
    David Simpson, Plaintiff, v. The New York, New Haven & Hartford Railroad Co., Defendant.
    (Supreme Court, New York Trial Term,
    April, 1896.)
    1. Common carriers — Liability for loss of baggage.
    Where a trunk has been accepted, merely as a passenger’s baggage, or as containing goods intended for his personal use on the particular journey, without charge, the carrier is not' liable in case of its'loss for merchandise contained therein, intended for sale, or even for samples to effect sales.
    2. Same — Damages.
    In an action against á common, carrier for loss of baggage, the measure of damage is the value of the articles for use by- the plain* tiffj and not their market value.
    3. Same — Pleading.
    Where the complaint itemizes the loss, placing a separate value on each article of “ about ” a certain sum, the recovery cannot exceed the aggregate of such sums with interest.
    
      Action against common carrier for loss of trunk containing baggage: ' ' x
    Kantrowitz & Esberg, for plaintiff.'
    H. W. Taft, for defendant.
   McAdam, J.

The plaintiff, on November 22, 1892, became a

passenger on defendant’s cars for a business trip from New York, to -Hartford. The defendant took charge of his trunk, and,., although often demanded, it has never been delivered to the plaintiff. Whether the action be regarded as in tort or on contract (Catlin v. Adirondack Co., 11 Abb. N. C. 377), the defendant’s liability for the loss has been legally established. Zinn v. Steamboat Co., 49 N. Y. 442; Canfield v. R. R. Co., 93 id. 532; Curtis v. R. R. Co., 74 id. 116; Fairfax v. R. R. Co., 67 id. 11; S. C., 73 id. 167; Matteson v. R. R. Co., 76 id. 381; Stewart v. Stone, 127 id. 500.

The extent of the liability will- next be considered. The. trunk contained personal baggage; also, merchandise valued at $1,249, consisting of silk mufflers and handkerchiefs, such as the plaintiff was then selling in his business as a dealer in such goods. If the trunk had been accepted as freight the defendant would have collected charges commensurate with the care required and the risk assumed; but it was accepted without charge, simply as passenger’s baggage or as containing goods in,tended for personal use on that particular journey. In such case, the carrier-is not liable for merchandise intended for sale, or even for samples to effect sales. Hutch, 'on Oarr., § 685. The plaintiff undertook to avoid this feature of the defense and bring himself within Stoneman v. R. R. Co., 52 N. Y. 429; Perley v. R. R. Co., 65 id. 374; Sloman v. R. R. Co., 67 id. 208, and Glovinsky v. Cunard Co., 4 Misc. Rep. 266, by testifying that he told the bag-' gagem'an that the trunk contained merchandise. The usual demand for compensation did not follow, nor was any suggestion made as to paying freight or extra charges; and' the testimony as to notice is altogether too vague and unsatisfactory to warrant an affirmative finding thereon in plaintiff’s favor. See Talcott v. R. R. Co., 50 St. Repr. 427. The plaintiff is nevertheless, entitled to recover for the loss of his personal baggage, which had not been long in use, and cost $54.50. The legal measure of compensation as to.. the articles lost is what they were worth for use by the plaintiff, not the market value. Fairfax v. R. R. Co., 73 N. Y. 172. The original cost may be considered after allowing a reasonable sum for age and depreciation. Jones v. Morgan, 90 N. Y. 11; Bird v. Everard, 4 Misc. Rep. 104.

It was suggested at the close of the trial, that the plaintiff in his pleading itemized his loss, placing a separate value on each article of about so much, making an aggregate "of about $43, and that the recovery should not exceed that sum, especially as the defendant had made an offer of judgment founded upon the items and values so enumerated; the contention being that it would be prejudiced by a disregard of the plaintiff's allegations, which were relied upon as controlling against him. 1 Big. on Est. (4th ed.) 687; Fay v. Muhlker, 1 Misc. Rep. 323. “About ” means nearly, approximately, almost. Gent, Die. The itemized sums fixed by the plaintiff in his verified complaint as the values at the time of the wrong are consistent with the original cost prices, with his estimate of deterioration by age and use deducted; and in this manner the plaintiff must, upon every just principle, be held to have concluded himself as to the actual loss sustained. The figures will harmonize in no other way. Interest may he added to: give a full compensation (Mairs v. Manhattan Ass’n, 89 N. Y. 507; Reiss v. Power Co., 35 St. Repr. 86), and this with the value makes $50.74, the damages recoverable, for which sum the plaintiff is entitled to judgment.

] Judgment for plaintiff.  