
    SUSIE E. WILLIAMS v. SOUTHERN RAILWAY COMPANY.
    (Filed 24 May, 1911.)
    1. Carriers of Passengers — Acceptance of Baggage — Notice.
    To fix the responsibility for lost baggage upon a railroad company, .either as a common carrier or warehouseman, a delivery, actual or constructive, including an acceptance by the company, is necessary; and in order to a valid delivery the general rule is that when baggage is taken by others to the station, and to places where baggage is usually received, some kind of notice must be given to the agent authorized to receive it.
    2. Same — Custom—Modification of Rule.
    The requisites of the general rule to affect delivery of baggage of a passenger to a railroad company in order to hold the company liable may become modified by a custom of the latter to consider and treat baggage as received when left at a given place, without further notice.
    
      3. Same — Apparent Agency.
    ' To establish liability by a railroad company for the loss of a passenger’s trunk, there was evidence on plaintiff’s part tending to show that she had sent her' trunk to defendant’s depot by a drayman who, in the absence of the regular baggage man, placed it under the direction of one who apparently had charge at the time, where trunks were usually accepted; that the one giving directions for placing the trunk had on regular citizen’s clothes, with the exception that the vest had brass buttons on it like those of defendant’s conductors or employees, and that he went where the baggage men usually went, and appeared to be acting as a baggage agent for defendant; that plaintiff did not find her trunk, and after some conversation with defendant’s acknowledged baggage agent the latter agreed to send her trunk on a following train and gave her a check for it. Held, (1) Error of the trial court to refuse plaintiff’s prayer for special instruction, that if the trunk was left by the drayman at the time and place where baggage was received, in charge of the baggage man, or in care of any one whom defendant held out to the public to be in charge of the baggage room, such would be sufficient delivery; and, further, held, error (2) to a modification of the special instruction that in order to a valid delivery the trunk should have been left at the time and place with the knowledge and consent of defendant’s baggage man or other authorized agent of the defendant company.
    4. Same — “Agency by Estoppel.”
    When a railroad company by its acts has left a person in its baggage room apparently in charge of the baggage, notice given to him of the delivery of a trunk of a passenger is notice and may amount to an acceptance by the company, under the principle of “agency by estoppel,” and render the company liable in damages for the loss of the trunk.
    5. Issues — Discretion of Court.
    The framing of issues is a matter which is left very largely in the discretion of the trial judge, the limitation being that the issues must be sufficiently responsive to the pleadings and determinative of the rights of the parties involved therein.
    6. Issues — Carriers of Passengers — immediate Transportation — Definition — Surrounding Circumstances — “Reasonable Time.”
    The plaintiff, on Sunday afternoon, having purchased a ticket over defendant’s railroad, sent her trunk to the depot to be received and transported by it as baggage, intending to take her train to destination on Monday morning following. There was evidence tending to show the acceptance of the trunk as baggage on Sunday afternoon, and of the custom of the railroad company to receive baggage to be transported in accordance with plaintiff’s intent. In an action for damages for the loss of the trunk, hold, it was proper to submit the issue, “Was said trunk received by defendant for immediate transportation?” but thereon the jury should be instructed that the meaning of the word “immediate” in this connection was “reasonable time,” having due regard to the nature and circumstances of the case.
    7. Carriers of Passengers — Baggage—Liability as Common Carrier— Acceptance — Reasonable Time.
    In order to fix a railroad company responsible for baggage as a common carrier, the same must be delivered by the passenger and accepted for transportation within a reasonable time before he takes his intended train.
    8. Same — “Custom”—Warehouseman—Questions for Jury.
    When, in accordance with a custom of the carrier, it accepts baggage one afternoon for a train leaving the following morning, which the passenger intended to and did take to her destination, in the absence of some reasonable regulations restrictive of the company’s duty, the company would be liable, in case of loss of the baggage, as a common carrier, and held as an insurer. In the absence of such custom, the liability of the company would only be for .ordinary care as a bailee for hire; and on conflicting evidence as to the custom, the question would be for the jury to determine under proper instructions.
    9. Carriers of Passengers — Baggage — Liability as Carriers — As Warehouseman — Legal Excuse — Burden of Proof.
    When a railroad company accepts a trunk of its passenger for transportation, on failure to deliver it it is held responsible as a common carrier or warehouseman, with the burden on the carrier, in an action for damages, to render legal excuse for the failure.
    Appeal from Long, J., at the October Term, 1.910, of Meck-LENBURG-.
    Civil action to recover value of plaintiff's trunk and its contents.
    There was evidence on part of plaintiff tending to show that on or about 30 August, 1908, on Sunday afternoon, at Charlotte, N. C., plaintiff, having purchased a ticket over defendant’s road via Statesville, N. C., sent her trunk to the station of defendant company in Charlotte to be received as baggage for transportation over defendant’s road, plaintiff intending to take the train leaving Charlotte on Monday morning following, 31 August. The trunk was first given in custody to Robert Ram-saur, a drayman -working for the Black Transfer Company, at the house where plaintiff was then staying, with directions to take same to the station for the purpose indicated, and no check or receipt for same was given by Ramsaur, that not being the custom; that the trunk was taken to the station, as directed, the defendant company duly notified, and same was left at the accustomed place, and, by direction of an agent of defendant company, in apparent charge of the baggage-room and baggage business at the station. Plaintiff went to station Monday morning for purpose of taking train and to baggage-room to check her trunk, and she and the baggage agent walked immediately to a new steamer trunk and check was placed on same and duplicate given plaintiff. As this was handed plaintiff the agent asked her if she was positive that it was hers, and witness said: “No, I am not positive; I borrowed the trunk from Mrs. Hook.” He said, “Is there a name on it ?” I looked over the trunk and found no name on it. Then he said, “Well, just open the trunk and see if it is yours.” I took my key and opened the trunk, and it contained a gentleman’s clothes. He said, “This won’t do, it can’t be yours.” And of course I knew it was not mine, and I said, “What will I do ? I am going to Blowing Rock and will need my clothes.” And he said, “I will send your trunk to you just as soon as it comes.” I said, “Suppose this is not my trunk that you send to Blowing Rock to me, what will I do; I will need my clothes ?” I said, “If my trunk is lost what will I do ?” And he said they very rarely lost a trunk. He said, “If a gentleman has your trunk, he will send it back here, and I remember distinctly shipping a new steamer trunk Sunday afternoon.” He said there was an overflow of baggage from the flood, and he said, “Where are you going ?” And I told him I was going to Green Park Hotel, Blowing Rock, and he gave me a check and I put it in my purse. When I took the train I had the check given me by Mr. Harrill. I went to Blowing Rock. I have not received tbe trunk or tbe contents or tbe value thereof from tbe Southern Railway Company. I made a list of tbe contents about ten days after my trunk was lost.
    There was evidence offered, also, tending to show that tbe trunk was left at the place where unchecked baggage for transportation was usually placed, a covered archway, between tbe baggage-room proper and Gresham’s dining-room, in tbe main station building, and that it was not customary to receive baggage for transportation on Sunday afternoon for trains leaving Monday morning from station. It was proven or admitted that neither tbe trunk nor its contents had ever been restored to plaintiff and that tbe cheek given by tbe company for same bad been destroyed or lost. Percy Shaw, tbe agent of defendant company, having charge of baggage-room and business concerning baggage at the Charlotte station and attending to same, usually in the day time, and J. H. Harrill, his assistant, having like charge usually at night, were examined for defendant company, and on matters more directly relevant to the questions presented, testified that the trunk claimed by plaintiff was never delivered to them at the time nor for the purpose stated, either by Ram-saur or any other person. Percy Shaw, as witness, speaking especially to this question, testified: “I live in Charlotte. I am baggage agent at the Southern depot. Tes, I was baggage agent in August, 1908. I went on duty at 7 a. M. and left at 7 p. m. I was succeeded at night by Mr. Harrill. No one else there had authority to receive trunks. No, I did not at any time receive a trunk belonging to Miss Susie Williams. No, on 30 August I did not leave any employee there at the baggage-room, with a blue vest on, with brass buttons, to take my place. Conductors running on the train are the only employees on. the Southern road who wear such a uniform. (Cross-examination of Percy Shaw.) On 30 August I came on duty at 7 a. m., I suppose. I can’t remember whether I came exactly at 7 o’clock or not. No, I did not leave any conductor in my place that day. No, I did not leave any one in my place that day.” J. H. Harrill testified to like effect, and gave evidence tending to contradict plaintiff’s account of the circumstances under which he gave the check. On the question of whether the trunk was actually delivered to defendant company by Robert Ramsaur, be testified as follows: “I live at 810 E. First street, Cbarlotte. I work on transfer wagon. Tes, I know Miss Susie Williams. Yes, on or about 30 August, 1908, I took ber trunk from Mrs. Hook’s bouse, 305 East Morebead street, to Southern Railway station. I took tbe trunk to tbe Southern station and asked some railroad man there. No, I don’t know who I was talking to. It was a man in tbe baggage room. No, I don’t know who tbe man was I bad tbe talk with. He was a tall, slim-looking man. No, I don’t think be bad charge of tbe baggage room there. Yes, I know Mr. Percy Shaw.”
    Q. What took place between you and a man in tbe baggage room ?
    I asked him could I set tbe trunk inside the baggage room. He said, “No,” to put it in tbe alleyway, where they put trunks. I put it in tbe alleyway. . There is a gate there now, but there wasn’t none there then. I have worked for Black about tivo years in all.
    Q. Did you know what the custom is about placing trunks there for next morning’s trains ? Did you put that trunk there ? Yes.
    Cross-examination of Robert Ramsaur: Yes, I have been hauling trunks for about two years. Yes, I was working for tbe Black Transfer Company at that time. Yes, Black sent me to Miss Williams’ to get tbe trunk. No, I don’t carry claim cheeks for trunks. Tbe transfer man at tbe depot has them. Yes, I .went there some time in tbe evening before sunset. Yes, I got this trunk and loaded it on tbe wagon. Yes, I know Mr. Percy Shaw. No, be was not tbe man-I was talking to in tbe station — - in tbe baggage room there. Yes, Mr. Shaw was tbe baggage master there. No, I did not see him there at that time. No, I did not say anything to him. Yes, he was tbe baggage master. Yes, be was tbe.man who received the trunks at tbe station, if you could find him when you took trunks there. Yes, this tall, slim man was a white man. He was standing just beyond the scales in tbe baggage room. I put tbe trunk in tbe passage way, between tbe baggage room and Gresham’s dining room. Gresham has a dining room there.
    
      Q. And wagons drive up next to tbe kitchen?
    Tes, I first pulled the trunk inside the baggage room, and the man in the baggage room told me, “No,” to put it back there where trunks belong. Yes, I put it back out there. No, I said nothing to any one about it. No, I did not tell whose trunk it was. If the baggage man had been there I would have told him.
    And, being recalled, this witness testified further:
    “The man I saw there in the baggage room had on citizens’ clothes — all but his vest. He had on a railroad vest — a railroad porter or something’s vest. When he told me to take the trunk out of the baggage room he walked out of the place where Mr. Shaw and them checked the baggage. I asked him if I could put it there, and he said, No,’ to put it outside where the trunks belonged. He came from the office where Mr. Shaw stayed. He was doing business, and I asked him if I could put the trunk there, and he said, No.’ . I don’t know whether anyone except .the baggage agents come from there. Yes, the baggage room door was open when I went in there.”
    “Yes, he was doing the things what the baggage man does. When I seen him, he was coming out the gate, and he had got beyond the scales when I saw him. I seen him doing nothing.”
    Q. So, all you know is that you saw a man in there who had on a blue vest with brass buttons, with “Southern” marked on the buttons, and you asked him if you could put the trunk in there, and he said “No,” to put it out there. Had you ever seen the man before ?
    I think I had seen him once before. I have never seen him, since. No, it was not Mr. Percy Shaw, nor Mr. Harrill.
    Q. State whether or not when you took trunks there to the station Mr. Shaw or Mr. Harrill was always there, or whether they got other people to stay in their places sometimes.
    There were other men in there besides Mr. Harrill and Mr. Shaw. I have seen baggage agents on the Southern Railway in there, cheeking baggage.
    A paper-writing, containing a written statement of this witness in direct contradiction of the principal portion of his testimony as to delivery of the trunk, was introduced by defendant.
    The jury rendered the following verdict:
    
      1. Did tlie defendant company receive tbe trunk of tbe plaintiff on Sunday evening, 30 August, 1908, as alleged in tbe complaint, as baggage for transportation ? Answer: No.
    2. Was. said trunk received by defendant company for immediate transportation ? Answer: No.
    3. Was tbe trunk delivered by tbe defendant company to the plaintiff? Answer: No.
    4. Wbat amount, if any, is plaintiff entitled to recover from defendant on account of tbe alleged loss of said trunk ? Answer: N otbing.
    Judgment for defendant, and plaintiff excepted and appealed.
    
      E. B. Preston and Neill B. Graham for plaintiff.
    
    
      W. B. Rodman for defendant.
    
   Hoke, J.,

after stating tbe case. To fix tbe responsibility for lost baggage on a railroad company, either as common carrier or warehouseman, there must have been a delivery of same, including an acceptance by tbe company, either actual or constructive; and in order to a valid delivery, tbe general rule is that when baggage is taken by others to a railroad station, and even to tbe place where baggage is usually received, some kind of notice must be given to some agent of tbe company authorized to accept tbe same. Hutchinson on Carriers, sec. 105; Fetter on Carriers, sec. 610; R. R. v. Beckley, 119 Tenn., 528; Gregory v. Webb, 89 S. W., 1109 (40 Tex. Civ. App., p. 360); Wright v. Caldwell, 3 Mich., p. 51; Merriam v. R. R., 20 Conn., 354; Transfer Co. v. Gurley, 107 Ala., p. 600. This rule is at times modified where a custom of a company is established to consider and treat baggage as received when left at a given place and without further notice. Fetter on Carriers, supra; Green v. R. R., 41 Iowa, 410; Green v. R. R., 38 Iowa, 100; R. R. v. Foster, 104 Ind., 293. There is no objection open to plaintiff, by reason of his Honor’s charge on the last position, for it was dealt with as plaintiff requested; but in reference to the first, plaintiff, admitting that his Honor stated the rule in general' terms sufficiently correct, insists that there was reversible error committed, to his prejudice, in so modifying a prayer for instructions, on the first issue, as to exclude from consideration a view in Ms favor properly arising on tbe evidence, and tbis in especial reference to tbe testimony of tbe witness, Robert Ram-saur, and corroborative facts tending to show a delivery of tbe baggage at tbe proper place and notice duly given. As heretofore shown, Robert Ramsaur, in effect, testified that, having charge of tbe trunk, be took it to tbe passenger station on Sunday afternoon and to tbe baggage room, and asked a man in there if be could put it in tbe room, and tbe man replied, “No, put it in the alleyway where they put tbe trunks,” and witness then placed tbe trunk as directed. Tbe man was a white man in citizens’ clothes, except that be bad on a railroad company vest; that be was tbe only man there in tbe office. Recalled on tbis point, tbe witness testified further: “When be told me to take tbe trunk out of tbe baggage room, be walked out of the place where Mr. Sbaw and them checked baggage. He came from tbe office where Mr. Sbaw stayed. He was doing business, and I asked him if I could put tbe trunk in there, and be said No.’ He was doing things what tbe baggage men does.” Tbe witness further said that be bad seen tbis same man once before, and that there were at times other men in there besides Mr. Sbaw and Mr. Harrill, and tbe witness bad seen baggage agents on tbe Southern Railway in there, checking baggage. On tbe part of tbe defendant, Mr. Sbaw and Mr. Harrill testified that they bad charge and control of tbe baggage room, and that neither of them bad received tbe trunk claimed by plaintiff, nor bad they authorized tbe man referred to by tbe witness, Ram-saur, nor any other man, to receive it or to accept notice concerning it. Tbe witness, Sbaw, however, stated that be was at times temporarily out of tbe office. In view of tbis testimony and supporting facts on either side, tbe plaintiff requested tbe court to charge tbe jury: “That if it was tbe custom of railroad companies to receive baggage Sunday afternoon or evening before for transportation on tbe next morning train, and that trunks or baggage should be left at defendant’s passenger station at such times in care of tbe baggage man in charge of defendant’s baggage room, or of any agent or servant of tbe company in charge of defendant’s baggage room, or in care of anyone whom tbe company held, out to the public to-be in charge of the baggage room, and should the jury find that the trunk, having been put in charge of the drayman for the purpose, was left by him at defendant’s baggage room or in what was known as the baggage alley, with the knowledge and consent of the agent or servant in charge of defendant’s baggage room, as aforesaid, then in any of those events, the court instructs the jury, the compliance with such a custom, existing at the time, by the transfer man, with the knowledge and consent of the defendant’s baggage man or other agent of the defendant, as aforesaid, would be an acceptance of plaintiff’s trunk, and such acceptance would be a delivery of plaintiff’s trunk to defendant.” The court gave the prayer generally as requested, but modified same by saying that if the plaintiff’s trunk was left at defendant’s station at the customary time and place, with the knowledge and consent of defendant’s baggage man or other authorized agent of the company, etc. The case further states that the jury, having received the charge in the forenoon of Wednesday, 5 October, 1910, considered the case, and on Thursday morning stated they had been unable to agree on what was a legal delivery of the trunk, and, at their request and without objection, the typewritten instructions of the court were given them. The jury, having further considered the case until Friday morning, again came into court, when his Honor gave them further charge on the question of delivery, as follows: “As I understand you, you say you are troubled as to what constitutes an agent at the depot of the defendant to receive baggage. The defendant is a corporation. The defendant, therefore, conducts its business through and by its employees or agents. As the plaintiff in this case has alleged that she caused her trunk to be delivered to the defendant company, it is necessary for her to offer evidence that satisfies the jury, by the greater weight of the evidence, that some person authorized by the defendant corporation to act for it was acting for it at the time that she alleges that she delivered her trunk, or caused it to be delivered through her agent. Nothing short of a fair delivery of the baggage to the carrier or its agent will render the carrier liable for a non-delivery. That is to say, the plaintiff in this case, upon all of the evidence, must satisfy the jury, by the greater weight of it, that the trunk was delivered to some person authorized to act for the defendant company as baggage to be transported over the defendant’s line as such, and the agent of the defendant company must have received the baggage,” plaintiff duly excepting to the modification of this prayer and to the additional charge as given. In thus modifying plaintiff’s prayer for instructions, and more emphatically in the additional charge as given, the court intended to and did withdraw from the jury the view arising on the testimony that if the baggage was placed at the customary time and place with the assent and knowledge of “one held out by .the company as being in charge of its baggage room,” there was a proper delivery to the company, and in this we think there was reversible error, to plaintiff’s prejudice, which entitles her to a new trial of the issue. True, the witness, Eamsaur, testified that he knew both Percy Shaw and J. II. Harrill, and knew also that they were the baggage agents at defendant’s station, but a perusal of the entire testimony of this witness presents a permissible interpretation for the consideration of the jury, that, while he knew Shaw and Harrill were the company’s agents in general charge and control of the baggage business, yet the man he found in sole occupation of the baggage room when he asked to place the trunk in the room was the company’s agent, then in charge, for the time being, and, if not so in fact, he was allowed by defendant company to hold himself out as such, and for that reason a notice to him may have been sufficient evidence of delivery. This agency, by allowing one to appear as such, or agency by estoppel, as it is usually termed, has an important place in this branch of the law. It is very well stated in Clark and Skyles on the Law of Agency, sec. 55, p. 140, as follows: “It is a well-established' doctrine that if a person by his words or conduct expressly or impliedly rejuesents to another that a certain state of facts exists, and thereby induces the other to act in reliance on such representation, he will be estopped to deny the truth of the representation to the other’s prejudice. And by the application of this doctrine, an agency may be created or arise by estoppel, irrespective of the actual intention, and even though it may be conceded that there was no agency in fact. The general rule is this: If a person knowingly permits another to act for him in a particular transaction, or otherwise clothes him, either intentionally or by negligence, with apparent authority to act for him therein, he will be estopped to deny the agency as against third persons who, in good faith and in the exercise of reasonable prudence, deal with the apioarent agent in the belief that his apparent authority is real.” Tiffany on Agency is to like effect, and innumerable decisions here and elsewhere recognize and apply the principle. Gooding v. Moore, 150 N. C., p. 195; Bank v. Hay, 143 N. C., p. 326; Morrow v. R. R., 134 N. C., pp. 92-96; Harrell v. R. R., 106 N. C., p. 258; Ouimit v. Hinshaw, 35 Vermont, p. 605; Minter v. R. R., 41 Mo., p. 503; Battle v. R. R., 70 S. C., p. 329; Rodgers v. R. R., 2 Lans., p. 269, N. Y. Supreme Court; affirmed 56 N. Y., p._; Ins. Co v. R. R., 144 N. Y., p. 200. Some of these decisions, and many others could be cited, were on facts very similar to those presented here, making them apt authorities in support of plaintiff’s position as embodied in his prayer. In Morrow’s case, on a question whether defendant company knew that one had entered its trains for the purpose of assisting a passenger, the fact that an employee of the company was standing near, in a position to observe and note the circumstances, was held evidence from which knowledge on the part of the company could be inferred. Associate 'Justice Walker, speaking for the Court, said: “Whether the person who stood near the steps of the coach was the conductor or some other employee, charged in law or fact with the duty of providing for plaintiff’s safety, while exercising the lawful right of assisting the company’s passengers, is a proper subject of inquiry for the jury,” etc. In Battle’s case, supra, it was held: “That delivery of baggage to the only person in charge of the station, who is at the time engaged as a telegraph agent, depositing it at a place indicated by him, description of trunk and directions as to checking, and that owner would soon appear and attend to it, is delivery to the carrier.” In Ouimit’s case, supra, it was held that a passenger has a right to regard as agent of a railroad company a person who handles and takes charge of baggage upon arrival of train at a station, and notice to such person by a passenger is notice to the company.” And in the case of Rodgers v. R. R. it was held as follows: “The owner of a trunk sent it to the defendant’s depot by an expressman, who placed it within the depot beside the baggage crate, which was locked, and upon inquiring of persons there engaged in handling freight, was referred to the ticket agent as the person who took charge of baggage; he went to the ticket agent’s office and told him that there was a trunk outside; the agent said that it was right, and immediately^sent two men to take care of it. When the owner inquired for the- trunk on purchasing his ticket later in the day, it could not be found, though the ticket agent said he had seen one a short time before answering to its description. Employees of the defendant also said that it had been delivered upon presentation of a check. In an action to recover the value of the trunk and its contents, held, that there was sufficient evidence of delivery, and a nonsuit was wrong.”

Stating the proposition in a negative way in 6 Cyc., p. 671, it is said: “But the carrier will not be liable for the acts of its servants not authorized nor held out as authorized to receive baggage.” On authority, therefore, the plaintiff was entitled to have this latter view presented to the jury, and to have his prayer for instruction given substantially as requested.

Plaintiff excepted further that the court submitted the second issue as to the receipt of the trunk for immediate transportation. We have frequently held that the framing of issues is a matter which is left very largely in the discretion of the trial judge, the limitation being that the issues must be sufficiently responsive to the pleading and determinative of the rights of the parties involved therein. And the statement is not infrequently made in the books that in order to charge transportation com-, panies as common carriers, making them liable as carriers, the goods or baggage must be left, with them for “immediate” transportation. If it becomes necessary, therefore, in order to make full determination of the rights of these litigants, that decision should be made whether this trunk was received and held as-common carrier or warehouseman, it is well enough to submit the issue as framed. If this is done, however, the jury should be instructed that the term “immediate,” in this connection, does not have its more usual meaning of “instantly, forthwith, nothing intervening either as to place, time or action,” given in 4- Words and Phrases, p. 3393, as Worcester’s definition, but it means, rather, “reasonable time,” having due regard to “the nature and circumstances of the ease,” cited in Words and'Phrases as Bourer’s definition. The controlling idea being that in order to fix upon a company responsibility for baggage, as a common carrier, the same must be delivered by the passenger and accepted for transportation within a reasonable time before taking his intended train. There is a decision (Goodbar v. R. R. Co., 53 Mo. App., p. 434) which tends to hold that this must be the next train, but we doubt if this is a correct statement of the general rule, and certainly not where a custom is established on the part of the company to accept baggage for transportation on a subsequent or later train. The true rule, we think, is very fully stated by Messrs. Elliott in their valuable work on Railroads, 2d Ed., see. 1651, as follows: “The liability of the company as a common carrier begins, as a rule, at the time the baggage is delivered to it for transportation, unless the time of such delivery be an unreasonable length of time before the owner’s intended departure. In order that the liability as a common carrier should exist, it is not always necessary that the passenger should have purchased a ticket, nor that he should even make the journey which he intends to make. As persons often become entitled to the rights of passengers before the purchase of a ticket, so the liability of a carrier for baggage sometimes begins before the purchase of a ticket, or even before the company becomes liable to the owner of the baggage as a passenger. Where a person in good faith intends to take passage on a railway train, or the like, and delivers his baggage to the company a reasonable time in advance of the anticipated journey, it seems that the company will be liable for such baggage as a common carrier from the time of such delivery and acceptance. And in such cases the company may be liable, although the person does not purchase a ticket or make the proposed journey, as, for instance, where he is prevented from so doing by the fault of the carrier and the loss or destruction of the baggage before the journey begins,” and well-considered decisions are in support of the statement. Hickock v. R. R., 31 Conn., 281; Mfg. Co. v. Ullman, 89 Ill., 244; Lake Shore v. Mich. R. R., 104 Ind., 298; Ins. Co. v. R. R., 144 N. Y., 200; Woods v. Devin, 13 Ill., 747. And, as relevant to tbe question more directly involved in this position, the case of Hickock v. R. R., supra, holds as follows: “A railroad company is presumed to receive baggage for transportation and not for storage, and its liability commences as soon as the baggage is delivered to and is received by the agent, notwithstanding the fact that it was not checked at the time it was received and would'not be for several hours, nor until fifteen minutes before the train started, and that the passenger was so informed.

“2. Delivery or non-delivery of check for baggage is of no importance as affecting the liability of the carrier, it being merely in the nature of a receipt and intended as evidence of the ownership and identity of the baggage, and this is the rule generally obtaining in the absence of some specific and reasonable regulation restrictive of its liability.”

As the cause goes back for a new hearing, we consider it well to advert to another exception insisted on for plaintiff, that his Honor charged the jury, as requested by defendant, as follows: “If the jury find from the evidence that the plaintiff, Susie E. Williams, purchased a ticket over the defendant’s line from Charlotte to Statesville, on Saturday morning, and on the following Sunday evening sent a trunk to the depot, giving no instructions for shipment and no instructions for it to be checked, and did not intend for the same to be checked until the following morning, then the company, even if it received the trunk for storage, was merely a gratuitous bailee and liable only for its gross negligence. There being no evidence that the trunk was lost by the gross negligence of the defendant company, the jury will answer the fourth issue, Nothing.’ ”

As heretofore stated, if the trunk was delivered and accepted by the company in the afternoon for transportation on the following morning, and it was customary to receive baggage for transportation in that way, in the absence of some reasonable regulations restrictive of the company’s liability they would take as common carriers and could be held as insurers in case the trunk is lost; but if no such custom existed and the trunk was only received for storage for one intending to become a passenger, and until be claims tbe trunk and has the same checked, in such case the company is ordinarily regarded as bailee for hire and is responsible for ordinary care. It is the same rule of responsibility obtaining where baggage reaches its destination and is not called for in a reasonable time. After such time the carrier holds the baggage as warehouseman and is responsible for lack of ordinary care. Elliott on Railroads, sees. 1463-1533. In making this charge, the court was no doubt influenced to some extent by expressions in the opinion in Kindley v. R. R., 151 N. C., p. 207, to the effect that in certain aspects of that case the defendant company was a gratuitous bailee, and as such responsible only for gross negligence. But the statement of the law and expressions referred to must be considered and construed in reference to the facts presented and in view of the rights there involved. In Kindley’s case a passenger took the train at Fay-etteville, N. C., intending to go through to Charlotte, the route lying over the Atlantic Coast Line to Maxton and over the Seaboard from Maxton to Charlotte. At Maxton the passenger determined to return to Fayetteville and notified the Coast Line conductor of such intent, with a request that the baggage be also returned. The trunk was carried on to Charlotte and when it was returned to the owner, some time thereafter, it was found to have been entered and some of the contents stolen. The appeal involved only the liability of the second carrier, and the decision in Kindley’s case was placed on the ground that the intended passanger had never become such in reference to the second or connecting carrier, and that nothing had ever been paid or tendered such carrier, either for carrying the passenger or storing the trunk, and in that view only was the second carrier considered and dealt with as gratuitous bailee. In Kindley’s case, too, weight was given to the language of the statute bearing on the subject (section 2624), which makes carriers responsible “for baggage of passengers from whom they have received fare.” The principle, however, does not apply to the facts presented here, in a-ny aspect of them, for if it should be established under proper ruling that until the trunk was claimed and cheeked for baggage it was held for storage only and not for immediate transportation, as heretofore explained, on authority, the company is chargeable as bailee for hire and responsible for ordinary care. If received and held, either as common carrier or warehouseman, on failure to deliver, the burden is on defendant to render legal excuse for the failure. In Fetter on Carriers, at p. 1557, it is said: “With respect to baggage in possession of a railroad company as warehouseman, evidence that it failed to deliver the property to the owner, when demanded, prima facie, establishes negligence and want of due care, and the onus of accounting for the default lies with the carrier.” There is error, which entitles plaintiff to a new trial, and it is so ordered.

New Trial.  