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

• Decision Date: 13 June 1911
• Citation: 202 N.Y. 363,95 N.E. 808
• Court: New York Court of Appeals Court of Appeals
• Parties: HASBROUCK v. NEW YORK CENT. & H. R. R. CO.

202 N.Y. 363

95 N.E. 808

HASBROUCK

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

Court of Appeals of New York.

June 13, 1911.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Julia M. Hasbrouck against the New York Central & Hudson River Railroad Company, as lessee of the Boston & Albany Railroad. A judgment for plaintiff (64 Misc. Rep. 478,118 N. Y. Supp. 735) was affirmed by the Appellate Division (137 App. Div. 532,122 N. Y. Supp. 123), and defendant appeals. Affirmed.

This action was brought to recover the sum of $1,500 as damages for the conversion by the defendant of three finger rings and two $10 bills belonging to the plaintiff, while she was a passenger on the Boston & Albany railroad, leased and operated by the defendant. She also alleged in the same count that said property was lost through the negligence of the defendant. The defendant by its answer admitted that on the occasion in question the plaintiff was a passenger on one of its trains, but denied the remaining allegations of the complaint. There was no plea of contributory negligence, but there was a denial of the allegation in the complaint of due care on the part of the plaintiff. Upon the trial the plaintiff was the only witness sworn except as to the question of value, the custom of the road, and the like. The defendant called no witness and furnished no evidence, but rested on its motion to nonsuit. By consent the jury was discharged, and it was stipulated that the court should pass upon all questions of law and fact. Elaborate findings were made and an opinion written by the trial justice, who directed judgment in favor of the plaintiff for the amount claimed. Upon appeal the Appellate Division affirmed, one of the justices dissenting. 64 Misc. Rep. 478,118 N. Y. Supp. 735; 137 App. Div. 532,122 N. Y. Supp. 123. The defendant appealed to this court.Amos Van Etten, for appellant.

G. D. B. Hasbrouck, for respondent.

VANN, J. (after stating the facts as above).

[1] The plaintiff is a married woman about 40 years of age, accustomed to traveling, and residing in the city of Kingston. On the morning of May 23, 1908, she went to the city of New York on her way to Natick, Mass., where she had a daughter at school, intending to attend a reception there in the evening. She packed the necessary wardrobe in a suit case, and placed at the bottom beneath the clothing a card case containing four finger rings and $25 in currency. The money was in three bills, two for $10 each and one for $5, and she wrapped them around the rings before placing them in the card case. The suit case was not locked during her journey to Natick, as the lock was out of order, but there was a catch on either side of the lock. There were no straps or other fastenings. She preferred to carry her suit case, although as packed it was very heavy, rather than check it, and subject it to the danger of scratching and other injuries. On reaching New York she stored the suit case in the baggageroom of the Grand Central Depot, and went out to make some purchases. When she returned in an hour or two she took the suit case from the baggageroom, went directly to the ladies' room, placed the suit case on a seat, and opened it far enough to get hold of the card case, take out the $5 bill, and replace the package where it was before. She also put the purchases she had made in the suit case. She did not take the card case out of the suit case, but held the latter open in such a way as to enable her to take hold of the card case and remove the bill, which she needed to pay her fare on the railroad. While there were ladies in the room, no one was near her when she opened the suit case and took out the money. After replacing the card case with the jewelry and the rest of the money therein beneath the clothing as she had before, she went at once to the ticket office, purchased a ticket to Natick, keeping the suit case by her as she did so and until the train was announced, when she carried it on board, and kept it by her side until near Worcester, Mass. At this time the conductor came through her car, and she asked him to send some one to take her suit case off at Worcester, where she was to take another train for Natick. About 10 minutes later a trainman wearing the usual badge of his position on his cap came to her, and asked if she was the lady who had requested the conductor to have some one help her off with her baggage at Worcester. He also asked if she was through with her suit case, and in answer to her inquiry, ‘Is this Worcester?’ he said, ‘Yes; if yor are through with your suit case I will take it.’ The plaintiff, believing that the train was about to stop at Worcester, let the trainman take her bag, which he carried to the rear of the car, as she was facing toward the front. Soon after she saw him pass through to the front of the car, lock the door of the toilet room, and walk back again to the rear. During this time the train was in motion, and 10 or 15 minutes elapsed between the delivery of the suit case and the arrival of the train at Worcester. When the train stopped the trainman stood at the foot of the step at the rear of the car, which was not a Pullman, but an ordinary coach. He did not help her off, but handing her the suit case, said: ‘Here's your grip.’ She gave him a little change as a gratuity, and asked: ‘Where does the Natick train come in?’ He pointed to another track near by, dropped the suit case, and hurried up the steps into his car without saying anything further. Not long after boarding the train for Natick the plaintiff opened her suit case, found the clothing somewhat disturbed, and the card case soiled about the edges where it had been fresh and clean before. On opening the card case she found only the least valuable of the four rings, the other three and the money being gone. Nothing else was missing, although there were three valuable pearl combs in the suit case. She complained to the conductor but he could do nothing. She testified positively that her suit case was not out of her sight nor opened from the time she took the $5 bill out of it at the Grand Central Depot until she intrusted it to the trainman, and that she knew that all the jewelry was in it at that time. She was a lady of prominence, the rings were adapted to her social position, and she was in the habit of wearing them at parties and receptions. While she had some money in a handbag carried on her arm, she took the bills in the card case for use as ‘extra money,’ if occasion required. Her ticket stated that it was issued by the New York, New Haven & Hartford Railroad Company, and that it entitled the bearer to first class passage from New York to Natick, Mass. It also stated that ‘in selling this ticket for passage over other roads, this company acts only as agent, and assumes no responsibility beyond its own line. This company assumes no risk on baggage except for wearing apparel, and limits its responsibility to one hundred dollars in value; all baggage exceeding that value will be at the risk of the owner unless taken by special contract.’ Attached to the ticket were two coupons, one from ‘New York to Springfield,’ and the other from ‘Springfield to Natick.’

Certain rules of the defendant were read in evidence, and those governing conductors provided that ‘passenger conductors will be responsible for the movement, safety, and care of the train and for the vigilance and conduct of the men employed thereon, and must report any misconduct or neglect of duty. The reputation of a railroad depends greatly upon the attention and courtesy shown to its patrons. * * * See that trainmen assist passengers on and off trains.’ The rules governing trainmen provided, among other things, as follows: ‘Passenger trainmen report to and receive their instructions from the trainmaster, and while on trains are subject to the orders of the conductor. * * * Take position at the car steps to assist passengers on and off the train and to inform passengers getting on the train as to its destination and where it is scheduled to stop. * * * The proper place for the rear trainman while the train is in motion is on the rear car. Other trainmen will pass through the train at intervals to look after the comfort of the passengers and for the safety of the train.’

A man who had acted as trainman for eleven years on the Boston & Albany Railroad, and was so employed in May, 1908, on a train between Springfield and Worcester, testified: ‘While on the train I am subject to the orders of the conductor while on duty. I had to see that the cars were properly ventilated, and pass through the cars at certain different times to see that the people were comfortable in different ways, * * * to open windows and close windows, whatever they may ask of me, and take care of the ventilators, etc.’ He also testified that he took other care of the passengers, assisting them on and off the train; that if passengers were overloaded with baggage, it was his duty to assist them in getting on and also to help them in getting off, with their baggage, and he habitually did so; that during the year 1908, while acting as trainman on the Boston & Albany Railroad, he frequently assisted passengers on and off trains with their baggage, and that it was the custom of trainmen on that road at that time to assist passengers on and off the cars with their baggage; that some cars on that road had baggage racks for hand baggage while others had not. It was admitted that the value of the lost rings was the sum of $1,500. The plaintiff testified that she did not read her ticket, or notice ‘there was any printing inside of that black space. The letters were very small letters. I can read it now by examining more closely.’

At the close of the evidence the defendant moved for a nonsuit upon the ground that the defendant did not undertake to care for the valuables in the suit case; that it was not paid any consideration therefor,...