
    The Cattaraugus Cutlery Company v. The Buffalo, Rochester and Pittsburgh Railway Company, Appellant.
    
      Common carrier—a passenger including goods of his employer in Ms baggage— liability of the carrier in case of their loss.
    
    Where a passenger upon a railroad includes in his baggage goods belonging to his employer, without the knowledge of the railroad company, the railroad becomes as to such goods at the most a gratuitous bailee, and is only liable for their loss in case such loss results from its gross negligence or willful misconduct.
    Appeal by the defendant, The Buffalo, Rochester and Pittsburgh Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Cattaraugus on the 3d day of May, 1897, upon the verdict of a jury for $507, and also from an order entered in said clerk’s office on the 10th day of May, 1897, denying the defendant’s motion for a new trial made upon the minutes.
    At the close of the plaintiff’s evidence, a motion for a nonsuit was made and denied and an exception was taken, and at thé close of the whole evidence, a motion was made by the defendant for a direction of a verdict in favor of the defendant on the grounds: “(1) That the plaintiff has shown no cause of action as against the defendant. (2) That there was no relation of carrier and passenger or warehouseman and shipper, as between the plaintiff and the defendant. (3) That no negligence on the part of the defendant has been shown. (4) And, further, assuming that there was some duty owing to the plaintiff by the defendant, such duty could only be shown to be violated by evidence of gross negligence, and there is no evidence in this case to make that a question of fact, gross negligence.” The motion was denied and the defendant took an exception.
    
      Henry G. Danforth, for the appellant.
    
      Milford W. Rider, for the respondent.
   Hardin, P. J.:

Plaintiff, by this action, seeks to recover the value of two sample cases and their contents, which were destroyed by fire in the defendant’s baggage room at Bradford, Pa. On the 31st of March, 1893, Claude Wilson, then in the employ of the plaintiff, took passage on the defendant’s railroad from Johnsonburg, Pa., to Bradford, Pa., and checked as baggage two sample cases and their contents, consisting of knives and other cutlery, the property of the plaintiff. The train on which Wilson and the samples were transported arrived at Bradford about five o’clock in the afternoon of that day; the property was removed from the train to the defendant’s station house, and Wilson went to a hotel for the night. No demand was made for the cases or trunks prior to the occurrence of the fire which destroyed the Higgins House, situated east of the depot of the defendant some fifty to seventy-five feet, on the east side of the tracks, the depot being on the west side. The station building was built of wood, one story high, and extended northerly from Main street, the ladies’ waiting room being the room nearest the street, and next north of that was the ticket office, and then the men’s waiting room and then the baggage room, all being under the same roof, but not connected by doors. On the easterly side of the building was a wooden platform, twelve or fourteen feet wide, and next to this was the railroad track occupying about thirty feet, and then a driveway of some twelve feet, and then next easterly was the Higgins House, in which a fire originated about half-past three in the morning. Soon after the fire broke out in the hotel it was communicated to the defendant’s station building near the baggage room. The only door to the baggage room was on the east side facing the direction of the hotel. The fire made rapid progress, and Collins, the baggagemaster, as soon as he discovered the fire in the hotel, made efforts to arouse the station agent, Lundergan, who lodged west of the baggage room some one hundred feet. As soon as he aroused the station agent he went back to the station building to remove from the building some Italians who had been locked in the men’s waiting room and succeeded in getting them out of the building; he then warned some women who were in the ladies’ waiting room, and he then states that it was too late for him to save anything from the baggage room. The station building, by five o’clock in the morning, had been entirely destroyed.

The property, the value of which is sought to be recovered by the plaintiff, belonged to it and was not the property of Wilson, and the evidence fails to show any contractual relation between the defendant and the plaintiff. (Talcott v. Wabash R. R. Co., 66 Hun, 462.)

At the close of the plaintiff’s evidence it disclaimed to recover against the defendant as a common carrier,” and asserted its right to recover against the defendant as a warehouseman.

In the argument now submitted to the court it is said in behalf of the plaintiff that it “ did not seek to hold the defendant liable upon the ground that the defendant was a common carrier of the sample cases in question, nor upon the ground that the sample cases were baggage of the plaintiff’s agent, Wilson, nor upon the ground that the defendant was liable as a warehouseman.” It is insisted, however, in behalf of the plaintiff that “ the action was based upon an entirely different theory ; ” and it is then stated that “ The complaint alleges that when the depot, containing the samples, was threatened with fire, and when it was evident that it would burn, that the servants of the company would not permit the plaintiff’s agent to save the samples, and refused him admission to the depot for that purpose, and it also alleges negligence on the part of the defendant in not removing the property from the building.”

When the trial judge submitted the case to the jury he instructed the jury that, in order to recover, the plaintiff must establish that the conduct of the defendant amounted to willful neglect; that it was liable of willful neglect, of willful misconduct in the management of this property, under the circumstances, or of an utter disregard of its duty in preserving and protecting it.”

The plaintiff now seeks to place the liability of the defendant upon the obligation of a gratuitous bailee, and our attention is called to the rule stated in the American and English Encyclopaedia of Law (2d ed., vol. 3, pp. 533, 542), as follows: “A passenger cannot include in his baggage the property of other persons; he is entitled to carry with him and to recover for the loss of only such articles as are carried for his own personal comfort and convenience; as to such property of other persons the carrier is liable only as a gratuitous bailee. * * * The liability of a carrier for merchandise which it has been induced to carry as baggage, without knowledge of its character, is that of a gratuitous bailee; negligence on its part causing the loss of or injury to the property carried must be clearly shown, and cannot be presumed from the mere fact of the loss or injury.”

Mr. Redfield, in his Law of Railways (3d ed., vol. 2, p. 150), says: “ But the carrier, although not liable as an insurer, will be liable as an ordinary bailee without hire for any loss or damage which is proved to have been caused by his own gross negligence, or that of his servants.”

There is no evidence in the case tending to show that the defendant knew that the cases and the property therein belonged to the plaintiff, and that it contracted with the plaintiff for the safekeeping of the same.

Our attention is called to Gurney v. Grand Trunk Railway Co. (37 N. Y. St. Repr. 155; S. C. affd., 138 N. Y. 638). That case lays clown a rule which, we think, is applicable to the one in hand. In that case it was said that, “ If goods belonging to another person be placed in the trunk of a passenger on a railroad, although such company accepts the trunk for transportation as baggage in the usual manner, if its servants or agents have no notice of the presence of such merchandise, no liability will arise on the part of the carrier to the owner of the merchandise in case of its loss or destruction.” In the course of the opinion it was said : “ The transportation company, under the rules, of law applicable, is liable for gross neglect, and nothing less will suffice to make it liable. Mow, what is gross neglect ? As contradistinguished from ordinary neglect, gross neglect means acts equivalent to willful acts upon the part of the bailee by which the property is lost. Where he willfully refuses to take any precaution for the purpose of saving or caring for the property, the bailee is guilty of gross neglect. It is not where he simply fails to use the ordinary care which a prudent person would exercise under the circumstances.”

When the fire was discovered by Baggagemaster Collins, and became known to Lundergan, the station agent, it had made such progress that there was great heat caused around and about the depot, to such an extent, within a short time, as to render it unsafe to enter the baggage room, and, according to the testimony of the defendant’s witnesses, there was no opportunity to remove the baggage belonging to the plaintiff or the property of the defendant from the baggage room. The testimony given by Wilson and Holcomb, to the effect that an inquiry was made of Collins as to whether the property had been removed, is distinctly contradicted by Collins, and he, to some extent, is corroborated by the other evidence and by the circumstances of the case.

So far as the verdict of the jury rests upon the finding that the defendant was, under the circumstances, guilty of gross negligence or willful misconduct, we are of the opinion that it is against the weight of the evidence. (Reid v. Young, 7 App. Div. 400; Curry v. Wiborn, 12 id. 1.)

The judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.

All concurred, except Ward, J., not voting.

Judgment and order reversed and a new trial ordered, with costs to appellant to abide the event.  