Perry v. Seaboard Air Line R. Co.

• Decision Date: 15 March 1916
• Docket Number: 111.
• Citation: 88 S.E. 156,171 N.C. 158
• Parties: PERRY v. SEABOARD AIR LINE R. CO.
• Court: North Carolina Supreme Court

88 S.E. 156

171 N.C. 158

PERRY v. SEABOARD AIR LINE R. CO.

No. 111.

Supreme Court of North Carolina

March 15, 1916

Appeal from Superior Court, Vance County; Lyon, Judge.

Action by B. H. Perry against the Seaboard Air Line Company. From a judgment for plaintiff, defendant appeals. New trial.

In an action against a railroad for loss of clothing from a suit case, where the evidence that the clothing was in the case when delivered to defendant was not so clear as to free the question from doubt, an instruction assuming the establishment of the fact was erroneous.

This is an action to recover damages for the loss of certain wearing apparel. The plaintiff alleges that the defendant is liable as a carrier of baggage, and, if not, that the wearing apparel was lost by reason of the negligence of the defendant. The defendant denies that the wearing apparel was ever delivered to it, and also denies any liability to the plaintiff. The plaintiff introduced evidence tending to prove that on the 3d day of December, 1913, he bought a ticket of the Southern Railway Company and checked his suit case from Goldsboro to Raleigh; that the wearing apparel was in the suit case at the time it was checked and delivered to the agent of the Southern Railway at Goldsboro; that the agent at Goldsboro delivered it in the same condition to the baggagemaster of the Southern Railway train; that the baggagemaster delivered it in the same condition to the agent at the Union Depot Station at Raleigh; that the plaintiff remained in Raleigh a sufficient length of time to have his suit case rechecked to Henderson, where he intended to go that on the night of December 3d he (the plaintiff) bought a ticket of the defendant, the Seaboard Railroad, from Raleigh to Henderson, but did not have his suit case checked; that he went to Henderson on this ticket, and on the morning of December 4th requested the agent of the defendant to have his suit case brought from Raleigh to Henderson, which the defendant agreed to do upon learning that the plaintiff had traveled on the road of the defendant; that after the suit case reached Raleigh it was placed in the baggageroom used by the Southern Railway Company and the defendant, and in this baggageroom there were two clerks and three porters; that the suit case remained in the baggageroom until the morning of December 4, 1913, when it was carried to Henderson by the defendant in accordance with the agreement of its agent at Henderson; that it was there delivered to the plaintiff and the wearing apparel was not in it; that the wearing apparel was worth $50. The defendant introduced evidence tending to prove that the wearing apparel was not in the suit case at the time it was delivered to the defendant and that it was not negligent.

His honor charged the jury, among other things, as follows:

"Now, when goods are shipped over a railroad, called common carrier, and the goods are damaged, the law presumes that the company in whose possession they were when the damage was discovered, that is, the last carrier, is presumed in law to be responsible for the damage to the goods." The defendant excepted.

"Now, as I told you, the law presumes that the loss occurred by the negligence of the Seaboard; it being the company in whose possession the goods were lost." The defendant excepted.

"If you find from the evidence that the suit case contained the two pairs of trousers, and they were lost, and that they were worth $50, and from the evidence that they were lost by the negligence of the defendant, you may answer the first issue 'Yes,' the first issue being: (1) Was the property of the plaintiff lost by the negligence of the defendant, as alleged in the complaint?" The defendant excepted.

There was a verdict and judgment for the plaintiff, and the defendant excepted and appealed.

Murray Allen, of Raleigh, for appellant.

J. C. Kittrell, of Henderson, for appellee.

ALLEN J.

The cause of action of the plaintiff is founded upon the allegation that the wearing apparel, which he contends was lost by the negligence of the defendant, the Seaboard Railroad, was in the suit case of the plaintiff at the time it was delivered to the defendant, and this allegation is denied. This raised an issue for the determination of the jury, and the evidence of the plaintiff, circumstantial in character, is not so clear as to free the question from doubt, and to withdraw it from the realm of debate.

The evidence tends to prove that the suit case was carried from Goldsboro to Raleigh in the same condition in which it was delivered to the agent at Goldsboro, but that at Raleigh it was left unlocked in a baggageroom in which there were two clerks and three porters, from about 7 o'clock of the evening of December 3d until the next day, when it was delivered to the defendant, and that it was only in the possession of the defendant from one to two hours, and upon this evidence the defendant might well contend that the loss was at Raleigh and not on its train or at Henderson. It was therefore error for his honor to assume in his charge that this fact was established, and to tell the jury that the loss occurred while the suit case was in the possession of the defendant, which he did in the part of the charge excepted to when he said:

"Now, as I told you, the law presumes that the loss occurred by the negligence of the Seaboard; it being the company in whose possession the goods were lost."

This entitles the defendant to a new trial; but, as the question will necessarily be raised again, it is proper to consider the exception to the charge upon the burden of proof, and this cannot be done intelligently without dealing with the relation between the plaintiff and the defendant, and the degree of care imposed upon the latter, assuming the wearing apparel to have been in the suit case when it was delivered to the defendant.

The plaintiff contends that it was a part of the contract at the time he bought his ticket at Raleigh for Henderson that the defendant would carry his baggage, and that the transportation of the baggage on the next day was in the performance of this contract, and that therefore the defendant is liable as a common carrier of baggage and is an insurer. The position of the defendant, on the other hand, is that, while the contract was to carry the baggage of the plaintiff, it was limited to the train upon which he traveled, and as the baggage did not go forward until the next day, and then for the accommodation of the plaintiff, its liability is that of a bailee without reward, and that there is no presumption of negligence upon proof of loss.

If the position of the plaintiff is sustained, he is entitled to recover upon proof of delivery to the defendant and of a failure to deliver, and without proof of negligence, because a common carrier of goods and baggage is an insurer, and is liable for all injuries to and loss of the property being transported, unless the injury or loss is caused by the act of God, the public enemy, the negligence of the shipper, or by the inherent qualities of the goods, and the burden is on the carrier to bring itself within one of these exceptions. Harden v. Railroad, 157 N.C. 249, 72 S.E. 1042.

The correctness of the position depends upon the contract between the plaintiff and the defendant at the time he bought his ticket, and the authorities are practically unanimous that, while at common law and under our statute (Rev. 1908, § 2618) the passenger has the right to have baggage to a limited amount transported free of charge as a part of the consideration for the price of his ticket, the baggage must accompany the passenger on the same train, unless prevented by the default or negligence of the carrier.

If the passenger has checked his baggage in time to be transported with him and this is not done, or if baggage is checked through over different lines and the connection is so close at some point that there is not time to transfer the baggage to the train taken by the passenger, or if for any cause within the control and supervision of the carrier the baggage is carried on another train, it retains its character as baggage and the carrier is liable as an insurer for loss or injury to it; but, in the absence of one or the other of these conditions, the carrier is relieved from liability as an insurer if the baggage is carried without additional compensation on another train at the request of the passenger.

If carried on another train for extra compensation, it is liable as a carrier of freight.

The authorities declaring this to be the law are collected in the note to Conheim v. Railroad, 15 Ann. Cas. 391, where the editor says:

"The rule generally recognized is that a passenger who brings his baggage to the station within a reasonably sufficient time before the departure of the train he intends to take, to permit of the baggage being checked and placed on board, has the right to have it carried on the train he himself takes. Wald v. Pittsburg, etc., R. Co., 162 Ill. 545, 44 N.E. 888, 35 L. R. A. 356, 53 Am. St. Rep. 332; Toledo, etc., R. Co. v. Tapp, 6 Ind. App. 304, 33 N.E. 462; Felton v. Chicago G. W. R. Co., 86 Mo.App. 332; Glasco v. New York Cent. R. Co., 36 Barb. (N. Y.) 557; Fairfax v. New York Cent., etc., R. Co., 73 N.Y. 167, 29 Am. Rep. 119; Coward v. East Tennessee, etc., R. Co., 16 Lea (Tenn.) 225, 57 Am. Rep. 227. See, also, Chicago, etc., R. Co. v. Addizoat, 17 Ill.App. 632; Runyan v. Central R. Co.

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