96 N.Y.S. 602 | N.Y. App. Div. | 1905
Lead Opinion
Appeal from a judgment dismissing the complaint upon motion made immediately after the jury was sworn and before the taking
The complaint alleges that the defendant was a common carrier of passengers, operating a steam railroad between Chatham' and Hew York city, known as the Harlem division; that on August. 11, 1902, the plaintiff and his wife were passengers on a train running from Amenia to Hew York city and had paid their fare; that about three miles north of Pawling the defendant so negligently operated the train “ that said-track broke or shifted and gave way, throwing-said train from its track, and a car of same, in which plaintiff and his wife were riding was turned over * * without, negligence, or fault on their part. * - * . * That solely by reason of -defend'-, ant’s, its agents?,'servants?, trackmen’s'and employees’negligence and fault aforesaid, the sum of One • thousand' one hundred and eighty and 00-100 dollars ($1,1-80.00) in lawful money of -the United States, and also a gold watch of the- valué of Fifty and 00-100-dollars ($50.00), all of which belonged.'solely to plaintiff, and which were in the handbag of his wife¿ who occupied the same seat in the said car of said- train, were entirely lost or destroyed,” and demanded judgment, for $1,230. - , ■
The contract óf the carrier is to- safely carry the passenger. This includes the carriage of such effects ás are reasonably necessary for the journey. Money necessary for the payment of tlie expense of a journey undertaken, which is carried in the trunk ¿f a passenger,, is part of his baggage, and if lost while in the custody of a carrier for transportation ittis liable. (Carpenter v. N. Y., N. H. & H. R. R. Co., 124 N. Y. 53, citing. Merrill v. Grinnell, 30 id. 594; Fairfax v. N. Y. C. & H. R. R. R. Co., 73 id. 167.) In the latter case there is a definition of the phrase “ money necessary for the journey ”'—-that it should be a proper, reasonable and necessary amount for the plaintiff to carry with him for his journey, taking into consideration his position and circumstances, the length and character of his journey, and the contingencies and accidents that might naturally arise, and the fact that he y^as in á foreign country.
In Adams v. New Jersey Steamboat Co. (151 N. Y. 169) Judge
In the case at bar the'negligence is.admitted. It would seem, therefore, that the point that these articles were not intrusted to the railroad company has no force. ■ It does not affect the case that the articles were in the custody ,of the wife. She was also a passenger riding with the husband in the same seat. Her custody was his. The question of contributory negligence is not before us. The complaint alleged freedom from contributory negligence, and that the . loss was solely due to the negligence of the- defendant. Both propositions stand admitted as the case is presented.' ' .
The remaining question is whether, for the particular-articles sued for in this case; the defendant is liable. It seems to be settled, that, as the passenger has merely paid for his transportation and has not paid eKtra compensation for “express” of packages of great value, and as such valuables are not within the contemplation of the parties when the ticket was sold, there can be no recovery for their loss even though the carrier be negligent. Said Judge Folger in Weeks v. N. Y., N. H. & H. R. R. Co. (72 N. Y. 60) : “ Should* passenger * * * be robbed of portions of his clothing, or usual and reasonable articles of personal ornanlent,. Jiis watch or his purse with the money for his traveling and other- personal expenses, it may be that the carrier would be liable for the loss which its passenger had sustained. * * * For the carriage of himself, his Watch;- his-purse and the like, the passenger does, perhaps, make contract with
It would seem, therefore, that as to the watch in' the present case, there can be no doubt that it was within the contemplation of the parties, and the value could be recovered upon establishing negligence on the part of the defendant and freedom therefrom on the part of the plaintiff. As to the money, it would come down to a question of fact to be determined by the jury whether it or any part thereof, was a necessary sum for the journey, a sum that will “ embrace the whole of the contemplated journey, and include such an allowance for accidents or sickness and for sojournings on the way as a reasonably prudent man would consider it necessary to make.” (Merrill v. Grinnell, 30 N. Y. 610.)
Considering the cases cited by the respondent — First National Bank of Greenfield v. M. ds O. R. R. Go. (20 Ohio St. 259) was the case of a bank messenger carrying for the bank $4,000 of its money; and the court held that defendant was not liable for the loss of money kept in'the sole custody of the passenger and which he carried for purposes not connected with the expenses of the journey. That case is in exact line with the‘decision of our Court of Appeals in the Weeks case, and was cited by Judge Folgeb in
The dismissal of the complaint was. error. The evidence should have been- taken, and the questions thereon arising wouhhhave been the negligence of the defendant, the freedom from contributory negligence of the plaintiff, and whether or no the Watch was a “necessary., convenient arid ornamental, reasonable, personal'chattel,” and whether the money or' any part thereof came within the ' detinitión of- a reasonable and suitable amount for' the journey, contemplated.
The judgment should be reversed and new trial ordered, with ■costs to the ap.ellant to abide the event. ' ■ ' '
O’Brien, P. J;, and Houghton, J.,.concurred; Patterson and McLaughlin, JJ., dissented.
Dissenting Opinion
I am unable to concur in the opinion- of Mr. Justice Clarke. The -rule of" law which lie invokes has, as it seems to me,, ho application. The complaint was dismissed at the opening of the trial, and to determine whether error was committed in making this disposition of it the ruling must be considered in', practically the same Way it Would have to be if the complaint had been dismissed at the close of the trial, plaintiff having established by proof every fact alleged. . .
The obligation assumed by the defendant when it accepted the plaintiff as a passenger Was to safely carry him to his destination,, including the wearing apparel which he had on and, if upon- his person, such' articles as are usually worn for ornament or convenience, and money sufficient to defray the necessary expenses during his
“ Third. That on the 11th day of August, 1902, about 10 o’clock in the morning thereof, the plaintiff and his wife were passengers on the train of defendant running from Amenia to Hew York city, and had paid their fare as such passengers between such points.
“Fourth. That while on the said train as such passengers, when about three miles north of .Pawling, Hew York, the defendant * * * so carelessly and negligently operated the said train * * * and * * * so negligently * * * constructed, inspected and maintained its railroad track at said place * * * that said track broke or shifted and gave way, throwing said train-from its track " and a car of same in which plaintiff and his wife were riding was turned over * * * without negligence or fault on their part * * *.
“ Fifth. That solely by reason of' defendant’s, its agents’, ■ servants’, trackmen’s and employees’ negligence and fault aforesaid, the sum of One thousand one hundred and eighty and 00/100 dollars ($1,180.00) in lawful money of the United States, and also a gold watch of the value of Fifty and 00/100 dollars ($50.00), all of which belonged solely to plaintiff, and which were in the hand-bag of his wife, who occupied the same seat in the said car of said train, were entirely lost or destroyed.”
It will be noticed that there is no-allegation in the complaint that the money lost was being carried to. defray the expenses of the journey of the plaintiff or his- wife, or that it was necessary for that purpose, and the fact that the watch was carried in a bag would seem to negative the idea that the plaintiff considered it either an article of ornament or convenience. But it is suggested in the prevailing opinion that it was for the jury to say whether the watch was a “ ‘ necessary, convenient and ornamental, reasonable, personal chat
If it he trim that the question of whether or not the complaint was properly dismissed must be determined in precisely.the same way it would have td be had the dismissal taken place at the close of the trial, plaintiff having ■ established only the facts alleged in the complaint, then to submit the questions, referred to to the jury is to permit them to find a verdict not based on evidence.
The authorities cited in the prevailing opinion as sustaining the conclusion there reached are not in point. Merrill v. Grinnel(30 N. Y: 594) and Fairfax v. N. Y. C. & H. R. R. R. Co. (73 id. 167) were to recover for the loss of baggage which had been delivered to the defendants. Carpenter v. N. Y., N. H. & H. R. R. Co. (124 N. Y. 53) was to recover for money lost by plaintiff while occupying a berth in a sleeping car and for which he had.paid a certain sum in addition to his regular transportation. Adams v. New Jersey Steamboat Co. (151 N. Y. 163) was to recover for money lost by plaintiff while occupying a stateroom on defendant’s boat and for which extra compensation had been paid. ;
Weeks v.N. Y., N. H. & H. R. R. Co. (72 N. Y. 50), however, is in principle in point. There, action was brought to recover the value of certain bonds taken from the plaintiff while a passenger' on defendant’s road, and it was held that the plaintiff, in the absence of proof of gross negligenée or fraud, could not recover even though defendant were negligent in the exercise of its duty of protecting the plaintiff as a passenger from violence, and in delivering the opinion the court took occasion to define the obligation which a carrier assumes towards a passenger with respect to personal effects. It said, Judge Folger writing the opinion,'that “ Such a carrier is bound to take the passenger and to carry together with him his luggage, reasonable in size and weight and in kind and value of the articles filling it, such as is naturally and
Another case in point is First National Bank of Greenfield v. M. & C., R. R. Co. (20 Ohio St. 259). There the plaintiff intrusted to a messenger, who was a passenger on one of defendant’s cars, a package of money. The car in which the messenger was riding; while crossing a bridge, was thrown into a river by reason of defendant’s negligence in maintaining the bridge. The car took fire and the money was burned. It was held that defendant was not liable.
So, also, is Hillis v. C., R. I. & P. Ry. Co. (72 Iowa, 228). There plaintiff was a passenger in one of defendant’s cars. He had §500 in money in an envelope in his overcoat pocket. The overcoat he gave to a porter, who hung it in plaintiff’s berth. The car was subsequently derailed by reason of defendant’s negligence and the money lost. It was held defendant was not liable, there being no proof that the money was necessary to' defray plaintiff’s traveling expenses.'
The liability in the present case, if any exists, depends, of course, upon the contract between the parties.. That contract, as we have already seen, did not contemplate the transportation of anything.
It seems to me, therefore, that the complaint was properly dismissed and the judgment appealed from should be affirmed.
-Judgment reversed, new trial "ordered, costs to appellant to abide event.
