
    William L. Moffat, Respondent, v. The Long Island Railroad Company, Appellant.
    Second Department,
    January 10, 1908.
    Carrier — liability of railroad for checked baggage—when liability as insurer ends.
    A railroad which checks baggage for transportation is only liable as an insurer until the baggage arrives at the station of its destination and the passenger^ acting promptly, has had a' reasonable time and opportunity to remove it. From that time forward the railroad is liable only for failure to use the due care required of warehousemen.
    A railroad, by giving its checks in exchange for the checks of transfer companies agrees that it will receive the baggage for the passenger when it arrives, and is liable as an insurer, although the baggage does not go by the same train as the passenger.
    The plaintiff, having traveled from Montreal by train, arrived in New York in the morning and gave a baggage check for his trunk to an express company to be transferred to the station of the defendant railroad at the foot of East Thirty-fourth street. He went to said station and purchased a ticket for Manhasset, Long Island, and the defendant, following its custom, accepted the check of the express company and gave in exchange its own check for the trunk as baggage to Manhasset, without ascertaining whether the trunk were there. The plaintiff, arriving in .Manhasset about noon the same day, did not ask for his trunk, nor did he ask for it on the evening of that day when he was again at the station, or deliver the check for the same. The trunk, however, arrived that evening and during the night the station was entered by burglars and the trunk rifled. On all the evidence,
    
      Held, that it was error to direct a verdict against the defendant as a common carrier, as under the circumstances it was for the jury to say whether the plaintiff had 'claimed- his baggage within a reasonable time.
    Appeal by the defendant, The Long Island Railroad Company, from a judgment of the County Court of Nassau county in favor of the plaintiff, entered in the office of the cleric of the county of Nassau on the 18th day of May, 1907, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 18th day of May, 1907, denying the defendant’s motion for a new- trial made upon the minutes.
    The action was to recover damages for the loss of articles from the plaintiff’s trunk which the defendant had received and carried as baggage,
    
      The plaintiff arrived in New York city by train from Montreal on the morning of August 29th, 1906.. Following the usual course, he gave his baggage check- for one trunk to Westcott’s Express Company'— a baggage transfer company in the city of New York — to be transferred to the station of the defendant at the foot of East 34th street. He then went to the said station, purchased railroad tickets of the defendant for himself and wife to their home at Manhasset, Long Island, showed them to the baggage agent, and delivered to him the check -of the transfer company, which he received, and-in exchange gave to the plaintiff a check of the defendant for the said trunk as baggage to Manhasset. Nothing was done to ascertain whether the trunk was there. This was all according to the usual course established by the defendant. The plaintiff took the defendant’s boat, which left the'said station at 10 : 50 a. m. to connect with a train from Long Island City on the other side of the East River to Manhasset. He arrived at the Manhasset station in about an hour. He did not ask for his trunk, but immediately drove to his house, a mile and a half distant. The trunk did not come by the train lie came by. lie did not expect that it would. He testifies that.he did not expect it to arrive sooner than from 24 to 30 hours from the time lie left Montreal (viz., the evening before), as it was customary for trunks-from Montreal to take that time at that season of the year. He came back to the station that evening at 6 o’clock to meet his brother who came from New York City by train at 6:05. He did not then ask for his trunk, or have the check for it with him, which had' to be presented .and delivered up on getting the trunk. He next went .to the station at 7:20 the next morning to bring his brother to the train. His trunk was. there then. It had arrived by regular train at 6:27 the evening before. The station was closed for the night at 7 :-04. The trunk was kept over night in the express room, which was locked. The station was locked also. During the night burglars broke in and ' robbed the station. - They broke open the plaintiff’s trunk and took part of the contents. The station agent informed the plaintiff of the burglary on his arrival, and on examination the plaintiff found his trunk there. He did hot have the check for it with him, and did not come to get the trunk. The agent delivered it to him without the check.
    
      
      Matthew J. Keany [Joseph F. Keany with him on the brief], for the appellant.
    
      Theodore L. Frothingham, for the respondent.
   Gaynor, J.:

The learned trial judge ruled that the defendant was liable for the loss and directed a verdict for the plaintiff. In this he erred. The liability of a railroad company for baggage is the strict liability of a common carrier, from the time it receives the baggage until it arrives at the station of its destination, and then until the passenger has had reasonable time and opportunity to take it away, acting promptly. After that its liability ceases to be that of common carrier, i. e., absolute, act of God or of public enemy only excepted, and its obligation is reduced to that of ordinary care (Kressin v. Central R. R. Co. of N. J., 119 App. Div. 86; Burnell v. New York Central R. R. Co., 45 N. Y. 184; Matteson v. New York Central & H. R. R. R. Co., 76 id. 381).

It was a question of fact whether the plaintiff had called for his baggage within a reasonable time. He says he did not call for it because he did not expect it sooner than 24 to 30 hours from the time he left Montreal, as it was customary for baggage to take that •time from Montreal at that season of the year; but the jury were not obliged to believe this, no matter how much we would be disposed to from the high character of the plaintiff. Unless it was so the plaintiff did not use due diligence and promptness in calling for his baggage. And if it be so, the 24 hours from the time he left Montreal must have expired some time the evening previous to the morning he got his trunk, viz,, the evening of August 29th. The exact hour of his leaving Montreal on the evening of August 28th not having been fixed by the evidence, it is impossible to know when the 24 hours would be up. If the trunk could have been reasonably expected to arrive, as it did, at 6 : 27 o’clock on the evening of August 29th, then the plaintiff should have attended on the coming of that train and got his trunk; His failure to do so did not release the defendant from duty to him to care for his trunk, but only reduced its obligation from that of common carrier to that of ordinary care of warehousing the trunk. This is entirely just. The strict obligation of a common carrier as such should not be continued any time whatever after it has performed all of its duties as common carrier. The law then relieves it of its liability as insurer of freight and baggage, and subjects it to the liability of due care of a warehouseman.

The liability of the defendant was in no way lessened by the fact that the baggage did not go by the same train the plaintiff went by. The course of business of the railroad company in giving its checks in exchange for checks of transfer companies amounts to an agreement by it that it will receive the baggage for the passenger when it arrives and check it to its destination seasonably, and this contemplates that it may not go by the train that the passenger takes (Curtis v. D., L. & W. R. R. Co., 74 N. Y. 116; Williams v. Central R. R. Co. of N. J., 93 App. Div. 582; affirmed, 183 N. Y. 518). There was no obligation on the defendant to. notify the plaintiff of the arrival of his trunk in order to terminate its obligation of common carrier. ■ ,

The judgment and order should be reversed.

Woodward, Jenks, Hooker and Miller, JJ., concurred.

Judgment and order of the County' Court of ¡Nassau county reversed and new trial ordered, costs to abide the event.  