Graves v. Fitchburg Railroad

PARKER, P. J. It is a well-settled rule of law that the liability of a railroad company for the baggage of a passenger on its road continues to be that of a common carrier until the passenger has had a reasonable opportunity to remove the same from its custody. Dininny v. Railroad Co., 49 N. Y. 546; Maxwell v. Gerard, 84 Hun, 537, 32 N. Y. Supp. 849. The question is whether that reasonable opportunity had been furnished to the plaintiff in this case before the property in question was stolen from the defendant. It is argued that when the plaintiff arrived at Hoosick there were no means present whereby he could take with him his baggage when he left the station, and that hence there was not a reasonable opportunity for him to then receive it from the company, and that, inasmuch as the station was closed in about 10 minutes after the train arrived, there was no reasonable opportunity given him until the next morning. Against this argument it may be urged with considerable force that the common carrier is under no obligation to provide means to remove baggage from its station; that whatever delay occurs in procuring such means, be it more or less, is a circumstance utterly disconnected with any of its duties; that, if such means are lacking, it is not its fault, but an inconvenience affecting the passenger only, and for which it should not be compelled to continue its burdensome obligation as an insurer, so long as it stands ready to at once deliver the property; that, if the passenger is unable to then procure transportation to the point he desires, it may reasonably be required to store his goods and assume the liability of a warehouseman, but that neither its contract nor public policy requires it to-go any further as a common carrier. Without, however, deciding or discussing this broad claim, the question is presented in this case whether the passenger did in fact avail himself of all his opportunities for removing his baggage within a reasonable time. The fact is that he checked his baggage to that station with the deliberate intent of leaving it there all night. He not only made no effort to take it away that night, but it is very clear that he had no-use for it that night, and that it was much more convenient to leave it than to take it, even if the means to do so had been ready at hand. He says that he knew the station was usually closed in 10 minutes or so after the train left, and that it would be no use for him to try and get means of removal within that period. But if he had gone to the station agent, and demanded that he keep the station open, or be there at a fixed time to deliver the baggage to those whom he could send to remove it, how does he know that his demand would not have been complied with? Upon what theory can he say that he could not have got the baggage after the expiration of 3L0 minutes, unless he had made some sort of an effort to do so? There is no evidence that he could not, except the assumption arising from the fact that the station was closed. But when a passenger leaves a station, which he knows is about to close, without making any effort to get his baggage, or any. [638] reference whatever.to it, we may not assume that, because the agent closes at the usual hour, he would have refused to keep open a reasonable time to allow the baggage to be removed. Surely, when a passenger arrives at a station with his baggage, and the carrier is then ready to deliver it to him, it has, prima facie, performed its full duty as a carrier; and if the passenger, knowing that it is the custom to close the station for the night on the departure of that train, -chooses to go away without demanding his baggage, or making any arrangement regarding it, the carrier may well assume that. he voluntarily elects to leave it overnight. If the passenger’s reason for not removing it is that he has not then the means of so.doing, he should call the carrier’s attention to the situation, and demand that further opportunity be given him. If, notwithstanding such a demand, the station is closed, a very different case would be presented. Or if a passenger ignorant of the custom should leave the station, and, having procured means of removal within a reasonable time, should return and find the 'station closed, a different question would be presented. But in this case it is clear that the passenger, knowing the situation, purposely left his trunk there overnight for his own convenience, and, by his conduct, substantially said to the carrier, “Take care of that trunk for me till I call for it.” “The plaintiff seeks to hold1 the defendant to a strict liability as an insurer of the goods. Asking that so rigid a rule be applied to the defendant, it is just that the plaintiff, in turn, be held to prompt and diligent action.” “It is the duty of the carrier to give notice of arrival. It is the duty of the consignee at once, and with diligence, to act upon this notice, and to seek delivery, and to continue until delivery is -complete.” Hedges v. Railroad Co., 49 N. Y. 223. Applying the principle above cited to this case, the plaintiff has clearly fallen far short of his obligations in order to charge the defendant as an insurer ■of his trunk. It does not appear but that there were the usual bag.gage wagons at-the station, which he could have engaged to remove .his trunk. It does not appear but that the agent would have kept the station open, had it been necessary to send back for the trunk. On the contrary, the plaintiff objected to evidence being given tending to show the agent’s readiness so to do. In short, it does not appear that the plaintiff was deprived of a reasonable opportunity t-o get his trunk within a short time after his arrival, and hence we must consider this case as if he had voluntarily left it. there all night. Under such circumstances, it is clear that he can enforce no liability against defendant, other than that of a warehouseman. Roth v. Railroad Co., 34 N. Y. 548. An examination of the evidence shows that no negligence was shown against defendant sufficient to hold it responsible as a warehouseman merely, and I do not understand that such was the ground of the recovery below. It was evidently tried and decided upon the other theory. The trunk was locked up> in the station in the usual manner, and had such protection as was ordinarily accorded by prudent men in that village to their property, and I therefore think the judgment cannot be sustained on that ground. Laporte v. Express Co., 23 App. Div. 267, 271, 48 N. Y. Supp. 292. My conclusion is that the judgment of the county court and of the [639] justice’s court should be reversed, with costs. All concur, except PUTNAM and HERRICK, JJ., dissenting.