Kessler v. New York Central & Hudson River Railroad

| Commission of Appeals | Jan 15, 1875

Earl, C.

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 the first theory, the Baltimore and Ohio Railroad Company would be the only company liable upon the contract, and certainly neither of the companies could be made liable for the loss or destruction of the baggage without proof that it came into its possession. Upon the second theory, the agency •would be to bind each of the other companies to transport the passenger and baggage over its road, and each road would alone be responsible for the safety of the passengers and baggage upon its road. It is true that the baggage was checked through to Buffalo. While there was but one check with the names of all the railroads upon it, it is the same as if there had been a separate check upon the baggage for each road; and the responsibility of neither road commenced until it received the baggage.

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" court="NY" date_filed="1873-09-23" href="https://app.midpage.ai/document/milnor-v--ny-and-nhrr-co-3589506?utm_source=webapp" opinion_id="3589506">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 ticket and checked the baggage, it would have escaped liability by showing that the baggage was lost after it had been carried over its road. The law of that case clearly is, that in such a case that company is alone liable upon whose road the baggage - is lost or destroyed. The questions applicable to this case are there so fully discussed, and prior author!tes so fully cited and criticised, that a further citation of authorities or discussion of the principles involved are unnecessary.

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.