Zeigler v. Mobile & O.R. Co.

• Decision Date: 15 January 1906
• Citation: 39 So. 811,87 Miss. 367
• Parties: WILLIAM ZEIGLER ET AL. v. MOBILE & OHIO RAILROAD COMPANY
• Court: Mississippi Supreme Court

39 So. 811

87 Miss. 367

WILLIAM ZEIGLER ET AL. v. MOBILE & OHIO RAILROAD COMPANY

Supreme Court of Mississippi

January 15, 1906

FROM the circuit court of Monroe county, HON. EUGENE O. SYKES Judge.

Zeigler and another, appellants, doing business under the copartnership name of Zeigler Brothers, were plaintiffs in the court below, and the railroad company, appellee, was defendant there. From a judgment in defendant's favor the plaintiffs appealed to the supreme court. The facts are stated in the opinion of the court.

Reversed and remanded.

Leftwich & Tubb, for appellants.

The burden was upon the railroad company to exculpate itself from the negligence; and the failure to deliver the baggage is negligence prima facie. Newberger v. Railroad Co., 75 Miss. 303 (s.c., 23 So. 186) ; Faison v. Railroad Co., 69 Miss. 569 (S.C., 13 South. Rep., 37).

A fair statement of the rule controlling this case is made by 2 Rorer on Railroads, 992, and is as follows:

"The strict liability of a common carrier attaches to a railroad company for the baggage of its passengers confided to its care and checked accordingly during its passage and for such reasonable time after its arrival at the place of destination as to give the passengers an opportunity to call for the same. What is a reasonable time is not an arbitrary matter of law, but must be left for determination in each particular case. After such reasonable time the liability of the company becomes that of warehouseman and its liability as carrier ceases."

And in determining what is a reasonable time the custom of the company, the manner of transporting baggage from the station and all the circumstances surrounding the case should be considered. Mote v. C. & N.W. R. R. Co., 27 Ia. 22; Moses v. R. R. Co., 64 Am. Dec., 381; Wood v Crocker, 86 Am. Dec., 773; Dittman v. K. & W. R. R. Co., 51 Am. St. Rep., 352.

The attorneys for appellee below invoked the unjust and harsh rule followed in the cases of R. R. Company v. McGahey, 58 Am. St. Rep., 118 (36 L. R. A., 781), and Roth v. Railroad Company, 90 Am. Dec., 756, and like cases.

In commenting upon the McGahey case, just cited, the learned editor of the L. R. A. Reports, where a lengthy note is given discussing the rule and that particular case, says: "The court does not state whether or not the depot was kept open all night. If it would have been closed before the conveyance could have been procured, the ruling in favor of the carrier was clearly wrong; and according to many of the authorities it is doubtful if it was correct even if the depot was kept open all night."

The Roth case was decided in 34 N.Y. 548; but in Burnett v. Railroad, 45 N.Y. 187, it is said: "The rule of exemption from strict liability was carried to the utmost limit of propriety in that case [referring to the Roth case], to say the least of it."

The rule invoked below and approved by the learned judge could not play in this case until the railroad company had at least introduced some testimony to exonerate itself. Our own court should not follow so unreasonable a rule, as it appears to us, but should adopt the more just one as illustrated by the cases first above cited.

Our court has never passed upon the identical question here presented, but the position taken upon it in cases of like character is favorable to the rule we invoke. See Tronstine v. R. R. Co., 64 Miss. 834 (S.C., 2 So. 255) ; Railroad Co. v. Horton, 84 Miss. 490 (S.C., 36 So. 449).

J.M. Boone, for appellee.

When the defendant puts the baggage on the platform ready to be delivered to the owner, who had an opportunity to claim and receive the same, but elected to leave the baggage unclaimed until the next morning, liability as common carrier ceases and afterwards defendant's liability is that of a warehouseman. Vimberg v. Grand Trunk R. R. Co., 27 Am. & Eng. R. R. Cas., 271 (13 Ontario App. Rep., 93); Clarke v. Eastern R. R. Co. (Mass.), 21 Am. & Eng. R. R. Cas., 307; Hoeger v. Chicago, Milwaukee & St. Paul R. R. Co. (Wis.), 21 Am. & Eng. R. R. Cas., 308; Wald v. L. & N. R. R. Co. (Ky.), 58 Am. & Eng. R. R. Cas., 123; Roth v. Buffalo R. R. Co., 90 Am. Dec., 756 (34 N.Y. 548) ; Texas, etc., R. Co. v. Capps, 16 Am. & Eng. R. R. Cas., 119; K. C., etc., R. R. Co. v. McGahey, 58 Am. St. Rep., 111 (63 Ark. 344) ; Chicago, Rock Island & Pacific Ry. Co. v. Boyce, 24 Am. St. Rep., 268 (73 Ill. 510).

In Chicago, etc., Co. v. Addizoat, 17 Ill. 632, the court held: "Reasonable time within which the owner must apply for baggage when it is transported on the same train on which he himself travels is directly after its arrival and transfer to the platform, making due allowance for the confusion occasioned by the arrival and departure of the train and for the delay necessarily caused by the crowd on the platform."

In the case of Ouimett v. Henshaw, 35 Vt. , 605, the court reviewed all the authorities on the subject as to when liability of the railroad as a common carrier as to baggage ended, and laid down the rule that the lateness of the hour at which the passenger arrived at his destination does not authorize him to leave his baggage with the depot agent and hold the company liable as a common carrier. It seems to be the well-settled rule that where the passenger fails to call for his baggage and leaves it at the depot and goes home or to his hotel, it is then the duty of the railroad agent to store the baggage in his warehouse. Our contention is that when the passenger permits the baggage to remain at the depot, so that the agent is called upon to store the same, the character of the defendant changes from that of a common carrier to that of a warehouseman.

OPINION

TRULY, J.

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