FOOTNOTES:
[560] Gt. Western Rw. v. Fawcett; Same v. Braid, 1 Moore, P. C. C. (N. S.), 101; 9 Jur. (N. S.), 339.
[561] Con. Stat. Can. ch. 78.
[562] Willets v. Buffalo & Rochester Rw., 14 Barb. 385, where a lunatic was left by himself and in consequence was killed.
[563] Blake v. Midland Rw., 18 Q. B. 93; Bradburn v. G. W. R., L.R., 10 Ex. 3.
[564] Blake v. Midland Rw., 18 Ad. & Ell. (N. S.), 93; Pym v. Great Northern Rw., 4 B. & S. (Ex. Ch.), 396.
[565] Ersk. Inst. 592, note 13.
[566] In argument Gillard v. Lancaster & Yorkshire Rw. Co., 12 L. T. 356.
[567] Armsworth v. Southeastern Rw. Co., 11 Jurist, 758.
[568] Lucas v. N. Y. C., 21 Barb. 245; Worley v. Cincinnati, H., & D. Rw., 1 Handy, 481.
[569] Tilley v. Hudson River Rw., 29 N. Y. 252.
[570] Canning v. Williamstown, 1 Cush. 451; Morse v. Auburn & Syracuse Rw., 10 Barb. 623; so in California, Fairchild v. California Stage Co., 13 Cal. 599.
[571] 1842, c. 89.
[572] Hollenbeck v. Berkshire Rw., 9 Cush. 481.
[573] Bancroft v. Boston & Worcester Rw., 11 Allen, 34.
[574] Penn. Rw. Co. v. McCloskey, 23 Penn. St. 526, 528.
[575] Baltimore & Ohio Rw. v. State, 24 Md. 271.
[576] Secord v. Great Western Rw., 15 U. C. Q. B. 631.
[577] Armsworth v. Southeastern Rw., 11 Jur. 759.
[578] Smith v. N. Y. & Harlem Rw., 6 Duer, 225, City of Chicago v. Major, 18 Ill. 349.
[579] Rowley v. London & N. W. Rw., 29 Law Times Rep. (N. S.), 180.
[580] Balt. & Ohio Rw. v. State, 33 Md. 542; Macon & Western Rw. v. Johnson, 38 Ga. 409.
[581] Rowley v. London & N. W. Rw., 29 Law Times Rep. (N. S.), 180.
[582] Birkett v. Whitehaven Junction Rw., 4 H. & N. 732.
[583] Railway Co. v. Barron, 5 Wallace, 90.
[584] Hicks v. Newport A. & H. Rw., mentioned in 4 B. & S. 403; see Bradburn v. G. W. Rw., L. R., 10 Ex. 3, where it was held that money received on an accident insurance policy could not be considered in reduction of damages for injuries caused by negligence.
[585] Ferrie v. Great Western Rw., 15 U. C. Q. B. 517.
[586] Pym v. Great Northern Rw., 4 B. & S. 397, Ex. Ch.
[587] Read v. Great Eastern Rw., L. R., 3 Q. B. 555; but see remark of Erle, C. J., in Pym v. Gt. N. Rw., 4 B. & S. 406; and Coleridge, J., in Blake v. Midland Rw., 18 Ad. & El. (N. S.), 93.
[588] Bramhall v. Lees, 29 Law Times, 111.
[589] Court of Appeals, 14 N. Y. 310.
[590] State v. Baltimore & Ohio Rw., 24 Md. 84; but see Penn. Rw. v. Adams, 55 Penn. St. 499.
[591] Dalton v. S. E. Rw. 4 C. B. (N. S.), 296.
[592] Redfield on Railways, vol ii. p. 275.
[593] Franklin v. S. E. Rw. 3 H. & N. 211; Duckworth v. Johnson, 4 H. & N. 653.
[594] Condon v. Great Southern & Western Rw., 16 Ir. C. L. R. 415.
[595] Secord v. Great Western Rw., 15 U. C. Q. B. 631.
[596] Pym v. Great Northern Rw., 4 B. & S. 397 Ex. Ch.
[597] Court of Appeals, 14 N. Y. 310.
[598] Morley v. Great Western Rw., 16 U. C. Q. B. 504.
[599] Springett v. Balls, 7 B. & S. 477.
[600] Clapp v. Hudson R. R., 19 Barb. 461.
[601] Batchelor v. Buffalo & Brantford Rw., 5 U. C. C. P. 127.
[602] Collins v. Albany & Sch. Rw., 12 Barb. 492.
[603] Coleman v. Southwick, 9 Johns. 45; Gilbert v. Burtenshawf, Cowp. 230; Hewlett v. Cruchley, 5 Taunt. 277.
[604] Shaw v. Boston & Worcester Rw., 8 Gray, 45.
[605] Curtiss v. Rochester & S. Rw., 20 Barb. 282.
[606] Redfield on Railways, vol. ii., p. 243.
[607] Fairbanks v. G. W. R., 35 Q. B. (Ont.), 523.
[608] Rockwell v. Third Avenue Rw., 64 Barb. N. Y. 438.
[609] Union Pacific Rw. v. Hand, 7 Kan. 380.
[610] Hodsoll v. Stallebras, 11 Ad. & El. 301; Whitney v. Clarendon, 18 Vt. 252.
[611] Curtiss v. Rochester & S. Rw., 20 Barb. 282; Memphis, etc. Rw. v. Whitfield, 44 Miss. 466.
[612] Speers v. G. W. R., 5 Pr. Rep. (Ont.), 173.
[613] Fair v. L. & N. W. Rw., Q. B. 18 W. R. 66.
[614] Barnard v. Poor, 21 Pick. 381; Sandback v. Thomas, 1 Stark. 306.
[615] Grace v. Morgan, 2 Bing. (N. C.), 534; Jenkins v. Biddulph, 4 Bing. 160.
[616] Hopkins v. Atlantic & St. Lawrence Rw., 36 N. H. 9; Pack v. Mayor of New York, 3 Comst. 489; Campbell v. G. W. R., 20 U. C. C. P. 345.
[617] Ford v. Monroe, 20 Wendell, 210.
[618] Fitzpatrick v. Great Western Rw., 12 U. C. Q. B. 645.
[619] Hanover Rw. v. Coyle, 55 Penn. 396.
[620] Per Lewis, J. Commonwealth v. Stauffer, 10 Barr. 350.
[621] Priestley v. Fowler, 3 M. & W. 1; Farwell v. Boston & W. Rw., 4 Met. 49; Brown v. Maxwell, 6 Hill, N. Y. 592.
[622] Hutchinson v. York, etc., Rw., 5 Ex. 353; Wiggett v. Fox, 11 Ex. 837; Keegan v. Western Rw., 4 Selden, 175.
[623] Tarrant v. Webb, 18 C. B. 805; Frazier v. Penn. Rw., 38 Penn. St. 104; Wright v. New York Central, 28 Barb. 80; Hard v. Vermont & Canada Rw., 32 Vt. 473.
[624] Ormond v. Holland, 1 El. Bl. & El. 102.
[625] Bartonshill Coal Co. v. Reid, 3 Macq. H. L. Cas. 266; Tarrant v. Webb, 18 C. B. 797; Weems v. Mathieson, 4 Macq. 215.
[626] Holmes v. Clark, 6 H. & N. 349; 7 Ibid. 937.
[627] Morgan v. Vale of Neath Rw., L. R., 1 Q. B. 149.
[628] Priestley v. Fowler, 3 M. & W. 1.
[629] Tunney v. Midland Rw., L. R., 1 C. P. 291; see also, Plant v. G. T. R., 27 U. C. Q. B. 78.
[630] Feltham v. England, L. R., 2 Q. B. 33.
[631] Coon v. Syracuse & Utica Rw., 1 Selden, 492; Louisville & N. Rw. v. Collins, 5 Am. Law Reg. (N. S.), 265.
[632] Farwell v. Boston & W. Rw., 4 Met. 49, 60; Gillshannon v. Stony Brook Rw., 10 Cush. 228; Chicago & N. W. Rw. v. Jackson, 55 Ill. 492.
[633] Wright v. N. Y. C., 25 N. Y. 562; and see Baird v. Pettit, 29 Phil. Rep. 397.
[634] Abraham v. Reynolds, 5 H. & N. 142; Hard v. Vermont & Canada Rw., 32 Vt. 475.
[635] Snow v. Housatonic Rw., 8 Allen, 441.
[636] Faulkner v. Erie Rw., 49 Barb. 324; Warner v. Same, 8 Am. Law Reg. (N. S.), 209.
[637] Sprague v. Smith, 29 Vt. 421; Hood v. N. Y. & N. H. Rw., 22 Conn. 1.
[638] Knight v. P. S. & P. R. Rw., 56 Me. 234; 2 Redf. Am. Rw. cases, 458.
[639] Ellsworth v. Tartt, 26 Ala. 733.
[640] McCormick v. Hudson R. Rw., 4 E. D. Smith, 181.
[641] Great Western Rw. v. Blake, 7 H. & N. 987, Ex. Ch.
[642] Thomas v. Rhymney Rw. Co., L. R., 6 Q. B. 266, Ex. Ch.; and John v. Bacon, L. R., 5 C. P. 437.
[643] Redfield on Railways, vol. ii. p. 303; Railway Co. v. Barron, 5 Wall, 90; Ayles v. S. E. Rw., L. R., 3 Ex. 146; Birkett v. Whitehaven Junction Rw., 4 H. & N. 730; Sprague v. Smith, 29 Verm. 421, was an exceptional case.
[644] Wright v. Midland Rw., L. R., 8 Ex. 137.
[645] Mytton v. Midland Rw., 4 H. & N. 615; Great Western Rw. v. Blake, 7 H. & N. 987, Ex. Ch.; Weed v. Saratoga Rw., 19 Wend. 534.
[646] Latch v. Rimmer Rw., 27 L. J., Ex. 155; see also, Cunningham v. Grand Trunk Rw., 31 U. C. Q. B. 350; Curtis v. Rochester & Syracuse Rw., 18 N. Y. 534; Tennery v. Pippinger, 1 Phila. 543; Thayer v. St. Louis, A. & T. H. Rw., 22 Ind. 26; Pitts., Ft. Wayne, & Chicago Rw. v. Maurer, 21 Ohio, N. S. 421.
[647] Goldey v. Penn. Rw., 30 Penn. St. 242.
[648] Buxton v. Northeastern Rw., L. R., 3 Q. B. 549.
CHAPTER XV.
BAGGAGE AGAIN.
Epistolary Model.—Dog lost.—Quitting a Moving Car.—When Liability for Luggage commences.—Goods of Third Party.—Left in the Car.—Baggage lost.—English Rule.—Limited Liability.—Personal Luggage, what it is.—Watch.—Rings.—Pistol.- Railroad Porter.—Hotel ’Bus.—Tools and Pocket Pistols.—Fiddles and Merchandise.—Farewell.
My Dear Wife,—
Your letter announcing your safe arrival at M——, if, indeed, you can be said to have arrived safely, considering all that befell you, made me happy this A. M. The tale of your disasters was really quite amusing, and I have passed some of my lonely hours most agreeably considering the law on the various points.
So poor Fox is gone; doubtless the mangled remains of that poor cur lie stark and cold upon the railway line, and crows are gathering in the leaden skies to assist at his funereal obsequies; or, perchance, he may be gracing the board at some restaurant in the familiar form of sausages. You say it appears that he slipped his head through the noose of the string by which he was tied in the baggage car; if this be so the baggage man might have seen that he was not securely fastened; and it was his duty to lock him up, or otherwise keep him safely.[649] Make out your bill, dearest, we’ll make the company pay. At what figure do you value him? (I had, however, better add that in a late case where a dog was fastened in the ordinary way, and there was nothing to show that he was likely to escape, the carrier was held justified in trusting to the owner having properly secured the animal.)[650]
Poor Miss Smith ought to have been more careful when she would insist upon going into the car to bid you a last adieu, even though her young man was waiting for her. She most certainly should not have attempted to leave the carriage after it was in motion, and when the conductor warned her not. Even if the conductor was to blame in negligently starting the train without the usual premonitory screech, and the unnecessary jerk assisted in the catastrophe, the company was not responsible; her conduct was the mere outcome of that perverseness which is the characteristic trait of the feminine nature.[651]
You never told me that Eliza Jane had taken her trunk to the station some half dozen hours before the train was to start; it was rather verdant of her so to do. I presume the desire to have a quiet drive with her John was the motive. The loss of her finery will teach her a lesson; however, it will not really matter, as she can recover the value of her “things,” for the responsibility of the company as common carriers attaches as soon as their servants receive the baggage of the traveller at the proper place; and the giving of the check does not control the time of the responsibility attaching.[652] One is a passenger, and entitled to sue for damages sustained, the moment he mounts the bus (run by the company) on his way to the station.[653] But where an intending passenger, fifteen minutes before the train was to start, entered a car at the terminus, left his valise on a vacant seat and went out; and on his return shortly afterwards his baggage was gone; as he did not show that there was any one in charge of the train or any other passenger on board, the court would not hold the company liable.[654] The fact that you took and paid for her ticket will not prevent E. J. maintaining an action for her loss,[655] for it makes no difference whether a passenger pays her own fare, or some one else kindly does it for her.[656] In fact, if one is travelling on a free pass by which the company stipulates to be excused from all loss or damage, still they are responsible for the wilful or careless misconduct of their servants.[657]
But, unfortunately, I fear that you must quietly submit to the loss of those things of yours which she had in her trunk, for the contract to carry was with her alone; the company thought that the trunk contained her luggage; if they had been told that it was not they might have objected to carry, considering the Saratogas you had, not to speak of bandboxes, bundles, and parcels; and even if you had had no luggage yourself, it would have been all the same;[658] and as they were not Eliza Jane’s I don’t suppose she can sue for them either.
And so that pretty dressing-case which I gave you on that memorable day when we twain became one flesh, is gone! you say that you put it under your seat in the car, and that it must have been left there when the porter carried your traps to the cab at your journey’s end; well, I cannot say that placing it where you did was a very wise thing, still as another lady who once did the same in England recovered the value of her dressing-case (although she failed to recover the case itself),[659] so doubtless if money will dry your tears for the loss of that memento of our wedding-day, you will be consoled. Probably the fact of your name and address not being on it will not affect your rights in the matter.[660] A railway company is liable for the loss of a passenger’s luggage though carried in the carriage in which he himself is travelling.[661] Very special circumstances, and circumstances leading irresistibly to the conclusion that the traveller takes such personal control and charge of his luggage as altogether to give up all hold upon the company, are required before a court will say that the company as common carriers are not liable in the event of a loss.[662] Even if luggage is never given to a railroad servant but kept by the passenger in his own possession, still in the eye of the law it is considered to be in the custody of the company, so as to render them responsible for the loss.[663] In England, a railway company that receives goods or luggage, and books it for a certain place beyond the terminus of its road (unless it specially stipulates to be exempt for whatever happens on other lines), is responsible for any evil that befalls it before its arrival at its journey’s end, even though it happens while the goods are passing over the rails of another company;[664] in fact one has no remedy except against the company with whom the contract is made. But the justice and soundness of the English decisions have been seriously questioned by the American courts, who think that the carrier is only liable for the extent of his own route, and for safe storage, and safe delivery to the next carrier.[665] Many cases, however, follow the English ones, and others hold that the responsibility is only primâ facie, and may be controlled by general usage among carriers, whether such usage be known to the traveller or not.[666] (But this subject is so mixed that I will show you what Judge Redfield says when you get back again.)[667] Where different railways—forming a continuous line—run their cars over the whole line and sell tickets for the whole route, checking baggage through, an action lies against any company for the loss of baggage.[668]
Of course if there was any notice on your ticket limiting the liability of the company with regard to your traps, you are bound thereby, even if you never read it;[669] for railway companies, as well as other carriers, may limit their responsibility by special contract of which notice is given to the passenger or owner, and to which he assents or does not object, subject to such exception, limitation, or qualification as reason and justice may require and a judge and jury decide with reference to each particular case.[670]
I don’t exactly know what you had in that dressing-case of yours, but the rule is, “that whatever a passenger takes with him for his own personal care and convenience, or even for his instruction and amusement,[671] according to the habits or wants of the particular class to which he belongs, either with reference to the immediate necessities or the ultimate purpose of the journey, must be considered as personal luggage,” for the loss of which the carrier is liable;[672] and articles of jewelry, such as a lady usually wears, are considered personal luggage.[673] So is a watch;[674] though in Tennessee a watch was not deemed a proper part of necessary baggage.[675] Where was yours? So are finger rings.[676] In one case a man was allowed to have two gold chains, two gold rings, a locket and a silver pencil-case;[677] so I will leave you to calculate how many a lady should be allowed to carry about with her. Your swell gold spectacles would also come within the category;[678] and by the way, that linen which you bought for my new shirt fronts would be included[679] (if you were good enough to take it with you to make them up, and unfortunate enough to lose it); and that little present you were taking for your sister—perhaps.[680] I don’t know what else you had in that case which will now know its place on our dressing table no more forever. Of course, your brushes, razors—pardonnez moi, madame, I forgot to whom I was writing—pen and ink, etc., are fairly baggage within the meaning of the term.[681]
Not content with the abandonment of your dressing-case, you say you lost a bandbox by stupidly letting a porter carry it for you to a cab, which you could not afterwards find: well, if it is the custom on that line for the company’s porters to assist passengers to obtain cabs, within the station grounds, and place their baggage therein, the company will be liable for this loss also. This my old friend Butcher satisfactorily established: he had a carpet-bag with him containing a large sum of money, and this he wisely kept in his own possession while journeying up to London. On arriving at the station there, however, he unwisely—even Jove sometimes nods—let a porter take it from him for the purpose of securing a cab. The porter put the bag in a fly and then returned to the platform to get my friend’s other luggage. Meanwhile cabby disappeared and the bag and all that was therein was lost. The court considered the company liable, as there had been a delivery of the bag to them to be carried, and no re-delivery to Butcher.[682] Where baggage has been lost, the owner may recover all reasonable expenses incurred in his hunt after it, such as telegraphing, cab-hire, etc.: but his loss of time is a dead loss.[683]
Your next misfortune was the loss of that new book I gave you, wherewith to beguile the weariness of the way; you say you left it in the omnibus that took you up to the hotel; well, omnibus drivers who take passengers from the stations about the towns are unquestionably responsible as common carriers.[684] Although in England it has been held that a cab-driver or hackney-coachman was not;[685] still they are bound to use an ordinary degree of care. If the hotel proprietor undertakes to provide free transit to and from the cars, and you lost your book in his ’bus, he is liable.[686]
Although it deeply pains me to find the slightest fault with my spouse, still I must say that I think that you have been a little careless during this trip; in fact you have shown that the character your mother gave you was not quite a libel, when she said that you would lose your head were it not securely fastened on, and your tongue were it not in incessant use.
While I am writing to you in this strain, I may as well give you a little further information concerning what you may, and what you may not, carry as personal baggage; though doubtless you will soon forget all that I say, or if not,—at all events,—will not heed it, such is the forgetfulness and perverseness of that sex whose love, as Prince Charles Edward said, “is writ on water, whose faith is traced on sand.”
Besides what I have already mentioned, if you are a sportsman you may take a gun, if a disciple of the gentle Izaak Walton, the necessary instrumenta bella;[687] if you are a joiner—I don’t mean a parson—you may take a reasonable amount of tools with your clothes,[2] although perhaps you can’t;[3] for in Pennsylvania a carpenter was permitted to carry a reasonable amount of his tools with him,[688] while in Ontario a brother of the same craft was not;[689] the judge thinking that a blacksmith might just as reasonably expect to carry his forge, or a farmer his plough, as part of his baggage. You may take new clothing and materials for yourself and family, though not for others;[690] if you are of a nervous disposition and desire to defend yourself against thieves and robbers, you may take a pocket pistol,—don’t suppose I mean a brandy flask,—if you are a bellicose man of honor a couple of duelling pistols will be allowed,[691] or even a gun,[692] although in Maryland, one was not allowed to take a colt.[693] A theatre goer may take an opera glass;[694] a student on his way to college, manuscripts necessary for the prosecution of his studies;[695] but an artist cannot carry his pencil sketches as luggage in England;[696] although Cockburn, C. J., thought he could, and his easel as well.[697] J. Wilson, in a Canadian case, thought that one musically inclined might take a concertina, or a flute, or that instrument in the playing of which a western writer says “the resined hair of the noble horse travels merrily over the intestines of the agile cat;”[698] but fortunately for mankind in general the majority of the court held otherwise.
You cannot carry merchandise, either in England,[699] the United States,[700] or the Dominion of Canada,[701] unless, indeed, it is carried openly, or so packed that the carrier can see what it is and does not object to it; nor samples, if you belong to the confraternity of commercial travellers;[702] nor can a banker take money as such;[703] nor can one carry silver spoons, nor surgical instruments, unless he is a disciple of Galen and Hippocrates;[704] nor boxes of jewelry for sale;[705] nor silver-ware;[706] nor the regalia and jewels of a society;[707] nor a sewing-machine;[708] and it is beyond a peradventure that if a carrier accepts a trunk, or baggage, containing such tabooed articles, without knowledge of such contents, he incurs no liability.[705] If he is deceived into taking it, he is not bound to carry it safely.[709]
But really, my dear, I must draw these remarks to a close, as the parsons say in their sermons. You cannot complain that this letter is too short. There are several items of news—of babies born, brides be-wed, bodies buried,—and such like trivialities, of which I might have told you; but as you spoke about your losses I concluded that I would send you an instructive note, and let vain trifles rest quiescent until your return.
Though you may think that this epistle smacks somewhat of business, yet please reflect that you are my sleeping partner, and spend the greater portion of the profits of my office, and so ’tis becoming that you should be slightly acquainted with legal matters, especially as you are the daughter of my mother-in-law.
Adu! adu! O reservoir!
Your
Spanish Grandee.