120 N.Y.S. 1008 | N.Y. App. Div. | 1910
The plaintiff, when a passenger, on a railroad train, delivered a ■ check for her trunk to an agent of the defendant on that train, who undertook to take over the trunk from the railroad company and to deliver it at an address given by the plaintiff. The defendant failed to do so,, and the plaintiff has recovered a judgment of $1,200 for the contents of the trunk. At the close of the case the defendant moved for a direction of a verdict for the plaintiff, both for $100, and, whén defeated, for $150, on the ground that either one or the other, amount represented the full liability of the defendant irrespective of the value of the trunk and its contents. The plaintiff moved for a verdict also. The court directed a verdict for the plaintiff in the full amount of her claim, subject to its opinion, and thereafter set aside such verdict and gave judgment for the plaintiff.
The contention that the limit of liability is $100 rests upon the proposition that there was a special contract for such limitation in that the receipt given to the passenger by the defendant and
The evidence before the court was that the plaintiff testified that she had received in exchange for her cheek the receipt which embodied a special contract of limitation of liability from the defendant without explanation of its contents, without conversation which indicated that the carriage was on spécial terms, without request that she note the contents, without inquiry whether she assented to the terms thereofthat as soon as'the agent delivered the receipt he passed on about his business; that she did not read the receipt, but merely glanced at it to see that it. contained a number, and then put it away in her pocketbook, and that she did not know of the contents thereof, but thought it was but a voucher for her trunk. This evidence was undisputed, and, as I have said, the defendant did not raise any question of the plaintiff’s credibility.
The learned counsel for the appellant would discriminate this case, in that the evidence is that she could have read the receipt, whereas a feature in Blossom v. Dodd (43 N. Y. 264) and Madan v. Sherard (supra) was practical inability to read it. But the omission to read the receipt under such circumstances as marked the delivery thereof was not negligence perse (Grossman’s Case, supra ; Madan's Case, supra), it merely bore upon the “ ultimate fact to be proven, that the party, when he accepted the receipt, knew of its limi
The contention that the liability of the defendant was limited to $150 rests upon certain provisions of section 38 of chapter 429 -of the Laws of-1901, which read as follows: “ Every common carrier and railroad corporation- shall be liable for loss, damage, and' injury to property'carried as baggage up' to the full value and regardless of the character thereof, but the value in excess of one hundred and fifty dollars shall be stated upon delivery to the carrier, and a written receipt stating the value shall be issued by the carrier, who may make a reasonable charge for the assumption of such-liability in excess of one hundred and fifty dollars and- for- the carriage of baggage exceeding one hundred and' fifty pounds in weight upon a single ticket.' Nothing in this .section shall deprive, any holder of such receipt or bill -of lading of any remedy Or' right of action which he has under existing law.” Although this property may' be described aptly as baggage in that it- was not merchandise but mere belongings for the personal, necessity, use or convenience of "the owner, it was not carried as baggage by the- defendant within the contemplation of this provision. The distinction is well expressed in the language of the learned counsel for the respondent: “The sentence refers not to the inherent character of the property itself but to the character in which it is being transported by the carrier. It refers to classification and not to kind.” The undertaking of the defendant • was to carry only these belongings of the plaintiff by
The judgment is affirmed, with costs..
Present — Hirschberg, P. J., Woodward, Jenks, Thomas and Rich, JJ.
Judgment and orders unanimously affirmed, with costs.