Denver & R.G.R. Co. v. Johnson
| Decision Date | 03 April 1911 |
| Citation | 114 P. 650,50 Colo. 187 |
| Parties | DENVER & R. G. R. CO. v. JOHNSON. |
| Court | Colorado Supreme Court |
Error to Pitkin County Court; Henry C. Rogers, Judge.
Action by Vincent Johnson against the Denver & Rio Grande Railroad Company. Judgment for plaintiff. Defendant brings error. Reversed.
E. N. Clark, F. S. Titsworth, and W. R. King, for plaintiff in error.
Vincent Johnson, pro se.
Plaintiff was riding on a free pass from Aspen to Denver, accompanied by his son, who had a ticket which was paid for. Plaintiff was bringing his son was paid for. Plaintiff was bringing his son to Denver for treatment for lameness. Before leaving Aspen, plaintiff presented to defendant's agent two bundles which purported to be baggage, which the agent received and checked through to Denver as plaintiff's own baggage. In one of these bundles were boat slats and some other articles, including a gun, all of which were covered and wrapped up in a bed quilt and tied together with a rope. When the bundle was received by plaintiff at Denver, it was cut open, or untied, and the gun was missing. The company not being able satisfactorily to account for the loss, plaintiff brought this action to recover the value of the gun, and had judgment for $50, to review which defendant prosecutes this writ of error.
There is no evidence that the bundle was checked on the ticket of the son rather than on the pass of the father. But, as the gun belonged to plaintiff, it could not be properly checked on the ticket of the son as the latter's personal baggage, even if it was that species of property. So we dispose of the case on the warranted assumption that the checking was on the pass.
Defendant was accustomed to check such bundles when they contained nothing but baggage. The plaintiff did not tell the baggage agent that this package contained a gun. It was the custom or rule of the railroad company to check guns as personal baggage when they were in cases, whenever the owner, as a sportsman, or when going on a hunting expedition, wished to take them along with him. There is no evidence that plaintiff was going on a hunting expedition, or that he needed the gun for his own comfort or convenience, protection, or defense on the journey from Aspen to Denver.
The term 'baggage' includes such articles of necessity or convenience as are usually carried by passengers for personal use or comfort or protection during the continuance of a journey, and what constitutes baggage in any given case depends, in some measure, upon its own circumstances. It has been decided that a weapon which one is in the habit of carrying or taking with him for purposes of defense or protection during a journey may come within the term 'baggage.' It certainly is not an unreasonable custom for a common carrier to require guns to be carried in cases as a condition to their transportation as personal baggage and it is not unreasonable or a breach of a carrier's duty to refuse to carry a gun wrapped up as this one was. The baggage agent testifies that, under the rule of the company he would not have checked this bundle as baggage had he known that a gun was in it. Presenting as baggage this package or bundle, which was similar to bundles containing baggage, was by implication, a representation to the carrier that it contained nothing but baggage. There is no evidence of the carrier's knowledge of the contents, and it was not incumbent upon the agent to inquire...
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...a specific precedent does not control the result, despite the fact that both parties conceded that it did); Denver & R.G.R. Co. v. Johnson, 50 Colo. 187, 114 P. 650, 651 (1911) (“The fact that opposing counsel may agree upon a proposition of law, does not commit the court to its approval.”)......
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