Alling v. Boston & Albany Railroad Co.

• Decision Date: 07 January 1879
• Citation: 126 Mass. 121
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Isaac A. Alling & others v. Boston & Albany Railroad Company

126 Mass. 121

Isaac A. Alling & others v. Boston & Albany Railroad Company

Supreme Court of Massachusetts

January 7, 1879

Argued October 2, 1878 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Worcester. Contract, with counts in tort, to recover the value of a trunk and a quantity of jewelry therein contained, delivered to the defendant, to be carried from Worcester to Hartford. Trial in this court, before Endicott, J., who reported the case for the consideration of the full court, in substance as follows:

The defendant owns and operates a railroad which extends from Boston to Worcester and thence to Springfield, and at Springfield connects with a railroad which extends to Hartford and thence to New York. The defendant is accustomed to sell tickets and check baggage for passenger trains over said railroads between Boston and New York, and the intermediate stations.

George W. Kerr testified that he was a travelling salesman for the plaintiffs, manufacturers of jewelry; that in the morning of May 11, 1877, he bought of the defendant, in Boston, a ticket for New York, by way of Worcester, Springfield, and Hartford, and had a trunk containing jewelry belonging to the plaintiffs, of the value of about $ 10,000, checked to Worcester, where he stopped and received the trunk; that in the afternoon he took the trunk to the defendant's station at Worcester and requested that it should be checked for Hartford, which was done, and he received the corresponding check, took the cars, which were just leaving the station, and went to Springfield, where he remained all night, and went the next morning to Hartford, where, on demanding the trunk, a bag was offered to him, which had a check on it corresponding to the one given him at Worcester; that he next saw the trunk in New York broken open and the contents gone; that, when he delivered the trunk to the defendant's servants at Worcester, no inquiry was made as to what it contained; that the trunk was a sample trunk used for carrying merchandise, and weighed with its contents one hundred and thirty-five pounds; that he had been to Worcester several times by the defendant's road, and always carried the trunk containing jewelry with him.

Samuel Knowlton testified in behalf of the plaintiffs, that he was an assistant baggage-master of the defendant, and checked Kerr's trunk at Worcester for Hartford; that the trunk was a sample trunk, iron-bound and heavy; that he lifted it and made no extra charge for it; that he did not know that it contained merchandise, or what was in it; that the trunk when checked was put in the usual place for baggage going west; that the same afternoon a man brought a black bag which was checked for New York and placed upon Kerr's trunk.

George F. Stickney testified in behalf of the plaintiffs, that he was an assistant baggage-master of the defendant; that, at about half past seven in the evening of the day when Kerr's trunk was left at the station in Worcester, a man climbed over the counter into the baggage-room and asked leave to put a bundle in a bag, and exhibited the check of the bag which was then upon Kerr's trunk; that the witness took the check off the bag, and the man opened the bag and put the bundle in; that the witness then put the check back on the bag and put the bag on the trunk; that he was then called by a man at the window, and went to the window, and, while he was talking there, the man at the bag went out of the room by the door; that the trunk was put on the train for New York at half past ten that night, and had a New York check on it; that he did not know there had been a change of checks; and that he should not call the trunk a sample trunk.

It appeared that the trunk was carried to New York and there delivered to the person who changed the checks, or to his confederate, and that the trunk and its contents were stolen. And the plaintiffs contended that this was in consequence of the change of checks at the Worcester station.

It also appeared that the trunk was twenty-eight inches long, sixteen and a half inches wide, and eighteen inches high, weighing when empty sixty-five pounds, and with its contents, when delivered to the defendant, one hundred and thirty-five pounds; that it had four strong iron hinges visible on the outside, two of which were twelve inches long, and two four and a half inches long; that it had five parallel bands of sheet-iron, each one and a quarter inches in width, passing entirely around the trunk in one direction, and one band of sheet-iron, one and a half inches in width going entirely round the lid of the trunk in the other direction; that it had six sheet-iron clamps or braces on the top, eight on the sides, and six on the bottom, four of those on the bottom being one fourth of an inch thick and twelve inches in length; that the band round the lid and the four heavy clamps or braces on the bottom were fastened by iron rivets, and the other clamps or bands were fastened by iron nails driven through and clinched; that the trunk was of the same shape and size with trunks ordinarily used by travellers for personal baggage, covered with black leather, with a lid opening on top swinging on hinges at the back, the lock covered by a leather covering buckled down and with the iron bands before referred to, and straps of substantially the same color with the covering of the trunk.

The plaintiffs offered to prove that this class of trunks is used for transporting merchandise, and for that purpose only, and was manufactured for that purpose solely, and that these trunks are carried on the defendant's railroad extensively; that a large part of the defendant's business consisted in transporting a large class of passengers known as commercial travellers, with trunks like this, containing merchandise of great value, and that these trunks are known as sample or merchandise trunks, and are of special construction, and in the course of that business the commercial travellers purchase tickets for the ordinary passenger trains and receive checks for their said trunks, and the defendant undertakes to transport the traveller and trunk accordingly for the price of the ticket; that the foregoing business is so pursued on railroads generally; that large numbers of persons, constituting a considerable proportion of the passengers on some full trains, are in the habit of passing over the defendant's road with trunks like this, which are generally known to be used for the transportation of merchandise; and the plaintiffs contended that the jury might infer the knowledge of the defendant from this general knowledge and custom, and that the jury might find that the defendant received the trunk without inquiring as to its contents, and with notice that it contained merchandise, and not personal baggage, and that the defendant was guilty of a degree of negligence sufficient to render it liable for the loss of the trunk and contents, and that the jury might find for the plaintiffs. The judge refused to admit the evidence offered; and the plaintiffs excepted.

The defendant contended, on the evidence, "1. That there was no contract with the plaintiffs, and could be no recovery on the counts in contract. 2. That there was no evidence tending to show that the defendant had any knowledge that the trunk contained merchandise. 3. That there was no evidence that the baggage master had any authority to receive for transportation anything but personal baggage. 4. That this trunk was delivered, under the circumstances, as the personal baggage of Kerr, and received as such, and therefore the defendant owed no duty with reference to it, and could not be held to exercise any degree of diligence in regard to it. 5. That there was no evidence to show gross negligence on the defendant's part, or any negligence sufficient to charge it. 6. That the conduct of Kerr in sending forward the trunk, under the circumstances, on a train he was not going upon from Springfield to Hartford was, as matter of law, such negligence, contributing to or causing the loss, as to prevent the plaintiffs from recovering. 7. That on the evidence the only contract the defendant made was to carry the personal baggage of Kerr, and that there was no evidence of fraud or gross negligence on its part, and therefore the plaintiffs could not recover."

The judge took the case from the jury, and reserved for the consideration of the full court the questions of law arising upon this report; the plaintiffs to become nonsuit, or the case to stand for trial as the full court should determine.

Plaintiffs nonsuit.

G. F Hoar & T. L. Nelson, for the plaintiffs. 1. The St. of 1867, c. 339, provides that "each railroad corporation within the Commonwealth shall give to all persons or companies reasonable and equal terms, facilities and accommodations for the transportation of themselves, their agents and servants, and of any merchandise and other property, upon any railroad owned or operated by such corporation." The great increase of manufacturing and of means of transportation by river and railroad has caused an active competition in business, which has compelled the manufacturer to send his agents with his goods directly to the local wholesale or retail dealer. These agents, known as commercial travellers, go over the country with their goods or their samples, and have effected a great revolution in domestic commerce. Sales of many of our most important manufactured articles are made largely, of some of them exclusively, by this class of persons. It has been estimated that one hundred thousand persons are so engaged in the country to-day; that the income received by the railroads from this class of...