Waldron v. Chi. & N. W. R. Co.

• Decision Date: 31 December 1876
• Parties: Waldron v. Chicago & N. W. R. Co.
• Court: South Dakota Supreme Court

46 N.W. 456

1 Dak. 351

Waldron

v.Chicago & N. W. R. Co.¹

Supreme Court of the Territory of Dakota.

Dec. Term, 1876.

Appeal from district court, Yankton county.Oliver Shannon, for appellant. Brackett & Waldron, for appellee.

SHANNON, C. J.

The chief questions presented by the record are- First, whether upon the facts as stated, and the evidence embraced in the case brought up on appeal, the railroad company is liable for the property of the plaintiff contained in the box; and, second, whether there is any error in the instructions given by the court to the jury. All the disputed facts were determined by the jury when they found for the plaintiff on all the issues; and their decision upon such facts should stand, unless there was insufficient evidence to warrant their finding. As to the circumstances attendant upon the delivery of the box to defendant's agent, the only discrepancy between the two witnesses for the plaintiff and the two who testified for the defendant, consisted in their different versions of what was said and done after the trunks and the other box were checked. The solution of this contradictory testimony depended, of course, upon the credibility of the witnesses, and the jury, whose province it was, saw fit to adopt the statement of the plaintiff's witnesses. From the whole case as presented here, it therefore appears that on the 30th of December, 1874, at Belle Plaine, in Iowa, the plaintiff purchased tickets from defendant's agent for himself, his son, and two daughters, for their passage over defendant's road from the station named, to Missouri Valley Junction, in the same state. At Belle Plaine, upon exhibiting the tickets to defendant's baggage-master there, (who had authority to receive and check baggage,) and pointing out their baggage, consisting of three trunks and two small boxes, the agent checked the trunks and one of the boxes; but the box in controversy, a rough pine box of about 18 by 20 inches and 10 inches in depth, with plaintiff's name printed upon it, having no handle or place to which a check could be fastened, was for that cause, and for that cause only, as all the witnesses agree, not checked; but the agent received the box, saying that “he would place it in the baggage-car, and it would go just as safe, only at Missouri Valley it would be necessary to look after it, or it might pass.” With this understanding and agreement the plaintiff and his family got on the train, and on their arrival at the Missouri Valley Junction this box was missing. The plaintiff immediately informed the baggage-master of defendant, at the latter place, of the fact, who said he would send back “a feeler,” and promised to telegraph. He took plaintiff's address, and said he would follow it up. The plaintiff's son also telegraphed from the junction. The plaintiff, after having written to the baggage-master at Chicago, and not recovering the box or its contents, brought his action. It further appears that, upon the trial, the railroad company, for the purpose of avoiding liability, disclosed the fact, by the deposition of its agent who had received the box, that it had not been placed in the baggage-car, but was left on the platform, from which, after the starting of the train, it was carried by him into the baggage-room. The other witness for defendant, the night baggage-master, after deposing that he was present when the other agent, the day baggageman, received and checked some baggage for plaintiff, and that “there was one small box that had nothing to which a check could be fastened,” further declared as follows: “The next time I saw the box was in the evening of the day that said Waldrons left for the west. When I went on duty I found the box in the baggage-room of the depot.” It also appears that the defendant, to show its non-liability, set up the defense that the box was delivered on that evening, at Belle Plaine, to an alleged agent of the plaintiff, one Truesdell. To support this the further deposition of the night baggage-master was read to the jury as follows: “About nine o'clock that evening Truesdell came there and told me he wanted to buy a ticket to State Center, and wanted that box, left in the morning, checked to State Center. I sold him a ticket to State Center, and he told me the box contained photographs, and that he wanted me to see some of them. He then unlocked the box, took out some of the pictures, and insisted on my taking one of them, which I did. [The photographs were pictures of the plaintiff and his family.] He then locked the box and put a small rope around the box, and I checked it to State Center, Iowa, and put it on the train.” The plaintiff, on the other hand, denied the existence of any authority whatever in Truesdell to receive the box, and gave counter-evidence upon the point; and the question of Truesdell's agency, whether actual or ostensible, was fairly given to the jury by the charge of the court. Between the places named, the company was, at the time, a common carrier over its road, not merely of passengers and their baggage, but also of articles of freight to be, transported in its baggage-cars, when such articles were accompanied by a passenger, and such passenger was chargeable with additional compensation whenever demanded of him. In this case the agent of the company, before accepting the box, made no suggestion or demand of that nature.

As a carrier of passengers the company was bound, unless there was reasonable ground for refusal, to take all persons who applied for passage, and their baggage, not exceeding 100 pounds of weight to each passenger, and, as a carrier of such packages of freight as above described, to take them when offered for transportation by the accompanying passenger; and it was responsible, when duly delivered and accepted, for the safe conveyance and delivery of such baggage, and of such packages, to and at the point for which they were destined, unless prevented by an act of the public enemy, by act of law, or by an irresistible, superhuman cause. A delivery to a duly-authorized agent of a common carrier, who is in the habit of receiving packages, is undoubtedly a sufficient delivery. In this case the delivery to Barstow, the agent of the company, was to one intrusted to receive baggage and packages, and not to one engaged in other duties. A rough pine box, such as is used for merchandise, was presented for transportation, and exposed to the view of the proper agent. It was of small dimensions, and of a kind rarely if ever used for packing wearing apparel. If it was not properly baggage, it...