14 N.Y.S. 321 | N.Y. Sup. Ct. | 1891
The complaint alleges that the defendant is a foreign corporation, and a carrier of passengers and their baggage for hire, between the places in the complaint mentioned, and that in April, 1889, the defendant received into a train of passengers, to be carried from Suspension Bridge to Detroit for hire, one Launcelot S. Gurney, with his baggage, to-wit, a trunk in. which, besides his wearing apparel, were contained samples of cutlery, the property of the plaintiff, to be used and exhibited by Launcelot S. Gurney in soliciting from purchasers orders for merchandise to be filled by plaintiff, said samples being of a certain value; and that by the negligence and improper conduct of the servants of the defendant, unskillfully and carelessly managing said train, the cars and the engine by which the same were propelled, and particularly by running said cars and engine at an immoderate and unsafe speed upon a descending grade, round an abrupt curve on said railroad, caused certain cars and said engine to be thrown from the track, and fire to be communicated to certain other cars, at or near a point known as “Hamilton Junction,” by means whereof the train and its contents were destroyed, and the plaintiff damaged, etc. To this complaint the defendant demurred, upon the ground—First, that the court had no jurisdiction of the person of the defendant; second, that the court had no jurisdiction of the subject of the action; and, third, that the complaint does not state facts sufficient to constitute a cause of action. The court sustained the demurrer upon the last ground stated, and from the judgment thereupon entered this appeal is taken.
The question presented is whether a common carrier can be held liable for the loss of merchandise carried in the trunk of one of its passengers, of the presence of which there is no claim that either it or any of its servants had knowledge. We think there can be but one answer to this proposition, and. that is the one given by the learned judge who decided the demurrer in the court below. The counsel for the appellant seeks to support a recovery upon the ground that, although the defendant may not be liable upon its contract, as carrier, and therefore not as insurer, yet it is liable as bailee, where the-property has been lost through its negligence. - In 2 Amer. & Eng. Ene. Law, 772, the principles governing this relation are very aptly set forth. It is said: “The application of that law [that is, the law of bailments] to the facts of cases involving carriers without hire is all that need be attempted. Its cardinal principles are thus tersely stated: When the bailment is for the sole benefit of the bailor, the law only requires slight diligence on the part, of the bailee, and he is consequently responsible for nothing less than gross-negligence. When the bailment is for the sole benefit of the bailee, an extraordinary degree of care is demanded, and the bailee is therefore responsible for slight neglect. When the bailment is reciprocally beneficial to both par
The judgment should be affirmed, with costs. All concur.