17 F. 209 | U.S. Cir. Ct. | 1883
(charging jury.) The plaintiffs were clothing merchants, in the city of Rochester, New York, and one of their firm— Mr. Isaac J. Beir—was in the city of Toledo, on the eleventh day of February, 1881, with three trunks, such as are usually carried by commercial travelers, filled with goods in their line,—with clothing belonging to plaintiffs,—and Beir desired to go as a passenger on the passenger train of. the defendant, to start that night at 12:05, from Toledo to the town of Napoleon, on the railroad of the defendant, and take with him, as baggage, the three trunks. He left the Boody House shortly after 1.0 o’clock in the evening, on the omnibus of the Toledo Transfer Company, with his three trunks, and went to the depot of the defendant, where the trunks were placed by the agent of the Transit Line, on the truck of the defendant, and placed by him in the baggage-room of the defendant at the depot. Shortly after-wards, Beir, having purchased a ticket for Napoleon, went into the .baggage-room and asked the baggage-master to check the three trunks to Napoleon, informing him they weighed some 600 pounds more than was allowed as baggag'e, whereupon the baggage-master charged him two dollars and forty cents extra for the trunks, which he then paid him, and the baggage-master gave him three checks for the trunks, in the usual Way. Beir then soon after went on to the passenger train of the defendant to await its starting for Napoleon. While Beir was in the baggage-room of defendant the water began to cover the floor of the room, and the baggage-master left the trunks in the room on the trucks, and carried Beir on his' back to a higher point near the ticket-office, where he left him, and did not return for the trunks to put them in the baggage-car, but, soon after, left the depot in the United States mail wagon on account of the high water. Soon after, the water came in and submerged the trunks, and the depot and the railroad tracks, so that the train did not leave that night, and Beir was taken from the train in a boat. By morning there was some six feet of water in the depot, wetting the goods in the trunks and doing great damage to them.
Plaintiffs sue to recover the loss of the goods contained in the trunks, on the ground that the defendant did not deliver the trunks at Napoleon according to its contract as a common carrier, and was also guilty of negligence and carelessness in not placing the trunks' in a safe place, and in not taking proper care of them as common carriers, by reason of which the goods were damaged and injured. This carelessness and negligence are denied, and it is claimed by defendant that the injury was occasioned by a sudden and unexpected flood of the river, being the act of God, and which the defendant could"not foresee or provide against.
The defendant, being a carrier of passengers, is liable as a common carrier for the ordinary baggage of the passengers upon its trains. As carrier of passengers, defendant was not liable for loss or injury to packages of merchandise, packed as baggage, unless its agent
As soon as the baggage-master in the room accepted the extra pay and gave his checks to Beir, the trunks passed into the possession of the defendant, and at that time the relation of common carrier between the plaintiffs and the defendant railroad company was created, and the responsibilities and rights growing out of that relation, attached thereto. Now, by the implied contract resulting from this relation of common carrier of these goods,—(and it does net matter very much whether they were shipped as mere baggage or as merchandise, if they were accepted by the baggage agent without any misrepresentation or fraud on behalf of the plaintiffs, or member of their firm; it makes but very little difference as to their liability
You will take the parties, then, as they were at the time when this contract was made, and you will measure the rights of the plaintiffs and the liabilities of the defendant from that time forward; so that although, as a matter of fact, the rumors were afloat around the city, (and it may be that in another class of cases this railroad company and its officers were bound to take notice of an impending flood and take care of property intrusted to their care in other relations as well as common carrier; it may be they were required to use such means as would protect the property before the flood came on, but that would only be in cases where it had the property of the party in posession before that time, and while that relation existed between plaintiff and defendant;) but this relation was created so late in the evening that you must take the parties at that time, and judge of their rights and liabilities in that connection.
In the first place, the defendant, at the late period when this contract was made, could not change its depot grounds and property— could not make them any more secure against the impending flood. Immediately after the receipt of these goods the defendant was bound, in its relation of common carrier,- to exercise certain care and duties connected with these trunks,' and that duty consisted in taking care of them, and preventing them from being damaged by the flood that had then commenced to come into the depot.
You will see, then, from the statements of these general principles, that the important question for you to settle from the evidence is whether, after these trunks were received by the baggage-master and checked, the flood came so suddenly that,>under the circumstances, the injury could not have reasonably been prevented by the defend
Something has been said in regard to the duty of the plaintiffs after the flood was over. It is claimed by the defendant that Col. Andrews, the general agent, said to the plaintiff, “Go and get your trunks down at the depot and take care of them yourself.” And it is said by the plaintiffs that they offered to give Col. Andrews the keys, so that he might- have the trunks opened and save what he could. It seems that the goods where loft in there longer than they ought to have been on account of the misunderstanding between the parties. I direct you that this common carrier was to take the goods and carry them to Napoleon, and notwithstanding Col. Andrews said the plain
Verdict for the plaintiffs, and motion for new trial overruled.