
    THOMAS E. FAIRFAX, Plaintiff and Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD CO., Defendant and Respondent.
    I. DISMISSAL OF COMPLAINT.
    1. Evidence, how to be considered on motion for.
    
      а. Every intendment and fair and legitimate inference and presumption must be made in plaintiff’s favor.
    б. If there is any conflict of evidence as to any material question of fact ; or if, in respect to any such question, the fair and, legitimate inference from the evidence is favorable to plaintiff’s cause of action; it is error to take the case from the jury.
    H. EVIDENCE.
    1. Baggage check.
    1. Contract, not implied from, when.
    
    When the passage ticket calls for a passage by a particular route, and there are letters on the check attached to the baggage of the passenger, indicating that it is to go by the route called for by the passage ticket, and the baggage is transported, not by that route, but by a road not forming a part of such route, no contract by the road not forming a part of such route, can be deduced from the fact that baggage with similar checks has frequently been carried over it.
    
      a. Such facts do not establish the check to be the regular check of company whose road does not form part of the • route, or that it was put by such company or its agent on baggage intended for transportation over its road.
    HI. CARRIER.
    1. Liability, as ca/rrier, for baggage, when it ceases.
    
    1. If the owner of baggage omits to call for it within a reasonable time after its arrival at its place of destination, the liability of the carrier as carrier will cease, and that of warehouseman attach.
    
      a. What is not a reasonable time.
    
    1. A space of three days is not.
    IV. WAREHOUSEMEN, LIABILITY OF.
    1. What sufficient to believe them.
    Where a piece of baggage was placed in the usual baggage-room, which was an inclosed room, in charge of a baggage-master, to which no one was allowed access except in the presence of such master, and remained there for some days, and was seen shortly before the owner demanded, but could not be found when the demand was made,
    HELD,
    1. That the warehouseman was not liable.
    3. He was not bound to show in what manner or by whom it was taken from the baggage-room, nor to account for it.
    3. Even if it wer a feloniously taken by a stranger, or one of defendant’s servants, yet the warehouseman not being negligent, such taking would not create a liability.
    Before Monell, Ch. J., and Sedgwick, J.
    
      Decided December 6, 1875.
    This was the second trial of an action to recover the value of a trunk and its contents.
    Upon the first trial the plaintiff had a verdict, which was set aside upon appeal (see 37 Sup'r Ct. Rep. 516). The facts, so far as they relate to the point then decided, are so fully stated in the report of the first appeal, that it is unnecessary to re-state them. Any new' or additional facts proved on the second trial affecting the points already decided, will be found in the opinion below.
    Upon the other point now decided and not included in the first decision, the facts are as follows:
    The trunk arrived at the defendants’ depot in Hew York between three and four o’clock on the afternoon of October 9, 1870. It was taken in charge, in the defendant’s baggage room, by an employee of Westcott’s: Express Company, uhder an agreement with the defendants to the following effect:
    That the express company was to occupy the said baggage-room for the receipt and delivery of the baggage of passengers arriving upon the trains of the defendants, and for no other purpose; that they would receive the baggage upon the arrival of each train, and thereupon give to the defendants a receipt therefor, designating each piece of baggage so received by the number of its check; that they would thereafter, when called upon, deliver said baggage to the owners thereof, respectively.
    The baggage-room is an inclosed room. The employee remained until six o’clock, when he left the trunk and baggage-room in charge of another employee of the express company. ÍTo one besides the-employees were allowed in or to come into the baggage-room. The trunk remained in the baggage-room in the custody of the persons in charge, during-the 10th and 11th of October, and until the morning of the 12th. When during the morning of the 12th, the check was presented, the trunk was not to be found. The employee in charge, and who had seen-the trunk just previously, could not state where it was, nor what had become of it. He said there was no one allowed there but himself. He could not tell that :any one came in. He believed no one came in; be kept everybody out except, those he had to allow tjiere to identify baggage; he was not and could not be sure •that no one came into the baggage-room that morning; he did not think there was.
    The trunk was not found. It had been taken from the baggage room, by some means or persons unknown to the person in charge.
    At the close of the evidence on both sides, the defendants moved to dismiss the complaint on the following grounds:
    1. That the defendants did not occupy the relation of common carrier to plaintiff and his baggage. 3. That it appeared that the piece of baggage in question, coming into the possession of the defendants at Troy, -checked to Hew York, the defendants safely carried it to the city of Hew York, and there had and retained it for delivery to the plaintiff, who failed to call for it within a reasonable time after its arrival, and that it subsequently disappeared without fault on the part of the defendants. 3. That after the arrival of the baggage, and having it ready for delivery to the plaintiff for a reasonable time, the defendants, after the lapse of such reasonable time, stored the baggage with West>cott’s Express Company, who were responsible, if anyone, for its loss.
    The plaintiff asked to be allowed to go to the jury upon the point, whether the defendants used ordinary care or not in the custody of the property.
    Also upon the question of fact, as to whether the defendants wrongfully delivered the property to any other party.
    Also upon the question whether the defendants, through their own negligence, delivered the plaintiff’s trunk to any other party.
    Also upon the question whether or not the relation of common carrier did not subsist between the plaintiff and the defendants upon all the testimony in the cause as to the course of business between the defendants and connecting lines.
    Also on the point whether, on all the evidence, the party or corporation checking the portmanteau in Montreal, was the agent of the defendant for the purpose of attaching to the portmanteau a check which entitled the plaintiff to have his portmanteau transported by the defendant as a common carrier over its railroad; and that the jury in deciding this question are to take into consideration the evidence given,
    (1.) As to the purchase of the plaintiff’s ticket. (2.) As to the fact that the defendant did receive the portmanteau so checked and transport it over their road. (3.) The evidence that the defendant frequently transported over its road baggage so checked. (4.) The evidence that the check on the portmanteau was the check of the defendant.
    Also the point whether the defendant, under some arrangement of connecting lines, received and transported as common carriers the portmanteau.
    Also the point whether the plaintiff called for his portmanteau within a reasonable time.
    Also the point whether the Grand Trunk Railway Company, or any of the connecting lines, delivered the portmanteau to the defendant without the knowledge or authority of the plaintiff.
    Also the point whether the baggage agent of the defendant at Troy had authority from the defendant to receive the portmanteau, and whether the defendant did then, and by the receipt of its servant, itself receive the portmanteau as a common carrier.
    Also the point of whether the defendant delivered its checks to the servants and agents of the Grand Trunk Railway Company in. Montreal, to be there used in- checking baggage.
    Also the point of whether, by any' arrangement with the Grand Trunk Railway and connecting lines, or by the usual course of business, the checking of the portmanteau over the defendants’ road was incidental to the contract of carriage of the plaintiff'.
    Also the point whether the checking of the portmanteau over the defendant’s road was in accordance with the usual and ordinary course of business.
    Also whether this was defendants’ check, and whether the defendants’ checks were placed in the hands of the corporation at Montreal, to use in checking baggage to Hew York.
    The court refused each of said requests, and to each refusal the plaintiff excepted. -
    The court thereupon, on the grounds stated by the defendants in the motion to dismiss the complaint, directed a verdict in favor of the defendant.
    The plaintiff excepted to such direction. The jury thereupon, under the direction of the court, found a verdict in favor of the defendant.
    From the judgment dismissing the complaint, the plaintiff appealed.
    
      Hammond & Stickney, attorneys, and Albert Stickney, of counsel for appellant, among other things, urged:
    I. The universal rule requires, that, if one of two parties must suffer from the unauthorized acts of an agent, the party must suffer who has clothed the agent with the authority, and enabled him to commit the error (Weed v. Panama R. R. Co., 17 N. Y. 362; Johnson v. Jones, 4 Barb. 369; N. Y. & N. H. R. R. Co. v. Schuyler, 34 N. Y. 61, et seq.). The defendant, if the Grand Trunk Railway has acted beyond its authority, has its remedy against the. Grand Trunk Company.
    II. When the defendant took the baggage at Troy, it was certain that some contract had been made with some passenger as to the carriage of that baggage. "The defendant must, then, be held to take the portmanteau under that contract (The Elvira Harbeck, 2 Blatch. 336; 2 Redfield Railway Cases, 218).
    III. But if this was not defendants’ check, they were guilty of a wrong in taking the portmanteau at all. And on refusing or failing to deliver, they are ■.absolutely liable as for a conversion, negligence or no negligence. The cases are clear and uniform on this point (Robinson v. Baker, 5 Cush. 137 ; Fitch v. Newberry, 1 Doug. [Mich.] 1).
    IV. If the check affixed was the proper check to ■send the article by boat, where the plaintiff’s ticket •carried him, then the portmanteau has been delivered to the defendant without the plaintiff’s knowledge or authority. And the plaintiff, in that case, by bringing this action, ratifies that delivery, and can hold the •defendant as a common carrier (2 Greenl. Evid. § 210; Sanderson v. Lamberton, 6 Binney, 129).
    V. If the defendant delivered the portmanteau to any person but the plaintiff', the holder of the check, the defendant is liable absolutely, as for a conversion, (Hawkins v. Hoffman, 6 Hill, 586; Powell v. Myers, 26 Wend. 591; Youle v. Harbottle, Peake, N. P. C. 49 ; Devereux v. Barclay, 2 B. & Alderson, 702 ; Wild v. Pickford, 8 Meeson & W. 443). Certainly, if such delivery to another person was made by the negligence of the defendant (Stephenson v. Hart, 4 Bing. 479). The check was not produced to the defendant. It is a certain thing, if the defendants’ testimony is true, that the portmanteau was delivered to a person who did mot produce the check. And it is nearly as certain as anything possibly can be, that it was delivered through the negligence of the defendant or its servants. The plaintiff had the right to go to the jury as to whether «this was so.
    VI. But admitting that the defendant never was a -common carrier they must do more than they have. They must prove, not only that it was a proper room, but that it was guarded in a proper manner. ¡Now the only witness they produce to prove the care on this point on the day of the loss, is Green. Green testifies that he had no one there to help him ; that he made all the deliveries with his own hands; that he delivered the portmanteau to no one, and he states positively that no one on that morning came into that room. And yet -the baggage was gone. His story is clearly impossible. And no explanation whatever is given of the way in which it disappeared.
    VII. Now the simple fact of the loss of the baggage being unexplained, was sufficient to entitle the plaintiff ■to go to the jury on the question of gross negligence (Steers v. N. Y. & Phil. St. Co., 57 N. Y. 1).
    VIII. Moreover, the defendants prove their care on the day of the actual loss, by one witness, Green. He is shown, on cross-examination, to tell a story which can not by possibility be true. It is not necessary that the plaintiff should call a witness to contradict Green. The defendants must prove their case by a credible witness. His credibility may be impeached on his own cross-examination as well as by witnesses called by the plaintiff. And the plaintiff lias the right to have the credibility of Green submitted to the jury. And this was specially asked (Stafford v. Leamy, 34 Superior Cl. 272; Conrad v. Williams, 6 Hill, 447; Koehucke v. Ross, 16 Abb. N. S. 344).
    
      Frank Loomis, attorney, and of counsel for respondent.
   By the Court.—Monell, Ch. J.

Upon the first appeal in this case, a majority of the court held that upon the facts then presented, the relation of passenger and carrier, between the plaintiff and defendants, had not been established; and that as the carriage of baggage was only an incident to the carriage of the passenger, the defendants were not liable as common carriers.

These propositions can not now be disturbed, unless upon the second trial the facts have been so far varied that they establish the relation which they failed to establish on the first trial.

Upon dismissing a complaint at the close of all the evidence, the court must be satisfied there is no dispute whatever in the evidence, which would require its submission to the jury. If there is no such dispute, then the law will pronounce the appropriate judgment.

Upon the motion to non-suit, the plaintiff is entitled to have the evidence taken as true, and also to have every intendment and fair and legitimate inference and presumption taken in his favor.

If, therefore, the evidence presents any conflict in respect to any material question of fact; or, if in respect to any such question, the fair and legitimate inference from the evidence is favorable to the plaintiff’s cause of action, it would be error to take the case from the jury.

Under the exposition of the law applicable to this case, as decided upon the former appeal, the only duty of this court now is, to see whether the facts proven on the first trial were essentially the same as those proven on the second trial. If they were, the former decision is stare decisis.

It is now claimed that certain facts, which the court upon the first appeal assumed to be established, have been changed upon the second trial. ' These facts are, that the trunk was to be taken with the owner, and he and his baggage to go over the same route; that the baggage was taken by the defendants’ baggage agent, through mistake or accident, without authority ; that the plaintiff made in effect a fraudulent representation when he checked his baggage, namely, that he intended a continuous trip through to New York. It was also assumed, that there was no evidence of any arrangement between the defendants and the Grand Trunk Railway, which would authorize any contract for the carriage of baggage by the defendants, without the passenger.

It is now insisted that the proof is different in these particulars, namely, that.it shows the check was the defendants’ regular check ; that there was no mistake or accident, and that there was no misrepresentation by the plaintiff.

In respect to the first fact, namely, that the check was the defendants’ regular check, I do not find it supported by the evidence. There was some proof that baggage, upon which there were similar checks, had frequently been carried over the defendants’ road. But the evidence did not establish that it was the regular check of the defendants, put by it or by its agents upon baggage intended for transportation over its road

The check in question, and similar checks, were put upon the baggage at Montreal, and such baggage sometimes, or frequently, passed over the defendants’ road.

In respect to the carriage by mistake or accident, the evidence was the same on each trial. The baggage-master at Troy received the baggage from another road, went with it to East Albany, and delivered it to the through train for New York.

Upon the second as upon the first trial, there was no evidence of any express misrepresentation by the plaintiff, but a misrepresentation to be implied from the purchase of a continuous trip ticket.

But the new evidence, giving it all the scope and significance claimed for it by the appellant’s counsel, does not establish the relation of carrier and passenger between the parties.

Except under some special contract, the carriage of baggage is an incident to the carriage of the passenger, and the carrier is not responsible unless the two concur.

In this case there is no proof of any special contract, either express or implied, which would create a liability on the part of the defendants. None was expressed, nor can any be inferred from any evidence given upon either of the trials.

It is, however, further claimed, that a liability may be implied from the check attached to the trunk, which some of the witnesses admitted, was a kind of check attached to baggage which sometimes, or frequently, was carried by the defendants ; and that the jury had a right from the evidence, and an inspection of the check, to infer that it was the check of the defendants ; and that from it a special contract might be implied. Not only did the passenger tickets express that the passage of the plaintiff was by the Peoples' line of steamboats, but the testimony of the witnesses, and the check itself, indicate that the baggage was to go by the same conveyance. It was a through check from New York to Montreal, and the letters H. R. & R. R. indicate, very clearly,6 ‘ Hudson River and Railroad,” meaning by steamboat to Albany, and thence by “ Saratoga and Rutland line ” of railroad to Montreal. A nd being used for the reverse passage, it signifies the same routes.

There was nothing in this evidence which required its submission to the jury. They could not have legitimately deduced from it a special contract by the defendants to carry the plaintiff’s baggage; and a verdict upon it in the plaintiff’s favor would have been unsupported.

Upon the whole, I am unable to distinguish the present from, the former appeal; and the decision then made must stand.

■ There is, however, another ground, upon which this judgment can be upheld, which is so far independent of the first ground, that it becomes a matter of no importance whether the relation of carrier and passenger existed or hot. For even assuming the defendants were carriers of the baggage, and had incurred the liability of common carriers, such liability was changed into that of warehousemen, and they can be charged only as warehousemen.

This question was briefly discussed in the opinion of the court upon the first appeal. But as it did not then receive the concurrence of a majority of the court, it remains an open question.

The facts are not now different, although the appellant’s counsel claims, that the defendants’ evidence of care in the custody of the property should, upon the question of negligence, have gone to the jury.

It is not, however, insisted that there was any contradiction in the evidence, but merely that it was improbable in itself, and insufficient to show proper care.

It is now well settled that the liability of a railway as a carrier, ceases upon the expiration of such reasonable time after the arrival of the baggage at its place of destination, as will enable the traveler to receive and take charge of it (Curtis v. Avon, Geneseo, and Mt. Morris R. R. Co., 49 Barb. 148; Burnell v. N. Y. Central R. R. Co., 45 N. Y. 184). .

In the last case, the baggage was not demanded until two days after its arrival, and the court held that the carriers’"liability had ceased, and that of warehouseman had attached.

A .warehouseman is held to the exercise of only ordinary care. The non-delivery of the property is sufficient to raise a presumption of negligence, and the burden is then thrown upon the warehouseman, to show that sufficient ordinary care had been bestowed on the property. If that is shown, the warehouseman is relieved from liability.

. In the recent case of Coleman v. Livingston (36 Sup’r Ct. R. 32), which has been affirmed by the court of appeals (56 N. Y. R. 658), the liability of a warehouseman, and the rules respecting the burden of proof, are so fully stated that I need not do more than to refer to it.

In the case before us, by the omission of the plaintiff for at least three days to demand his baggage, the liability of the defendants as carriers ceased. But they were still under obligation to see that it was • properly stored, and reasonable care exercised to prevent injury or loss, until it was called for (Burnell v. N. Y. Cent. R. R. Co., supra).

The question, therefore, is, Was there any negligence ■ by the defendants ?

Their failure to produce the trunk when demanded, primafacie established negligence and want of due care.

Did they remove the presumption % I think they did.

The evidence shows that all due, ordinary, and - proper care was bestowed upon the property. That it was not sufficient, was not the defendants’ fault. It was placed in their usual baggage-room, which was an enclosed room, in charge of a baggage-master, to which no one was allowed access, except in the presence of such master. It remained in such room for three days, and was seen on the morning, shortly before the plaintiff demanded it. When the demand was made it could not be found.

The defendants were not bound to account for it. Tt was enough that they had taken the usual and ordinary care, and that the loss was not attributable to their want of care. In what particular manner, or by whom it was taken from the baggage-room, it was not Incumbent upon-the defendants to show. It may have been feloniously taken by a stranger, or even by one ■of the defendants’ servants, yet if the defendants were not negligent, such felonious taking would not create a liability.

The care which the evidence shows the defendants bestowed upon the plaintiff ’ s property, was all which, under the circumstances, the law required, and fully repelled the presumption of negligence.

As the evidence was without contradiction, there was nothing for the jury, and the complaint was properly dismissed.

In examining this question, I have treated the liability of the defendants as not affected by their private agreement with the express company, and have regarded the latter as, at most, the mere agents of the defendants.

The judgment should be affirmed.

Sedgwick, J., concurred.  