320 Mass. 694 | Mass. | 1947
This is an action of contract or tort for the loss of a suitcase on a train running between New York and Washington on which the plaintiff was a passenger.- The plaintiff boarded the train at Boston, and placed the suit
The judge found for the defendant, finding that the suitcase was never in its custody. The Appellate Division was right in dismissing a report. The trainman who ordered that the suitcase be placed in the vestibule was not a servant .of the defendant. His assurance that the suitcase would be perfectly safe there did not remove the suitcase from the custody of the plaintiff. She knew that such assurance was merely a prophecy, and that neither his employer nor the defendant took custody of the suitcase. The case is governed, not by Dawley v. Wagner Palace Car Co. 169 Mass. 315, but rather by Whicker v. Boston & Albany Railroad, 176 Mass. 275.
Order dismissing report affirmed„•