51 N.Y.S. 636 | N.Y. App. Div. | 1898
Lead Opinion
It is a well-settled rule of law that the liability of a railroad company for the baggage of a passenger on its road continues to be that of a common carrier until the passenger has had a reasonable opportunity to remove the same from its custody. Dininny v. Railroad Co., 49 N. Y. 546; Maxwell v. Gerard, 84 Hun, 537, 32 N. Y. Supp. 849. The question is whether that reasonable opportunity had been furnished to the plaintiff in this case before the property in question was stolen from the defendant. It is argued that when the plaintiff arrived at Hoosick there were no means present whereby he could take with him his baggage when he left the station, and that hence there was not a reasonable opportunity for him to then receive it from the company, and that, inasmuch as the station was closed in about 10 minutes after the train arrived, there was no reasonable opportunity given him until the next morning. Against this argument it may be urged with considerable force that the common carrier is under no obligation to provide means to remove baggage from its station; that whatever delay occurs in procuring such means, be it more or less, is a circumstance utterly disconnected with any of its duties; that, if such means are lacking, it is not its fault, but an inconvenience affecting the passenger only, and for which it should not be compelled to continue its burdensome obligation as an insurer, so long as it stands ready to at once deliver the property; that, if the passenger is unable to then procure transportation to the point he desires, it may reasonably be required to store his goods and assume the liability of a warehouseman, but that neither its contract nor public policy requires it to-go any further as a common carrier. Without, however, deciding or discussing this broad claim, the question is presented in this case whether the passenger did in fact avail himself of all his opportunities for removing his baggage within a reasonable time. The fact is that he checked his baggage to that station with the deliberate intent of leaving it there all night. He not only made no effort to take it away that night, but it is very clear that he had no-use for it that night, and that it was much more convenient to leave it than to take it, even if the means to do so had been ready at hand. He says that he knew the station was usually closed in 10 minutes or so after the train left, and that it would be no use for him to try and get means of removal within that period. But if he had gone to the station agent, and demanded that he keep the station open, or be there at a fixed time to deliver the baggage to those whom he could send to remove it, how does he know that his demand would not have been complied with? Upon what theory can he say that he could not have got the baggage after the expiration of 3L0 minutes, unless he had made some sort of an effort to do so? There is no evidence that he could not, except the assumption arising from the fact that the station was closed. But when a passenger leaves a station, which he knows is about to close, without making any effort to get his baggage, or any.
My conclusion is that the judgment of the county court and of the
Dissenting Opinion
The impression I entertained on the argument of this appeal has been changed by a careful examination of the return of the justice, and consideration of the questions involved. The plaintiff, on Thursday, the 28th day of January, 1897, with his trunk, took passage on the defendant’s cars at Bennington, Vt., for Hoosick, N. Y. He reached the latter place at a quarter of 7 in the evening. The plaintiff was on his way to visit a Mr. Quackenb'ush, who lived a mile and a half from the railroad station, and depended upon the latter to take him and his baggage from the depot. When he arrived, he saw his trunk unloaded, but did not present his check, or demand it; going immediately with a companion to a one-horse sleigh in waiting, sent by Mr. Quackenbush, to the residence of the latter. He sent the coachman for the trunk the next morning between 9 and 10, and afterwards called for it himself, but did not succeed in obtaining it until Saturday. It had been broken open, and articles, the value of which is not disputed, taken therefrom. The principles of law applicable to the case are wéll settled. The defendant, as a common carrier, was liable to the plaintiff from the time the trunk was shipped at Bennington until it reached Hoosick, and for such time thereafter as should afford the plaintiff a reasonable opportunity to remove it. Roth v. Railroad Co., 34 N. Y. 548; Fenner v. Railroad Co., 44 N. Y. 505; Mortland v. Railroad Co., 81 Hun, 473, 30 N. Y. Supp. 1021. What was a reasonable time depended upon the circumstances of the case. Burgevin v. Railroad Co., 69 Hun, 479, 23 N. Y. Supp. 415; Burnell v. Railroad Co., 45 N. Y. 184. But, where there is no dispute as to the facts, the question as to what constitutes reasonable time for a passenger to remove his trunk is a question of law, for the court. Hedges v. Railroad Co., 49 N. Y. 223. The question before us is whether or not the plaintiff demanded his trunk within a reasonable time after its arrival at Hoosick. He was called as a witness in his own behalf, and to the question asked him by his counsel, “Was it convenient for you to take your trunk that night?” he answered, “No, sir; that is the reason I didn’t take it.” The following testimony was elicited from him by the defendant:
“Q. Did you know that shortly after the arrival of that train the station closed up? A. I did. I knew. I had been told so. * * * Q. Then you didn’t take the trunk to Mr. Quackenbush’s that night? A. No, sir. Q. And didn’t intend to, did you? A. No; X didn’t expect to. * * * Q. The only reason you didn’t ask for it was, it was inconvenient? A. I couldn’t take it with me.”
It was shown that on the night in question the station agent, according to his usual custom, immediately after the arrival of the train on which the plaintiff' was a passenger, closed and locked up the depot in which the plaintiff’s baggage was placed, and it remained thus closed until the next morning. It was thus closed within 10 minutes after the árrival of the train. It must be remembered that this was a country station. It does not appear that" there was any public conveyance, cart or sleigh, at the depot, by which the
HERRICK, J., concurs.