1

baggage, with the knowledge of the company. A failure to give a check, on request, when the baggage is delivered to the agents charged with receiving it, will not affect a passenger's rights. The carrier cannot shield himself under his rule, that he will not be liable for baggage unless it is checked, where the parcel is received and no check given because the authorized agent is not there. After his agents receive it, the carrier's liability commences; quite frequently this happens some hours before the transit or journey commences.2

When baggage is left in the rooms appropriated to its reception, to be afterward checked when its owner is ready to proceed on his way, the corporation does not receive it as a common carrier; they receive it in the line of their business, as they retain baggage nct called for within a reasonable time at the end of their road, and are liable for it on principle as bailees for hire.3

1 Freeman v. Newton, 3 E. D. Smith, 246, 251.

2 Hickox v. Naugatuck R. Co., 31 Conn. R., 281; Wood v. Devin, 13 Ill., 746.

3 Ante § § 333, 337, 538; O'Neil v. N. Y. C. & H. R. R. Co., 60 N. Y., 138. In Roth v. Buffalo & State Line R. R. Co., 34 N. Y., 548, the railroad company carried the passenger and his trunk from Dunkirk to Buffalo, the trunk being checked and the train arriving about ten o'clock in the evening, a cold winter's night. On his arrival, the passenger went directly to the house of a friend, retaining his check; and it appears that the company delivered, as usual, all the baggage called for that evening. During the night the depot was burned, with the baggage; and it was held that the company were not liable. In Powell v. Myers, 26 Wend., 591, a passenger arriving at New York about the same time in the evening by a steamboat, left his baggage on board till morning, with the consent of the captain; and it was lost by a delivery on a forged order. Leaving the goods in the depot over night with the carrier's consent, where the owner or his agent has an opportunity to take them away in the evening, relieves the company from the liability of an insurer. Fenner v. Buffalo & State Line R. R. Co., 44 N. Y., 505. The railroad company remain responsible for baggage as carriers, until the passenger has a reasonable time and opportunity to remove it, over night where that is necessary. Diuinny v. N. Y. & N. II. R. R. Co., 49 N. Y., 546. See Norway P. Co. v. B. & M. R. R. Co., 1 Gray, 263, and a special arrangement to keep for some days not authorized by the company; Mattison v. N. Y. C. R. R. Co., 57 N. Y., 552.

The carrier's liability for baggage ceases after it comes to the place of destina tion and the same is stored in a safe and secure warehouse. His liability as carrier does not cease, by his placing the baggage in an insecure room from which it is stolen-a room without blinds accessible from without. Bartholomew v St. Louis, J. & C. R. Co., 53 Ill., 227, A. D. 1870; Chicago, Rock I. & P. R. R Co. v. Fairclough, 52 Ill., 103. A passenger may recover against the contract. ing carrier for the unexplained failure of the connecting road to deliver his baggage at the place of his destination. Burnell v. N. Y. Central R. R. Co., 45 N. Y., 184; see Green v. N. Y. C. R. Co., 12 Abbott's Pr. (N. S.), 473.

When a passenger takes a stateroom on a steamboat and carries into it items of baggage and other valuables, his relation to the carrier is similar to that of a guest to an innkeeper, after he has taken a room and placed his baggage in it; and the carrier's liability is like that of the innkeeper. The act of taking the key to a room in the inn, does not charge a guest with the custody of his baggage in the room, so as to discharge the innkeeper: and the same is adjudged where a passenger on a steamboat receives the key to a room where he places his baggage, without intending to retain the custody of his baggage to the exclusion of the carrier. The key gives the passenger access to his baggage and a supervision of it; it obliges him to take some care of it; but it does not take from the master the custody and possession of the vessel, including the room given to the traveller for his special accommodation.1 Can the same rule be applied where a passenger secures accommodations in a sleeping or Pullman palace car, in charge of a porter whose business it is to make up the beds at night and wait upon the passengers? A divided court answers the question in the negative, on the implied understanding of the travelling public. The rule must be dif ferent where the porter in the proper scope of his employment takes a parcel into his personal custody.

In a situation somewhat different and yet having some analogous features, namely, where a person takes passage on a steamer, among the steerage passengers, and retains his trunk and fastens it under his berth, the carrier not being entrusted with the property, is not charged with its safe keeping.3 The carrier has the right to appoint the place of deposit, and may refuse to become responsible for goods or baggage unless it be properly stored.*

§ 572. A railroad company selling through tickets over its own and other roads forming a continuous line, and checking baggage through, is liable for it at the point of destination. The company contracts to carry the passenger with his baggage to the place for which he purchases a ticket, and agrees that the baggage shall be delivered on presentation

1 Mudgett v. Bay State Steamboat Co., 1 Daly, 151. Here the passenger's valise was stolen out of his room, properly locked. A notice posted in the steamboat that a passenger must bear a loss by theft from his room is unreasonable. Macklin v. New Jersey Steamboat Co., 7 Abbott's Pr. (N. S.), 229; Gore v. Norwich & N. Y. Tr. Co., 2 Daly, 254; 21 N. Y., 111.

2 Welch v. Pullman Palace Car Co., 16 Abbott Pr. (N. S.), 352.

Cohen v. Frost, 2 Duer, 335; see Tolano v. National S. Nav. Co., 5 Robt. (N. Y. S. Ct.), 318.

4 Van Horn v. Kermit, 4 E. D. Smith, 453.

of the check for it. The corporation has the power to make a contract to carry and deliver at a point beyond the termination of its road; and it may do this where it sells separate tickets issued by the several companies constituting the entire line. The contract may be established by proving the circumstances; the tickets being regarded as receipts or tokens, do not legally prove a succession of contracts; they are consistent with a single contract for the entire route.2

Are the other companies in the line also liable on the contract? It is quite clear that they are, when they act through the same agents; c. g., where three separate railroad companies owning distinct portions of a continuous railroad between two termini, run their cars over the whole road, employing the same agents to sell passage tickets and receive baggage to be carried over the entire road; the last company is liable for the baggage received by the first. Two principles must be affirmed, in order to maintain this rule of liability by each of the roads uniting to form a continuous line of conveyance and transportation: 1. That several railroad companies may so unite in the carrying on of their business as that each shall become carriers and responsible as such over the roads of the other companies, and beyond their own proper terminus; and 2. That a railroad company may become liable upon the contracts of its agents, and by the receipt of freight and baggage at the terminus of the continuous line farthest from its own line.

Roads thus forming a continuous line and carrying goods and passengers on an agreement for a division of the faro or freight received on goods or from passengers carried over the several roads, do not become partners, as between themselves or in respect to third persons. On a through contract, the company delivering the goods is entitled to recov

1 Burnell v. N. Y. C. R. R. Co., 45 N. Y., 184; Cary v. Cleveland & Toledo R. R. Co., 29 Barb., 35; Muschamp v. Lancaster & Preston J. R. Co., 8 M. and W., 421; Norway P. Co. v. Boston & M. R. R. Co., 1 Gray, 233; Ill. Central R. R. Co. v. Copeland, 24 Ill., 332; Weed v. S. & S. R. Co., 19 Wend., 534.

2 Quimby v. Vanderbilt, 17 N. Y., 303; N. Y., 37; Weed v. Saratoga & S. R. R. Co., 19 Wend., 534. The power to make a through contract is generally affirmed. Railroad Co. v. Pratt, 22 Wallace, 123; Hill Maunf. Co. v. Boston & L. R. Co., 104 Mass., 122; Feital v. Middlesex R., 109 Mass., 393.

3 Hart v. Reusselaer & Saratoga R. R. Co., 8 N. Y. (4 Seld.), 37; McCormick v. Hudson R. R. Co., 4 E. D. Smith, 181.

4 Carey v. Cleveland & Toledo R. R. Co., 29 Barb., 35. Judge ALLEN, now of the Court of Appeals, reviews in this case the decisions, and affirms the propositions cited in the text. 45 N. Y., 184; Schroeder v. Hudson River R. Co., 5 Duer, 55; Bissell v. Michigan S. and N. Indiana R. Cos., 22 N. Y., 258, and cases there cited; 40 N. Y., 168, and note on page 179; 42 Vt., 566.

er the freight earned on the several lines.' And where roads connect but do not form a continuous line, the practice of each to sell through. tickets and check baggage over both roads, imports an agency by the company selling the tickets, and not a contract by the company for the whole route.2

§ 573. In this State a statute takes notice of the relation existing between connecting railroads, allows one company to receive and contract for the delivery of freight at any point on the continuous line within or beyond the State, renders the company liable on the contract, and gives it a remedy against the company through whose neglect or default the goods are injured or destroyed. The statute does not apply where the

1 Merrick v. Gordon, 20 N. Y., 93; 5 Lans., 482; 2. E. D. Smith, 187; 18 Wend., 329; 7 Hill, 292. In Bostwick v. Champion (11 Wend., 571), three lines, of stages united to form a continuous line from Utica to Rochester, on an agreement by which the route was divided into three sections, each line to be run by a party furnishing his own carriages, horses and drivers at his own expense, and the fare received from passengers after deducting tolls paid at turnpike gates, was to be divided between the three lines in proportion to the number of miles run by each; and an injury having been caused to a stranger by the driver on one of the lines, it was held that the stranger might maintain a joint action on the case against the owners of the three lines, without affirming that these owners were partners, as among themselves. S. C., 18 Wend., 175. In Fairchild v. Slocum (19 Wend., 329), the owners of canal boats on the Erie Canal formed an association with the owners of vessels on Lake Ontario, for the transportation of goods from the city of New York to Ogdensburgh on the St. Lawrence and other places; and all the parties were held liable for a loss on the lake, though some of the parties had no interest in the vessel that was lost. S. C., 7 Hill, 292.

Railroads uniting to form a continuous line and dividing receipts in proportion to the distance covered by each road, are not regarded as partners; e. g.,. where the roads appoint an agent to sell through tickets and for intermediate places, and the proceeds are divided among the several companies each month, according to the respective amounts of their established rates of fare. Straiton v. N. Y. & N. H. R. Co., 2 E. D. Smith, 184; Etna Ins. Co. v. Wheeler, 5 Lans., 480, 482; S. C. 49 N. Y., 616. The question was fairly presented and passed upon by the Court of Appeals, in the case above cited; Merrick v. Gordon, 20 N. Y., 93; where a firm of carriers upon the canals agree with a firm of carriers upon the Great Lakes for a division in fixed proportions of the total freight received for the carriage of goods over the united routes or portions thereof. The opinion distinguishes this case from that of Champion v. Bostwick, where the whole earnings were divided in proportion to distance, the receipts from passengers travelling over only one route, as well as from those travelling over the three united. The distinction is quite clear, if not very broad. 2 Milnor v. New York & N. H. R. R. Co., 53 N. Y., 363.

32 R. S., 693, § 67, 5th ed.; Burtis v. Buffalo & State Line R. Co., 24 N. Y., 269. The contract is valid independent of the statute; at least the carrier is liable. Buffett v. Troy & Boston R. R. Co., 40 N. Y., 163.

company first receiving the goods does not undertake to carry them to their final destination;1 and it does not assume to render the second or third company forming the continuous line, liable to the owner for damages arising to the goods while in the hands of the first or a prior carrier. As construed, the statute is in one sense declaratory of the common law, and leaves the intermediate carrier liable only as an ordinary carrier for loss or damage arising while the goods are in his possession. If the first carrier makes a contract for the entire route, he is not allowed to escape his liability on the ground that a connecting carrier fails in its duty, and delays the transportation.3 The rights of the parties are fixed by the contract; and it is held that a connecting carrier receiving goods from the contracting carrier, under a through contract, is entitled to the exemption stipulated for in the contract, as from loss by fire. The last and the intermediate carriers are regarded as allies, aiding the contracting carrier in the fulfillment of his contract.4

Under a through contract by the first carrier, the intermediate carrier is not on principle liable on the contract; and is chargeable as a carrier by virtue of his occupation. Hence where a passenger purchases a ticket entitling him to ride over different lines of road, each road is liable for a loss of his baggage while in its possession; and the passenger not suing on the contract, cannot recover for a loss of his baggage against the last road where it is shown that it did not come into its custody.5

A contracting carrier, held liable for a loss of goods under a through contract, has his remedy over against the connecting line or road by whose neglect or default the loss occurred. In the absence of a through contract, no such liability can arise; one carrier not being liable, prima facie, for a loss of goods occurring while they are in the hands of another carrier.7

1 Root v. The Great Western R. R. Co., 45 N. Y., 524.

2 Smith v. N. Y. Central R., R. Co., 43 Barb., 225. A contrary opinion is expressed by the General Term in Root v. Great Western R. R. Co., 2 Lansing, 199; S. C., reversed as above cited, 45 N. Y., 524.

3 Condict v. Grand Trunk R. Co., 54 N. Y., 500.

4 Maghce v. Camden & Amboy R. R. Co., 45 N. Y., 514; Manhattan Oil Co. v. Camden & Amboy R. & Tr. Co., 54 N. Y., 197. Seo Irwin v. N. Y. C. R. Co., 1 T. and C., 473; S. C., 59 N. Y., 653. The rule applies only under a through contract; Etna Ins. Co. v. Wheeler, 5 Lans., 480; S. C., 49 N. Y., 616.

Chicago & Rock Island R. Co. v. Fahey, 42 Ill., 81. In Condict v. Grand Trunk R. Co. the action was on the contract-a special contract for the transportation of the goods to Chicago-54 N. Y., 500; see Anchor Line v. Dater, 68 Ill., 369.

6 Chicago & N. R. Co., v. Northern Line Packet, 70 Ill., 217.

' C., H. & D., and D. & M. R. Co. v. Pontius & Richmond, 19 Ohio St.,