235 A.D. 109 | N.Y. App. Div. | 1932
Plaintiff testified that she .purchased a ticket at Utica, N. Y., to ride to New York city on a bus operated by defend
Taking plaintiff’s story at its full value, when the bus driver placed the suitcase in the rack inside the bus in full view of plaintiff — not checking the suitcase or otherwise assuming complete control or dominion over it — defendant did not become a bailee of the article for hire or otherwise. No situation was brought about such as those illustrated in the cases involving losses of property by passengers on steamboats or Pullman cars, where hand baggage is placed for safe-keeping during the whole or a portion of a trip in the possession and under the control of a carrier’s employees. (Goldstein v. Pullman Co., 220 N. Y. 549; Adams v. N. J. Steamboat Co., 151 id. 163.) The case is distinguishable also from Hasbrouck v. N. Y. C. & H. R. R. R. Co. (202 N. Y. 363) for there the trainman, acting within the scope of his customary employment, was the custodian of plaintiff’s baggage for a considerable period of time during which property was abstracted from the suitcase. The proof here goes no further than to show that the driver of the bus did nothing more for plaintiff than he did for other passengers, i. e., place her suitcase in an open rack, instead of leaving her to do so herself, and then remove her baggage from the bus at the terminal point of the journey as a favor, an act not proved to have been a part of the accommodations paid for, nor even to have been customarily done. No bailment, custody or control was proved Such that the loss of the suitcase could be fairly attributed to negligence for which the company would be hable. No possession so exclusive as to make defendant an insurer is claimed. The relations between the parties are quite similar to those involved in Union Pacific R. R. Co. v. Grace (22 Wyo. 452), where relief was denied plaintiff.
All concur, except Thompson, J., who dissents and votes for affirmance on the ground that when plaintiff boarded defendant’s bus the driver required her to deliver her suitcase to him and he deposited it in a compartment of the bus provided for the storage and carriage of baggage, which was not connected with or in sight of the seat occupied by plaintiff. Upon plaintiff’s arrival at her destination the driver directed her and other passengers to alight and announced that their baggage would be delivered to them upon identification. In such circumstances the evidence presents a fair question of fact upon the liability of the defendant to the plaintiff for negligence. (Holmes v. North German Lloyd S. S. Co., 184 N. Y. 280, 283.) Present — Sears, P. J., Taylor, Edgcomb, Thompson and Crosby, JJ.
Judgment and order reversed on the law, with costs, and complaint dismissed, with costs.