Louisville N. R. Co. v. Hestle

GARDNER, J. [1] Plea 6 sought to limit the amount of recovery to the sum of $100 by virtue of the notice printed on the back of the check delivered by defendant to the plaintiff, but shows no special contract entered into in consideration of reduced charges or special concessions, nor does it negative -the un-‘ reasonableness thereof. What was said by this court in A. G. S. R. R. Co. v. Knox, 184 Ala. 485, 63 South. 538, 49 L. R. A. (N. S.) 411, concerning pleas of a similar character to plea 6 here interposed, fully supports the ruling of the trial court in sustaining the demurrers thereto. See, also, So. Ry. Co. v. Dinkins-Davidson Hdw. Co., 139 Ga. 332, 77 S. E. 147, 43 L. R. A. (N. S.) 806. The plaintiff, as a passenger of defendant’s road, boarded the train at Beatrice, Ala., with her two small children and their nurse, traveling on defendant’s road to the station of Monroe, Ala., a¡ few miles distant from their starting point. Plaintiff’s trunk was duly checked to Monroe, in accordance with hex-ticket; so, also, was the trunk belonging to the xxurse. The evidence shows that the train on which plaintiff traveled left Beatrice at 12:20 p. m., and the baggage was1 loaded on that train, and the train arrived at Monroe at 12:57 p. m., on the same day, and two trunks wex-e taken off the train at that time. No one called for tihe trunks during that day, the office remaining open until 5 p. m., and they were placed in the depot, which was *139 locked for the night; the station agent leaving the station of Monroe at 5:30 that afternoon. Some time between midnight of the same day and 1 o’clock a. m. following, the depot and its contents were destroyed by fire. Proof was offered on the part of defendant, tending to show no negligence on its part, and that, in fact, during that night there was a severe electric storm, and some probability that the depot was set on fire by a stroke of lightning. [2] The plaintiff did not call for her trunk, until the morning of the following day; that is,, the next day after her arrival at Monroe, and after which, of course, the depot and its contents had been destroyed. There was no direct evidence that plaintiff’s trunk reached the station of Monroe, but the evidence was sufficient for this question to be submitted to the jury for their determination. Plaintiff was en route on a visit to her mother at a place 17 miles through the country distant from Monroe, a station known as Perdue Hill. She made no inquiry for her trunk when she arrived at Monroe, and evidence also showed that one Wiggins, who was in the transfer business, offered to carry the trunk out for her that aftemo’on, but she preferred to see her brother, and have him send for it the next day. [3] The second question presented relates to the introduction of the evidence that a gold thimble constituted a part of the baggage of plaintiff. The question as to what constitutes baggage for a traveler depends much upon the circumstances of each peculiar case; the conveniences required for the journey, the duration of absence, as well as the position of the parties, and has given rise to much discussion. 5 Ruling Case Law, § 784; Kan. City, Ft. Scott & Memphis Ry. Co. v. McGahey, 63 Ark. 344, 38 S. W. 659, 36 L. R. A. 781, 58 Am. St. Rep. 111; L. & N. R. R. Co. v. Fletcher, 194 Ala. 257, 69 South. 634; 6 Cyc. 666. We need not review the authorities. • [4] The plaintiff was the mother of two small children, on a visit to her mother in 'the country. Certainly no one would be bold enough to say that a sewing needle would be an inappropriate article for her to carry along on such a journey. The thimble was but-the boon companion of the needle, very closely allied to it, and we are clear to the view there was no error in the introduction of this testimony. The most serious question presented on this' appeal relates to the ruling of the court in sustaining the demurrer to plea 7. The complaint upon which the suit was tried consisted of counts 3 and 4, and rested for recovery upon the liability of the carrier as insurer. [5] The rule in regard to freight is well settled to the effect that the consignee is allowed a reasonable time to remove the goods after they arrive at the place of destination, and until he had had such reasonable opportunity to remove the goods, the.liability of the railroad company as a carrier continues, but on his failure to so remove them within a reasonable time, the company is only responsible thereafter as a warehouseman or keeper for hire. It has also been said that generally the determining what constitutes a reasonable opportunity, the mere question of the convenience of the consignee, will not ordinarily be taken into consideration. L. & N. R. R. Co. v. Oden, 80 Ala. 38; Collins v. A. G. S. R. R. Co., 104 Ala. 390, 16 South. 140. As to the question of defendant’s liability as a carrier, it has been held by this court that the rule governing transportation of freight is ordinarily to be applied. A. G. S. R. R. Co. v. Knox, supra. There are certain rules, however, governing the shipment of freight fixed by statute, such as the require ment of notice to the consignee of the arrival of freight (sections 5604, 6137, 'Code 1907), which are of course, not applicable to the baggage of a passenger. Section 6137 of the Code makes express reference as to the circumstances under which the common carrier is not to be relieved of its liability as such. No absolute rule can be laid down as to what is a reasonable time within which the passenger should call for and remove his baggage, as this will depend largely upon the peculiar facts and circumstances of each particular case. In view of this fact, therefore, we prefer in this decision to confine ourselves to the facts as presented in this particular case. It seems to be very generally held that if the facts are in dispute the question is one for the jury to determine, but if they are not in dispute it presents a question of law for the court which the court must determine. Tallassee, etc., Mfg. Co. v. Wes. Ry., 128 Ala. 167, 29 South. 203; Continental Jewelry Co. v. Pugh Bros., 168 Ala. 295, 53 South. 324, Ann. Cas. 1912A, 657. There are numerous authorities holding that ordinarily, that is, under ordinary circumstances, it is the duty of the passenger to call for his baggage on the day of its arrival, although, of course, there may be many circumstances which might vary this' rule. 5 Rul. Case Law, § 828; Ouimit v. Henshaw, 35 Vt. 605, 84 Am. Dec. 646; K. C., etc., Ry. Co. v. McGahey, supra; note to case of Denver v. Peterson, 97 Am. St. Rep. 102; Ditman Boot Co. v. Keokuk & Wes. R. R. Co., 91 Iowa, 416, 59 N. W. 257, 51 Am. St. Rep. 352; . note to Milwaukee Mirror Wks. v. Chicago, etc., Ry. Co., 38 L. R. A. (N) S.) 383; Tollman v. Chicago, etc., Ry. Co., 136 Wis. 648, 118 N. W. 205, 16 Ann. Cas. 711, and note thereto; C. of Ga. Ry. v. Jones, 150 Ala. 379, 43 South. 575, 9 L. R. A. 1240, 124 Am. St. Rep. 71. The above authorities, especially those collated in the notes herein referred to, collect numerous cases bearing upon the question, and a review of them would extend this opin *140 ion t'o undue length, nor do we mean to indicate an approval of each of the cases cited, but we note the same as bearing upon the general subject. The plea is set out in the report of the casé, and its substance need not be here repeated. [6, 7] We are of the opinion that the facts set up in said plea are sufficient under the above-cited authorities to show an exemption of defendant from- liability as an insurer, and that the demurrer thereto should have been overruled. If there were any peculiar facts or circumstances which could be held to excuse the plaintiff for a failure to call for the baggage within the time as shown in said plea, that was a matter which should have been presented by way of replication thereto. Ouimit v. ITenshaw, supra. Charge 6 refused to defendant embodied the substance of plea 7, and as plaintiff showed no peculiar circumstances that would bring the case from without the general rule by way of excuse, the charge should have been given. ' [8] It is insisted, however, by counsel for appellee that regardless of the rules as established by the decisions, the Legislature has1 by the act of September 29, 1915 (Gen. Acts 1915, p. 710), fixed the time within which the liability as a carrier shall continue, having special reference to section 4 of said act. This act has to deal with the question of excess baggage, and charges therefor, and section 4 merely fixes the time within which no storage shall be charged by the carrier on such baggage. We find nothing in the language of section 4 which, in our opinion, discloses! any legislative intent to deal with the question of liability here involved. Had that been one of the purposes of the act, it would have been very simple for it to have been so expressed. As to whether or not the trunk in question ever reached the station of Monroe was a question of fact for the jury’s determination, and of course, therefore, the defendant was not entitled to the affirmative charge under these circumstances, the counts seeking recovery as for liability of a common carrier. For the errors indicated, the judgment of the court below will be reversed, and the cause remanded. Reversed and remanded. ANDERSON, O. J., and McOLELLAN and SAYRE, JJ., concur.