98 Me. 98 | Me. | 1908
In this case the. first count in the writ sets out an express contract on the part of the defendant as a common carrier, to transport the plaintiff’s trunk with its contents safely from Portland to Wiscasset and there to deliver it to the plaintiff. The second is on an alleged contract by the defendant as a warehouseman to receive from the plaintiff and safely keep, and deliver to him his trunk and its contents upon demand. The defendant pleads to the first count that it was not liable to plaintiff as a common carrier for the loss of his property, and to the second count that as a warehouseman it used reasonable and ordinary care and diligence in keeping the property; and that the defendant’s baggage room in Wiscasset Avas broken open and entered by thieves and the contents of the trunk stolen Avithout the fault of the defendant.
On the 16th of June, 1902, the plaintiff bought a passenger ticket from Asbury Park, N. J., to Boston, and had his trunk checked through to Wiscasset, Maine, The plaintiff testified that he paid
It is contended that the facts thus disclosed are insufficient to establish the liability of the defendant as a common carrier and an insurer of the trunk, and that it can • only be liable either as a gratuitous bailee or as a warehouseman.
It is settled and familiar law respecting public carriers of passengers, that ,the existence of the relation of passenger and carrier between the parties entitles the passenger to have his personal baggage transported at the same time without any additional charge for the freight. No separate contract is required for the carriage of mere personal baggage which is accompanied by the passenger in its transportation. The fare for the transportation of the passenger includes compensation for the carriage of the baggage; and with respect to such baggage, the carrier of passengers incurs the responsibility of common carriers of merchandise, and becomes liable as an insurer of the baggage, except in cases of “vis major” or the public enemy. But in the absence of any special agreement therefor the carrier does not incur this liability as an insurer of the baggage, unless the passenger accompanies it in its transportation or is prevented from so
In Beers v. Boston & Albany R. R. Co., 67 Conn. 417, 52 Am. St. Rep. 293, 32 L. R. A. 535, the defendant company received from another carrier and transported the plaintiff’s trunks upon the erroneous assumption created by the checks on the trunks that they were the personal baggage of passengers who had purchased tickets over the defendant’s road as a connecting carrier. In fact the OAvner of the trunks traveled by another route, but supposed that the trunks Avere properly checked. The court held that the defendant did not receive the trunks in the capacity of a common carrier of passengers for hire; and as there Avere no passengers accompanying the trunks or who had bought tickets entitling them to passage Avith their trunks over defendant’s road, there was no liability of the defendant, except for Avilful and intentional injury to the trunks in its possession. So in the recent case of Marshall v. Pontiac, Oxford & Northern R. R. Co., 126 Mich. 45, the plaintiff purchased a passenger ticket over the defendant’s railroad for the purpose of obtaining a check upon which his trunk was forwarded as baggage, without any intention of accompanying the baggage in its transportation. He made the journey to his destination by his oavu private conveyance, but in the meantime
In the case at bar it satisfactorily appears from all the evidence that the plaintiff's trunk was received by the carrier in New Jersey in the ordinary way as the personal baggage of a passenger, in the expectation that it would be accompanied by the owner. It is true that the plaintiff testifies that he paid an “extra amount” to have the trunk “checked through to Wiscasset,” but he is unable to state the precise amount paid for that purpose, and he recalls no conversation between the checker and himself tending to show that the trunk was to be forwarded as freight without the passenger. He received only the ordinary passenger check for the trunk, and it seems probable from all the evidence that the “additional price” paid by him was only the ordinary charge for the transfer of the baggage of passengers across New York and Boston. The conclusion is irresistible that when the trunk was checked at Asbury Park both the parties understood that it was to go forward as the baggage of a passenger. It is equally clear that the plaintiff did not intend to accompany it beyond Boston, and it is admitted that he did not in fact accompany it over any part of the defendant's railroad.
But with respect to its manner of storing and keeping the trunk, the evidence fails to show that the defendant was guilty of any negligence which would render it liable, as a gratuitous bailee, to compensate the plaintiff for the loss of baggage taken from its custody by shop-breakers and thieves. The trunk was deposited in an ordinarily well constructed baggage room with the doors and windows secured in the ordinary manner on the night in question, and the felonious entrance was effected by breaking out a pane of glass in one of its windows. The plaintiff’s conduct indicated that he regarded this baggage room as a reasonably safe place for the storage of baggage. Wiscasset was his old home. He must have been familiar with the condition of the baggage room of the defendant company at that station. When he stopped in Boston, he knew that in the ordinary course of transportation his trunk would reach its destination in advance of his arrival, and be stored in this baggage room over night. After his arrival he made no haste to call for it and showed no anxiety in regard to its safety.
.There was no want of ordinary care on the part of the defendant respecting the custody of the trunk.
Judgment for the defendant.