
    The T. & O. C. Ry. Co. v. Dages, Andrews & Co. The Same Plaintiff v. Daniel S. Ambach et al. The T. & O. C. Ry. Co. v. The Bowler & Burdick Co.
    Error to the Circuit Court of Franklin county.
    Error to the Circuit Court of Lucas county.
    
      Common carrier — -Liability of — Articles of merchandise carried as baggage — Effect of knowledge on part of carrier — Law of contract.
    
    Although a common carrier of passengers is under no obligation to carry articles of merchandise as baggage, and although it is not liable for the loss of such merchandise if it is tendered to and received by it as baggage without actual knowledge of its true character; yet if it receives and checks merchandise as baggage with actual knowledge on the part of its agents that it is merchandise, it thereby waives its right to immunity from liability because of the character of such article.
    (Decided October 26, 1897.)
    These cases were orally argued before the different divisions of the court, but in view of the similarity of the question presented, they have been considered by the whole court upon the briefs presented as well as upon the 'points made in the oral arguments.
    Suits were brought by the several defendants in error to recover the value of merchandise in trunks and cases which the company had received and undertaken to carry as the baggage of the salesmen of plaintiffs who were passengers on the company’s train, which trunks and cases were destroyed in a collision by the company’s negligence.
    In view of the fact that this court. does not weigh the evidence to determine controverted questions of fact, the eases present here only a question of law common to all of them. The merchandise was shipped as baggage without extra compensation to the carrier except charges on account of excessive weight. But the evidence in each case tended to show that the carrier, through its agents who received and checked the trunks and cases, had knowledge that their contents were not limited to the personal baggage of the passengers, but contained articles of merchandise. The question of the carrier’s liability upon the state of facts which the evidence tended to prove, is raised in the case of Dages, Andrews Co. by the refusal of the trial judge to give an instruction to the jury which was requested by counsel for the com-' pany, and by their exception to the instruction given upon the point embraced within the instruction so requested. The instruction requested and refused was as follows:
    “The purchase of a ticket from a railroad for transportation between two points, constitutes and makes a contract between the passenger and the company for the safe transportation of the purchaser and his personal baggage/ to an amount in value and weight provided for in the rules of the company. Such a contract does not authorize the passenger to carry anything but his personal baggage. The contract is for and relates to the transportation of the person, and the carrying of his baggage is but an incident to the main and principal feature or object of the contract. Such a contract would not authorize the passenger to carry the personal baggage of another, nor merchandise for himself, nor goods or merchandise for another.”
    The following instructions were given:
    “A traveler who presents to a carrier of passengers, a trunk or valise, such as is commonly used for the transportation of wearing- apparel, represents by implication, that it contains only such articles as are necessary for his comfort and convenience on the journey, and if it, in fact, contains merchandise or other valuables, and the fact is not mentioned, the traveler is guilty of such a legal fraud as to absolve the carrier from the extraordinary liability of insurer.
    “A carrier of passengers is not bound to inquire as to the contents of a trunk, delivered to it as ordinary baggage such as travelers usually carry, even if the same is of considerable weight, but the carrier may rely upon the representation, arising by implication, that it contains nothing more than baggage.
    “The plaintiffs seek to recover upon an alleged agreement entered into by their agent, Mercer, with the defendant, whereby the defendant agreed and undertook to carry safely the sample cases of the plaintiffs from the station ,at Glouster to the station of Millérsport, and that the agents of the defendants at Glouster, had actual personal know!edge that the trunks contained merchandise and not the personal baggage of Mr, Mercer,
    “The burden of proof on both these questions is on the plaintiffs, and it will be incumbent' on them to show by a clear preponderance of evidence the truth of these allegations.”
    In the case of Ambach & Co., there was a similar request and instruction. In both cases the jury found for the plaintiffs and judgments were rendered accordingly; and both judgments were affirmed in the circuit court. Judgments in favor of the plaintiffs were entered in the common pleas and affirmed in the circuit court.
    In the Bowler & Burdick Company’s case, evidence was introduced tending to show that when the company’s agent received the cases and trunks, he had knowledge that their contents were not limited to the personal baggage of the passenger, and that they, contained merchandise. At the conclusion of the evidence the trial judge directed the jury to return a verdict for the railway company. The judgment of the court of common pleas in favor of the carrier upon the verdict returned pursuant to such instruction, was reversed by the circuit court.
    
      Doyle & Lewis; Taylor, Taylor & Taylor and Bargar & Bargar, for plaintiff in error.
    Brief of Doyle & Lewis.
    
    The trunks did not contain what are included in the contract made by a passenger for his baggage.
    The articles which a passenger contracts to have carried as baggage, are solely such as are necessary to his personal wants, convenience or comfort, in the particular journey he is making, and if he includes in his baggage articles not provided for in his contract, he must be presumed to assume the risk of the loss of such articles. The only relation existing between Burdick, or his principals, and The Railroad Company, was that of passenger and common carrier. Bank v. Marietta & Cincinnati Railroad Co., 20 Ohio St., 259.
    It is not enough to say that The Railroad Company might have known that the passenger’s trunks contained other than personal baggage. There was a specific contract for the carrying of the passenger and his personal baggage; the passenger made no statement to the carrier that he desired to enter into any other contract than that of passenger with his ordinary bag’gage, made no disclosure as to the contents of his trunks, or the value of such contents, and no opportunity was afforded to the carrier to know of the nature or extent of the additional liability which the passenger now endeavors to attach to his contract, and no charge made or compensation tendered for the additional liability, although the passenger made the statement as to excess weight of his baggage, and paid for that as required by his contract. Bluemantle v. Fitchburg Railroad, 127 Mass., 322; Alling et al. v. Boston & Albany R. R. Co., 126 Mass., 121; Dunlap v. International Steamboat Co., 98 Mass., 371; Stimson v. Connecticut River Railroad Co., 98 Mass., 83; Michigan Central Railroad Co. v. Carrow, 73 Ill., 348.
    The cases that hold the doctrine, the carrier is to inquire as to the contents of the package offered are in reference to carriers of freight, and not of passengers and their baggage. There is a reason for the distinction that will readily be perceived and appreciated. Carriers of freight receive all kinds of packages, some valuable and-othérs- of trifling value. This fact has been held to impose upon them the duty, in all cases, in the absence of fraud and deceitful practices, to inquire of the shipper as to the contents of the package, if they would protect themselves in the carriage of valuable freights. It is their duty to receive all kinds of freight, whether of great value or otherwise. The shipper is not bound, in the first place, to disclose the nature of the contents of the package, unless he is inquired of concerning it.
    But this rule pre-supposes good faith in the shipper. If the owner be guilty of any fraud or imposition, in respect to the carrier, as to the nature and value of the parcel, he cannot hold him liable, in the capacity of an insurer, for any loss that may occur. 2 Kent, 603 and 604; Story on Bailments, section 565; Cincinnati & Chicago Air Line Railroad Co. v. Marcus, 38 Ill., 219; Chicago & Aurora Railroad Co. v. Townsend, 19 Ill., 578; Relp v. Rapp, 3, Watts and Ser., 21.
    But the rule is different in regard to the baggage of a traveler. As we have seen, the fact that the traveler presents a parcel as baggage, whether contained in a trunk or satchel or other convenient mode of carrying baggage, it is upon the implied representation it contains only baggage, and the carrier is not bound to inquire as to the specific contents.
    If this implied contract with the carrier of passengers is tobe varied, modified or enlarged, itmust be by direct notice of the contents of the package offered as baggage, which, in effect, would amount to a special contract. The company may rely upon the representation that whatever is offered as baggage is that, and nothing else. The law seems to be settled it need not inquire as to its' contents* If the passenger has merchandise checked as bag-gag-e without such notice, the company cannot be held liable as a common carrier. Cahill v. N. & N. W. Ry. Co., 10 C. B. (N. S.), 154; Chicago & Cincinnati Air Line Railroad Co. v. Marcus, supra; Collins v. Boston & Maine Railroad Company, 10 Cush., 506; Great Northern Railroad Company v. Shepard, 8 W. H. & G., 30; Batson v. Donovan, 4 B. & A. 2a; Haines v. Chicago, St. Paul, M. & O. Ry. Co., 29 Minn., 160; Pfister v. Central Pacific R. R. Co., 70 Cal., 169.
    The English rule in cases of this, kind is stated in Cahill v. L. & N. W. Ry. Co., 10 C. B. & S., 154; also 13 C. B. &. S., 818.
    There is no evidence of any kind tending to show that any of the agents or employees of The Toledo & Ohio Central Railway Company had any knowledge or opportunity of knowing, of the contents of the trunks in question. Railroad Co. v. Campbell, 36 Ohio St., 647.
    A very full discussion of the questions involved in this case is bad by the Supreme Court of the United States in Humphrey v. Perry, 148 U. S., 627.
    Brief of Taylor, Taylor & Taylor.
    
    The rules of the railroad allow baggage in the weight of 150 pounds, and $100 in value. This we maintain is the limit of the defendant’s liability. It is not liable for samples of merchandise which may be carried in a trunk or trunks, in addition to or as the personal baggage of the passenger. Hutchinson on Carriers, section 680; Hawkins v. Hoffman, 6 Hill, 589; 148 U. S., 627; 126 Mass., 221; 25 Wendell, 459.
    It may be said generally that by baggage we are to understand such articles of personal convenience or necessity as are usually carried by passengers for their personal use, and not merchandise or other valuables, although carried in the trunks of passengers, which are not however, designed for any such personal use but for other purposes, such as a sale and the like. Hutchinson on Carriers, section 679; Story on Bailment, section 499; Collins v. The B. & M. Ry., 10 Cushing, 506; Jordon v. Fall River Ry., 5 Cushing, 69.
    When a passeng-er buys a ticket and pays his fare in the absence of a contract to convey samples or merchandise, the contract in law is limited to the safe transportation of the passenger and his personal baggage. Alling v. Boston & Albany Ry., 126 Mass., 130; Stimson v. C. R. Ry., 98 Mass., 83.
    The agent of a railroad company who. sells a ticket or checks baggage is not required to inquire as to the contents of a trunk presented as personal baggage, and the company is not liable for the loss of merchandise checked as baggage, unless there exists an agreement between the passenger and the company; or the agents of the company had full knowledge of the contents of the trunk, and checked them for carriage as baggage. Hutchinson on Carrier, section 685; 52 New York, 429; 35 Ohio St., 541.
    The rules of the T. & O. C. Ry. in force at the time forbid agents fro'm inquiring into the character of the baggage of passengers, and is as follows:
    “You are supposed to know the character of any passenger’s baggage. If passengers in having baggage checked should disclose the fact that it contains valuable jewelry or merchandise, they should be referred to the express company.”
    This shows conclusively that the company did not intend to transport merchandise as baggage, and that extra weight of baggage should be paid for as baggag’e and not merchandise; and further that any extra payment on baggage should be for weight without regard to value. It is clear that the company intended to entirely eliminate the question of value beyond what was provided for in their rules, namely, $100. If the question of value arose at the time of checking the passenger’s trunks, then the agent was directed to refuse the baggage and to refer the passenger to the express company where transportation might be had by paying for both weight and value.
    Further the carrier must be compensated in proportion to the risk incurred. This is a fundamental right — a fundamental principle — -which underlies all such contracts or obligations. Humphreys v. Perry, 148 U. S., page 641.
    Samples taken by merchant’s clerks in their trunk are not embraced within the meaning of the term “baggage,’’and when checked as baggage the rules concerning baggage must govern with all their restrictions and limitations as to the liability of the company. Hawkins v. Hoffman, 6 Hill, 586; Hutchinson on Carriers, section 680-681.
    The plaintiff must show actual knowledge on the part of the defendant’s agent, and purpose upon his part to transport the merchandise as baggage. If the evidence shows that’ the plaintiff’s agent offered the trunks as baggage, he by implication representing that they contained no property not included within that class and description, and the carrier was justified in receiving the trunks as baggage under these representations; and the only liability it assumed was that which attached to the transportation of the baggage under the rules and regulations of the company then in force. Dunlap 
      v. International St. Co., 98 Mass., 371; Alling v. B. & A. Ry., 127 Mass., 121.
    No contract to convey merchandise as baggage can be construed from the fact of a charge for over weight. The company had a right to charge for over weight of baggage and also to limit its liability as to the value of the baggage. Pennsylvania Company v. Miller & Co., 35 Ohio St., 541; Talcott v. TheWabash Railroad Co., 66 Hun., 456; Stoneman v. Erie Railroad Co., 52 N. Y., 429; Sloman v. Great Western Ry. Co., 67 N. Y., 211.
    There can be no assumption of any kind in this case. The facts preclude assumptions. The agent at Glouster, where the trunks were checked, testified that he had no authority to receive and check them as merchandise. He testified that he did not know that the passenger worked for Ambach & Co., that he did not know the character of the passenger’s baggage; that the passenger did not tell him that the trunks did not contain baggage, but merchandise; that there was nothing-said about what the character of the bag-gage was; that he had not seen the trunks open; that he did not know anything about the passenger’s baggage.
    Brief of Bargar & Bargar.
    
    The court of common pleas, in its charge to the jury, excepted to at the time given, laid down two rules for determining the liability of the railway company herein:
    
      First Rule• — -“Still the common carrier if he takes charge of such property for the purpose of transporting, in ignorance of its true character, he assumes the relation to it of an ordinary bailee, and is bound to take such care of it, asmen of ordinary care and prudence would usually take of their own property under the same circumstances. But in such' case the carrier is not liable unless the evidence shall affirmatively show by a preponderence thereof that the carrier failed and neglected to take such ordinary care of the goods, and that in consequence of such negligence by the carrier the goods were destroyed or damaged. The burden of proving such negligence rests upon the plaintiff.”
    
      Second Buie — “Where, however, a common carrier receives for transportation a traveler’s baggag’e with the knowledge that such baggage consists of merchandise, or other valuables, which are desig’ned for purposes of business, and not for the traveling expenses, personal use, comfort, instruction, amusement or protection of the passenger, then and in such case, the carrier becomes immediately responsible for its safe delivery at the place of destination, and its liability is that of an insurer.”
    Under the first rule the railway company would be held liable as a bailee for hire, or a warehouseman. But where is the contract creating such a relation? The railway company is not liable as a warehouseman, for the record shows that such a liability was never created. The case of Pennsylvania Co. v. Liveright, 2 Am. & Eng. R. R. cases U. S., decided by the appellate court of Indiana, September 17,- 1895, defines the commencement of a company’s liability as warehouseman. Roth v. Railway Co., 34 N. Y. 548; Burnell v. Railway Co., 45 N. Y. 184; Matteson v. Railway Co., 76 N. Y., 381; Railway Co. v. Mahan, 8 Bush., 184; Wald v. Railway Co., 92Ky., 645; Mote v. Railway Co., 27 Iowa 22; Arthur v. Railway Co., 61 Iowa, 651; Railway Co. v. Capps, 2 White & W. Civ. Cas., Ct. App., 35; Ouimit v. Henshaw, 35 Vt., 605; Linn v. Railway Co., 10 Mo. App., 125; Railway Co. v. Addizoat, 17 Ill. App., 632; Hutch. Carr, section 708; 3 Wood R. R. (Ed. 1894) sections 400, 402.
    At the time of their loss, the goods were in the hands of a common carrier as baggage; but not being baggage, no contractof insured transportation was created, a fortiori, neither was a contract of bailment for hire created. Talcott v. Wabash Ry. Co., 66 Hun., 456; The Penn. Ry. Co. v. Miller & Co., 35 Ohio St., 541; Bluemantel v. Fitchburg Railroad Co., 127 Mass., 322; 127 Mass., 325. By the sale of a ticket to a passenger, the carrier becomes liable for his safe transportation and reasonable personal baggage, but not for merchandise delivered by him. as baggage, without agreement to that effect. Blumenthal v. Maine Cent. R. R. Co., 11 Atl., 605; Stimson v. Riv. Conn., R. R., 98 Mass., 83; Connely v. Warren, 106 Mass., 146.
    Such agreement cannot be proved, or such responsibility created by a mere evidence of a custom railway corporations to carry similar packages as personal baggage; or by evidence that the package is of such appearance as to raise a suspicion or inference that it contains merchandise. Alling v. Boston & Albany R. R., 126 Mass., 121; Michigan Central R. R. v. Carrow, 73 Ill., 348; Cahill v. London & Northwestern Ry., 10 C. B., 154 ; Belfast & Ballymena Ry. v. Keys, 9 H. L., 556.
    The rule that carriers are liable for a loss of merchandise which they know tobe such is limited to those cases where the merchandise is paid for as freight by extra compensation. Bluemantle v. Fitchburg R. R., 34 Am. R., 379 — note; Stoneman v. Erie Ry. Co., 52 N. Y., 429; Slornan v. Gt. West. 
      
      Ry., 67 N. Y., 208; Graffam v. Boston & Maine R. R., 67 Me., 234.
    The fact that commercial travelers or others are accustomed to carry merchandise in passenger trains, without paying more than the usual price of the ticket of the passenger, even- if known to the carriers, will not render them liable for such merchandise. Travelers carry such merchandise at their own risk. Michigan Central Ry. v. Carrow, 73 Ill., 348; s. c. 24 Am. Rep., 248.
    A common carrier of passengers and baggage is not liable for its negligence causing a loss of samples carried as baggage. There is no liability either as carrier or bailee. Gurney v. Grand Trunk Ry. Co., 59 Hun., 625; Norfolk & W. R. Co. v. Irvine, 85 Va., 217.
    A railroad company is not bound as a part of its contract to transport a passenger who is employed as a traveling- salesman, to carry as his personal baggage, a ease of sample merchandise. Southern Kan. Ry. Co. v. Clark, 52 Kan., 398.
    The authorities are very numerous to the effect that the term “baggage” or- “luggage” does not include money in large quantities, but is restricted to the passenger’s personal clothing and ordinary traveling paraphernalia or “necessary appendages,” including perhaps money sufficient for traveling expenses. Jones v. Voorhes, 10 Ohio, 150; M. R. Ry. Co. v. Fulton, 20 Ohio, 318; Orange Co. Bank v. Brown, 9 Wendall, 85; Hawkins v. Hoffman, 6 Hill, 586; Hickox v. Nangatuch Ry. Co., 31 Conn., 281; Duffy v. Thompson, Ibid., 178; Doyle v. Kiser, 6 Indiana, 242; Bell v. Drew, 4 E. D. Smith, 59; Bomar v. Maxwell, 9 Humphreys, 621; Fowler v. Dorbon, 24 Barbour, 385; Chicago & Aurora R. R. Co. v. Thompson, 19 Ill., 578 Davis; v. Michigan R. R. Co., 22 Ill., 278; Hutchins v. Western R. R. Co., 25 Georgia, 61.
    If the passenger travels without baggage, the rate of fare is the same as for one who carries baggage. . '
    Every passenger is entitled to carry personal baggage to the end of his journey, in amount equal to 150 pounds weight.
    The contract is for carrying the passenger, the carrying of baggage is but an incident to the main contract.
    What is bag-gage? “The ordinary apparel of the passenger and such other articles as may be necessary to his comfort whilst performing his journey.” Davidson v. Graham, 2 Ohio St., 135; Graham & Co. v. Davis & Co., 4 Ohio St., 381.
    If a traveler includes in his baggage articles not properly baggag-e, he must be presumed to assume the risk of the loss of such articles. Bank v. Marietta & Cincinnati R. R. Co., 20 Ohio St., 259; Simpson v. N. Y., N. H. & Hartford Ry. Co., 16 Misc. Rep. (N. Y.), 613; Beers v. Boston & A. Ry. Co., 34 Atl., 541; Talcott v. Wabash Ry. Co., 35 N. Y., S. 574; Penna. Co. v. Knight et al., 33 Atl., 845.
    
      Powell & Minahan and Gilbert & Hills, for defendants in error.
    Brief of Powell & Minahan.
    
    Even if the common carrier did not know that the trunks contained merchandise, still, by taking the property into its charge, it assumed the relation to it of an ordinary bailee and was bound to take such care of the property as a man of ordinary prudence would of his own under like circumstances. Pennsylvania Company v. Miller & Co., 35 Ohio St., 541.
    
      There is no question but that proof of such a collision as occurred in this case establishes negligence on the part of the railroad company. New Orleans R. R. Co. v. Allbritton, 38 Miss., 242; Delaware Ry. Co. v. Napheys (Pa.), 1 American and English Railroad Cases, 52.
    Proof of injury by collision is prima facie evidence of negligence. Iron R. R. Co. v. John Mowry, 38 Ohio St., 418.
    The proof of collision imposes on the railroad company the burden of proving that it did not occur by reason of its negligence. Graham v. Burlington Railroad Co., 34 American and English Railroad Cases, 397.
    If the common carrier knew when he received these trunks that he was carrying merchandise and not personal'baggage his liability for the property would be exactly the same as it would be for baggage. Sloman v. G. W. Ry. Co., 67 N. Y., 208; Stoneman v. R. R. Co., 52 N. Y., 429; Wood on Railroad Law, vol. 3, p. 1527.
    In these cases there is no claim made of any fraud or concealment as to the character of the goods when the trunks were delivered to the railway company. The evidence, on the contrary, shows that the trunks indicated the character of the goods. The men in charge of them were frequently at that station and were known to be traveling men; the company charged and received extra compensation. 4 Mo. App. Rep., 582 ; Ross et al. Resp. v. Missouri, Kansas & Texas R. R. Company, App. No. 466; John A. Millard, Jr. v. The Missouri, Kansas & Texas R. R. Company, 86 N. Y., 441; The Great Northern Railway Company v. Shepherd, 8 Exchequer, 30.
    
      Under the 6th section of the 7th and 8th Vict. C., 85, which allows each passenger by a parliamentary train to carry half a hundred weight of luggage, a husband and wife traveling together are entitled to carry one hundred weight.
    The luggage of a passenger by railway, though never delivered to any servant of the company, but kept by the passenger during the journey, is, nevertheless, in point of law, in the custody of the company, so as to render them responsible for its loss. J. H. Oakes v. The N. P. R. R. Co., 20 Oregon, 392; Charles S. Perley v. The New York Central and Hudson River Railroad Company, 65 N. Y., 374; Waldron v. The C. & N. W. R. R. Co.,1 Dakota, 351; Edwin Butler v. The Hudson River R. R. Co., 3 E. D. Smith’s, 571.
    It is claimed that the traveling men in charge of the baggage in controversy in this case were traveling on what were known as thousand mile tickets which limited the liability of the company in the case of loss to $50.
    In answer to this proposition we say that in the case of Daniel S. Ambach & Company, there was' no such defense made in the pleadings.
    In the next place, we claim it is well settled in Ohio that a common carrier cannot limit his liability for negligence. Union Express Company v. A. A. Graham, 26 Ohio St., 595; United States Express Co. v. Backman, 28 Ohio St., 144; Gaines v. Union Transportation and Insurance Co., 28 Ohio St., 418; Davidson v. Graham, 2 Ohio St., 131.
    Brief of Gilbert & Hills, for Bowler & Burdick Co., defendants.
    We claim that the railroad company is liable for the following reasons :
    
      (1.) It was its established custom to carry such goods as baggage.
    (2.) The baggage agent when receiving and checking the trunks had seen their contents and actually knew it to be a stock of jewelry, and by receiving and cheeking the trunks, under the circumstances the railroad company became bound for their safe carriage and delivery, the same as though they contained baggage.
    (3.) If the baggage agent did not have authority to waive the objection to the contents of the trunks not being baggage and thus bind the railroad company for the safe carriage and delivery of the trunks as baggage, it was at least bound by the knowledge of the contents of the trunks possessed by the baggage agent and having received these trunks it was obliged’ as bailee to bestow upon them such care as an ordinarily prudent man would have bestowed upon like property, and causing the destruction of the goods, under the circumstances, was not the exercise of such care.-
    (4.) If the baggage agent did not in fact, know, or have good reason to believe, that the trunks contained a stock of jewelry, still, by receiving the trunks, the railroad company became bound as ordinary bailee to bestow upon them such care as an ordinarily prudent person would have done upon his own like property, and causing the destruction of this stock of goods by the collision was not such care.
    (5.) Independently of the custody of the trunks, assuming that they were being carried upon the train at the risk of the defendant in error, as to all accidents, still the plaintiff in error having caused the destruction of this property by running another locomotive into the locomotive attached to this train, was guilty of active wrong in not so using its own as not to injure another and is hence liable in tort.
    The railroad company is liable for the loss of the stock of jewelry because it was its established custom to carry such property as baggage. Jacobs v. Tutt et al., 33 Fed. Rep.,-; Humphreys v. Perry, 148 U. S., 647; 10 C. C. R., 272; T. & O. C. Ry. v. Ambach, 10 C. C. R., 490; Penna. Co. v. Miller & Co., 35 Ohio St., 541.
    We also call attention to the definition of gross negligence given by this court in Telegraph Company v. Griswold, 39 Ohio St., 301.
    In case of receivers á different presumption as to negligence would arise from the fact of such accident as in the above case,, where the train was derailed 'by the turning of a rail, for the receiver since coming into control of the road, might not have had an opportunity to learn of the defects and put the road, in repair.
    In further support of the general proposition, see also the following authorities: 41 Mo., 504; 29 Minn., 160; 38 Ill., 219.
    Independently of the custody of the trunks, assuming that they were being carried on the train, at the risk of defendant in error as to all accidents, still the plaintiff in error having caused the destruction of this property by running another locomotive into the locomotive attached .to this train was guilty of active wrong in not so using its own as not to injure another and is hence liable in tort. Kerwhacker v. Cleveland, Columbus & Cincinnati R. R. Co., 3 Ohio St., 171
   Shauck, J.

Much of the doctrine .maintained by counsel for the carrier is established law. The obligation of the carrier to carry the baggage of a passenger is limited to those articles which are for his personal comfort and convenience. Nor is the carrier bound to inspect a trunk presented by a passenger as baggage to see whether it contains articles of merchandise. In the absence of knowledge to the contrary, it may rely upon the passenger’s implied representation that its liability will be limited to baggage. ■ Since it does not owe the duty of inquiring as to the contents of such trunks as are so presented, it cannot be charged with the knowledge which inquiry mig’ht have elicited. Nor can the liability of the carrier be extended by the fraud and deceit of the passenger. A claim founded on his own fraud and deception would be as bad in law as it is in morals.

But it does not appear from these records that any of these views were denied by the common pleas court of Franklin county, or by either of the circuit courts. It cannot be said that one is deceived or defrauded with respect to facts which are made known to him in anyway. In two of these cases the jury were instructed, that to charge the carrier with liability for the merchandise as baggage, it was necessary to show that its agents knew the character of the contents of the trunks when .they received and checked them. In the other 'case, the evidence tended to show that the agent had such knowledge.

The instruction given placed upon the plaintiff the burden of proving such knowledge. The instruction was not that the carrier would be liable if its agents might have known that the trunks contained merchandise, or if they had reason to know'; for that would have defined a rule too uncertain of application. The charge required that the evidence, circumstantial and. direct, must affirmatively show that the carrier’s-agents knew that merchandise was received to be carried as baggage.

That such knowledge fixes upon the carrier the same liability for merchandise accepted to be carried as baggage as though it were baggage, is generally, though not universally, held. The general rule upon the subject of waiver as affecting the liability of the carriers, was stated by Mr. Justice Field in Railroad v. Swift, 12 Wall., 262, as follows: “If at any time reasonable ground existed for refusing to receive and carry passengers for transportation, and their baggage and other property, the company was bound to insist upon such ground if desirous of avoiding responsibility. If not thus insisting, it received the passengers and their .baggage and other property, its liability was the same as though no ground for refusal had ever existed.”

In Wood on Railroads, vol. 3, p. 1806, it is said:

“While a carrier is not obliged to accept anything but ordinary baggage as baggage, yet, if without extra compensation, and knowing that it is not personal baggage, he permits it to be treated and carried as such, he is liable for its loss.” The same doctrine was declared and applied in Jacobs v. Tutt et al., 33 Fed. Rep., 412, and in numerous cases cited in the briefs. Nothing opposed to this view is held in Humphrey's v. Perry, 148 U. S., 627, relied on by counsel for the company; for not only does the court by distinguishing Jacobs v. Tutt et al., recognize that case as correctly decided, but in the opinion it is stated as a reason for the conclusion, that the carrier was not liable for the value of merchandise received to be carried as baggage that the witness “testified to no fact from which the inference could, be drawn that the agent had actual knowledge that the trunk contained a stock of jewelry.”

Nor is the view stated in conflict with the cases in which it is held that the carrier does not become liable for merchandise received as baggage merely oecause it had frequently so received it, nor merely because of the peculiar appearance of the trunks or cases in which it was contained; for fraud cannot be practiced upon a carrier so fre.quently as to create a cause of action against it, nor is proof of a circumstance which tends toshow knowledge, or which might excite a suspicion, necessarily equivalent to proof of actual knowledge. Concerning the effect of such circumstances it was said by this .court in Johnson v. Way, 27 Ohio St., 374, as a reason for rejecting the ancient rule that there could be no recovery upon a negotiable instrument, void between the original parties if the holder had acquired it under circumstances calculated to excité suspicion:

“Circumstances which might excite the suspicion of one man might not attract the attention of another. It is a rule which business men cannot act upon in the ordinary affairs of life with any certainty that they are safe.” It was nevertheless held, that good faith required .the holder to act upon his knowledge.

It is true that in cases not distinguishable from those before us, the Supreme Court of Massachusetts has exempted the carrier from liability for the merchandise, holding.that, notwithstanding its knowledge of the character of the articles to be carried, it is liable only according to the terms of its contract, and that the articles of merchandise were carried at the risk of the passenger.

. If we were inclined to adopt this view instead of that which obtains generally, we should find difficulty in distinguishing The Express Co. v. Backman, 28 Ohio St., 144, where a common carrier of freight was charged with the consequences of its knowledge that the value of the freight exceeded that which was stated in the bill of lading. It would not seem 'practicable in this respect, to distinguish between the carriage of freight and the carriage of baggage, nor between knowledge of the-value of the articles carried and knowledge of their character. In one case as clearly as in the other, considerations of public policy justify the conclusion that, if the carrier, for the purpose of obtaining patronag’e, and with actual knowledge of all the material facts, waives its right to refuse merchandise which it is requested to carry as baggage, or to make an additional charge commensurate with the increased risk, it cannot, after a loss has occurred, assert an immunity from liability because of such right. Regarding other points-raised by counsel for the company, it seems sufficient to say that they present no prejudicial error.

Judgment affirmed.  