, the horse and wagon-man get impatient and leave. This is the second and plain neglect of the defendant. It plainly appears by the evidence that it was difficult on that day to get a wagon to transport baggage, and difficult to detain one unnecessarily. The defendant was bound to be there at the depot a proper and reasonable time at first for the delivery of that baggage. Not being so there, the baggage was locked up at defendant's peril. When plaintiff again, in a reasonable time, called for it, the master's negligent absence again prevented its delivery. *551 The taking off of the check, etc., from the trunk, and its partial delivery to the plaintiff's son, under the impression by him that the horse and wagon were still there, was not a delivery. The departure of the horse, etc., occurred, be it marked, by reason of the neglect of the master to be there at the depot. The refere has found, necessarily, that the failure to await the return of the son who had gone in pursuit of the baggage-master was not unreasonable, under the circumstances; and, as the son testified, it was agreed by them, at the master's suggestion, that another could not be procured that night. Thus it plainly follows that the entire failure to remove the trunk that night was caused by defendant's negligence. In such case, the defendant's liability as a common carrier is not discharged.
Suppose the plaintiff, with a horse and wagon, had gone to the depot at eight in the evening, and waited with two men for two hours, while a third man was vainly hunting the baggage-master, and then, hearing nothing of him, had gone home; but the master arrived within ten minutes thereafter, when no team could be obtained that night, yet the man supposing the wagon still there, had a partial taking of the baggage, as here, would it be contended there was any delivery?
The precise length of time a party shall wait for finding the master is not and cannot well be settled as matter of law. It is found here, as matter of fact, that the waiting was reasonably long; and no error in law is committed thereby.
The order of the Supreme Court should be reversed, and judgment absolute ordered for the plaintiff upon the finding of the referee.
All concur, except FOLGER and ALLEN, JJ., dissenting.
Order reversed and judgment accordingly. *552