
    *Wilson v. Chesapeake & Ohio R. R. Co.
    January Term, 1872,
    Richmond.
    1. Railroad Companies — Liability of C. & O. for Negli» gence of Va. Central. — The Chesapeake & Ohio R. R. Co. is the Virginia Central R. R. Co. under another name; and is liable upon any contract, or for the negligence, of the Virginia Central R. R. Co.
    2. Same — Liability for Baggage. — A railroad company is liable as a common carrier, for the baggage of a passenger, to the same extent, if the passenger is travelling with his baggage, as if it was carried without him.
    3. Same — Same—Negligence of Connecting Line — Liability of Initial Carrier. — Under the contract between the Va. Central R. R. Co. and Trotter & Bro., stage proprietors, for the carriage, by the latter, of passengers from the terminus of the railroad to the White Sulphur Springs, Trotter & Bro. are the agents of the railroad company, and the company is liable for the loss of the baggage of a passenger by Trotter & Bro. *
    4. Same — Same—Same—Same.—Though the contract stipulates that each party shall be responsible for losses occurring on their part of the line, the railroad company is responsible for the loss of á passenger’s baggage by the stage line.
    5. Same — Same—Same—Same—Case at Bar. — Through passengers from Richmond to the White Sulphur Springs are allowed to stay all night at the terminus of the road, and go on in the stages the next morning. Though a passenger takes her baggage with her to a hotel, where she stays, yet if she, the next morning, brings it with her to the stage, anfl commits it to the agent of the line, and it is lost; the railroad company is liable for the loss.
    <5. Same — Same—Same —Same.—Though the through ticket given to a passenger at Richmond, specifies on its face, that each party to the contract is only liable for losses on their part of the line, the railroad company is liable for the loss on the stage line.
    7. Same — Same—How Restricted. — -To restrict the liability of a railroad company as a common carrier, for the loss of the baggage of a passenger, there must be proof of actual notice to the passenger of such restriction, before the cars are started; and an endorsement on the ticket given to the passenger, is not enough, unless it is shown that he knew its purport before the cars started.
    *In June 1869, Ann M. Wilson instituted an action on the case against the Chesapeake and Ohio Railroad Company, to recover the value of a trunk lost on the route from Richmond to the White Sulphur" Springs. The declaration contained two counts. The first count alleged that the plaintiff, on the 15th day of August 1869, delivered at Richmond, to the defendants, a certain trunk, containing goods of the plaintiff of the value of $515, to be carried by the defendants from -Richmond to the White Sulphur Springs, and there to be delivered to the plaintiff for certain reasonable reward ; and it thereupon was the duty of the defendants to take due care of the said trunk and its contents, whilst they so had it in charge, and to take due care in and about the conveyance and delivery thereof as aforesaid. Yet the defendants, not regarding their duty, &c., did not take due care of said trunk and its contents, whilst they had the charge thereof for the purpose aforesaid, or in and about the conveyance thereof; but on the contrary, &c., on the 16th of August 1868, took so little care, &c., and so negligently conducted themselves in the premises, that said trunk and contents, &c., was lost to the plaintiff.
    The second count alleged that the trunk was delivered to the defendants at Richmond, to be carried by them in certain carriages owned and used by them for the carriage of passengers, goods, &c., upon and along a certain railway from Richmond to Covington, in the county of Alleghany, of which said railway the Chesapeake & Ohio Railroad Company, then known as and styled the Virginia Central Railroad Company, was the owner and proprietor; and from thence, to wit: from Covington to the White Sulphur Springs, &c., in and by certain stage coaches, and to be delivered at the White Sulphur Springs, for certain reward, &c.
    The defendant demurred to the declaration, and each count thereof; but the demurrer was overruled, and they pleaded “not guilty;” on which issue was joined.
    *"CJpon the trial of the cause it was proved, that on the ,15th day of August 1868, the plaintiff bought at the ticket office of the Virginia Central Railroad Company, at Richmond, a through ticket, entitling her to go as a passenger from the city of Richmond to the White Sulphur Springs; that she on that day took passage in the cars of the company with two trunks, one of which contained her wearing apparel, and the other contained ladies’ goods or merchandise; that the tranks were checked with checks which she took for through checks, as they were marked with the letters W. S. S. That before arriving at Cov-ington, an agent of the company called for her ticket, and tore off a part of it, and returned the other part to her. She was not required at Covington to pay any additional fare for the stage part of the through line. That when she got to Covington she stopped at McRlwee’s Hotel, and her trunks were taken with her; and on the next morning the stage for the Sweet Springs called for her and took her up, and took her two trunks on the stage. That the stage drove to McCurdy’s Hotel in Covington, where the other passengers, who had come up with her, had stopped, and she was transferred to the stage going to the White Sulphur Springs, and before starting she warned the agent, who handed her from the one stage to the other, that her trunks were on the stage she was leaving, and asked him to change them to the stage she was entering; and he replied thej were changed from the one stage to the other on which she was. This agent was the same man who acted as agent on the cars, and took the plaintiff’s ticket, and he was acting as agent for the stage line. On her arrival at the White Sulphur Springs, her trunk containing her wearing apparel was missing, and had not been recovered. It appeared further, that stages started from
    Covington for the White Sulphur Springs upon the arrival of the cars; but passengers had the privilege of staying all night at Covington if they chose to do so. *The line of stages to the Sweet Springs and White Sulphur, belonged to the same firm of Trotter & Bro.
    It appears that by a contract entered into on the 31st of August 1868, between the commissioners of Virginia and West Virginia, of the one part, and the Virginia Central Railroad Company of the other, made in pursuance of the 15th section of an act passed February 26th, 1867, as amended by an act passed February 6th, 1868, providing for the completion of a line or lines of railroad from the waters of the Chesapeake to the Ohio river, the said company was authorized to construct said work; and was thereafter to be known as the Chesapeake & Ohio Railroad company.
    It appears further, that by a written contract between the Virginia Central Railroad Copipany, and James A. Trotter & Bro., stage proprietors, dated the 1st day of May 1867, Trotter & Bro. bound themselves, on the 1st day of the next June, and from that time during the continuance of the contract, to run a line of stage coaches daily, or so often as passenger trains of the railroad company were run west of Staun-ton, from and to various points; and among others, from the terminus of the railroad to the White Sulphur, Sweet and Salt Sulphur Springs, making close connections with said passenger trains, and at a speed of no less than four miles an hour, not including the time spent at night stands, but including all other stoppages. That they should at all times during the continuance of the contract, furnish a sufficient number of substantial and suitable coaches to accommodate all travel which may be brought by the said company to the western terminus of their road, &c.
    This contract was to last four years from the 1st of June 1867, but might be cancelled by the company upon thirty days’ notice, if the contract was not complied with by Trotter & Bro. The contract set out a table of charges from Richmond to the different points, and the portion of through charge which each party was to *receive. And it was agreed that each should be solely and separately responsible for all casualties, accidents, losses and injuries "which might occur on their respective portions of the aforesaid lines of travel; and if either of the parties should be held responsible for any loss, damage or injury accruing on any part of said lines of travel owned by the other, such responsibility to be discharged by the party on whose lines the loss, damage or injury occurred. And the tickets were to be so framed as clearly to express on their face this separate responsibility. And Trotter & Bro. were to give to the company a bond, with good security, in the penalty of $20,000, for the faithful performance of the contract on their part.
    The form of the through ticket issued was as follows:
    Trotter Stage Line.
    Issued by Virginia Central Railroad.'
    One first class seat.
    (Subject to conditions stated below.) Covington to White Sulphur Springs.
    Not transferable.
    On the following conditions and agreement:
    $®“Each passenger allowed 125- lbs. -of baggage on cars, only 75 lbs. on stages. The stage company may charge for any excess as much for 200 lbs. as for one passenger. Responsibility for safety of person or baggage on each portion of the route confined to the proprietors of that portion alone.
    Forfeited if detached.
    J. F. Netherland, Gen’l ticket agent.
    Virginia Central Railroad.
    Issued by Virginia Central Railroad.
    One first class seat.
    (Subject to conditions stated above.)
    Richmond to Covington.
    Forfeited if detached.
    J. F. Netherland, Gen. ticket agent.
    *And on the right margin of each branch of the ticket were the words, Richmond to White Sulphur Springs.
    After the evidence had been introduced, the defendant moved the court to instruct the jury as follows:
    If the jury believe from the evidence, that the contract offered in evidence by the plaintiff, was in fact made with the Virginia Central Railway Company, then the plaintiff is not entitled to recover in this action. To this instruction, the plaintiff objected; but the court overruled the objection, and gave it: and the plaintiff excepted. This was the third bill of exceptions.
    The defendant then moved the court to give the following instruction: If the jury believe from the evidence that the contract with the railway company was to carry the plaintiff as a passenger, with her baggage, then the plaintiff is not entitled to recover under the pleadings in this action. To which instruction the plaintiff objected; but the court overruled the objection: and the plaintiff excepted. This was the fourth exception.
    The jury found a verdict for the defendant ; and the plaintiff moved the court for a new trial: but the court overruled the motion ; and rendered a judgment upon the verdict; and the plaintiff again excepted. And upon her application a supersedeas was allowed.
    Robert Howard and H. Wise, for the appellant.
    Page & Maury and Young, for the appel-lee.
    
      
      RaiIroad Companies — Baggage—Negligence of Con» necting Line — Liability of Initial Carrier. — In regard to the liability of receiving carriers for baggage checked through on through tickets, the principal case is cited as extreme in 3 Am. & Eng. Ene. L. 573.
    
    
      
       Same — Same—Limitation of Liability — Notice.—In the case of The Majestic, 116 U. S. 375, 17 Sup. Ct. Rep. 601, the court said: “In Malone v. Railroad Co., 13 Gray 888, it was ruled that there was no presumption of law that a passenger on a railroad has read a notice limiting the liability of the railroad corporation for baggage, printed upon the back of a check delivered him, having on the face the words ‘Look on the back,’ and that the question of notice was properly submitted to the jury as a question of fact. And see Brown v. Railroad, 11 Cush. 97; Transportation Co. v. Theilbar, 86 Ill. 71; Rawson v. Railroad Co., 48 N. Y. 313; Wilson v. Railroad, 31 Gratt. 654.
    
   ANDERSON, J.,

delivered the opinion of the court.

This is an action of trespass on the case, by the plaintiff in error against the defendants, common carriers, to recover damages for the loss of a trunk and its contents, valued at $515. There was a demurrer to the declaration, which we-Think was properly overruled; and a plea of not guilty. And upon the issue there was a verdict and judgment for the defendants.

Upon the trial, the plaintiff took several exceptions to *the rulings of the court. The questions which we will first consider, are raised by the third and fourth bills of exception. The third exception is to the instruction given by the court to the jury, which is in these words: “If the jury believe from the evidence, that the contract offered in evidence by the plaintiff, was in fact made with the Virginia Central Railway Company, then the plaintiff: is not entitled to recover in this action. ”

The record does not show upon what ground this instruction was given. The suit was brought against the Chesapeake and Ohio Railroad Company; but it by no means follows, that proof that the contract was made with the Virginia Central Railway Company should necessarily defeat the plaintiff’s recovery. If the name of the Virginia Central Railway Company, with whom the contract was made, or to whom the trunk was.delivered, as a common carrier, was afterwards changed to that of the Chesapeake and Ohio Railroad Company, suit could be brought against the company by the latter name, and by no other. If the instruction had been qualified by adding, “unless the jury believe from the evidence that the name of the Virginia Central Railway Company had been afterwards changed to that of the Chesapeake and Ohio Railroad Company,” the objection to the instruction would have been removed. But as given, however clear and satisfactory to the jury the evidence might have been to show that the company sued was the same company by whom the grievance complained of had been committed, though under a different name, the jury might not have felt warranted in finding a verdict for the plaintiff. The court by this instruction, undertook to decide, either upon the evidence, that the Chesapeake and Ohio Company was not the same company that was known by the name of the Virginia Central Railway Company, or upon the law, that when a contract was made with a corporation having a certain name, it must be sued in that name, although its name *was afterwards changed; and upon either ground ,we think the instruction was erroneous. It rSl well settled, that if a corporation changes its name after contract made, it must be sued in its new name. If the instruction was given upon the other ground, it would seem to be an invasion of the province of the jury to decide upon the evidence before them, whether the Chesapeake and Ohio Railroad Company was a continuation of the Virginia Central Railway Company under a new name, which seems not to have been a pure question of law, but a mixed question of law and fact. But was the court right in its construction of the law?

On the 26th of February 1866, an act was passed by the General Assembly of Virginia, entitled, “An act to incorporate the Covington and Ohio Railroad Company. ” Sess. Acts of 1865-’6; chap. 200, p. 317. By the first section it is enacted, “that the persons upon whom the benefits of this charter may hereafter be conferred, and who may be organized as hereinafter provided, shall thereupon be constituted a corporation, under the name and style of the Covington and Ohio Railroad Company,” &c. The second section provides, that ‘ ‘the said Covington and Ohio Railroad Company when fully constituted and certified, as hereinafter provided, shall have all the rights, interests and privileges, of whatsoever kind, in and to the Covington and Ohio Railroad, and appurtenances thereto belonging, now the property of the State of Virginia,” upon the condition and limitation therein expressed. By the 9th section, commissioners are appointed, who are authorized to act in conjunction with a like number of commissioners on behalf of West Virginia should they be appointed, “whose duty it shall be, to offer the benefits of this charter for the acceptance of capitalists, so as to secure the speediest and best construction, equipment and operation of said railroad. ’ ’ To this end the commissioners were authorized to contract with any parties who shall *give the best terms, and most satisfactory assurances of. capacity, and responsibility for the undertaking, &c. This act was not carried into effect. And at the next session, March the 1st, 1867, the, legislature passed “an act to provide for the completion of a line or lines of railroad, from the waters of the Chesapeake to the Ohio.” Sess. Acts of 1866-’7, chap. 280, p. 70S.

This act provide.s, or proposes, several plans or methods for the accomplishment of this purpose. One is contingent upon the organization of the Covington and Ohio Railroad Company', under the charter granted by the act of February 26th, 1866. And when that was done, to authorize it to consolidate with various other railroad companies, or one or more of them: in which event the consolidated company is to be known as the Chesapeake and Ohio Railroad Company, and invested “with all the rights, privileges, franchises and property', which may have been invested in either company prior to the act of consoli¡dation.” It also provides that if the Chesapeake and Ohio Railroad Company' should refuse to consolidate with the Norfolk and Petersburg and Southside Railroad companies upon application, that those companies may consolidate, and be known as the Norfolk, Petersburg and Covington Railroad Company, and have the privilege of extending their road to Covington, &c. And it makes various provisions affecting the rights and privileges of that company, and in relation to its organization. These provisions of the act were not carried into effect. But the plan proposed by the 15th section was.

That section provides, “that the Virginia Central Railroad Company may contract with the Covington and Ohio railroad commissioners for the construction of the , railroad from Covington to the Ohio river; and in the event such contract be made, the said Virginia Central Railroad Company shall be known as the Chesapeake and Ohio Railroad Company, and shall be entitled to all *the benefits of the charter of the Cov-ington and Ohio Railroad, and to all the rights, interests and privileges, which by this act are conferred upon the Chesapeake and Ohio Railroad Company, when organized. ” And the record shows that, on the 31st of August 1868, the Covington and Ohio railroad commissioners, on behalf of the State of Virginia and West Virginia, entered into a contract with the Virginia Central Railroad Company, by which that company undertook to construct'the railroad from Covington to the Ohio river, and thereby, and by virtue of the said 15th section, took the name of the Chesapeake and Ohio Railroad Company, and became entitled to all the benefits of the charter of the Covington and Ohio railroad, and to all the rights, interests and privileges, of the Chesapeake and Ohio Railroad Company. We are of opinion, therefore, that the Chesapeake and Ohio Railroad Company is a continuation of the Virginia Central Railroad Company, with additional franchises, under a new corporate name; and conse'quently, that in every point of view the third instruction was erroneous.

The fourth instruction is, “If the jury believe from the evidence, that the contract with the railway company was to carry the plaintiff as a passenger with her baggage,, then the plaintiff is not entitled to recover under the pleadings in this action.” As has already been said, the plaintiff in this action, has not declared upon a contract, but upon the common law obligation of the public carrier. It was only necessary to allege the delivery of the goods to the carrier, to be carried by them from Richmond to the White Sulphur Springs, and that the same were received and accepted by the carrier, to show the common law obligation. The common law upon the facts alleged, imposes the duty, for the breach of which the carrier is liable to the shipper.

These facts are sufficiently set out; and they are sufficient to fix the liability of the carrier, if the proof corresponds. *But the allegata and the probata must agree. The proof is that the trunk with its contents, was delivered to, and accepted by the carrier, to be carried to the White Sulphur Springs. But it shows in addition, that the plaintiff went herself as a passenger, and paid for a through ticket to the White Sulphur Spring's; and that this trunk contained her wearing apparel, and was taken as a part-of her baggage.

We are of opinion that the obligation of the public carrier to carry safely and deliver the trunk at the White Sulphur Springs was the same, whether the plaintiff was a passenger or not. It is an elementary principle of law that the carriers of passengers are liable for their ordinary baggage as common carriers. 2 Redf. on Carriers, p. 37, 'i 155. So that it was not material, in order to fix the liability upon the carrier, to allege that the plaintiff went as a passenger and that the trunk was taken as part of her baggage. There is no disagreement between the proof and the allegation. And we are of opinion, therefore, that this instruction was erroneous, and ought not to have been given to the jury.

But although these several instructions were upon points vital to the plaintiff’s action, yet if upon the whole case it is evident that, upon other grounds, the plaintiff could not maintain her action, the judgment ought not to be reversed. And such is the case, if it be true, as- contended by defendant’s counsel, that the continuity of the bailment was broken by the plaintiff removing her trunks from the custody of the company at Covington, and taking charge of them herself. Or if the other proposition be true, that the railroad company was only liable for losses sustained on their part of the line. These are interesting questions, and deserve a careful consideration.

In relation to the first position, the proof is, that through passengers to the White Sulphur Springs were allowed to remain all night at Covington, at pleasure, ^without forfeiting their passage, and were not obliged to stop at ány particular hotel. If the through passenger was allowed to remain all night in Covington, at his option, without forfeiting his passage as incident to it, he was entitled to retain his baggage. And it being sent to his lodgings did not break the continuity of the bailment so as to release the carrier from his original undertaking to deliver it safely at the White Sulphur Springs, if the same was returned to the agent in proper time the next day, to be conveyed with the passenger to the place of its destination. If there had been a loss of the trunk, or any of its contents, while out of the agent’s possession, and while in charge of the owner, or the hotel keeper, it is true the carrier would not be responsible. But that is not pretended. And the passenger, having the privilege of lying over for a night at Cov-ington, without impairing the obligation of the carrier to carry him through the next day, he had an implied right to retain his baggage, and the obligation of the carriers, ptf carry it through the next day when delivered to them, was the same it was to carry the passenger. If the obligation had been to carry by rail to the White Sulphur Springs, and the passenger had the privilege to stop for a night by the way, and to take a train the next day, it is very clear that the responsibility of delivering the passenger and her baggage at the White Sul-phur Springs would not be relieved by the passenger availing herself of the privilege of stopping for a night by the way. And the transportation being by rail to Coving-ton, and thence by stage to the White Sul-phur Springs, could make no difference as to the obligation of the company, if it was their undertaking to deliver the passenger and her baggage safely at the White Sul-phur Springs. Was that their undertaking we will how proceed to enquire.

“It is quite clear, (says Mr. Justice Story,) that a carrier may contract to transport beyond his own line, and may make connecting lines his agents, and thus *become responsible to the owner of merchandise for its loss, at any period, or at anyplace, while it is in transit. ” Story on Bailment, § 588, and cases cited, English and American. And Mr. Redfield says: “It hap generally been considered, both in this country and in the English courts, that receiving- goods destined beyond the terminus of the particular railway, and accepting the carriage through, and giving a ticket or check through, does import an undertaking to carry through; and that this contract is binding upon the company. Whether such contract exists, is regarded as a matter to be determined from all the facts and attending circumstances of the case, and will more generally be an inference for the jury than the court. 2 Redf. on Railw. p. 109, 110, and cases cited. Now let us apply these principles.

At the time of the alleged grievances, the Virginia Central railway was an unfinished road. Its cars were running west only as far as Covington, some twenty-five miles short of the White Sulphur. But by an act passed the 19th of April 1867, they were authorized to lay down the superstructure, and to do all other work necessary for bringing into use* the Covington and Ohio road between Covington and the Alleghany tunnel, near the White Sulphur Springs. And were to have possession and use of the same, and of all the works connected therewith, until required to surrender, if found desirable, to effect a contract for building the part of the road lying in West Virginia. And in that case their cost, in bringing the section of the road aforesaid into operation, was to be refunded. But as we have seen, by the contract of August 31st, 1868, some fifteen days after the plaintiff purchased from them a through ticket, from Richmond to the White Sulphur Springs, they acquired the right to the ° whole line of railroad from Covington, passing by the White Sulphur Springs, to the Ohio. It was undoubtedly of great importance to this company to provide temporarily the means of transportation from *Covington to the White Sulphur Springs, the great .point of attraction, until this unfinished part of their road was put in running order, and to furnish the best accommodations and facilities for reaching the other mineral springs, from different stations on their road, so as to invite and secure this important travel.

Accordingly we find that they entered into a written contract with James A. Trotter & Bro., stage proprietors, by which they held them bound, at all times to furnish a sufficient number of substantial and suitable coaches to accommodate all the travel which might be brought by the railway to the western terminus of their road, as well as to the other stations on the road named in the contract. They bound them to carry their passengers’ baggage, free of charge within a prescribed limit, and for extra baggage limited them as to their charges. They limited them as to the number of pas-sen gers to be carried on each coach, and reserved to themselves the privilege of dissolving the contract, in effect, at pleasure, and of employing other agencies for this service. It was the evident intention of the parties, that all the railroad travel to the places designated, should be transported by the Trotter line of stages; and if necessary to prevent and put down competition, the railway company was to defray two-thirds of the expense incurred. And the stage company was to have an agreed proportion of the receipts on all through traveh And with regard to casualties, losses, &c., it was stipulated as follows : ‘ ‘It is distinctly understood and agreed between the respective parties to this contract, that each shall be solely and separately responsible for all casualties (losses, &c.) which may occur on their respective portions of the aforesaid lines of travel, and if either of the parties should be held responsible for any loss, damage or injury occurring on any part of the aforesaid lines of travel, owned by the other, such responsibility shall be discharged by the party on whose lines the loss, ^damage or injury occurred. ” And it is further provided, that a bond for S20,000 dollars, with approved security, shall be given by James A. Trotter & Bro. to the Virginia Central Railroad Company, conditioned for the faithful per-' íormance oí their agreement.

The railway company having thus provided for the transportation of passengers, with their baggage, from the terminus of their road to the White Sulphur Springs, on the 15th of August 1868, sold the plaintiff a through ticket from Richmond to the White Sulphur Springs; received pay from her for the through route; and gave checks for her baggage, indicating that it was to be carried through to the White Sulphur Springs. The plaintiff’s trunks were carried safely as far as Covington, and were then put in charge of the stage agent, who received from the plaintiff her checks for them, before she left the railroad car. One of the trunks containing the plaintiff’s wearing apparel, was never delivered to her at the White Sulphur Springs, and is lost to her. We think the undertaking was, by the railway company, to deliver safely the plaintiff and her baggage, at the White Sulphur Springs. The ticket issued to the plaintiff has counterparts on the same card, one headed ‘ ‘Trotter Stage Bine, ’ ’ and just below, “Issued by Virginia Central Railroad.” On the other part is headed, “Virginia Central railroad, ’ ’ and just below that, as below the heading on the other' part, is, “Issued by Virginia Central Railroad.” Both parts are signed by “J. S'. Netherland, Gen’l Ticket Agent,” who is proved to be the ticket agent of the railroad. Upon the margin of each part is printed, “Richmond to White Sulphur Springs. ” What does that import? It can import nothing else, than that the holder is entitled to transportation from Richmond to the White Sulphur Springs. By whom? By Trotter & Bro. Both parts import an entire undertaking from Richmond to the White Sul-phur. That could hardly have been undertaken by Trotter & *Bro. But in truth, they undertake nothing. The ticket in neither of its parts is issued by them. Both parts profess to be issued by the railway company. It is not signed by Trotter & Bro., or their agents. But both parts are signed by the railway general ticket agent. There is nothing upon the ticket, which creates any obligation on the part of Trotter & Bro., to the holder. The words “Trotter Stage Tine,” at the top of the ticket, can only mean, that that agency is employed by the railway company, to fulfil their obligation to convey the passenger and her baggage on the stage part of the line, to the White Sulphur Springs.

The ticket, therefore, imports no contract between the plaintiff and Trotter & Bro. There is nothing upon it to bind them. But it evidences an undertaking on the part of the railway company alone, to convey the plaintiff with her baggage, to the White Sulphur Springs. And this conclusion is supported and confirmed by the checks which were given by the railway company, clearly indicating an undertaking to deliver the baggage at the White Sulphur Springs. It was argued by counsel, that che.cks cannot be relied on as evidence, for such a purpose. But we think that upon reason and authority both, they are evidence of the company’s undertaking. In Dill v. Railway .Co., it was held that the check stands in the place of a bill of lading. 7 Rich. R., 158; 2 Redf. on Railway.

The stipulation in the contract of the railway company with the stage company, that each party should be liable' for losses upon their respective lines, does not militate against the conclusions to be drawn from the foregoing.evidence. It was a contract between themselves, and not binding upon the plaintiff, who was no party to it. And the railway company required of the stage company ample security against loss, if they were held responsible for losses oc-curing on the stage part of the line. When we consider what was substantially, *and in effect, the contract between these parties, we can but regard it as constituting Trotter & Bro., if not partners, agents of the railway company in this business; and thus viewed, it is strongly confirmatory of the inferences deducible from the other facts already commented on. We are of opinion, therefore, that the railway company, undertook, undoubtedly, to carry the plaintiff and her baggage to the White Sulphur Springs; and that they are responsible for the loss of it on any part of the route, unless relieved from the responsibility by the notice printed on the ticket.

If it was the undertaking of the railway company, as has been shown, to carry safely the plaintiff and her baggage to the White Sulphur Springs, does not the law attach responsibility for the failure to deliver the baggage at that place? The undertaking of a common carrier to transport the goods to a particular destination, necessarily includes the duty of delivering them in safety; and his obligation is to deliver safely at all events, except the goods be lost by the act of God, or the public enemy. Angelí on Carriers, p. 287, § 282. Carriers of passengers are not held responsible to the same extent with common carriers, except ¡ in regard to the baggage. 2 Greenl. on Evid. p. 194, ? 221. The carrier is only answerable for an injury to the passenger, where there has been some want of care or skill, but he must answer for the loss of the goods, though it happened without his fault. Ib. note 5. Is not the attempt, then, of the railway company to shift the responsibility from their shoulders, and to lay it upon the stage company, repugnant to the obligation they assumed. Suppose the railway company had put a line of stages of their own between Covington and the White Sulphur Springs to convey their passengers with their baggage from the terminus of the railroad to the White Sulphur, and caused a notice to be printed on the ticket to this effect: “Responsible for safety of person and baggage only *upon the railroad part of the line;” such a notice, although brought home to the passenger, would be invalid unless he assented to it. And even if an express contract were proved, to release the carrier from responsibility on the stage part of the line, he would still be liable for negligence, such as is proved in this case with regard to the stage agent. Eor the trunk was lost by his. gross negligence in not having it removed from the Sweel Springs stage to the White Sulphur stage, after his attention had been specially called to it by the plaintiff. But if such a. notice would be unavailing to relieve the carriers from responsibility if their own stages were put upon the line, is that responsibility any the -less because they have employed the agency of Trotter & Bro., with their coaches, to carry through the railway company’s passengers and their baggage? Qui facit per alium, facit per se. Redfield goes farther. He says, “in the case of a common carrier of goods, he is liable for'the act of all the servants of his sub-contractor.” 2 Redf. on Railw. p. 116.

When the railway company undertook to carry passengers and their baggage through to the White Sulphur Springs, and received compensation for the whole route, can thej' limit their responsibility, and say to the passenger, although we have undertaken to carry you and your baggage safely to the ' White Sulphur Springs, yet if we fail in it, and your baggage is lost on the stage part of the line, you must look to our agent for redress, and not to us. Although we are bound to deliver you and your baggage safely at the White Sulphur Springs, if we fail to fulfil our obligation, and your baggage is lost on the stage part of the line, we will not be bound to make it good; but you must look to our agent. It would seem that such a qualification and limitation of their responsibility would be repugnant to, and incompatible with, their express obligation.

Although the railway company have a contract with *Trotter & Bro., by which the latter are bound to the former-to be responsible for, and to pay for all losses occurring upon the stage part of the line, -the passenger has no such contract with them. And is it competent for the railway company to release themselves from this responsibility resulting- from this undertaking to carry the passenger through to the White Sulphur Springs, by a notice to the passenger that they will not be responsible for any loss sustained on the stage part of the route? It might with as much propriety be said, that a stage proprietor, or any public carrier, would be relieved from responsibility by a notice to the passenger that he would not be responsible for baggage. But it seems to be well settled by American decisions, that a stage coach proprietor, or other carrier, cannot be relieved from his common law responsibility by a general notice that “Baggage of passengers is at the risk of the owners.” Angell’s haw of Carriers, $ 238, and seq. Suppose Trotter & Bro. had failed to furnish a stage coach at Covington to carry her through, and she had been detained there for want of a conveyance for several dajs, by which she had sustained heavy losses, who would have been responsible to her upon this contract? Trotter & Bro. or the railway company? Can the railway company, by a general notice, oblige the passenger to look to a party with whom she has no contract, and no connection of any sort, who is unknown to her, and who may be insolvent, for any non-compliance with the undertaking of the railway company, or for a loss of her baggage, which they had undertaken to convey to the White Sul-phur Springs? We think not. Such a notice is repugnant to their express undertaking, from which they could not be released, except by the act of the party to whom the performance was due. The notice, therefore, being incompatible with the obligation of the company, is void, unless assented to by the passenger.

But if this conclusion was not wár-ranted by the current *of English and American decisions, and by elementary principles, as we believe it to be, it seems to be well settled, that the notice, in order to be availing, must be actual. The knowledge of it must have been brought home to the plaintiff: and that is a question of fact for the jury. “The mere advertisement by the carrier of the terms and limitations of his responsibility, however public it may be, will have no effect, except upon those to whom knowledge of it is directly or constructively brought home.” It will not be sufficient that the notice is publicly posted up in the carrier’s office in writing or in print, unless the party who is to be affected by it is proved to have read it. The case of Mary Brown v. The Eastern Railroad Company, 11 Cush. R., 97, which was decided by the Supreme Court of Massachusetts, was very much like this case. The delivery of two trunks in that case, and the non-delivery of one of them at the place of destination, the one containing the wearing apparel of plaintiff, and a demand therefor and its value, were fully proved. The plaintiff wished to go from Boston to Ereeport, in Maine. Her trunks were delivered to the baggage master of the railroad company and checks demanded. He said he was out of checks, but marked the trunks “Ereeport.” She inquired at the ticket office of the defendants in Boston, for a ticket to Ereeport, and was told that no tickets were sold to Eree-port, but that she could buj- a ticket to Brunswick, (a place beyond Freeport), and get out at Ereeport; and that one dollar would be refunded to her". She paid $3 for a ticket, which had printed on its face, “Not transferable. This ticket entitles to a passage,” &c. And on its back the following words: “Notice — Passengers are not allowed to take, nor will these companies be responsible for, baggage if it exceed fifty dollars in value, unless freight on any addition thereto)be paid in advance; and this notice forms part of all contracts for transportation of passengers and their effects.” *'There was a break in the line of railroads, of about one mile in Portland, and it was the practice of the defendants to transport over that break the baggage of passengers for Brunswick, but not for Ereeport. There was no evidence that the plaintiff’s baggage was carried over this break at all; or that she had any notice or knowledge of this practice. Between Boston and Portland, the plaintiff called the attention of a companion to the words on the back of the ticket. On the trial in the court of Common Pleas, the judge ruled, that taking the ticket raised no legal- presumption that the plaintiff read the printed matter; that it was a question of fact whether she knew the contents before she started on her journey; and that if she did not read it until she was on her way, her rights were not affected by it; and that if the contract was for a passage to Ereeport, or to Brunswick with permission to get out at Ereeport, the railroad was bound to transport her baggage across said break, unless notice was given that they should not do so. Upon an appeal to the Supreme court of the State, this ruling of the court of Common Pleas was affirmed. The court says in the opinion: “Amere passenger ticket in the form in. general use, would not naturally induce to the reading of its contents. The party receiving it might well suppose that it was a mere check signifying that the party had paid his passage to the place indicated on his ticket.”

Usually the ticket office is opened but a short time before the train leaves. And the ticket has to be exhibited to the baggage master before he will check for the baggage. So that the passenger has scarcely any time .to read the ; ticket before the train leaves. In general he only asks for a through ticket to the place of his destination, and relies upon the agent to give him the proper ticket. And if the passenger had time to look at it for an instant in this case, she would have seen that it was a ticket issued by the railway from Richmond to the White ^Sulphur Springs. She would hand it to the porter, or a friend, to get checks for her' baggage, while she would look out for a seat. It is returned with the checks, upon which are the letters W. S. S. She feels assured that all is right; and the next moment the train is moving. If she reads what is on the ticket at all, it is because she has nothing else to do, or from mere curiosity. And she reads for the first time, “Responsibility for safety of person or baggage, on each portion of the route, confined to the proprietors of that portion alone.” She would say to herself that was not my understanding' when I asked for a through ticket, and when I paid for it to the railroad agent, and when they gave me a check for my baggage, which by the letters on it indicated, that they undertook to carry it through to the' White Sulphur Springs. But the train has been bearing her away from Richmond with' the speed of twenty miles an hour, and it is too late to turn back.

If the railway company could relieve themselves from the legal responsibilities of their undertaking by such a notice, they should bring home the notice to the passenger before he pay's for his ticket; at all events, in time for him to have his baggage removed from the car before the train left. It would seem reasonable, if it were a question of the first impression, to require the notice to be given before the money is paid. Mr. Justice Story says, “it has been said, if coach proprietors wish honestly to limit their responsibility, they ought to announce their terms to every individual who applies at their office, and at the same time place in his hands a printed paper specifying the precise extent of their engagement. ” Story on Contracts, § 761, p. 230. The question is usually asked of the ticket agent, Can I get a through ticket to such a place? The answer is, Yes. What is the price? The agent answers so much. The money is handed him, and then' he issues the ticket. He never lets the ticket go out of his hand until he gets the money: and that ^completes the contract. It would seem that it is too late for him then to impose limitations and restrictions upon his implied or express undertaking, of which no intimation Was given before the contract was closed.

At all events it seems to be well settled, that a carrier cannot be released from the legal responsibilities of his undertaking, unless the knowledge of the notice is brought home to the passenger in time to leave the car, and have his baggage removed before the train leaves. The mere delivery of the ticket to the passenger, with the notice printed upon its back, or on its face, under the usually attending circumstances which have been-detailed, and which are of public notoriety, is not sufficient to raise the legal presumption of actual notice to the passenger before the train leaves. “Such notices by printed cards, or inserted in newspapers, are not sufficient unless it be shown that knowledge of the contents of such notices came to the party; and this is always a question for the jury.” 2 Redf. on Railw. p. 83; Clayton v. Hunt, 3 Campb. R. 27; Rowley v. Horne, 3 Bing. R. 2. Whether the delivery of the ticket to the plaintiff, under the attending circumstances, brought to the knowledge of the plaintiff the notice printed on it before the train left, is a question of fact for the jury, and consequently it is not in the power of the court .to say that upon this ground the plaintiff could not maintain her action. We deem it unnecessry to decide the questions raised by the other bills of exception, as they can hardly arise again. We think that the cause should go back to the Circuit court for a new trial to be had therein.

Judgment reversed.

Note. — Before this opinion was delivered, and before the opinion of the court was known, the defendants in *error, by their counsel, asked leave to withdraw the point, which had been made in argument, that they were not liable for the acts of the Virginia Central Railroad, saying that they would prefer to lose the case than to have that point decided in their favor.  