by exonerate themselves from blame and liability in a future action.7

7. The authorities upon this general subject are not uniform. And where the courts refuse to admit the party to testify to the contents of trunks, &c., lost by common carriers, it becomes matter of necessity to allow the jury to give damages proportioned to the value of the articles which it may fairly be presumed the trunk, &c., might and did contain.8

By the construction of the statute in Kentucky,9 the members of railway corporations are made witnesses in suits where the company is a party.

SECTION XXI.

Extent of Responsibility for Baggage.

1 and 5. Not liable for merchandise which | 5. Not responsible for merchandise as bagpassenger carries covertly. gage.

2. And it makes no difference that the pas- 6. Carrier responsible for baggage, when passenger has no other trunk. senger goes by another conveyance.

3. Jewelry, being female attire, and a watch 7. Cannot restrict all responsibility for bagin a trunk, proper baggage.

4, and n. 6. So also are, money for expenses,

gage. May make reasonable regulations and follow them.

books for reading, clothing, spectacles, 8. Definition of trinkets under English statute. tools of trade, and many other similar 9. In England companies may exclude bagthings. gage from cheap trains.

§ 171. 1. Railways, as carriers of passengers, are not liable for the loss of a package of merchandise which a passenger brings upon the train packed as baggage, unless the company, having an opportunity to know the contents of the package, see fit to accept it as baggage.1

7

Draper v. Worcester & N. Railw., 11 Met. 505; Moses v. Bos. & M. Railw., 4 Fos. 71, 80.

• Dill v. Railroad, 7 Rich. 158; Stadhecker v. Combs, 9 Rich. 193.

• Civil Code, § 675; Covington & Lexington Railw. Co. v. Ingles, 15 B. Monr. 637.

1 Great Northern Railw. v. Shepherd, 9 Eng. L. & Eq. 477. In this case the court gravely declare that a husband and wife, travelling together, may take 112 lbs. baggage, the limit for one person, by act of Parliament, being fifty-six pounds. Richards v. Wescott, 2 Bosw. 589.

150

COMMON CARRIERS.

$171.

This question was considerably discussed in a recent case in New Hampshire,2 where it was held that the carrier is not responsible for merchandise which a passenger takes along with him, unless a reward is given for the transportation, or it be of a character which by usage or custom is to be regarded as travelling baggage. And the fact that other passengers, on other occasions, had taken along with them in the passenger cars similar bundles of merchandise without objection, has no legal tendency to prove that the bundle in question was transported at the risk of the carrier, unless it were shown that such bundles were knowingly carried as part of the baggage and paid for by the passenger ticket. But the carrier, although not liable as an insurer, will be liable, as an ordinary bailee without hire, for any loss or damage which is proved to have been caused by his own gross negligence or that of his servants.

3

2. So the word baggage was held not to include a trunk containing valuable merchandise and nothing else, although it did not appear the passenger had any other trunk with him; nor samples of merchandise, carried to enable the passenger to make bargains.1

2 Smith & wife v. B. & M. Railw. Co., 3 Am. Law Reg. N. S. 126; s. c. 44 N. H. R. 325. It seems to us that one of the conditions named in this case as the only ground of the liability of the carrier, is not indispensable that he should receive pay for the transportation by the passenger ticket. That is a thing which could never be proved, either in the affirmative or negative. If the carrier, knowing its contents, accepts a bundle, or box, or trunk, containing merchandise, as baggage, we see no reason why he should not be responsible as a common carrier. If payment is made for a trunk of goods or merchandise, as extra baggage, the carrier is clearly responsible for its safe delivery.

3 Pardee v. Drew, 25 Wend. 459. It was held that "thirty-eight pairs of new shoes, sixty pairs stock for boy's shoes, and two papers shoe-nails," is not included under the term "baggage." Collins v. Boston & Maine Railw., 10 Cush.

506.

* Hawkins v. Hoffman, 6 Hill, 586; Dibble v. Brown, 12 Ga. R. 217. But where a passenger delivered a box, containing embroideries, to the agent for receiving baggage, and demanded a check for the place of his destination, and was told that the company "did not check such goods," but that they would go safely, it was held the company were liable for the loss of the box, as common carriers, on the ground that there was no attempt to deceive them, or to have the parcel pass as baggage, unless they consented, and if they consented to accept and carry it, in a passenger train, they were liable, and might charge freight the same as if they carried it upon their freight trains. This seems to be a very reason

This question was considered and determined in the House of Lords, where the law lords discussed the question at length. In this case the passenger took a through ticket, and had in his personal charge a case containing gold and silver watches, which an officer of the company on the journey requested the passenger to give him to be deposited in the baggage van, which was accordingly done. The property was subsequently stolen by one of the company's servants. By the rules of the company all merchandise not being personal luggage was to be paid for. An action was brought to recover the value of the case and watches. The defendant pleaded that the plaintiff was only entitled to carry personal baggage, whereas the case in question was merchandise. The plaintiff replied that the case manifestly contained merchandise, and was received by the defendants without objection, and without their demanding extra remuneration, and without inquiry as to the value of the case. The jury found able view of the case. Butler v. Hudson River Railw. 3 E. D. Smith, 571. But there must be some proof that the person accepting the parcel was the proper agent for that purpose, or that it was placed in the company's cars. Ib.

Belfast & B. & L. & C. Railw. Co. v. Keys, 8 Jur. N. S. 367, on appeal from the Exchequer Chamber in Ireland; 11 Ir. Com. L. R. 145; s. c. in C. B., 8 Id. 167. In one report of the case, th ̈ reason assigned is, that the replication was bad, for not naming that the company had notice that the box contained merchandise, and this is the precise ground upon which the opinion of the judges is placed by Chief Baron Pollock. But the Lord Chancellor, in giving the leading opinion, puts the case mainly upon the ground, that the plaintiff intended to mislead the company, and covertly carry merchandise as baggage. And Lord Wensleydale puts the case upon the precise ground stated in the text. And in the case of Cahill v. London & N. W. Railw. Co., 10 C. B. N. S. 154; s. c. 7 Jur. N. S. 1164; 8 Id. 1063, Exch. Chamber, 13 C. B. N. S. 818, it was held a railway company is not liable for the loss of merchandise delivered to them by a passenger as his personal luggage, without notice that the luggage contained merchandise. In this case the act of Parliament, and the rules of the company, allowed a certain weight of luggage with each passenger without additional charge; but the passenger was in fact ignorant of both. But the court considered he was bound to know the act of parliament. The box in this case was marked, in large letters, "glass"; but the company were held not responsible. But in the Exchequer Chamber the judgment was reversed, and the company held responsible, as if for so much luggage; for, having suffered the passenger to treat it as luggage, they could not, after the loss, set up that it was merchandise, and that therefore they were not responsible. The case of the Belfast Railw. Co. v. Keys, ante, was here cited, and this seems to be the view taken in the Exchequer Chamber of the law of that case, from which we cannot dissent.

that the case manifestly did contain merchandise, and that there was no improper concealment on the part of the plaintiff in respect of it, and that the defendants were guilty of gross negligence. On motion to enter up judgment for the defendant non obstante veredicto, on the ground that the replication was no valid answer to the special defence, the Exchequer Chamber, affirming the judgment of the Common Pleas, held the replication a good answer to the defence. The House of Lords reversed the judgment and held the defendants not liable. This was upon the ground that although by the original contract the plaintiff was not to pay anything for his luggage, he was bound to pay for his merchandise, and the acceptance of the case by the servant of the company did not alter the contract made by the company. This seems to us to be carrying the law to the very extreme on behalf of the company; further than necessity or fair dealing towards the passenger would seem to justify. The act of the servant in the course of his employment should bind the company. The decision of the Irish courts appears more satisfactory than that of the House of Lords, but the latter is now the law of England. But the later cases cited in note 5 seem to qualify this very essentially.

*

3. In one case the carrier was held responsible for articles of jewelry, carried among baggage, which were a part of female dress, the plaintiff travelling with his family, such articles being treated without question as forming a part of the passenger's baggage. So a watch carried in one's trunk is proper baggage. And so of linen cut into shirt bosoms.8 Finger-rings have also been regarded as wearing apparel. But a dozen silver tea-spoons, or a Colt's pistol, or surgical instruments, except the passenger be connected with the profession, are not properly

9

• Brooke v. Pickwick, 4 Bing. 218; McGill v. Rowand, 3 Penn. St. 451. In Whitmore v. Steamboat Caroline, 20 Mo. R. 513, it was held not to be within the ordinary duty of a steamboat, as a common carrier, to transport specie, and that the officers could not bind the proprietors by such an undertaking, unless by proof of a usage, and that a passenger's baggage only included specie to the extent of his probable expenses. But see Neving v. Bay Steamboat Co., 4 Bosw. 225.

'Jones v. Voorhees, 10 Ohio R. 145.

8 Duffy v. Thompson, 4 E. D. Smith, 178.

9 McCormick v. Hudson River Railw., 4 E. D. Smith, 81;

a portion of travelling baggage.10 And title deeds and documents, which an attorney is carrying with him to use on a trial, are not luggage; nor is a considerable amount of bank notes, carried to meet the contingencies or exigencies of the case.11

4. And railways, as carriers of passengers, are not liable for money, which passengers may carry as baggage, beyond a reasonable amount for travelling expenses.12 The passenger is allowed to take not only money sufficient to defray the ordinary expenses of the journey contemplated, but any reasonable sum in addition, for such contingencies as are not improbable.13

But in one case it was held, without much reason, we think, that if the passenger carried necessary money for his journey in his trunk, the company were not liable for the loss.14 And 10 Giles v. Fauntleroy, 13 Md. R. 126.

11 Phelps v. London & N. W. R. Co., 19 C. B. N. S. 652.

12 Orange Co. Bank v. Brown, 9 Wend. 85; Weed v. Saratoga & Schen. Rail., 19 Wend. 534; Bell v. Drew, 4 E. D. Smith, 59; Duffy v. Thompson, 4 E. D. Smith, 178.

In the case of Jordan v. Fall River Railw., 5 Cush. 69, the rule, in regard to money carried by a passenger as part of his baggage, is thus laid down by Fletcher, J.: "Money bonâ fide taken for travelling expenses and personal use, may properly be regarded as forming a part of the traveller's baggage." And this is perhaps as satisfactory and as definite a rule as the subject admits of. Taylor v. Monnot, 1 Abbott's Pr. 325; Merrill v. Grinnell, 30 N. Y. R. 594.

In Tennessee it seems to have been considered, that money beyond expenses, or a watch, are not a proper part of one's baggage in travelling. Bomar v. Maxwell, 9 Humphrey, 621. And in the case of Doyle v. Kiser, 6 Porter (Ind.), 242, where a passenger on a canal boat had $4,000 in gold in his carpet-bag, which he did not name to the officers of the boat, and which was stolen during his passage, it was held the carriers were not liable beyond the value of the ordinary articles of baggage lost. Perkins, J., enumerates as such, “clothing, travelling expense money, books for reading and amusement, a watch, ladies' jewelry for dressing." A gold watch and gold spectacles were held such in the case of the Steamer H. M. Wright, Newberry's Admiralt. 494. And in Davis v. Cayuga & Susquehannah Railw., 10 How. Pr. 330, it was held, that a harnessmaker's tools, valued at $10, and a rifle, were to be regarded as properly forming a part of the passenger's baggage on a railway, and that the possession of the company's check was primâ facie evidence of his having been a passenger on their trains, and that he had baggage checked on that occasion, the possession of the check being accompanied with proof of the custom of the company to put checks upon all baggage where it was required, and to give duplicates to the passengers.

13 Johnson v. Stone, 11 Humphrey, 419.

14 Grant v. Morton, 1 E. D. Smith, 95.