
    Baltimore & O. R. Co. v. Campbell.
    ' 1 Where it is necessary for a traveler, in going from one place to another, to pass-over the connecting lines of several railroad companies, it is competent for either company to contract with him for the transportation of himself and baggage the whole distance, or that its liability shall be confined to loss or damage occurring on its own road ; but the collection, by such contracting carrier, of fare in advance for the entire journey, without agreement as to risks, renders it liable, on receipt of such traveler’s baggage, 'to transport it safely to the end of the route, and there deliver it, on demand, to such owner.
    2. Words on a railroad ticket or baggage chock limiting the liability of the carrier to a specific amount for loss of baggage, are not binding on a passenger, unless, with knowledge of such limitation, he agrees to it.
    3. A passenger by railroad train, as soon as practicable after its arrival at the place of destination, presented to the agent in charge of the baggage-room a check for his baggage and’demanded the same, which baggage he had delivered to the carrier when he took passage on tne train. The agent being unable to find the baggage, took the number of the check, and requested the passenger to call again. On the same evening the passenger returned to the depot, but the agent informed him that he had made further search and the baggage could not be found : Held, that such acts and declarations of the agent were competent evidence for the passenger in his action against the carrier for loss of such baggage.
    Error to tbe District Court of Guernsey County.
    Martha Campbell and James "W. Campbell, her husband, ■ brought suit in the court of common pleas of Guernsey county, against the Baltimore and Ohio Railroad Company, to recover the value of baggage belonging to Mrs. Campbell, which is said to have been lost by the company, a common carrier.
    A verdict was found in favor of the plaintiffs for $973.55 ; judgment was rendered thereon at the November term, 1876 ; the judgment was affirmed in the district court, and on application of the company, leave was granted to file in this court a petition in error.
    In the petition of the plaintiffs below, it is alleged, that on December 8, 1874, at the city of New York, the company, in consideration of $17.50, then and there paid to it by Mrs. Campbell, agreed with her to safely carry herself and child and their baggage from the city of Now York to Columbus, Ohio, by way of the New York and Philadelphia Railroad, and the Philadelphia, Wilmington and Baltimore Railroad, and the roads of the defendant; that she delivered her baggage at the city of New York to the defendant, and received from it a check for the carriage of such baggage over said roads to Washington, D. 0., where the company, -by the agreement aforesaid, was to re-check said baggage to Columbus ; that the baggage consisted of her trunk, containing the wearing apparel and ordinary appendages (stated in detail in the petition) incident to herself and child as such travelers; that on arriving at Washington, D. C., she presented the check to the proper agents of the company and demanded the baggage, but they neglected and refused to deliver the same or any part thereof.
    The company, by its answer, admitted the sale of a ticket for the transportation of Mrs. Campbell and her baggage from the city of New York to Columbus, Ohio, for the price and at the time stated in the petition, and that the plaintiffs had demanded the baggage as stated ; but the defendant denied the other allegations in the petitiou, and further answered as follows : “ The defendant further says that in the sale of said ticket for the transportation of said plaintiff and her baggage fi’om the city of New York to Baltimore, Md., it acted as the agent only of the Pennsylvania Railroad Company, and the Philadelphia, Wilmington and Baltimore Railroad Company, owning and operating the linos of railroad between said points, and for her transportation with her baggage from Baltimore, Md., to Columbus, Ohio, for itself, owning and operating the residue of said route; that by the terms and conditions of said ticket, issued to and accepted by said plaintiff, each company representing said route was to be responsible only for the safety of passengers, or the loss of their baggage on its line of road, and not each for the others, and for the loss of baggage not exceeding in value $100, unless by special contract; and the defendant denies that said trunk and its contents were delivered to, or received by it from said company, nor was it lost upon its said line of railroad.”
    In their reply, the plaintiffs say, “ that it is not true that the said defendant, in the sale of said ticket for the transportation of said plaintiff and her baggage, from the city of New York to Baltimore, lid., acted as the agent of the Pennsylvania Railroad Company and the Philadelphia, "Wilmington and Baltimore Railroad Company ; nor is it true that by the terms and condition of said ticket issued to and accepted by said plaintiff, each company representing said route was • to be responsible offiy for the safety of passengers or the loss of their baggage on its line of road ; nor is it true that said plaintiff received and accepted a ticket for her transportation, with her baggage, by the terms and conditions of which each company named in said answer, as representing said route, was to be responsible only for the safety of passengers or the loss of their baggage on its line of road and not each for the others, and for the loss of baggage not exceeding in value $100, unless by special con-, tract.”
    The record does not purport to contain all the evidence or all of the charge to the jury. The errors relied on are, that the court erred in admitting certain evidence, in refusing to charge the jury as requested by the company, and in the charge given.
    Evidence was offered to show the following facts: Mrs. Campbell, with her infant child, and father, mother and aunt, all residents of Cambridge, Ohio, were at the home of W. J. Hendricks, in Bond street, Brooklyn, N. Y., during parts of November and December, 1874, where Mrs. Campbell was receiving medical treatment. Desiring to return home by way of Washington, D. C., Mr. White, father of Mrs. Campbell, on December 8, 1874, on behalf of himself and his wife, daughter and her aunt, gave to Mr. Hendricks $70, and directed him to go to the office of the defendant, in New York city, and buy four ti ckets for the persons nam ed, from New York city to Columbus, Ohio, by way of Washington, D. C. Mr. Hendricks, on the same day, went to the office of the company, on Broadway, and procured the railroad tickets, "and also ferry tickets, in envelopes, each of the four envelopes containing a-railroad and ferry ticket, and having printed thereon the words: “ Office Baltimore & Ohio R. R. Tickets to all points west, south and south-west, 229 Broadway, corner Barclay street, New York. Pullman palace cars on all trains. Baggage checked through from hotels and residences. J. T. Bullock, Ticket Agent.” At the time Mr. Hendricks purchased the tickets, ho obtained of the agent of the defendant a time card, containing, among others, the following words: “Save time by taking the Balto. & Ohio. Quickest route west . ... Great through route . . . All trains run via Washington. Call at company’s offices, 315 and 261 Broadway.” On the same day, at his residence, he delivered the tickets and time card to the persons for whom they were intended. Mr. White and Mrs. Campbell then went to .Dodds’ Express Office' in Brooklyn, to have the baggage of the party, consisting of their trunks, checked. The agents in charge of the office required them to produce their railroad tickets and to pay $1.50. On that evening a driver from the express company went to Mr. Hendricks’ house and obtained the baggage and furnished the owners metal checks. The check of Mrs. Campbell had on one side of it the words “ New York, 357, to Washington ; ” on the other side: “ Dodds’ Express, N. Y. & Phila. R. R. — ■ P. W. & B. — B. & 0. — Liability limited to $100.” The evidence tended to show that in receiving the baggage the express company acted as agent of the defendant.
    On the morning of December 9, Mrs. Campbell and those in company with her went to the railroad depot in Jersey City, where some person pointed out to them their coach in the railroad train of the defendant, which coach they entered, and they rode without change of cars to Washington, D. C., where they arrived the same evening. On the following morning, Mr. White went to the proper office of the defendant, saw its agent in charge of the baggage-room, and demanded for the party their baggage. Two of the trunks were found and rechecked, but Mrs. Campbell’s baggage could not he found, and it has never been delivered. Neither she nor those in company with her have seen or heard of it since it was delivered to the driver of the express company on the night of December 8, 1871. In the conversation between Mr. White and the agent, above referred to, the agent said Mrs. Campbell’s baggage might have gone over to the other depot of the company. He took a memorandum of her check and requested Mr. White to call again. He did call in the evening of the same day, but the agent informed him the baggage could not be found. The company objected to the admission of these acts and declarations of the agent as evidence, but the court overruled the objection, and the company excepted.
    On the trial the evidence of one of the defendant’s agents was offered, tending to show that the railroad tickets so sold by the defendant were issued by the Pennsylvania Railroad Company in the following form :
    “ Pennsylvania Rail Road Co.
    “ This ticket entitles the bearer “ To one first-class passage to '“ Columbus.
    . “ This ticket is not good unless each check is officially stamped and dated.
    “ In selling this ticket for passage over other roads, the Pennsylvania Rail Road Company acts only as agent for them, and assumes no responsibility beyond its own line.
    “The Pennsylvania Rail Road Co. will not assume any risk on baggage, except for wearing apparel, and limit their responsibility to $100 in value. All baggage exceeding that amount in value will be at the risk of the owner, unless taken by special contract.
    “ The checks belonging to this ticket will not be received for passage if detached.
    “ D. W. Boyd, Jr.
    “ Agent?
    
    Evidence was also offered tending to prove that attached to each ticket were four coupons, one issued for a passage to Philadelphia, one issued on behalf of the Philadelphia, Wilmington and Baltimore Railroad, for a passage from Philadelphia to Baltimore, one issued on behalf of the Baltimore and Ohio Railroad, for a passage from Baltimore to Bellaire, and the other issued on behalf of the same company for a passage from Bellaire to Columbus, and that the proceeds of the tickets so issued by the Pennsylvania Railroad Company and sold by the defendant were divided among the railroad companies over which the passengers were transported, but not in proportion .to mileage, the company owning the road between Jersey City and Philadelphia insisting ou what is known as short line proportions.
    Evidciice was also given tending to show that neither Mrs. Campbell, nór any of the other persons with her, had noticed the words on the metal check as to a limitation of liability for loss of baggage ; nor had either of them noticed any limitation with respect to baggage on the railroad tickets which they purchased of the defendant; nor had the attention of either of them been called to any such limitation on either the checks or railroad tickets.
    After the close of the evidence and arguments of counsel, the defendant requested the court to charge the jury as follows:—
    First. “ If the jury shall find from the testimony that the ticket sold by the defendant to Mrs. Campbell, at its office in New Yorlc city in December, 1S74, for her transportation from said city or Jersey City to Columbus, Ohio, was issued by the Pennsylvania Railroad Company, that the trunk was checked at Brooklyn, witli a check issued by said Pennsylvania Railroad Company, and that the defendant acted as the agent only of the said Pennsylvania Railroad Company in the sale of said ticket, and if the jury shall further find that the defendant had no interest in'the price of said ticket other than the proportion it would be entitled to for the distance traveled upon the line of road of defendant from Baltimore westwardly, and if the jury shall further find that the trunk was not received into custody of the defendant orits agents at Baltimore, or some other place on its line of road, the plaintiffs in such case arc not entitled to recover.”
    
      'Which charge the court refused to give, except as qualified in the charge of the court as hereinafter set forth.
    And the defendant thereupon also further asked the court to charge the jury as follows: Second. “ If the jury shall find from the testimony that the ticket sold by the defendant to Mrs. Campbell, the plaintiff, about the 8th or 9th day of December, 1814, at the office of the defendant in the city of New York, for her transportation from said city or Jersey City to Columbus, Ohio, was issued by the defendant or was the ticket of the defendant, and not that of the Pennsylvania Railroad Company, and the plaintiff had the time or opportunity before having her baggage checked to examine said ticket, and there was no'fraud or deceit practiced by the company or its agent in the sale of the ticket, that would have misled her, she is presumed to know the contents of said ticket; and if the jury shall further find that the ticket then sold to and received by her was of the form and contained the stipulations of the ticket, [hereinbefore set forth] attached to the deposition of Mr. McCarthy, they, the plaintiffs, would be bound by such stipulations, and would not in such case be entitled to recover more than §100, including interest thereon from the time of the loss of said trunk.”
    Which charge the court refused to give ; and thereupon the court did charge the jury in these regards as follows :
    “ A railroad company may become liable as a common carrier by contract for transportation of passengers and baggage over other railroads forming with their own a continuous lino; and where they do so contract, their liability is the same for losses occasioned by negligence or fault while the baggage is upon such other road as while it is upon their own road.
    “The first question in this case is, what was the contract between the parties? Did the defendant agree to carry the plaintiff and her baggage all the way from New York, or only from Baltimore ? and in selling the ticket to carry plaintiff and her baggage from New York to Baltimore did it act only as the agent of the other roads named ?
    “ If the contract of the defendant was only to carry plaintiff and her baggage from Baltimore, then it would not be liable unless the baggage came into the possession or custody of some agent or employee of the defendant.
    l£ If the jury find from the testimony, that the ticket sold by the defendant to Mrs. Campbell, at its office in New York city, in December, 1874, for her transportation from said city, or J ersey City, to Columbus, Ohio, was issued by the Pennsylvania Railroad Company, that the trunk was checked at Brooklyn, with a check issued by said Pennsylvania Railroad Company, and that the defendant acted as the agent only of the said Pennsylvania Railroad Company in the sale of said ticket, and the defendant, with a knowledge thereof, acquiesced therein, and if the jury shall further find that the defendant has no interest in the price of said ticket other than the proportion it would be entitled to for the distance traveled upon the line of road of defendant from Baltimore westwardly, and if the jury shall further find that the trunk was not received into the' custody of the defendant or its agents at Baltimore or some other place on its line of road, the plaintiffs in such case are not entitled to recover.
    “ On the other hand, if you find the contract was an undertaking on the part of the defendant to carry plaintiff, Martha, and her baggage, frcpi New York to 'Washington, and thence westwardly over its road to Columbus, Ohio, and the baggage was delivered to an agent of the defendant, then the defendant would be liable.
    “ If the baggage was delivered to Dodds’ Express Company and Dodds’ Express Company was the agent of the defendant for receiving baggage, then the receipt of the baggage by said company would be a delivery to the defendant. And if Dodds’ Express Company was in fact the agent of the defendant in the receipt of plaintiff’s baggage, then it would make no difference as to the defendant’s liability, whether it over went from the possesssion of Dodds’ Express or not.”
    Second. And the court further charged the jury as follows :
    “ In the absence of special contract limiting the liability of defendant, if you find it is liable for the loss of plaintiff’s baggage, you will assess as her damages the value of her trunk and such of its contents as you find was the wearing apparel of herself or her child, or their necessary and usual appendages or accompaniments of herself and child as a traveler, with interest from the time demanded to the first day of the present term, November 14th, 1876. .
    “ A carrier may restrict or limit the amount of its liability by a special contract accepted on the part of the owner of the baggage; and this may be done by notices brought home to the owner of the baggage before or at. the delivery to .the carrier-;' if assented to by the owner.
    “ The onus of proving any qualification of the liability of the defendant as a carrier, rests upon it. The notice, to be of any force, must amount to actual notice. At all events, to exonerate the defendant as a carrier from its general liability, it must be shown, at least, by the evidence, that the plaintiff, or those acting for her, assented to the demands of the notice, or, with a knowledge of it, acquiesced in it, by making no remonstrance.
    “ And in determining whether or not the conditions -or limitations were brought to the notice of plaintiff and those acting for her, you will look to all the evidence in this case; as to the manner of the delivery of the ticket and the check; whether anything Avas said or done calling the attention to them or not; Avhetlier they were or were not read at the time of or before their receipt.”
    
      H. Simmer, for plaintiff in error:
    I. The admission as evidence for plaintiffs on the trial, of statements of agents and employees of the railroad company, Avas erroneous. Statements thus admitted were not part of the res gestae. Declarations, admissions and statements of an agent, to bind the principal, must bo made at the time of the principal transaction. 1 Greenleaf, § 113 ; Pratt v. O. & L. O. R. R., 102 Mass. 557; Sweetland v. Telegraph Co., 27 Iowa, 433 ; Penn R. R. Co. v. Books, 57 Pa. 339 ; Anderson v. Railroad Co., 54 N. Y. 334. 2. As shown by the form of the ticket the railroad company limited its liability, as to value of baggage, by special contract. The right of a common carrier of passengers, thus to limit its liability, appears to be well established. Orange Co. Bank v. Brown, 9 Wend. 116 ; Batson v. Donavin, 4 Barn. & Aid. 21; Brooks v. Pickwick, 4 Bing. 218 ; Gt. North Ry. Co. v. Shepherd, 14 Eng. L. & Eq. 367; Pardee v. Drew, 25 Wend. 459; Railroad Co. v. Lockwood, 17 Wall. 357; Kirkland v. Dinsmore, 62 N. Y. 475 ; Steers v. Liv. N. Y. & Phila. S. Co., 57 N. Y. 1; C. H. & D. R. Co. v. Pontius, 19 Ohio St. 221; Grace v. Adams, 100 Mass. 505 ; Martin v. Great Indiana Railroad, 3 Ex. R. 9.
    Mrs. Campbell is presumed to know what the ticket contained, and it was then her duty to disclose the value of the contents of the trunk. It was a fraud upon the carrier to fail to do so. Belger v. Dinsmore, 51 N. Y. 166 ; Steers v. L. N. Y. & Phila. S. Co. 57 N. Y. 1 ; Kirkland v. Dinsmore, supra ; Grace v. Adams, supra; Squire v. N. Y. Cent. Ry., 98 Mass. 235 ; Mulligan v. Ill. Cent. Ry. Co., 36 Iowa, 181; McMillan v. M. S. & N. I. R. R., 16 Mich. 80; 100 Mass. 505, supra. The rule is well established that companies forming such continuous or “ through ” lines, or routes, in the absence of such special agreement, are responsible only for acts done or omissions upon, their respective roads; that no one is liable for the acts of any other forming such line, and that the sale of a “ through ” ticket, or giving a “ through-” check for baggage by one company, does not impart an agreement by that one, to be held for more than its own acts or omissions. Kissler v. N. Y. C. & H. R. R. Co., 61 N. Y. 538. This case from 61 N. Y. is substantially that of the one at bar, the B. & O. R. R. Co. selling the “ through ” ticket in each case, and asimilar check is given in each case. Milner v. N. Y. & N. H. R. R. Co., 53 N. Y. 363; Knight v. P. S. & P. R. Co., 56 Maine, 234; Sprague v. Smith, 29 Vt. 421-426; Hood v. Railroad Co., 22 Conn. 1; Shipman v. Railroad Co., 9 Cush. 24; Ellsworth v. Tartt, 26 Ala. 733 ; Brooke v. Railroad Co., 15 Mich. 332.
    
      
      F. W. Wood and White <& Campbell, for defendants in error :
    To be a part of tbe res gestes — tbe subject matter — the declarations must relate to the identical contract in controversy, but need not be made at tbe time tbe contract is entered into. Dorne v. S. M. Company, 11 Cush. 205. And tbe declarations of a baggage-master, in answer to inquiries for lost baggage, are admissible, as part of tbe res gestes. Morse v. Conn. R. R. Co., 6 Gray, 450 ; Wharton on Agency, § 159 ; Curtis v. A. G. & N. M. R. R., 49 Barb. 148.
    On tbe question of limited liability see Gaines v. Union Trans. Co., 28 Ohio St. 418; Davidson v. Graham, 2 Ohio St. 131; Graham v. Davis, 4 Ohio St. 362 ; C. H. & D. R. R. v. Pontius, 19 Ohio St. 221; 2 Redfield on R. R., 42, 87, 97, §§ 3, 8, 9, and p. 100, § 12; Quimby v. Vanderbilt, 17 N. Y. 306 ; Hart v. R. & S. R. R., 8 N. Y. 37, which is approved in tbe case last cited ; Check v. L. M. R. R., 2 Disney, 237; Railroad Co. v. Manf. Co., 16 Wall. 329; Levering v. Union Trans. Co., 42 Mo. 94; Adams v. Express Company, 42 Ill. 93 ; Blossom v. Dodd, 43 N. Y. 264; Rawson v. Pa. R. R., 48 N. Y. 212; Henderson v. Stevenson, H. of L. L. R., 2 Scotch App. 470 ; S. C., Moak’s E. R. 141; Parker v. S. E. R. R., 1 Com. Pleas. Div. 618; S. C., 18 Eng. Rep. 238; 2 Parsons on Con. 237, et seq.; Great Western R. R. Co. v. Blake, 7 Hurls. & Nor. 987; Sprague v. Quiste, 29 Vt. 421; Woodruff v. Stewart, 16 N. Y. Sup. Court, 322; Weed v. S. & S., 19 Wend. 534; Burnell v. N. Y. C. R. R., 45 N. Y. 184; Cary v. C. & T. R. R.. 29 Barb. 35 ; Maden v. Sherrard, 18 Albany Law Jour. 75 ; Colly v. C. P. R. R., 4 Sawyer, 115 ; Tyler v. West. Union Tel. Co., 60 Ill. 421, 431; Field v. Chicago & R. I. R. R. Co., 71 Ill. 458 ; Baldwin v. Steamship Co., 74 N. Y. 125 ; Railroad Co. v. Troaleff, (U. S.) 4 Cin. Law. Bul. 890 ; 74 N. Y. 116 ; 73 N. Y. 329.
   Okey, J.

Several grounds are relied on for tbe reversal of tbe judgment rendered in the court below, and the questions presented have been discussed at great length. Those deemed of sufficient importance to call for a report will be briefly considered.

1. Where it is necessary for a traveler, in going from one place to another, to pass over the connecting lines of several railroad companies, it is competent for either company to contract with him for the transportation of himself and his baggage the whole distance, whether such lines are confined to one state or extend through several states. Connecting carriers, in such case, recognizing such contract, become the agents of the contracting carriel-, and their negligence is its negligence. And the collection, by such contracting carrier, of fare in advance for the entire journey, without an agreement as to risks, renders it liable, on receipt of the traveler’s baggage, to transport it safely to the end of the route, and there deliver it, on demand, to such owner. Schouler on Bailments, 336 ; Thompson on Carriers, 431; Lawson on Carriers, § 235 ; Hutchinson on Carriers, § 145. Of course the carrier selling such ticket may lawfully agree with the passenger that it shall not be liable except for loss or damage occurring on its own road. Ib.

2. A common carrier cannot restrict his ¿ability for loss of baggage by notice, even when such notice is brought to the knowledge of the passenger. Such restriction can only be made by agreement of the parties, and the burden is on the carrier to show such agreement. Davidson v. Graham, 2 Ohio St. 131; Graham v. Davis, 4 Ohio St. 362 ; Wilson v. Hamilton, 4 Ohio St. 722, 740 ; Welsh v. Pittsburgh, &c. R. Co., 10 Ohio St. 65 ; Cleveland, &c. R. Co. v. Curran, 19 Ohio St. 1; Cincinnati, &c. R. Co. v. Pontius, 19 Ohio St. 221; Union Express Co. v. Graham, 26 Ohio St. 595; United S. Ex. Co. v. Backman, 28 Ohio St. 144 ; Gaines v. Union T. & I. Co., 28 Ohio St. 418 ; Pittsburyh, &c. Ry. Co. v. Barrett, ante, 448. A railroad ticket is not such an agreement. 'It is simply a voucher that the person in whose possession it is, has paid his fare. The same principle applies to baggage checks. Lawson on Carriers, §§ 106, 107. An attempt by words on such ticket or check to limit the carrier’s liability for loss of baggage will be wholly unavailing, unless the carrier shows that the passenger, with knowledge of such limitation, agreed that it might be made. Elsewhere the cases on this subject are not in harmony (Burke v. South E. Ry. Co., L. R. 5 C. P. Div. 1; Lawson on Carriers, 455, 460 ; Thompson on Carriers, 432, 437); but our own cases, to which reference has been made, fully support this view of the law, and such is the clear weight of authority.

3. Application for the baggage was made to the agent in charge of the baggage-room as soon as practicable after Mrs. Campbell and her friends reached Washington. What the agent said and did, with respect to the baggage, were clearly competent evidence for the plaintiffs on the trial. Morse v. Conn. River R. Co., 6 Gray, 450 ; Lane v. Boston & A. R. Co., 112 Mass. 455 ; Green v. Boston & L. R. Co., 128 Mass. 221; Dilleber v. Knickerbocker Ins. Co., 76 N. Y. 567, 572; Pierson v. Atlantic Nat. Bank, 77 N. Y. 304; Kirkstall Brew. Co. v. Furness R. Co., L. R. 9 Q. B. 468.

4. The plaintiff in error, as it was required to do, caused parts of the record to be printed, but failed to insert in such printed matter certain letters to the president of the company, written by Mr. White on behalf of plaintiffs, and the president’s replies thereto, which letters and replies were offered in evidence and incorporated in the bill of exceptions ; nor was any order of this court made or applied for exonerating the plaintiff in error from such printing. Under such circumstances, we will assume that the plaintiff in error caused to be printed all .of the record which its counsel deemed material, and hence we have determined the ease from the printed matter.

There is no error in the record to the prejudice of the plaintiff in error.

Judgment affirmed.  