
    S. G. W. Dill vs. The South-Carolina Railroad Company.
    
    In respect to the baggage of passengers. Railroad Companies are common carriers, and liable for the same, unless excused by the act of God, or the enemies of the country.
    A check in the possession of a passenger is evidence that his baggage was delivered to the Company; and as a trunk is the usual means by which a passenger conveys his baggage, it is evidence that a trunk, with its contents, was delivered.
    In the absence of proof as to the contents of the trunk and thoir value, the jury may give damages proportioned to the value of the articles which they, in their judgment, think the trunk did and might fairly contain.
    The plaintiff himself cannot be sworn to prove the articles and their value which the trunk contained.
    
      In the City Court of Charleston, May Term, 1853.
    The report of his Honor, the Recorder, is as follows:
    “ This was an action by the plaintiff against the Railroad Company to recover the sum of $313 25, the value of certain articles ill the way of baggage, alleged to have been lost, or not delivered by the defendants to the plaintiff, a passenger on the road from Columbia to Charleston. The plaintiff was offered as a witness, more especially to show the contents of the trunk alleged to have been not delivered or lost by the defendants. He was rejected as incompetent.
    “The following testimony was then introduced on the part of the plaintiff:
    “ Daniel T. Heriot, sworn: — Witness saw plaintiff among the passengers in January, in the down train from Columbia to Charleston. (A check, such as is usually given to passengers for baggage, was here offered in evidence and exhibited;) witness identified the check for baggage now shown ; it is a true check, such as the Company give for baggage. The witness delivered the baggage on this day; understood Dill to say he was waiting for his baggage.
    ' “ Mr. Marley, sworn: — Dill applied to witness to make search for a trunk, which, he said, he had lost; gave him (witness) the number of his check — (the same as the one now produced ;) in some instances, the Company have delivered baggage without the correspondent check ; inquiries were made at Hamburg, Columbia and elsewhere — could get no information; the checks are kept by the conductors ; the rule is, to demand the check, and except in case of loss, the check is required; conductor delivers baggage at the car, and calls out for the passenger by the number on the baggage.
    “ Mr. Folker, sworn : — Plaintiff complained of the loss of a trunk — witness informed the conductor; this was some days after; plaintiff did not exhibit any check.
    “ M. Witness knows nothing of this transaction but from Dill himself.
    
      “Mr. Robinson, sworn: — Was present when Dill arrived from Columbia; heard nothing of the loss until some days af-terwards ; Dill presented a bill for the contents of the trunk alleged to be lost; two trunks were delivered to Dill; Dill’s wife was with him, perhaps a child ; one trunk is generally allowed to each passenger.
    “ Mr. Cochran, sworn: — Recollects Dill coming down from Columbia; saw Heriot deliver the baggage on that occasion ; did not hear Dill complain at the time; the check now produced by plaintiff, and shown him, is one of his checks ; checks have been frequently lost; witness here produced in Court the corresponding check attached to the baggage; witness has not seen the check, now produced by Dill, lately ; witness has heretofore sometimes delivered baggage to responsible persons whom he knew upon their allegation that they had lost their checks; does not do so now.
    “ K In Columbia, through-baggage is checked and kept separate; way-baggage is simply marked; the corresponding check or number attached to the baggage is not removed until the baggage is claimed ; have not as yet finally lost any checked baggage ; Dill did not complain to witness of loss until a fortnight had elapsed; did not show any check at that time; witness is sure that the baggage called for by this check must have been delivered to some one.
    “ (Here the plaintiff was offered again, and again rejected.)
    “The plaintiff then closed. The defendant’s attorney moved for a non-suit. The motion was overruled. The counsel addressed the jury in an elaborate argument upon the facts. They found a verdict for the plaintiff for $100, and the defendants have appealed. No exception is taken by the defendants to the instructions of the Judge to the jury, but it is proper to state briefly what they were in regard to the grounds of appeal:
    
      “ 1. ‘ That there was no evidence of the existence of the articles claimed, or that the plaintiff had any property in them.’
    “ 2. ‘ That there was no evidence that the plaintiff ever delivered a trunk to the defendants.’
    
      “ 3. ‘ That no evidence whatever was given as to the contents or value of the trunk.’
    
      “ It appeared to me, and I believe I so expressed myself to the jury, that the check produced by the plaintiff in Court, under the testimony given, might well be regarded as not only the usual, but quite sufficient evidence of the receipt by the Company, of something in the nature of a trunk, package, &c., in the way of baggage ; that to this extent, without regard to the contents, if an appreciable value could be assigned to the mere trunk, package, &c., the plaintiff was entitled to recover, if the defendants had not discharged themselves from their obligation to carry safely and deliver to the plaintiff his property. In regard to the alleged contents of the lost trunk, it was evident there was no direct testimony. In the ordinary impossibility of the plaintiff in such a case, proving by the testimony of third persons what his trunk contained, it had been strongly urged that the plaintiff himself might be received as a witness, in the spirit of some of the exceptions made to the general incompetency of a party in his own cause. This exception I did not recognize, and had rejected his evidence, The plaintiff’s counsel then claimed the application of a principle laid down for the first time in an English case, and quoted by him. In a case like this, where the plaintiff claimed for the loss of certain articles of personal apparel in a box, in which no evidence had been offered as to the contents of the lost box, the Judge instructed the jury, that they were authorized to presume the box contained what might be considered as. properly pertaining to the party in the way of personal clothing and apparel according to the circumstances of the person and the journey, and find their value for the plaintiff. I felt some hesication in adopting this principle, as it appeared to me somewhat, if not directly, an innovation upon the common law rules of evidence. I, however, instructed the jury, that they might give the plaintiff in this case, the benefit of the principle sanctioned by the case relied on; intimating, however, a serious difficulty which appeared to me to lie in the way of its application under the particular circumstances of this case. This doubt depended upon these facts. In the English case, it was a single passenger with a single box or trunk in the way of baggage. There seemed to be much reason in the rule as applied to that particular case, in assigning, by inference or presumption, to the lost or missing trunk, what might be fairly supposed to be contained in it in the way of personal apparel to the single passenger. In this case, however, the passengers seemed to consist of at least three persons: Mr. Dill, (the plaintiff,) his wife, and child; the baggage of the entire party appeared to consist of three trunks or boxes, or whatever the items may have been : — two, it appeared by the evidence, had been delivered — one only was alleged to have been lost — for which this action was brought by the plaintiff, Mr. Dill. Upon the supposed principle of the English case, the jury were called upon to assign to the missing one trunk of the three, the articles lost, (being the personal apparel, &c., of the plaintiff himself,) when, for aught it appeared, or could be known, in the two trunks delivered, the very articles now claimed may have been contained — and the missing one may have contained the personal apparel of Mrs. Dill, or of the child, or what not. The jury, however, surmounted the difficulty suggested, and found for the plaintiff as already stated, the sum of $ 100, thus reducing the plaintiff’s claim from $313 25, the amount of his bill of particulars, to $100.”
    The defendants appealed, and now moved for a new trial, on the grounds stated by the Recorder, in his report.
    
      Connor, for appellants.
    Damages have been assessed without any evidence, except the possession of the check. If there was a trunk, and it was lost, of neither of which there was sufficient proof, still plaintiff was bound to show the value of the trunk or its contents. In Butler vs. Basing, there was but one passenger. Here there were three, and each seems to'havehad a trunk. Of which one of the three shall the jury be permitted to presume that the lost trunk contained the apparel?
    
      James Simons, contra.
    There are but two ways by which the value or contents could be proved. 1st. By inference. Butler vs. Basing, 12 Eng. C. L. R. 287. 2d. By examining the plaintiff, who is a competent witness, ex necessitate. 1 Green. Ev. § 348 ; 10 Watts, 335 ; 1 Green. R. 27; Fulton vs. Railroad Company, 20 Ohio, 319.
   The opinion of the Court was delivered by

O’Neall, J.

Although the grounds of appeal do not question the general liability of the defendants, yet it is difficult to consider, appropriately, the questions made by them without stating it. The defendants are, in respect to the baggage of passengers, common carriers, and liable for the same, unless excused by the act of God or the enemies of the country. (Story on Bailm. § 509; Camden & Amboy Railroad Co. vs. Burke, 13 Wend. 611.)

It is necessary, however, to fix them with this liability, that it should be shown that the plaintiff’s baggage was delivered to them. Their check, found in his possession, is the evidence of that fact. They, themselves, have so made it, and it stands in place of a bill of lading. What was delivered under it, is the difficulty. Was it a trunk or some other thing ? The plaintiff claims that it was a trunk delivered ; this is the usual means of a traveller’s conveyance of his baggage. Search was made for such an article, at the plaintiff’s request. This was,'! think, all the plaintiff could show, and the burden was on the defendants to show that he did not deliver to them a trunk, but some other articles.

The next question which arises is, what were the contents and value of the trunk?

To show this, the plaintiff was offered as a witness. In support of this, 1 Green. Ev. § 348-9, were cited. It is true, in section 348, a very imposing case is mentioned, where a ship-master received a trunk of goods, broke it open, and rifled it of its contents. On these facts appearing aliunde, it was held, that the plaintiff might testify to its contents. So in Ohio, in Fulton vs. The Mad River & Lake Erie Railroad Company,( ) for the baggage of the wife, it was held, that as from necessity the husband might testify to the value of his baggage lost, so his wife might give evidence of her own personal baggage, lost when the husband was not in company. These are exceptions allowed by tribunals in other States to the rule, that a party cannot testify in his own case. No such exceptions have ever been allowed in this State.() Here a party merely nominal, or a merchant, shopkeeper or mechanic, keeping books, or a party offered against his own interest, have been allowed to testify. Beyond this, we have not ventured to go. Some of the exceptions mentioned and allowed in 1 Green. Ev. § 349,

such as the loss of a deed, have been expressly denied in this State. We do not think it would be wise to extend the exceptions beyond those already allowed. Hence, it becomes necessary to inquire how the value of the article can be fixed ? i know no better rule than that stated by Garrow, B., in Butler vs. Basing, (12 Eng. C. L. R. 287-8,() in his instructions to the jury, “ to give damages proportioned to the value of the articles, which you, in your judgment, think the box did and might fairly contain.” This was the course adopted by the Recorder in this case.

The Railroad Company in general adopt, as a rule, that the party claiming for a loss, must show the value of the thing lost. Ordinarily, this is done by the party’s affidavit; if this be regarded as fixing too high a value, the burden is on them to show that it was of less value, or to run the chances of a jury agreeing with them or their adversary. In some cases, where a description of the article can be given, the jury have a very proper measure of damages in their knowledge of its value. In other cases, it may be very much conjectural; but it is not to be supposed, the Company would suffer them to go beyond the plaintiff’s own valuation by withholding his affidavit. If they do, it will be their own folly, and they will have no right to complain.

The motion is dismissed.

Wardlaw, Wi-xitner, Glover and Munro, JJ., concurred.

Motion dismissed. 
      
      
        (а) 20 Ohio 319; Liv. Law Mag. Jan. 1853.
     
      
      (b) 6 Rich. 198.
     
      
      
        (c) 2 Carr. & P. 613.
     