
    B. H. PERRY v. SEABOARD AIR LINE RAILWAY COMPANY et al.
    (Filed 15 March, 1916.)
    1. Carriers of Passengers — Baggage—Negligence—Evidence—Questions for Jury.
    Where the complaint alleges that some clothes were stolen from a suitcase, the baggage of the plaintiff, a passenger on the defendant’s train, through the latter’s negligence, and the evidence tends to show that the baggage had previously been transported by another carrier, under its check, and remained in the union baggage room from 7 p. m. overnight, where several clerks and porters were employed, and then' received by the defendant, and that it had been received by the former carrier with the clothes in it and from the latter carrier with the clothes missing, an issue as to defendant’s negligence is raised for the jury to determine, and it is reversible error for the judge to assume in his charge that the articles were lost while in the defendant’s possession.
    2. Carriers of Passengers — Baggage—Gratuitous Bailment — Negligence.
    At common law and under our statute, Revisal, sec. 2618, the passenger’s right to a limited amount of baggage as a 'part of the consideration for the price of his ticket is upon the condition that the baggage accompany the passenger on the same train; and where without any default on the part of the carrier, its agent, without further charge, has the baggage forwarded on a later train, the carrier’s liability is not that of an insurer, but of a gratuitous bailee, under the rule of the prudent man, and attaches only in instances of gross negligence.
    8. Same — Burden of Proof — Instructions—Trials—Evidence. .
    Where the liability of a carrier is that of a gratuitous bailee, and it is shown that the carrier received the subject of the bailment in good condition and delivered it in bad condition, it raises a prima facie case of negligence sufficient to be submitted to the jury, but with the instruction that the carrier would be liable only if it failed to exercise the care of a person of ordinary prudence under the circumstances, and as such circumstances rest peculiarly within the carrier’s knowledge, it is incumbent upon it to introduce evidence thereof.
    Appeal by defendant from -Lyon, Jand a jury, at October Term, 1915, of YaNOe.
    Civil action to recover damages for the loss of certain wearing apparel.
    The plaintiff alleges that the defendant i.s liable as .a carrier of baggage, and, if not, that the wearing apparel was lost by reason of the negligence of the defendant.
    The defendant denies that the wearing apparel was ever delivered to it and also denies any liability to the plaintiff.
    The plaintiff introduced evidence tending to prove that on 3 December, 1913, he bought a ticket of the Southern Railway Company and checked his suitcase from Goldsboro to Raleigh; that the wearing apparel was in the suitcase at the time it was checked and delivered to the agent of the Southern Railway at Goldsboro; tliat the agent at Goldsboro delivered it in the same condition to the baggage master of the Southern Railway train; that the baggage master delivered it in the same condition to the agent at the union depot station at Raleigh; that the plaintiff remained in Raleigh a sufficient length of time to have his suitcase reohecked to Henderson, where he intended to go; that on the night of 3 December he, the plaintiff, bought a ticket of the defendant, the Seaboard Railway, from Raleigh to Henderson, but did not have his suitcase checked; that he went to Henderson on this ticket, and on the morning of 4 December requested the agent of the defendant to have his suitcase brought from Raleigh to Henderson, which the defendant agreed to do upon learning that the plaintiff had traveled on the road of the defendant; that after the suitcase reached Raleigh it was placed in the baggage room used by the Southern Railway Company and the defendant, and in this baggage room there were two clerks and three porters; that the suitcase remained in the baggage room until the morning of 4 December, 1913, when it was carried to Henderson by the defendant in accordance with the agreement of its agent at Henderson; that it was there delivered to the plaintiff and the wearing apparel was not in it; that the wearing appare] was worth $50.
    The defendant introduced evidence tending to prove that the wearing apparel was not in the suitcase at the time it was delivered to the defendant and that it was not negligent.
    His Honor charged the jury, among other things, as, follows:
    “Now, when goods are shipped over a railroad, called common carrier, and the goods are damaged, the law presumes that the company in whose possession they were when the damage was discovered, that is, the last carrier, is to be responsible for the damage to the goods.” The defendant excepted.
    “Now, as I told you, the law presumes that the loss occurred by the negligence of the Seaboard, it being the company in whose possession the goods were lost.” The defendant excepted.
    “If you find from the evidence that the suitcase contained the two pairs of trousers, and they were lo.st, and that they were worth $50, and from the evidence that they were lost by the negligence of the defendant, you may answer the first issue 'Yes,’ the first issue being: ‘1. Was the property of the plaintiff lost by the negligence of the defendant, as alleged in the complaint V ”
    The defendant excepted.
    There was a verdict and judgment for the plaintiff, and the defendant excepted and appealed.
    
      J. 0. Kittrell for plaintiff.
    
    
      Murray Allen for defendant.
    
   AlleN, J.

Tbe cause of action of tbe plaintiff is founded upon tbe allegation that tbe wearing apparel, wbicb be contends was lost by tbe negligence of tbe defendant, tbe Seaboard Railway, was in tbe suitcase of tbe plaintiff at tbe time it was delivered to tbe defendant, and tbis allegation is denied.

Tbis raised an issue for tbe determination of tbe jury, and tbe evidence of tbe plaintiff, circumstantial in character, is not so clear as to free tbe question from doubt and to withdraw it from tbe realm of debate.

Tbe evidence tends to prove that tbe suitcase was carried from Golds-boro to Raleigh in tbe same condition in wbicb it was delivered to tbe agent at Goldsboro, but that at Raleigh it was left unlocked in a baggage room in wbicb there were two clerks and three porters, from about 7 o’clock of tbe evening of 3 December until tbe nest day, when it was delivered to tbe defendant, and that it was only in tbe possession of tbe defendant from one to two hours, and upon tbis evidence tbe defendant might well contend that tbe loss was at Raleigb and not on its train or at Henderson.

It was therefore error for bis Honor to assume in bis charge that tbis fact was established, and to tell tbe jury that tbe loss occurred while tbe suitcase was in tbe possession of tbe defendant, wbicb be did in tbe part of the charge excepted to when be said: “Now, as I told you, tbe law presumes that tbe loss occurred by tbe negligence of tbe Seaboard, it being tbe company in wlhose possession tbe goods were lost.”

Tbis entitles the defendant to a new trial; but as tbe question will necessarily be raised again, it is proper to consider tbe exception to tbe charge upon tbe burden of proof, and tbis cannot be done intelligently without dealing with tbe relation between tbe plaintiff and tbe defendant, and tbe degree'of care imposed upon tbe latter, assuming tbe wearing apparel to have been in tbe suitcase when it was delivered to tbe defendant.

Tbe plaintiff contends that it was a part of tbe contract at tbe time be bought bis ticket at Raleigb for Henderson that tbe defendant would carry bis baggage, and that tbe transportation of'the baggage on tbe next day was in tbe performance of tbis contract, and that, therefore, tbe defendant is liable as a common carrier of baggage and is an insurer.

Tbe position of tbe defendant, on tbe other band, is that while tbe contract wa;s to carry tbe baggage of tbe plaintiff, it was limited to tbe train upon wbicb be traveled, and as tbe baggage did not go forward until tbe next day, and then for tbe accommodation of tbe plaintiff, that its liability is that of a bailee without reward, and that there is no presumption of negligence upon proof of loss.

If tbe position of tbe plaintiff is sustained be is entitled to recover upon proof of delivery to tbe defendant and of a failure to deliver, and without proof of negligence, becau.se a common carrier of goods and baggage is an insurer, and is liable for all injuries to and loss of tbe property being transported, unless tbe injury or loss is caused by tbe act of God, tbe public enemy, tbe negligence of tbe shipper, or by tbe inherent qualities of tbe goods, and tbe burden is on tbe carrier to bring itself within one of these exceptions. Harden v. R. R., 157 N. C., 249.

Tbe correctness of tbe position depends upon tbe contract between tbe plaintiff and tbe defendant at tbe time be bought bis ticket, and tbe authorities are practically unanimous that, while at common law and under our statute (Rev., sec. 2618) the passenger has the right to have baggage to a limited amount transported free of charge as a part of tbe consideration for tbe price of bis ticket, tbe baggage must accompany tbe passenger on tbe same train, unles.s prevented by tbe default or negligence of tbe carrier.

If tbe passenger has checked bis baggage in time to be transported with him, and this is not done, or if baggage is checked through over different lines and tbe connection is so close at some point that there is not time to transfer the baggage to tbe train taken by tbe passenger, or if for any cause within tbe control and supervision of tbe carrier tbe baggage is carried on another train, it retains its character as baggage and the carrier is liable as an insurer for loss or injury to it; but in tbe absence of one or tbe other of these conditions tbe carrier is relieved from liability as an insurer if tbe baggage is carried without additional compensation on another train at the request of tbe passenger.

If carried on another train for extra compensation it is liable as a carrier of freight.

The authorities declaring this to be the law are collected in tbe note to Conheim v. R. R., 15 A. and E. Anno. Cases, 391, where tbe editor says: “The rule generally recognized is that a passenger who brings bis baggage to tbe station within a reasonably sufficient time before tbe departure of tbe train be intends to take to permit of tbe baggage being checked and placed on board has tbe right to have it carried on tbe train be himself takes. Wald v. Pittsburg, etc., R. Co., 162 Ill., 545, 44 N. E., 888, 35 L. R. A., 356, 53 Am. St. Rep., 332; Toledo, etc., R. Co. v. Tapp, 6 Ind. App., 304, 33 N. E., 462; Felton v. Chicago G. W. R. Co., 86 Mo. App., 332; Glasco v. New York Cent. R. Co., 36 Barb. (N. Y.), 557; Fairfax v. New York Cent., etc., R. Co., 73 N. Y., 167, 29 Am. Rep., 119; Coward v. Hast Tennessee, etc., R. Co., 16 Lea (Tenn.), 225, 57 Am. Rep., 227. See, also, Chicago, etc., R. Co. v. Addizoat, 17 Ill. App., 632; Runyan v. Central R. Co., 61 N. J. L., 537, 41 Atl., 367, 43 L. R. A., 284, 68 Am. St. Rep., 711; Webb v. Atlantic Coast Line R. Co., 76 S. C., 193, 11 Anno. Cases, 834, 56 S. E., 954, 9 L. R. A. (N. S.), 1218.

“ ‘It is implied in tbe contract (of carriage) that the baggage and the passenger go together.’ Wilson v. Grand Trunk R. Co., 56 Me., 61, 96 Am. Dec., 435. ‘In the case at bar, when the appellant bought his tickets for a passage upon the limited express train and applied to have his baggage cheeked, there was an implied undertaking on the part of appellee that his baggage should go on the same train on which he took passage; and appellee was bound to send his baggage on the same train on which he went, unless the appellant gave some direction, or did something, or omitted to do something, which authorized appellee to send his baggage by some other train.’ Wald v. Pittsburg, etc., R. Co., 1162 Ill., 553.
“The theory underlying the rule is, it seems, that the baggage which must be carried by the railroad company, without compensation beyond ■the passenger’s fare, is such as is required for the necessity, convenience, or pleasure of the passenger, and consequently must accompany his person. See Wilson v. Grand Trunk R. Co., 56 Me., 60, 96 Am. Dec., 435; Runyan v. Central R. Co., 61 N. J. L., 541, 41 Atl., 367, 43 L. R. A., 284, 68 Am. St. Rep., 711.”

See, to the same effect, Wood v. R. R., (Me.) 99 A. D., 341, and extensive note; Beers v. R. R., 67 Conn., 417; Marshall v. R. R., 126 Mich., 45; Gaffam v. R. R., 67 Me., 234; 3 Hutchison on Carriers, sec. 1274; 4 Elliott on Railroads, sec. 1656. Hutchison says: “The owner of the property must, of course, stand in the relation of passenger to the carrier in order to fix upon him liability as a carrier of baggage. The carriage is ex vi termini incidental to the carriage of the owner as a passenger. If, therefore, that which would have been properly baggage had it been accompanied by the owner as a passenger should, by accident or mistake, be accepted by the carrier for transportation without being accompanied by the owner, and when he is not or does not become a passenger, the carrier would not have it in his custody in the character of baggage, and would not be responsible for it as such.” And Elliott: “In the absence of anything to the contrary, the rule is that the implied contract to carry a passenger’s baggage which arises from the purchase of a ticket is that the passenger and his baggage shall be transported on the same train. The purchase of a ticket usually entitles a passenger only to transportation for himself and his baggage on the same train, and nothing more.”

This being the law, and the failure of the defendant to carry the suitcase on the same train with the plaintiff being due to his neglect in not having it checked when he had ample time to do so, and not to any omission of duty by the defendant, the contract between the plaintiff and the defendant was at an end when the plaintiff reached Henderson; and as the defendant transported the suitcase on the next day without compensation, its liability must be referred to the law of bailment.

This subject is fully discussed in the learned opinion of Justice Walker in Hanes v. Shapiro, 168 N. C., 28, where, after classifying bailments into those (1) for the bailor’s sole benefit, (2) for the bailee’s sole benefit, (3) for the mutual benefit of the bailor and the bailee, he quotes Lord Holt in the leading case of Coggs v. Bernard as to the diligence required in each class, that “In bailments for the sole benefit of the bailor, the bailee will be liable only for gross negligence; in bail-ments for the mutual benefit of both parties, he will be liable for ordinary negligence; in bailments for the exclusive benefit of the bailee he will be liable even for slight negligence”; and he adds, with reference to the terms “slight negligence,” “gross negligence,” “ordinary care”: “Nevertheless, the terms ‘slight negligence,’ ‘gross negligence,’ and ‘ordinary negligence’ are convenient terms to indicate the. degree of care required; but in the last analysis the care required by the law is that of the man of ordinary prudence. This is the safest and best rule, .and rids u.s of the technical and useless distinctions in regard to the subject.”

Tested by this rule, the liability of the defendant is that of a bailee for the sole benefit of the bailor, a gratuitous bailee, and only .answerable for gross negligence, which is the failure to exercise the care of a person of ordinary prudence undertaking to carry the goods of another without compensation.

If so, what must the plaintiff prove, in the first instance? Can he rest his case upon proof of delivery to the carrier, and that the carrier failed to deliver, or must he go further and offer affirmative evidence of some negligent act of the carrier?

If the first is the correct rule, it imposes no hardship on the carrier, because it is only called upon to explain its .own conduct, and it has the evidence under its control, while the lattér would in most cases be a denial to the owner of the opportunity to maintain his action, as he would have no means of showing the acts and care of the carrier during transportation.

The weight of modern authority is in favor of the position that proof of delivery to the carrier and of its failure to deliver is'evidence of negligence sufficient to carry the case to the jury and to support a verdict, but that the jury ought to be instructed that the carrier is not liable if upon the whole evidence they do not find that it did not exercise the care of a person of ordinary prudence under the circumstances. Bennett v. O’Brien, 37 Ill., 250; R. R. v. Hughes, 94 Miss., 248; Higmon v. Cannady, 118 Ala., 267; Hawkins v. Haynes, 71 Ga., 43; Sheldon v. Robinson, 26 A. D., 726; Pratt v. Waddington (23 Ont. L. R.); 21 A. and E. Anno. Cases, 841, and extended note.

"We quote from the note as follows: “The Mississippi Court said in Yazoo, etc., R. Co. v. Hughes, 94 Miss., 242, 47 So., 663: ‘It appears that the ancient rule was that in all cases where a bailee was sought to be held, no presumption of negligence arises on account of tbe loss of the goods, and the burden of proof is always on the plaintiff to establish that negligence was .attributable to the bailee. But by the weight of modern authority this doctrine is substantially modified. It may now be said to be established that when a bailor shows that goods are delivered to his bailee in good condition, and are lost or destroyed or returned in a damaged condition, this fact creates a prima facie presumption of negligence; and it thereupon devolves upon the bailee to absolve himself from negligence.’ The rule is founded in necessity, and upon the consideration that a person who, from his situation, has peculiar if not exclusive knowledge of the facts, if they exist, is best able to prove them. Hackney v. Perry, 152 Ala., 626. Of course, the bailor or depositor must prove the bailment .and a failure or refusal to return the property on demand. If a failure or refusal to return the property on demand is shown, it becomes incumbent upon the bailee or depositary to show satisfactory explanatory circumstances or facts in defense. Bates v. The Bank, 118 Idaho, 435; Vogelsang v. Fredkyn, 153 Ill. App., 356; Sanford v. Kimball, 106 Me., 355.”

This is the conclusion reached in Hanes v. Shapiro, 168 N. C., 31, where the Court says: “As has been seen, the obligation to redeliver or deliver over the property at the termination of the bailment on demand is an essential part of every bailment -contract. If the bailee fails to do so, he is liable, unless he can show that his inability arises without fault on his part. There is considerable confusion among the decisions in regard to the burden of proof in cases where a bailee is sued for a loss or injury. A line of decisions hold that in cases founded on negligence the burden of proving it affirmatively rests on the plaintiff throughout, and that when a bailee is sued for a negligent loss or injury, mere proof of the loss or injury does not alone make a prima facie ease. But the better opinion, suppprted by the weight of authority, holds that while the burden of proving negligence rests upon the plaintiff, and does not shift throughout the trial, the burden of proceeding does shift, and that where the plaintiff has shown that the plaintiff has received the property in good condition, and fails to return it, or returns it injured, he has made out a prima facie case of negligence.”

Note that the language is that this rule prevails in “every bailment.”

Expressions in Brick v. R. R., 145 N. C., 203, and in Kindley v. R. R., 151 N. C., 207, apparently in conflict with this view, are based on the facts of those cases which are unusual and extraordinary.

The burden of proof was not involved in either case. The Brick case was determined upon the ground that the facts developed were a fraud on the carrier, and in the Kindley case, all of the evidence being in, the court held there was no evidence of negligence.

We therefore conclude that his Honor was in error in dealing with the liability of the defendant as a carrier of baggage as such, but that there was evidence for the consideration of the jury.

New trial.  