Kinsley v. Lake Shore & Michigan Southern Railroad

Gray, C. J. Although a railroad corporation is not responsible as a common carrier for an article of personal baggage kept by a passenger exclusively within his own control, it is liable for the loss of such an article by the negligence of the corporation or its agents or servants, and without fault of the passenger. Clark v. Burns, 118 Mass. 275. Bergheim v. Great Eastern Railway, 3 C. P. D. 221. In the present case, we need not consider whether the evidence introduced at the trial would justify the inference that the defendant had assumed the custody and control of the plaintiff’s bag as a common carrier; for it was clearly sufficient to warrant the judge, by whom the case was tried without a jury, in finding that the bag was lost, without any fault of the plaintiff, by negligence on the part of the defendant in removing or undertaking to remove the plaintiff’s baggage to another car in his absence and without notice to him. The plaintiff’s contract of transportation was with the defendant alone. The fact that the car was not owned by the defendant, but was used on its road under a contract with other parties, who furnished conductors and servants to take charge of such cars, there being no evidence that the plaintiff knew o [57] that contract, or had any notice that the car was not owned by the defendant and under its exclusive control, could not affect the measure of the defendant’s liability to the plaintiff. Exceptions overruled.