71 S.E. 346 | N.C. | 1911
After stating the case: To fix the responsibility for lost baggage on a railroad company, either as common carrier or warehouseman, there must have been a delivery of same, including an acceptance by the company, either actual or constructive; and in order to a valid delivery, the general rule is that when baggage is taken by others to a railroad station, and even to the place where baggage is usually received, some kind of notice must be given to some agent of the company authorized to accept the same. Hutchinson on Carriers, sec. 105; Fetter on Carriers, sec. 610; R. R. v. Beckley,
Stating the proposition in a negative way in 6 Cyc., 671, it is said: "But the carrier will not be liable for the acts of its servants not authorized nor held out as authorized to receive baggage." On authority, therefore, the plaintiff was entitled to have this latter view presented to the jury, and to have his prayer for instructions given substantially as requested.
Plaintiff excepted further that the court submitted the second issue as to the receipt of the trunk for immediate transportation. We have frequently held that the framing of issues is a matter which is left very largely in the discretion of the trial judge, the limitation being that the issues must be sufficiently responsive to the pleading and determinative of the rights of the parties involved therein. And the statement is not infrequently made in the books that in order to charge transportation companies as common carriers, making them liable as carriers, the goods or baggage must be left with them for "immediate" transportation. It is becomes necessary, therefore, in order to make full determination of the rights of these litigants, that decision should be made whether this trunk was received and held as common carrier or warehouseman, it is well enough to submit the issue as framed. If this is done, however, the jury should be instructed that the term "immediate," in this connection, does not have its more usual meaning of "instantly, forthwith, nothing intervening either as to place, time or action," given in 4 Words and Phrases, 3393, as Worcester's (273) definition, but it means, rather, "reasonable time," having due regard to "the nature and circumstances of the case," cited in Words and Phrases as Bouvier's definition. The controlling idea being *223
that in order to fix upon a company responsibility for baggage, as a common carrier, the same must be delivered by the passenger and accepted for transportation within a reasonable time before taking his intended train. There is a decision (Goodbar v. R. R. Co.,
"2. Delivery or nondelivery of check for baggage is of no importance as affecting the liability of the carrier, it being merely in the nature of a receipt and intended as evidence of the ownership and identity of the baggage, and this is the rule generally obtaining in the absence *224 of some specific and reasonable regulation restrictive of its liability."
As the cause goes back for a new hearing, we consider it well to advert to another exception insisted on for plaintiff, that his Honor charged the jury, as requested by defendant, as follows: "If the jury find from the evidence that the plaintiff, Susie E. Williams, purchased a ticket over the defendant's line from Charlotte to Statesville, on Saturday morning, and on the following Sunday evening sent a trunk to the depot, giving no instructions for shipment and no instructions for it to be checked, and did not intend for the same to be checked until the following morning, then the company, even if it received the trunk for storage, was merely a gratuitous bailee and liable only for its gross negligence. There being no evidence that the trunk was lost by the gross negligence of the defendant company, the jury will answer the fourth issue, `Nothing.'"
As heretofore stated, if the trunk was delivered and accepted by the company in the afternoon for transportation on the following morning, and it was customary to receive baggage for transportation in that way, in the absence of some reasonable regulations restrictive of the company's liability they would take as common carriers and could be held as insurers in case the trunk is lost; but if no such custom existed and the trunk was only received for storage for one (275) intending to become a passenger, and until he claims the trunk and has the same checked, in such case the company is ordinarily regarded as bailee for hire and is responsible for ordinary care. It is the same rule of responsibility obtaining where baggage reaches its destination and is not called for in a reasonable time. After such time the carrier holds the baggage as warehouseman and is responsible for lack of ordinary care. Elliott on Railroads, secs. 1463-1533. In making this charge, the court was no doubt influenced to some extent by expressions in the opinion in Kindley v. R. R.,
New trial.
Cited: Barefoot v. Lee,