Warner v. Burlington & Missouri River Railroad

Wright, J. 1. cariueb : monMoissof baggage. This case is not like Porter v. Chicago and Northwestern Railroad Company (20 Iowa, 73). There it was clear that the plaintiff in his petition claimed against defendant as a warehouseman, while the instructions held the company to the stricter obligations of a common carrier. Here the petition charges the defendant generally ; not as common carriers nor as warehousemen distinctively. He states the facts, and if in either capacity the company is liable the plaintiff is entitled to recover. The proceeding was commenced before a justice of the peace, and the petition is more formal and specific than is usually found in these inferior tribunals. If the defendant desired greater particularity or precision, more definite knowledge of plaintiff’s claim, this might have been obtained by a motion for a more specific statement. But, as the case stood, the court could find against the defendant, whether liable as common carriers or warehousemen. [169] Which, view was taken, of the case, we have no means of knowing. It is sufficient for us to say, that if the defendant was held to the care and diligence of a warehouseman only, the testimony warranted the finding. That is to say, taking all the facts into the account, remembering that the trunk was not deposited in its proper place; that it was left over night in a common room; that this was broken into by some one, whether by those engaged about the building or by strangers does not appear; that there is no evidence of effort to discover the burglars, and we cannot say the court below erred in finding for plaintiff. Whether the testimony warranted the conclusion that the relation of common carrier still continued, we need not discuss. But see Smith v. N. & L. Railroad Company, 7 Foster, 86; Redfield on Railways, §§ 129, 130. But it is insisted that it was out of the line of duty of the station agent at Ottumwa to receive plaintiff’s check, and undertake to get his baggage; that the ordinary undertaking to transport the baggage in consideration of the fare paid, only applies in cases where the baggage goes with the passenger; that if sent alone there was no consideration for carrying the same, and that it was the duty of plaintiff to be at the station at Fairfield to receive his baggage. At what time in the day or night before the trunk was broken open it reached Fairfield, does not appear. Plaintiff had a right to a reasonable time after its arrival within which to receive it. And if it be held that unless the passenger exercised the utmost watchfulness in calling for his trunk, the responsibility of defendant as a common carrier was at an end, it would still be liable as a warehouseman, at least for a reasonable time. Then we do not see that it makes any difference, whether it was or was not the duty of the agent at Ottumwa, in view of his relation to the company, to for [170] ward the baggage. The loss did not occur at Ottumwa, nor before it was placed in defendant’s charge. The .tjunk was intrusted to the care of defendant’s admitted agents, and while under their control was rifled of its contents; and it was placed there pursuant to a previous request and agreement. The consideration paid for carrying the owner was sufficient for transporting the trunk, whether on the same or a subsequent train. The case is not like one where the trunk was sent'without any thing being paid, either as the fare of the owner or passenger or otherwise; nor, as though it had been placed upon the train without notifying any one employed thereon of the fact. It maybe conceded that the undertaking of the agent at Ottumwa to obtain and forward the trunk was not binding on the company; in other words, had he failed to discharge this duty and loss had occurred, that plaintiff would have had no remedy against defendant. 2. _ duties of R. R. companies in forwarding baggage. But this is an immaterial inquiry in the present case. The company accepted and undertook to convey and deliver this baggage, and it is of the failure to do this that plaintiff complains. And, , -1 _ x •, t having paid his fare, the defendant, by undertaking, pursuant to the agreement of its agent, to deliver this baggage by a subsequent train, assumed the ordinary liability of such''companies where the passenger and baggage go upon the same train. There is no reason for the distinction claimed. The owner, if on the train does not, and is not required, and very often, as is known, will not be allowed, to exercise any control over his baggage after being placed in the appropriate car. And whether on the same, th^preceding or the next train, if the baggage goes or is sent pursuant to an agreement and as a part of the consideration moving from the company for the fare paid by the passenger, we [171] cannot see why the same rules as to care and diligence do not apply. Logan v. Port Chartrain Railway, 11 Rob., 24. In tbat case the passenger did not accompany bis baggage, but went in another train. Pierce’s Railroad Law, 425. And see also, on tbe questions here discussed, Jordan v. Fall River R. R. Co., 5 Cush., 69; Merriam v. H. & N. H. Co., 20 Conn., 354; Platt v. Hibbard, 7 Id., 497; Moses v. B. & M. R. R. Co., 4 Poster, 71; Camden & Amboy v. Belknap, 21 Wend., 354; Redfleld on Railways, § 128. Affirmed.