154 Misc. 591 | City of New York Municipal Court | 1935
Plaintiff boarded defendant’s train at its One Hundred and Twenty-fifth street station early in the morning of June 11, 1933, bound for Millerton, N. Y. She had with her two suitcases which were carried to the train by a porter and deposited in the rack provided for the purpose over the seat which she occupied. Shortly before noon, as the train approached Pawling, N. Y., a trainman announced that the train would stop for ten minutes at Pawling where passengers could obtain refreshments. The plaintiff was one of the first passengers off the train and after having some luncheon returned to the train. She was away for about seven minutes. After the train left Pawling and had gotten well under way plaintiff discovered that one of her suitcases was missing. She now sues defendant for the loss thereby sustained.
Plaintiff does not appear to have proven or attempted to prove any negligence on the part of the defendant. She contends, however, that the baggage was lost while in the custody of the defendant as a bailee and seeks to hold defendant hable under such theory.
In order for a bailment to exist there must be a deHvery by the bailor, either actual or constructive, into the custody of the bailee. (Gilson v. Pensylvania R. R. Co., 86 N. J. L. 446 ; 92 A. 59.) The bailee must have notice of his possession of the goods and of the fact that they are the property of the bailor. The bailee must also have such custody as gives him the exclusive right to possession during the bailment.
It appears' clear that in this case there was no actual deHvery of the suitcase and that there was ho constructive deHvery, -unless the stopping of the train and the announcement by the trainman were in effect acts which constituted an assumption of custody.
Plaintiff cites in her brief numerous cases involving the Pullman Company or sleeping car companies. The court holds that none of these is apphcable to the case at bar. A sleeping car company is not a common carrier and its relationship with and duties to its patrons are entirely different from those of a railroad company as a common carrier. The remaining cases cited by plaintiff involve common carriers but are clearly distinguishable on one ground or another. The case of Hasbrouck v. N. Y. C. & H. R. R. R. Co. (202 N. Y. 363), cited by plaintiff, is distinguishable, for in that case there was an actual deHvery of plaintiff’s personal baggage to defendant’s trainman —■ a clear bailment. Likewise distinguishable and for similar reasons is the case of Kingsley v. Lake Shore R. R. (125 Mass. 54). Foulke v. N. Y. Consolidated Railroad Co. (228 N. Y. 269) is clearly distinguishable and cannot be said to be apphcable to the case at bar.
The court is of the opinion that there was neither actual nor constructive custody of the baggage in question and that there was, therefore, no bailment. In consequence it becomes unnecessary to consider the contributory negligence of the plaintiff in leaving her baggage as she did. (See Osborn v. Cline, 263 N. Y. 434.)
The court, therefore, finds that defendant railroad company cannot be held hable. The complaint will be dismissed on the merits and judgment entered for defendant.