45 Pa. Super. 216 | Pa. Super. Ct. | 1911
Opinion by
This action is brought to recover the value of a dress suit.case, a hatbox and the contents of each, which were deposited in the package or parcel room of the defendant company in its station in New York city, under the following circumstances:
The plaintiff intending to take passage on a train of the defendant company, went'to its'station, and on making search for his railroad ticket was unable to find it. He opened up his dress suit case to examine his clothing, and noticed' that a waistcoat he had worn the previous day was missing. Not wishing to carry his baggage, back to his hotel where he assumed that he had left his ticket, he went to the parcel or check room in the general waiting room at 12:50 p. m. and handed to the attendant in charge the mentioned articles for deposit until he would
He hastened to the hotel at which he had passed the night, and found his missing clothing and ticket and returned to the parcel room at 2 p. m. to secure his baggage and take a train that was then about due. When the parcel checks were presented to the person in charge of that room, the plaintiff was informed that “about fifteen minutes after the packages were left there a man came rushing into the station in a hurry, said he had lost the checks, and we gave the packages to him at about 1:20 p. tm. and the property has never been recovered.” Complaint was at once made and the plaintiff was taken to the general baggage superintendent of the company to have a record made of the loss, and the parcel checks were there surrendered by him to that officer. The total value of the articles lost was $254.25.
There is no controversy over the facts of the case. The plaintiff had- his railroad ticket, and availed himself of the convenience of the defendant’s parcel room; he paid the charge exacted by the defendant; the property described was personal baggage within all definitions; there was no contributory negligence on his part, and the loss was occasioned by the inexcusable negligence of the package room attendant in surrendering to a stranger the plaintiff’s property, which had been in his possession for but half an hour, and without any proper identification.
The defendant concedes all this, but urges that on account of a printed statement on the reverse side of the check which was accepted by the plaintiff, a contract became effective between the. parties, which by its terms limited its liability to $10.00 for each parcel. The original checks given to the plaintiff had been destroyed, but sufficient proof was made of the checks in use at the time, to warrant the admission in evidence of a duplicate in form and terms. It appears that the entire check is in
“The party accepting this duplicate tag check hereby agrees that in consideration of the low rate at which it is issued, that no claim in excess of $10.00 shall be made against the Railroad Co. for the loss, or injury to, of any package, valise, or other article for which this check has been issued”—followed in red ink words—“unless a greater value is declared at the time of deposit and proportionate charge paid for the custody thereof.” Each of these three parts are numbered and lettered for identification.
No inquiry was made by the attendant in charge of the package room in regard to the value or character of the articles contained in either package, and no notice was given of any special condition or limitation of liability on the back of the check given to the plaintiff. The contention is, that the acceptance of such a check constituted a binding contract between the parties “even though the plaintiff put the checks in his pocket without reading them.”
In determining the character of the transaction, the
The serial numbers of the tags given to the plaintiff were alleged by the company to be 131,924 and 131,925 which give some indication of the magnitude of business of this character which it transacts. To require that the fine print on such tags should be read by the person depositing the parcel, while it is being tagged at the window, conceding the necessary time for old and young, educated and uneducated to do so, would frustrate the very purpose of such a system. To simply hand to him such an important limitation of its liability, after the company had received the passenger’s money, and hold him
And the cases relied on by the appellant do not hold otherwise. In Crary v. R. R. Co., 203 Pa. 525, the plaintiff was riding on a reduced rate excursion ticket; while in this case the tag given does state “in consideration of the low rate at which it is issued,” this does not necessarily mean that it is a reduced, or a special rate, nor does the price “ten cents each 24 hours or fraction thereof— • limited to 90 days” on its face suggest that it is a low rate; ten cents per day; $9.00 for the ninety days would practically be the full value of the $10.00 parcel, on the company’s own showing. In Crary v. R. R. Co., 203 Pa. 525, the court says: “The burden was on the plaintiff -to submit some proof of negligence, and in the absence of any, the jury ought not to have been allowed to guess that the carrier had been negligent,” and further, that the plaintiff’s injuries might have been caused by matters “of which the company had neither actual nor constructive notice, nor ought reasonably to have been aware of, and it could not, therefore, have been presumed to have been guilty of negligence against this specially contracting passenger.” In the case before us it is conceded that the company was negligent and that such negligence was the sole cause of the plaintiff’s loss.
In Jacobs v. Central R. R. Co., 208 Pa. 535, we have another excursion ticket, sold at a reduced rate and for
Independent of our common knowledge of such matters, the dictionary definition of tag, coupon or package check, as this card has been called, implies that it was of a small and convenient size for the owner’s use so as easily to be carried for the identification of his property. In this case the slip or tag was such a paper or pasteboard and from the amount of printing on it, the type must have been small and not clearly legible to ordinary sight. The plaintiff did not read it, the transaction was hurriedly concluded, without notice of its terms, and the consideration mentioned does not appear to us as reduced or low in the light of the services rendered in regard to his property.
In Fonseca v. Cunard Steamship Co., 153 Mass. 553, the ticket covered with print and writing the greater part of two large quarto pages. “. . . . it contained elaborate provisions in regard to the rights of the passengers on the voyage, no one who could read could glance at it without seeing that it undertook expressly to describe the particulars which should govern the conduct , of the parties until the passenger reached the port of destination. In that particular it was entirely unlike the pasteboard tickets which are commonly sold to passengers on railroads.”
The true rule seems to be that where the passenger receives from the carrier a paper which, from the circumstances of the transaction, he has a right to regard merely as a voucher or receipt to enable him to follow and identify his baggage, and no notice is given to him that it embodies the terms of a special contract, or is
Even in cases where there has been an acceptance of the condition annexed to the contract for carriage as stated by Mr. Justice Brown in Crary v. R. R. Co., 203 Pa. 525: “The agreement of the parties is, that there shall be no liability at all by the common carrier for injury to the passenger; but, on grounds of public policy the law says to the passenger that he cannot contract to relieve the carrier from negligence, and the carrier cannot, for any consideration, be absolved from its duty to exercise proper care in carrying its passengers. If, however, injury results from the negligence of the common carrier to one with whom such an agreement is made, the injured party, having taken himself out of the protection of the common law, which makes the railroad company that carries him an insurer of his safety, and which in case of accident resulting in injury, is presumed to have been negligent, must show affirmatively, as in all cases of negligence, the specific negligence complained of. See also National Line Steamship Co. v. Smart, 107 Pa. 492.
In our own case of Hoyt v. Clinton Hotel Co., 35 Pa. Superior Ct. 297, we held: “The right of a bailor to limit his liability by special contract is weli established, but this does not go to the extent of relieving against his own fraud or negligence.” Such was the express statement of the law in Lancaster County National Bank v. Smith, 62 Pa. 47. We have more than once held that a bailor cannot stipulate against liability for his own negligence: Wright v. Adams Express Co., 43 Pa. Superior Ct. 40; Bullard v. D., L. & W. R. R. Co., 21 Pa. Superior Ct. 583; Lloyd v. Haugh, 223 Pa. 148.
The assignments of error are overruled and the judgment is affirmed.