61 N.Y. 538 | Commission of Appeals | 1875
There was no proof that the defendant and the other railroad companies were jointly engaged in the business of transporting passengers between Washington and Buffalo. The plaintiff purchased her ticket and obtained the check at the depot of the Baltimore and Ohio Railroad Company. What agency the person who sold the ticket had does not appear, and it does not appear whose agent he was. It is so improbable that all the companies between Washington and Buffalo had some arrangement by which they were jointly interested in the passenger business over all the roads that it cannot be presumed from the facts which appear in this case. The facts are consistent with either one of two theories. Either the Baltimore and Ohio Railroad Company made an entire contract to transport the plaintiff, with her" baggage, to Buffalo, employing the other companies to perform the contract over their roads; or, which is most probable, each company was the agent of the others to sell tickets and check baggage over the other roads. Upon neither theory is the defendant liable in this ease. Upon
These views are fully sustained by the opinion of Church, Ch. J., in the case of Milnor v. N. Y. and N. H. R. R. Co. (53 N. Y., 363). In that case, defendant’s road ran between New York and New Haven, Connecticut. It connected at Bridgeport, Connecticut, with the Housatonic Railroad, operated by the Housatonic Railroad Company, between Bridgeport and Pittsfield, Massachusetts, passing through Sheffield. It was proved that, for mutual convenience of passengers and of the companies, and by agreement between the defendant and the Housatonic Company, the defendant sold tickets through from New York to Sheffield at the rate of three dollars and sixty cents per ticket, out of which defendant deducted its share, one dollar and seventy cents, and paid the balance to the Housatonic Company ; and that, under this arrangement, a coupon ticket to Sheffield, from New York, was sold to plaintiff’s assignor by the defendant; and that the baggage of plaintiff’s assignor was checked with a Housatonic check, and was safely carried over defendant’s road, but was destroyed by fire after reaching Sheffield. It was held that the defendant.was not liable, but that the Housatonic Railroad Company was. According to the law of that case, if this action had been brought against the Baltimore and Ohio Railroad Company, which sold the
I do not know of any ground upon which we can indulge in the presumption that this baggage ever .came into the possession of the defendant. There is no proof showing what became of it after it was checked at Washington. If the defendant was required to prove a negative — that it did not receive the baggage — it did it in the only way ordinarily practicable, by proof that it kept a record of all baggage received in Hew York, and that it had no record of the receipt of this baggage.
The order of the General Term must be affirmed, and judgment absolute ordered against the plaintiff, with costs.
All concur.
Order affirmed, and judgment accordingly.