
    Anna Mortland, App’lt, v. Philadelphia and Reading Railroad Company, Resp’t.
    
      {Supreme Court, General Term,, First Department,
    
    
      Filed November 16, 1894.)
    
    1. Gabbier—Liability.
    The liability of a company, as a common carrier, for a trunk checked from one place to another continues from the time it is checked until its arrival at its destination, and for such time thereafter as will afford the owner a reasonable opportunity to remove it.
    2. Same—Reasonable time.
    What constitutes such reasonable time, where the facts are undisputed, is a question of law for the court to determine.
    3. Same—Warehouseman.
    After the expiration of such reasonable time, the liability of the company as a carrier becomes changed into that of a warehouseman.
    4. Same.
    As such warehouseman, it can be charged with liability for the loss of the trunk only on the ground that it was negligent and failed to discharge in full the duty it owed to the owner.
    Appeal from a judgment dismissing the complaint with costs, and from an order denying a motion for a new trial.
    
      Jonathan G. Boss, for app’lt; Pierre M. Brown, for resp’t.
   Parker, J.

The baggage manager of a theatrical company, of which the plaintiff was a member, caused the baggage of the company, as well as that of the individual members of it, to be checked from Wilmington, Del., to Mahoney City. After the car in which the baggage checked was carried had arrived at Mahoney City, the manager of the theatrical company went to the car, in company with the baggage man in the employ of the defendant, who unlocked the car and opened it. All of the checks were at that time delivered to him by the manager of the theatrical company, who informed him that he only desired to take out the baggage of the company which would be required for use at the performance in the evening, leaving the other trunks in the custody of the defendant. He was informed by defendant’s baggage man that he might as well deliver up all the checks; that everything would be safe, because the car would be only 200 feet from the depot, and the defendant had a night watchman. This suggestion was acted upon, the property necessary for the evening’s performance being taken from the car, after which the door of the car, which had a snap lock on it, was closed. Among the trunks left in the car was one belonging to this plaintiff, the contents of which were of the value of $500. After the evening’s performance was at an end, the trunk was missing. Subsequently the trunk was found, but the lock was broken, and its contents had been taken away.

The trial court rightly, as we think, dismissed the complaint, after the plaintiff had rested her case. Defendant’s liability to the plaintiff as common carrier was in force from the time the trunk was checked at Wilmington until after its arrival at Mahoney City, and for such a time thereafter as should afford plaintiff reasonable opportunity to remove it. Roth v Buff. & S. L. Railroad, Co., 34 N. Y. 518; Fenner v. Buff. & S. L. Railroad Co., 44 N. Y. 505; Burnell v. N. Y. C. Railroad Co., 45 N. Y. 184; Mattison v. N. Y. C. Railroad Co., 57 N. Y. 553. As to what constitutes a reasonable time cannot be measured by any arbitrary and inflexible rule, but depends upon the circumstances of each case. When, however, the facts are undisputed, what is a reasonable time is a question of law for the court. Hedges v. H. R. Railroad Co., 49 N. Y. 223. In this case .the facts were not in dispute. Only one witness was sworn, and he was the baggage manager of the theatrical company. His testimony required the court to hold that, before the trunk was taken from the possession of the defendant, the plaintiff had had a reasonable time within which to remove it, because the person who was authorized to act for her, and for that purpose had possession of the check, removed from the same car other baggage, and could have removed this had he desired to do so. For his own convenience, or that of his principal, or both, he elected not to take it away, but to leave it in the custody of the defendant. The baggage master of the defendant suggested that he leave it in the car, and told him where the car would be located, and that the defendant had a night watchman. Plaintiff’s representative acquiesced in the suggestion, delivered the check, with others, to the baggage master, and the car was closed. Thus was terminated defendant’s relation to the plaintiff as common carrier of her trunk. Dininny v. New Haven Railroad Co., 49 N. Y. 546, is not an authority for the plaintiff. The decision in that case was predicated on a finding of fact, that the plaintiff caused the demand to be made for said trunk and contents within a reasonable time, and made reasonable efforts, and within a reasonable time, to demand and procure the trunk and contents; and that the defendant refused and neglected to deliver the contents of said trunk.” We have not overlooked the case of Burgevin v. N Y. C. & H. R. R. R. Co., 69 Hun, 479; 52 St. Rep. 617. The proposition of law which the court asserts to be controlling in such a case as this accords with the views we have expressed, but, under the peculiar circumstances of that case, it was held that plaintiff called for his trunk within a reasonable time after its arrival at the station. It does not follow, of course, that, because defendant’s responsibility as a carrier ceased, the company could thereafter leave it uncared for. It still owed a duty to the plaintiff in respect to the trunk. The strict responsibility of a carrier had been changed to a modified liability, such as that of a warehouseman. As a warehouseman, the defendant could be charged with responsibility for the loss of the trunk only on the ground that it was negligent, and failed to discharge in full the duty it owed to the defendant as such. But upon the question of negligence the record is silent, hence no question was presented for the consideration, of the jury.

The judgment should be affirmed.

Follett, J., concurs.

Yak Brunt, P. J.—I concur. The only witness examined for the plaintiff shows that the baggage was delivered. He says that he gave the checks to baggage man, who delivered the baggage to him; that then the witness asked to leave some of the baggage' there. This testimony is reiterated at folio 22. The witness says : “ After I got this baggage, I asked the baggageman to leave some of the stuff in the car, and he said it would be all right.” This evidence shows clearly that the obligations of the defendant as carrier had ceased.  