
    Ada M. Morris v. The Third Avenue Railroad Company.
    Where camn-s of passengers, by a general.regulation, make it the duty of ■ their agents to take charge of property inadvertently left in their cars, and provide at their depot a place for its safe keeping, where the owner may apply for it, it must be deemed a part of th?ir business to take charge of such articles and keep them for the passenger.
    .And although they do not engage for tile carriage of luggage, and do not incur respecting it the extraordinary liability of common carriers, yet the existence of the regulation shows Hint they undertake, as incidental to their business, to take charge of it, if left in their care, when the fact is brought to their knowledge; and the specific compensation which they receive for the carriage of tlm passenger is sufficient to,constitute them bailees for hire, While the property remains in their custody.
    The plaintiff left a satchel in defendants’ car, which the conductor took charge of, and upon the return-trip placed it in the care of the receiver of the road, • by whom it was delivered to a person who had no right or claim to it,— Ildd, that the defendants were liable as for. a conversion.
    
      Where property is not put in a bailee’s charge by tlie owner, but comes into his possession through the owner's neglect, and where be may not know to whom it belongs, or by wliom it was left, lie should not be held responsible for delivering it to the wrong person, if he lias exercised all tire care and vigilance that could reasonably ho expected of him under the circumstances.
    The question of care and vigilance is one of ftict for the tribunal which tries tlie ease, and its finding will not ordinarily he disturbed on appeal. ’
    Appeal by the defendant from a judgment of the Marine Court at General Term. ■ -
    The plaintiff brought action to recover the value of a satchel .and contents “ casually lost by her” in one of the cars of the defendants. The conductor of the car took care of the article, and on reaching the end of his route,'left it with another employee of the defendants, for safe keeping, in a room provided for that purpose. ", '
    The latter employee was,- shortly after tlie deposit, applied to for the satchel, by a person who described it, stating it to have been lost by being accidentally left in a car, and claiming it as belonging to her mistress. Tlie receiver gave the property to the applicant.
    Judgment was rendered for the plaintiff, which being affirmed by the General Term, the defendants appealed to this Court. '
    
      Robert B. Potter, for appellants.
    I. The defendants are not carriers of luggage. The defendants are a peculiar corporation in their objects ; being simple passenger carriers—a public conveyance in a large city, to aid foot passengers in going great distances, and there is no proof that the defendants are carriers of luggage. They are not in fact. (1.) Tlie liability of other passenger carriers for luggage, such as hackney coachmen, stage coach proprietors, and the like, does not arise upon the occupation itself, but it has grown up into recognition because the public has become accustomed with the owners’ assent to carry their baggage with them in such vehicles. Defendants’ cars are not run for. the travelling public at large, but for citizens in their daily local business. The fare is fixed and arbitrary, and docs not include the carrying of'luggage, which, if carried occasionally, is invariably charged for. (2.) The defendants performed their contract with the plaintiff, and h. came dismissed of all obligation when they discharged her at her own request at Grand street, in safety. She left the bag. All her action was voluntary." She never delivered it to the defendants, and it was never in their custody, with her assent or by her action. This is necessary to create liability. Angell on Com. Car. 113 ; Tower v. U. & S. R. R. Co., 7 Hill, 47.
    II. The defendants’ negligence did not consist in finding or in the taking to the .Receiver, hut in the delivery to the woman. The action is trover, and the gist is the conversion. There was-no conversion until the delivery to the woman; the question simply is whether" the delivery, under the circumstances, constitutes negligence. The error lav'in the original carelessness of the owner. The act was the act of the conductor and receiver. It is not shown that the railroad assumed to take or to return the property. The conversion, if any, was by those two parties. Hibbard v. N. Y. & E. R. R. Co., 15 N. Y. R. 455.
    
      E. L. Fancher, for respondent.
    As to the case on the merits, it is identical in all principles with that of Powell v. Myers, 26 Wend. 591; where the doctrine is established, that “ common carriers of passengers and baggage are liable for the latter until its delivery to the owner; its delivery on a forged order will not discharge them and .fhe circumstance that no compensation is paid for the transportation of the baggage, is not material; the passenger fare includes it. See-Wend. 594. And the defendants are also liable in trover. Packard v. Getman, 4 Wend. 613.
   By the Court.

Daly, F. J.

The evidence sufficiently shows tho‘ it formed a part of the business of the defendants to take charge of articles left inadvertently in the cars by passengers ; and that by their custom all articles so found were taken by the conductors to the receiver’s office, in Sixty-fifth street, and placed in the care of that officer. This was an arrangement for the benefit of passengers, and though the defendants may have received no compensation for it, other than that ■which is included in the fare charged for the conveyance of the passenger, they must, in taking charge of property so left, be' looked upon in the light of bailees for hire, who are bound to-the -exercise of ordinary care and diligence. Powell v. Myers, 20 Wend. 591; Town v. Utica & Schenectady R. R. Co., 7 Hill, 47; Angel on Carriers, §§ 75, 121, 112, 302 ; Edwards on Bailments, 35 36.

— This is not a gratuitous bailment. It is a matter of ordinary convenience for passengers to carry with them light and portable articles, and necessarily of very common occurrence that they should occasionally leave such articles behind them on quitting” the cars. That the defendants make it the duty of their conductors to take cl large of property so left, and that they provide a place for its safe keeping, where the owner may apply for it, is an arrangement 'which materially enhances the security of this mode of travel, and where it is adopted, as in this case, by'a general regulation, it must be deemed as much a part of the railroad company’s busi ness as the carriage of the passenger. They do not "engage for the carriage of property of the kind, and do not incur respecting it the extraordinary liability which the law imposes upon common carriers, but the existence of the regulation they have adopted, shows that they undertake, as incidental to„their business, to take charge of it, if- left in the cars, when the fact is brought to their knowledge.- and the specific compensation which they receive for the carriage of the passenger, is sufficient to constitute them bailees for hire while the property remains in their custody.

' The plaintiff in the case left her satchel in the car, containing articles valued at one hundred dollars. The conductor’s attention being called to the fact, he took charge of it, and upon tho return trip placed it in the e. re of the receiver, by whom it was delivered to a person who had no right or claim to it.

If a bailee for hire deliver a package by mistake to the wrong person, it is a conversion, because it is giving the dominion over the goods to another, (Youle v. Habalttle, Peake N. P. C. 49; Wyld v. Pickford, 8 Mees. & W. 461; Packard v. Getman, 4 Wend. 613 ;). but in a case- like this, where the property is not put in tho bailee’s charge by tho owner, where it comes into his possession through the owner’s neglect, and where he may not know to whom it belongs or by whom it was left, he should not he held responsible for delivering it to a wrong person, if__he_ has .exercised.all the care.and vigilance that could reasonably be expected of him under the circumstances.

The. receiver testified that about fifteen minutes after the satchel was placed in his charge, a respectable* looking German woman came into the office and claimed it, saying that she had been sent there by her. mistress. She said the handle was a string, a brown ribbon, and that the satchel was a brown leather one; that he asked her as to its contents, and that she said that there was a brush and comb, and other articles, the comb lying on the top, two or three bottles, and articles belonging to a lady, and that there was.clothing. lie stated that the brush and bottles corresponded with her description, and that he saw what appeared to be ladies’ clothing in the bag. That when he produced it, she said yes, bowed, and extended her hand for it; that he meant to bo careful, and that her manner made him think that she told the truth.

In cases of this nature it is generally left to a jury to say whether the circumstances were such as to justify the bailee in parting with the property. The facts relied upon to show the existence or the want of diligence, may, even where there is no conflict, be regarded differently by different persons ; they may be influenced in ih'eir bearing upon each other by the consideration of a variety of circumstances, and when the tribunal, therefore, before whom the case was laid in detail, and before, whom the witnesses were examined, comes to the conclusion that sufficient cave was not exercised, appellate courts, except in a very clear case, should not interfere. There are, in many instances, a discretion and judgment to be exercised as to the bearing .and relation of facts, wliich it is more appropriate to leave to the tribunal that fried the cause, than to the one that sits in review, and impressions as to the value of testimony and the consideration that ought to be given to particular facts, derived from the manner of witnesses, and other surrounding cirIeumstanccs occurring at the trial, that have, and should have weight, of which the appellate tribunal have necessarily no knowledge. Questions, therefore, of negligence, the exercise or the want of diligence, overruling, as they usually do, the consideration of many circumstances, should be left to the tribunal that tried the cause, except where the error is very palpable. Oldfield v. N. Y. & Harlem R. R., 3 E. D. Smith, 106; Curtis v. Rochester, &c., Railroad Co., 20 Barb. 282; Stover v. Gower, 6 Shep. [Mc.] R. 174 ; Story v. Bailments, §§ 11, 12, 13, 14 ; Angel on Carriers, §§ 27, 51.

r The Justice has found in the case that there was a want of proper care on' the part of the defendants’ agent, and it pro/sents, in my judgment, one of the class of cases in which liis' conclusion should not be interfered with. Property left like this, in a car in which there are other passengers, is liable to just such attempts on the part of dishonest persons, to obtain it, as occurred in this case. The defendants’ agent had it in his power, before the satchel was' shown, to require such proofs ' of its identity as could be furnished only by a person thoroughly acquainted with its contents. The outward dcscriptian of it might be given by any one who had seen it in tho cars, but a particular account of what it contained could be supplied only by one who know what was in it. It would appear not to have been locked, as the receiver looked into it, and this was an additional reason for ¿xercis'mg greater cantian, and requiring such a statement of its contents as would reasonably justify the conclusion, if given, that tho person applying was entitled to it. The woman is declared to have said that, there was a brush and comb, and the receiver, when examined upon the direct, staled that tho brush and bottles corresponded with her description, but when cross-examined, he said that he did not see a lady’s hair brush; that the only brush that he saw was a tooth brush. The Justice assuming that he believed the statement, may have been of the opinion that the woman meant, when she spoke of a brush and comb, to convey, from the union of the two, that it was a hair brush, and as the only brush that the receiver saw was a tooth brush, that that should have awakened his suspicion. But there was also evidence on the part of the plaintiff that may have induced the Justice to discredit the whole of that part of tho receivev’s statement, in which he testified that the woman identified articles contained in the satchel. lie said that' tlie brush and bottles corresponded, wir.ii her description, having previously stated that she mentioned two or three bottles.

Now, the plaintiff testified as to the contents of the satchel. She swore that she remembered what was in it, and she produced a copy of a list of the articles which it contained, made out by herself at the time of the loss, and in this list there was neither brush, bottles, nor tooth brush. These articles the woman is said to have specifically identified, while, according to the plaintiff’s testimony, the satchel contained no articles of the kind. There was, then, a serious conflict, and if the Justice believed, the plaintiff’s -enumeration of the contents to be correct, it was calculated to throw discredit upon the receiver’s statement. This officer says that the woman’s manner made him think that she told the truth, and the Justice may have thought that he relied rather upon that than upon what was within his power—such a description of what was in the satchel as could not in all. probability have been given by the dishonest woman who obtained it. It could easily have been examined, and as it was according to the plaintiff’s testimany, a “ little satchel,” and contained a number of valuable articles, such as a gold chain, lava and pearl ear-rings, a jewelled bracelet, expensive embroidered handkerchiefs, pearl ornaments, a lace collar, &c., it would have given very little trouble to have ascertained what was in it, and that would have tested at once whether the woman knew what it contained. If the receiver delivered the satchel to her without any preliminary inquiry as to its contents, it was certainly a want of proper care. The Justice may have been of that opinion, and we cannot say, upon the evidence, that he erred in arriving at such a conclusion. The existence or absence of negligence was upon the evidence eminently a question for him alone.

S.everal objections were made to the introduction of festimany, but one of which the defendant now relies on—as to the court’s allowing the plaintiff to show what the starter said to her when she went to inquire after her satchel, It is unnecessary to discuss whether this was admissible- or not. It was proved by the defendants’ witness that the receiver had the bag in his custody,-.and. the declarations or statements of the starter as to where he had seen it and *here it had' been taken to,'were wholly immaterial. The. onty questions in the case was whether the receiver acted negligently in giving it up, and its value, and upon these questions this testimony could have no" bearing.

The judgment should be affirmed.  