Trimble v. New York Cent. & H.R.R. Co.

• Citation: 162 N.Y. 84,56 N.E. 532
• Parties: TRIMBLE v. NEW YORK CENT. & H. R. R. CO.
• Decision Date: 27 February 1900
• Court: New York Court of Appeals

162 N.Y. 84

56 N.E. 532

TRIMBLE

v.NEW YORK CENT. & H. R. R. CO.

Court of Appeals of New York.

Feb. 27, 1900.

Appeal from supreme court, appellate division, Fourth department.

Action by William J. Trimble, as assignee, against the New York Central & Hudson River Railroad Company, to recover for baggage lost while in defendant's custody. From a judgment of the appellate division (57 N. Y. Supp. 437) overruling defendant's exceptions, defendant appeals. Affirmed.

Parker, C. J., and O'Brien and Landon, JJ., dissenting.Albert H. Harris, for appellant.

David Hays, for respondent.

BARTLETT, J.

This action is brought to recover the value of a trunk and its contents destroyed while in the possession of the defendant, to which it had been delivered by the plaintiff's assignors for transportation from Rochester to New York on the evening of October 23, 1897. Curtis & Wheeler were manufacturers of shoes in the city of Rochester, and Joseph E. Taylor acted as their traveling salesman on the 23d day of October, 1897, and had been in their employ in that capacity for a period of nine years. On the evening in question, Taylor, acting for his employers, went from Rochester to New York on business. Before starting he arranged with the baggageman of the defendant for the transportation of a trunk and an article called a ‘telescope.’ The trunk and its contents, consisting of samples of shoes, belonged to Curtis & Wheeler, except a few articles of wearing apparel, the property of Taylor, for which no claim is made. The telescope contained the wearing apparel of Taylor. For the trunk Taylor received from the baggageman a card known as ‘Excess Baggage Check,’ for which he paid 85 cents excess of baggage. For the telescope he received the ordinary metallic check. Taylor described the trunk, when a witness at the trial, as a regular sample trunk, made of wood, and covered with canvas, about 32 or 34 inches in height, 36 to 38 inches in length, and 22 to 24 inches in width. The ‘number taker’ of the Rochester baggageroom was sworn, and stated that he took a record of the baggage in and out. He produced a sheet containing a record covering October 23, 1897, which showed the description of plaintiff's baggage as a sample trunk. He further testified that he so designated it from its appearance. Taylor testified that he had been in the habit of leaving Rochester with his samples on an average of four, six, or eight times a year for about 12 years. The night checkman was sworn for defendant, and stated that he did not know what the contents of the trunk were, and that nothing was said to him as to the contents. He was asked on cross-examination if he remembered anything about this particular trunk or its appearance. He answered, ‘I couldn't just now; no.’ It is to be observed that this witness was not asked by defendant's counsel whether he recognized this piece of baggage as a sample trunk from its external appearance. He does not contradict the number taker as to the external appearance of the baggage showing it was a sample trunk. The defendant does not question receiving the trunk, or the failure to deliver it, but insists it is not liable for its loss, with contents, for the reason that Taylor, when paying for excess of baggage on the trunk, failed to inform the checkman that it contained samples. The learned counsel for the defendant very frankly states in his brief that it is true the trunk was what is commonly known as a ‘sample trunk,’ and had the appearance of one, but nevertheless argues that the plaintiff should have been nonsuited.

The liability of common carriers for the loss of sample trunks carried by commercial travelers in the transaction of their business has been frequently considered by the courts of this and other jurisdictions during the last 25 years, and, while the decisions are conflicting, many of them are distinguishable in their facts from the case at bar. The law relating to this subject has been in a state of evolution, and certain rules have finally been laid down in this state, calculated to protect the rights of both parties, in view of the fact that a vast amount of the wholesale business of the country is transacted through commercial travelers, to the great profit of the railroad companies and convenience of merchants. As this case is in the position where each party is to be regarded as having requested the direction of a verdict (a point we will discuss later), and the trial judge having directed a verdict for the plaintiff, all the controverted facts, and all inferences in support of the judgment, will be deemed conclusively established in his favor.

The defendant read in evidence certain rules of the company which provide, in brief, that baggage consists only of necessary wearing apparel, limited to 150 pounds in weight; that sample baggage, of not more than 150 pounds, will be checked free for one person, regardless of the number or kind of tickets presented. Rule 4 reads as follows: ‘Small cases or trunks containing merchandise will be carried as an accommodation to commercial travelers, and may be checked when release of liability, Form 220, is signed in consideration of its transportation on passenger trains as baggage. In case personal baggage and samples are contained in same trunk, a release must be signed for samples, and agents will refuse to check the same unless this is done.’ The release referred to absolves the company from all liability for loss, detention, or damage to the trunk or its contents. It is urged on behalf of the defendant that rule 4 limited the authority of the baggageman, and that he was unauthorized to check a sample trunk without exacting the release. This court has held that the baggage agent stands in the place of the railroad company. Talcott v. Railroad Co., 159 N. Y. 471, 54 N. E. 1. And the record in the case before us shows that no release was exacted, nor was plaintiff's agent aware of the rule. The plaintiff's agent testified that he had on a number of occasions signed this release when he desired to stop at several stations between Rochester and New York, as he could settle for excess of baggage through to New York for less than to pay this excess from each station at which he stopped. On cross-examination he was asked: ‘Q. I ask you if you did not know the fact that when the baggagemaster knew that your trunk contained samples, or any other traveling man's trunk contained samples, that this release of liability was executed? A. No, sir; I had no knowledge of that. I knew that I had from time to time executed those releases on my sample baggage.’ On re-direct examination he was asked: ‘Q. When you say that you had executed those releases, you refer to the releases which you described before, in order to save paying excess of baggage from each place when you departed? A. Yes, sir; no release was presented to me, nor did I sign any release, nor was I asked to, when I checked this trunk in controversy.’ The defendant's checkman or baggagemaster does not deny this statement.

This case presents the question whether the baggageman of the defendant, who checked the lost trunk and collected excess of baggage thereon, knew that it was a commercial traveler's trunk, from surrounding facts and circumstances, and defendant was thus chargeable with notice. This court has held that notice may be given to the common carrier by other means than the direct statement of the owner that he is a commercial traveler, and that his trunk contains samples. In Sloman v. Railway Co., 67 N. Y. 208, plaintiff's son, a lad of 18 years of age, was employed by him as traveling agent to sell goods by sample. He had two large trunks containing the samples, different from ordinary traveling trunks, and had a valise for his personal baggage. He delivered the trunks to a baggagemaster at a railroad depot, and, when asked to which station he wished them checked, replied that he did not then know, as he had sent a dispatch to a customer at a certain place to know if he wanted any goods. If not, he desired them to go to a certain other place, where he expected to meet customers. Soon after he checked his baggage, and paid two dollars for extra weight. Judge Rapallo, in his opinion, said: ‘It does not appear that it was stated, in terms, to the baggagemaster what the trunks contained; but the jury had the right to consider the surrounding circumstances, the appearance of the passenger and of the articles, the conversation between the passenger and the baggagemaster, and the dealing between them, and, if they indicated at the trunks were not ordinary baggage, or received or treated as such, the jury had the right to draw the inference of notice, and that they were received as freight.’ In Talcott v. Railroad Co., 159 N. Y. 461, 54 N. E. 1, it appeared that when weighing the trunks the agent of the company observed ‘they weighed light,’ and the traveler replied, ‘Yes; they contain samples of underwear.’ Judge Vann, referring to this incident, in the opinion of the court, at page 471, 159 N. Y., and page 4, 54 N. E., said: ‘The number and appearance of the trunks was some evidence that they contained merchandise, and the agent was expressly told that they contained samples. In view of the custom proved, that commercial travelers generally carry samples belonging to their employers in their trunks, this warranted the inference that the baggage agent know the exact facts.’ In the case at bar there were facts warranting the submission of the question to the jury, or the trial judge, as to whether defendant was charged with knowledge of the character of the trunk, through its agent; the external appearance of a regular sample trunk; the readiness with which it was recognized as such by the official ‘number taker’; the fact that defendant was constantly checking sample trunks on all of its passenger trains except the Empire State Express; the further fact that for about 12 years plai...