
    Julius Burgevin, Resp't, v. The New York Central & Hudson River Railroad Co., App'lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 9, 1893.)
    
    Carriers—Liability of railroad for loss of baggage.
    Plaintiff purchased a ticket on defendant’s road and had his trunk checked to another station, and asked the baggageman if it could remain at said station until morning, when he would call for it, and was told it was all right. The trunk arrived at said station in the evening and was burne I during the night. In an action for such loss the court held that defendant was not liable as a common carrier, but only as warehouseman, and submitted the case on the question of negligence. Held, that the holding was more favorable to defendant than the facts entitled it to, and it was not injured thereby or by the admission of evidence on the question of negligence; that it was liable as common carrier until the trunk reached the station and until plaintiff had a reasonable time to remove it, and that in case of baggage arriving in the evening a delay until morning is not unreasonable.
    Appeal from judgment in favor of plaintiff, entered upon verdict.
    
      Ashbel Green (F. L. Westbrook, of counsel), for app’lt; D. M. De Witt, for resp’t.
   Herrick, J.

This is an appeal from a judgment rendered upon the verdict of .a jury in favor of the plaintiff, and against-the defendant, in an action to recover the value of a trunk, and its contents, charged to have been destroyed in a fire which occurred in defendant’s station located at West Park.

The plaintiff was intending to go to work- upon a place located a mile and a half or thereabouts from the railroad station at West Park. He purchased a ticket from New York city to Kingston; Kingston is about ten miles north of West Park. He purchased the' ticket for the train leaving New York at 4:15 in the afternoon ; he then went to the baggage-master and told him that he wanted his trunks checked to West Park ; that he was going to West Park; that he had no way of staying there over night; that he would like to leave the trunks over night if they would be all right. That be told him that he was going to Kingston, that he would be down on the first train in the morning, and the baggage-master said that that would be all right, that the plaintiff could come the next morning and get the trunks.

The plaintiff having two trunks, the baggage master weighed them, charging the plaintiff twenty-five cents for excess baggage, gave him a check and receipt for them.

The train was due at West Park about 6:41 in the evening;: the plaintiff took the train, his trunks were shipped, and left at West Park. The plaintiff went to Kingston, stayed there all night, returned to West Park next morning between six and seven o’clock, and found that there liad been afire at the depot and that one of his trunks had been destroyed.

The court held that the defendant was not liable as a common carrier, but simply as a warehouseman, and so only responsible to the plaintiff -for negligence in the discharge of its duty as a warehouseman, and it held that there was nothing to go to the jury except the question of negligence, and upon that issue the jury rendered a verdict against the defendant. I have not stated the facts or any of the evidence bearing upon the.question of negligence, because, from the view that I have taken of the .case, it is unnecessary to discuss that question.

The defendant was liable as a common carrier for the plaintiff’s baggage until it arrived at West Park, and until the plaintiff had a reasonable time to remove it. Roth v. Buffalo & State Line R. R. Co., 34 N. Y., 548; Burnell v. N. Y. C. R. R. Co., 45 id., 184.

As to what is a reasonable time, it was said in the Burnell case that it cannot be definitely determined, but must be left to the circumstances of each case. And, when there is no dispute as to the fact, what is such a reasonable time is a question of law for the court to decide. Hedges v. H. R. R. R. Co., 49 N. Y., 223.

In the Roth case, where, as was stated in Burnell v. N. Y. C. R. R. Co., 45 N. Y., 187: “ The rule of exemption from strict liability was carried to the utmost limit of propriety, to say the least of it,” the facts were as follows : “ The carrier transported the passenger and his trunk to the place of destination, and was ready to deliver it on arrival, but the passenger who accompanied it, and, therefore, had notice of its arrival, neglected to receive it, and left it in the carrier’s possession, not because it was unsafe or improper for him to take it, but because he preferred to leave it at the depot over night rather than carry it to his lodgings.” ' There was no agreement, understanding or permission by which the baggage was permitted to remain in the depot over night.

The court in announcing its decision stated that it was strictly in view of the special facts of the case, that the rules that it laid down were not intended to apply “ to the case of the baggage of a passenger who, with the knowledge and consent of the agents of the railroad company, stops at an intermediate station on the road over which he has contracted to be carried, intending to pursue his journey on a subsequent train, and left his baggage in the keeping of the carrier in the meantime.” Upon the undisputed facts in this case it seems to me, as matter of law, the responsibility of the defendant as a common carrier did not cease before the time of the fire.

The baggage had arrived at West Park between six and seven o’clock in the evening, and it seems to me that in the case of trunks arriving in the evening, a delay in calling for them until the next morning is not an unreasonable delay, and again in this case we have almost the identical facts suggested in the Roth case of the knowledge and consent of the agents of the railroad cpmpany (see 34 N. Y., 554) that the baggage should remain in the keeping of the carrier.

It seerps to me, therefore, that the holding of the trial court was more favorable to the defendant than the facts entitled it to,, and that it has not been injured thereby or by any of the rulings of the court upon the admission of evidence relative to the question of negligence, and that the judgment should be affirmed, with costs.

Mayham, P.'J., and Putnam, J7, concur.  