FOOTNOTES:
[413] McDonald v. Chicago, etc., 26 Iowa, 124.
[414] Frost v. Grand Trunk Rw., 10 Allen, 387.
[415] Warren v. Fitchburg Rw., 8 Allen, 227.
[416] Burgess v. G. W. R., 32 L. J. 76.
[417] Walker v. G. W. R., 8 U. C. C. P. 161.
[418] Fairbanks v. G. W. R., 35 Q. B. (Ont.), 523.
[419] Patten v. Ch. & N. W. Rw., 36 Wis. 413.
[420] McDonald v. Chicago. etc., 26 Iowa, 124.
[421] Martin v. Gt. Northern Rw., 16 C. B. 179; and see the case of stumbling over the hampers, Nicholson v. Lancashire & York Rw., 3 Hurl. & C. 534.
[422] See Punch for February, 1874.
[423] Cockle v. London & S. E. Rw. Co., L. R., 7 C. P. 721 (Ex. Ch.).
[424] Praeger v. Bristol & Exeter Rw., 24 L. T. (N. S.) 105.
[425] Whitaker v. Manchester & S. Rw. Co., L. R., 5 C. P. 464.
[426] Col. &. Ind. C. Rw. Co. v. Farrell, 31 Ind. 408.
[427] Foy & Wife v. London, B., & S. C. Rw. Co., 18 C. B. (N. S.), 225.
[428] Poulin v. Broadway, etc., Rw., 34 N. Y. Sup. Ct. 296.
[429] Siner v. G. W. R., L. R., 3 Ex. 150.
[430] Bridges v. North London Rw. Co., L. R., 6 Q. B. 377. In appeal L. R., 7 H. L. 213.
[431] Praeger v. Bristol & Exeter Rw., L. R., 5 C. P. 460, n. 1; also Plant v. Midland Rw. Co., 21 L. T. (N. S.), 836; and Harrold v. Great Western Rw., 14 L. T. (N. S.), 440.
[432] Redfield on Railways, vol. ii., p. 264.
[433] Whitaker v. Manchester & S. Rw., L. R., 5 C. P. 464.
[434] Lewis & Wife v. London C. & D. Rw., L. R., 9 Q. B. 69; Cockle v. London & S. E. Rw., L. R., 5 C. P. 457 (Ex. Ch.), distinguished.
[435] Weller v. London, Brighton, & S. C. Rw., L. R., 9 C. P. 126.
[436] Memphis & Charleston Rw. v. Whitfield, 44 Miss. 466; Robson v. N. E. Rw., L. R., 10 Q. B. 271.
[437] See also, Memphis & C. Rw. v. Whitfield, 44 Miss. 466.
[438] Ohio & Miss. Rw. v. Schiebe, 44 Ill. 460.
[439] Knight v. Ponchartrain Rw., 23 La. Ann. 462.
[440] Lambeth v. North Carolina Rw., 66 N. C. 494.
[441] Southern Rw. v. Kendrick, 40 Miss. 374.
[442] Adams v. Lancashire & Y. Rw., L. R., 4 C. P. 744.
[443] Giles v. G. W. R., 36 Q. B. (Ont.) 360.
CHAPTER XI.
BAGGAGE.
Gone.—Company liable for Lost Baggage.—Carelessness of Owner.—Checking.—What is Baggage?—Papers.—Spring-horse.—Household Goods going West.—Luggage left in Cloak-room.—Limitation of Liability.—Taking Change.—Railroad Police.—Beauties of Checks.—Fall of a Window.—Legs and Arms outside.—Officials squeezing Fingers.—Stern Boreas.
Misfortunes never come singly, for birds of a feather flock together. Scarcely had I got to the hotel and begun ruefully examining the discolorations on my nether limbs and putting a piece of sticking-plaster on the top of my proboscis, when a thought struck me, and really hurt me, so that I involuntarily exclaimed, “Why, where’s my bag?” Of one thing I was soon satisfied, namely, that it was not there. I ran my fingers through my hair to let the cooling air as near as possible to my heated brain, and after mature reflection came to the conclusion that I had seen nothing of it since I had left it in the car while I went out after those refreshments already referred to; for on my return, finding in my seat a lovely girl, with long dark eyelashes, soft tender dark-blue eyes, a bewitching smile, and dimples which rippled round her ruby lips as she talked and laughed with a young fellow of a vinegar aspect who sat beside her, I had located myself elsewhere. Both these individuals had got out at the next station, but I had never again noticed, or even thought of, my bag.
When I met the Q. C. in the dining-hall I told him of my loss.
“What had you in your bag?” he inquired, with the air of a man who thought that he knew a thing or two about lost luggage.
“Nothing but my brushes and razors, pen and ink; some shirt-fronts alias dickeys, and other clothing.”
“Ah well! you are all right! you can easily recover the value of the waifs and strays from the company; for all those things have been held to be such personal baggage as a traveller has a right to carry with him.[444] Have you got your check?” he added.
“No. It was not checked. I carried it into the car with me, and left it to keep my place when we got out for refreshments, and it was gone before I got back into my seat—at least I have not beheld it since.”
“N’importe! as the frog-eaters say. You are entitled to recover, for your ticket gives you a right to be carried with your luggage;[445] and a by-law to the effect that a company will not be responsible for baggage unless booked, has been held bad in England.[446] Of course, if you had kept exclusive control over your bag, the company would not ordinarily be liable.[447] And when a man has his traps taken into the car with him for his own convenience he impliedly undertakes to use reasonable care; and if one were to leave his portmanteau in one car while he went and travelled in another, and the portmanteau was rifled, he could not recover for his loss;[448] nor, if he stupidly forgot to take his overcoat with him, when he left the train.”[449]
“I had an idea,” I said, “that a Canadian judge had expressed an opinion to the effect that the system of checking in vogue in this enlightened country was notice to passengers that all articles must be checked or handed to the company’s servants, except what they desire or prefer to keep under their own personal care and at their own risk. Did you ever meet with such a dictum or decision?”
“Oh yes, I noticed the case only the other day. Morrison, J., did speak to that effect, but he was overruled, and Draper, C. J., said that he considered checking only as additional precautions taken by the company, beyond what is customary in England, in order to prevent the luggage from being given up to the wrong person; that the company would be liable for a loss in case no such means of checking was in use, and if, notwithstanding, a loss occurs, the liability is unchanged, in the absence of express notice on their part that they will be responsible only for articles checked.[450] By the way, were there any papers in your bag?”
“No; they were all in my pocket. I have not many with me, and I remember seeing it decided that title deeds, which an attorney was carrying with him to produce on a trial, were not baggage for the loss of which a carrier would be responsible.”[451]
“Prudent man!” replied my friend, as he turned on his heel and departed.
What I did at the place where I now was concerns nobody except those who had the pleasure of paying my travelling expenses to and fro and my hotel bill while there. To dilate with any particularity on the subject might lead one into a breach of that well-established rule concerning privileged communications between attorneys and their clients.
At length my labors were at an end and I was at perfect liberty to return to my Lares et Penates at my earliest convenience. My readers must not suppose, from the fact that my bag and baggage had been lost, that I was acting the Nazarite all this time; no indeed, I had bought all the necessary articles of a gentleman’s toilet and some changes of raiment, and with these in a brand new valise I was ready to start en route for the place whence I had come forth.
I was rather amused, while awaiting the arrival of my train at the station, by a controversy between what was evidently a “fond parient” of rural origin and the baggage-master. The father had invested in a spring-horse for his youthful son and heir to exercise upon; the creature was forty-four inches long and weighed seventy-eight pounds. The man wished it passed as luggage.
“No, you will have to pay freight for this,” said he of the chalk and checks.
“But I have nothing else, and I am certainly entitled to carry something,” urged the man.
“Yes,” returned the other, “you are entitled to take your personal baggage with you; but if you have none, that does not give you the right to take other things instead,[452] and a horse of this color is personal luggage by no manner of means.”[453]
Just then a friend came up to me and asked what was included in the personal baggage which a man was entitled to take with him, free of charge. I said:—
“My dear sir, that is a question which has often pressed itself seriously upon the consideration of a contemplative traveller and philosophic jurist like myself, when on entering a crowded train I have found one half of the seats occupied by ‘stern realities’ or bipedal extremities, and the other half by bundles and bandboxes, nursery paraphernalia, and the oleaginous and saccharine products of the kitchen and the cook-shop; and also when I have considered how gravely the question has agitated courts of justice. One of our own learned judges has forcibly remarked that ‘the authorities and references show it is much easier to say what is not personal or ordinary luggage, than it is to decide what it is which a carrier is bound, or which it is usual for him to carry along with his passengers.’”
“You have made a long oration, but have not answered my question; just like you lawyers, always darkening counsel by words.”
“State your question more definitely,” I remarked.
“Well, then, there is a poor man here, moving West with his family. He has a bed, pillows, bolsters, and bed-quilt in a trunk, or a box, with his clothes; he is carrying them for his own use. Should he be compelled to pay freight on them? He says that he has no money; and I don’t want to see the poor beggar put upon.”
“Yours is a question which I cannot definitely answer. In England, it was decided that such things were not personal baggage.[454] In Vermont it was held a matter for a jury to pronounce upon, after considering the peculiar circumstances, the value, the quantity, and the intended use of the articles.”[455]
“‘He would not, with a peremptory tone,
Assert the nose upon his face, his own;
With hesitation, admirably slow,
He humbly hopes, presumes it may be so.’”
said my friend mockingly, and then added pepperishly, “You unsatisfactory lawyers will never give a sensible reply to the simplest question.”
“Granted. But yours was not the simplest question. Were an ordinary layman like yourself to read but a tithe of what has been written on the moot point of personal luggage or not, you would be a sadder, if not a wiser man than you now are; so voluminous are the decisions, that a Saratoga trunk would fail to contain all.”
“Well, you are not luminous anyway.
“‘Lawyers each dark question shun
And hold their farthing candle to the sun.’
I’m off to get my traps in the cloak-room.”
“I’ll go with you,” I replied.
When we got to the room we found the door locked, and that the man in charge was off for an hour or so.
“Well, that is a pretty how-do-ye-do; my train will be going in a few minutes, so what am I to do?”
“Have you got a ticket for your baggage?” I inquired.
“Yes, and paid tuppence for it. Here it is.” On the back of it were some printed conditions, but nothing was said as to the hours the cloakroom was kept open, or at what time the box was to be re-delivered.
“It is clear,” I remarked, “that the company is bound to give you your box on your reasonable request, and at any reasonable time.”[456]
“But what good does that do me, if they are not here to give me my things now? I must go on whether I get them or not.”
“You can sue them,” I remarked.
“All very fine, but I have a case of patterns which I need with me; and suppose it is lost?”
“Well, of course, you can’t recover damages beyond the actual value of the goods. No warehouseman is responsible beyond the actual value of the article lost or damaged, unless there was a special contract.[457] What was the value?”
“Thirty or forty pounds.”
“What!”
“Can’t you hear? I say thirty or forty pounds.”
“Well, I am very sorry for you. Did not you see the notice on the ticket that ‘the company will not be responsible for any package exceeding the value of £10.’”
“Oh, but I did not read that.”
“The legal inference, however, is that you did read it, and did assent to it; and so I am afraid that the company, in case of a loss, will not be liable as your goods exceed the prescribed limit.[458] For the same reason they may also be excused for delay in redelivering them, at least if such tardiness is not caused by any wilful act or default of their own, and is without their privity or knowledge.[459] Samples and patterns are not considered personal baggage.”[460]
“Many thanks for all your information. I think I can see my box through this crack, and here comes the man with the key; so I am all right.”
“Well, good-by! there’s my train, anyway, so I am off. Don’t forget you owe me a fee for this.”
As I was passing into the car, I saw a crowd gathered round the ticket-office, and an unfortunate man—quite respectably habited—struggling in the clutches of a policeman. I made inquiries as to the cause of the arrest and was told that the prisoner had been buying a ticket at the office, and in giving change the clerk handed him two sous, a French piece; the man, whose name was Allen, objected and demanded a British penny in its place, and as the clerk would not take back the sous, Allen determined to help himself. The bowl of the till containing copper coins appearing to be within easy reach he put in his hand to get the money. Upon this the agent raised the hue and cry, summoned the conservator of the peace on duty and gave A. into custody on the charge of attempting to rob the till. It seemed rather a hard case, as the poor fellow was only trying to help himself to his change. (Being dubious as to what would be the upshot of the affair I bore the matter in mind, and after the usual time required for issuing a writ, bringing a case to trial, moving in term and giving judgment, I discovered that in the action brought by A. against the company for false imprisonment it was held, that as the arrest, after the attempt had ceased, could not be necessary for the protection of the company’s property, but was merely to vindicate justice, the clerk had no implied authority to arrest the man; his authority only extended to the doing of such acts as were necessary for the fulfillment of the duties entrusted to him, and that the company was, therefore, not liable for the act of the clerk, nor for that of the policeman who took A. into custody. Blackburn, J., was inclined to think that if a man in charge of a till were to find that a person was attempting to rob it, and he could only prevent his stealing by taking him into custody, he might have an implied authority to arrest the offender; or, if the clerk had reason to believe that the money had been actually stolen and he could get it back by taking the thief into custody, and he took him up for that purpose, it might be that that also would be within the authority of the clerk.[461])
A man standing by me asked how it was that the policeman had not on the same style of garments as those of his fellows who perambulate in blissful ease and quiet serenity the city streets. I told him that railway companies had power to appoint constables to act on their lines for the preservation of peace, and securing persons and property against felonies and other unlawful acts on such railways and their works, and in all places not more than a quarter of a mile distant therefrom, and to take before a justice of the peace any person guilty of an offence punishable by summary convictions under any act or by-law.[462]
This time I had my impedimenta checked, and thus was relieved of the trouble of carrying them in and out of the car. All the world knows that the possession of a check is evidence against the company of the receipt of the baggage. The piece of metal has been compared to a bill of lading, in fact said to be identical therewith.[463] It is always the source of great wonderment to me that the British public do not insist upon the British railways introducing the system on their lines; the continental plan of registering, though far in advance of the English, is still much more troublesome than the simple process of checking, and very expensive. How convenient is our enlightened plan, when one has to change cars en route: no trouble looking after baggage; one simply has to walk out of one train into the other, ticket for the whole journey and checks in your pocket, and if your traps are lost, you can sue either or any of the companies.[464]
The car being rather crowded, the atmosphere soon became rather close and stifling. A gentleman, after a considerable amount of coaxing, pushing, shoving, and pulling, persuaded one of the windows to allow itself to be lifted up to admit the sharp, clear, exhilarating winter’s air. The person who opened the window got out and another got in and took his seat beside it, and carelessly allowed his left hand to rest on the ledge. As the train approached a station, the breaks were suddenly put on, and the vibration caused the window to fall athwart the man’s fingers, inflicting a serious injury thereon. Aroused and attracted by the grunting and groaning, adjurations and exclamations of the injured one, some officious people came round him, advising and urging the poor fellow to sue the company, for that they were bound to provide windows with good fastenings for the comfort and protection of passengers. I merely said, that without positive proof of the defective construction of the window, the mere falling would not make a primâ facie case of negligence against the company, as a Mr. Murray found when he sued a London railway company for exactly a similar injury.[465]
Some people seem to be possessed of limbs which do not appear to belong to them of right, and with which they never seem to know exactly what to do; and such uncomfortably constituted mortals are very apt to stretch their heads, or legs, or arms, out of the windows of railway carriages, having no other improper place to put them when travelling by rail; to such eccentric genii I would remark, that if they are injured while in this position, they will not be able to recover damages against the company, for the negligence is their own, and the company is not bound to put bars across its carriage windows as careful matrons do over their nursery panes.[466] It was once held that a company, in order to save the upper extremities of their passengers, was bound to provide wire gauzes, bars, slats, or other barricades for the windows,[467] but this fatherly decision has been overruled.[468] Mrs. Holbrook found this to her cost when she had her arm broken (it was projecting from the window) by something coming against it as they were passing other cars on another track.[469] In the State where the principles of brotherly love prevail, or are supposed to, it was held that when passengers are liable to have their arms, if lying outside the windows, caught in passing bridges, the conductors should give them notice to put them effectually upon their guard, or the company will be liable for injuries, and printed notices are not sufficient.[470]
Talking about squeezing fingers—a decidedly unpleasant thing to the squeezee, when not done by the human hand divine—railway officials are not allowed, as a rule, to apply extempore thumb-screws and pinch a man’s digits in the door. This has been solemnly decided by the Court of Common Pleas, at Westminster Hall. One Fordham was in the act of getting into a railway carriage, of the usual English make with doors at the sides opening outwards; having a parcel in his right hand, he very naturally placed his left on the open door to aid him on entering. The guard, without giving any previous warning, flung to the door with a slam. F. having just at that moment his fingers where the door should meet the door-plate, and they possessing that quality of matter, compressibility, he had them badly crushed. The Court of Common Pleas and the Exchequer Chamber, thought that the guard had been guilty of carelessness, and that Fordham had done nothing to contribute thereto, and so gave the latter damages against the railway company.[471] Mr. Jackson made £50 out of his ride from Moorgate Street to Westbourne Park by the underground railroad. The compartment in which he was seated was full, but at Gower Street two more got in despite our friend’s remonstrances. At the next station others tried to enter (the door having been opened), but were prevented by those in possession. The door remained unshut as the train passed along the platform, but just as it entered the tunnel the porter slammed it to, and jammed Jackson’s hand in the hinge. The court considered that all these facts showed such a careless and improper mode of conducting business that Jackson was entitled to keep the little sum mentioned.[472]
In another case, however, where a porter after he had called out, “Take your seats—take your seats!” squeezed a man’s thumb in shutting the door, the same court considered that the official had closed the door in the ordinary and proper exercise of his duty, and that Mr. Richardson had only to thank himself for his want of caution in leaving his member where it might be so easily crushed.[473]
To return from this digression, which my readers will probably have found as dull and heavy as most wanderings of that nature. Before many hours had passed, thick heavy clouds began to send across the sky; the wind sighed and moaned mournfully around the car; Boreas came raging from the icy regions of the North, and the snowflakes whirled wildly in ever-thickening clouds—as a Longfellow would have said had he been on board that express train:—
Ever thicker, thicker, thicker,
Froze the ice on lake and river:
Ever deeper, deeper, deeper,
Fell the snow o’er all the landscape,
Fell the covering snow and drifted
Through the forest, round the carriage.
Slowly and more slowly did the laboring engine, laden with its long line of cars, make its way against the obstructing showers of feathery ice-morsels, and fears arose in the hearts of the passengers that our progress would soon be entirely stopped and we would be left to spend the long cold night imbedded in the rapidly rising banks of snow.
A lady, shivering as she gazed out into the now pitchy darkness, asked me in quivering tones, what would be done if we came to a complete standstill and the engine was unable to move at all? I replied:—
“If a line becomes blocked up and impeded by snow, the company is bound to use all reasonable exertions to forward the passengers, although that may put the company to extra expense which of course they have no way of recovering from the travellers;[474] so I presume ere long extra engines and snow ploughs will come to our rescue.”
“It is to be hoped that the fuel will last,” said the lady. “How I pity those poor cattle that we heard lowing so plaintively as we passed them at the last siding,” she added tenderly.
“Yes; no great efforts will be made for their convenience; if a snow-storm comes, the company is not bound to forward them by extraordinary means and at additional expense.”[475]
“Poor things,” said my fair companion, who seemed
A very woman; full of tears,
Hopes, blushes, tenderness, fears,
Griefs, laughter, kindness, joys, and sighs,
Loves, likings, friendships, sympathies;
A heart to feel for every woe,
And pity, if not dole, bestow.
“Poor things, unless in the hereafter there is a place where the spirits of animals be at rest, they have to bear a very heavy share of the primeval curse, and pay dearly for Adam’s transgression and fall.”