The constitutional requirement of ing made the same provisions for their eduthe maintenance and support of a system of free common schools where

PEOPLE ex rel. CISCO V. SCHOOL BOARD OF THE BOROUGH OF QUEENS.

that case there was a total denial of the com- William J. TRIMBLE, Assignee, etc., of plainant's right to attend or to participate in the enjoyment of the entertainment. There no other accommodation or facility was furnished by the defendant. Not so here. In this case the colored children were given the same facilities and accommodations others. We are of the opinion that the case of People v. King neither modifies nor affects the principle of the decision in People ex rel. King v. Gallagher, so far as it applies to the question under consideration.

as

Again, it is said that the present Constitution requires the legislature to provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated, and therefore the school board was required to admit to any school under its control all the children who desired to attend that particular school. Such a construction of the Constitution would not only render the school system utterly impracticable, but no such purpose was ever intended. There is nothing in that provision of the Constitution which justifies any such claim. The most that the Constitution requires the legislature to do is to furnish a system of common schools where each and every child may be educated, not that all must be educated in any one school, but that it shall provide or furnish a school or schools where each and all may have the advantages guaranteed by that instrument. If the legislature determined that it was wise for one class of pupils to be educated by themselves, there is nothing in the Constitution to de

prive it of the right to so provide. It was (Parker, Ch. J., and O'Brien and Landon, II., the facilities for and the advantages of an education that it was required to furnish to all the children, and not that it should provide for them any particular class of associates while such education was being ob

127 Mass. 322, 34 Am. Rep. 376; Alling v. Boston & A. R. Co. 126 Mass. 121, 30 Am. Rep. 667; 5 Am. & Eng. Enc. Law, 2d ed. p. 534; Humphreys v. Perry, 148 U. S. 627, 37 L. ed. 587, 13 Sup. Ct. Rep. 711; Toledo & O. C. R. Co. v. Dages, 57 Ohio St. 38, 47 N. E. 1039; Hutchinson, Carr. 2d ed. pp. 822, 823; Thomas, Neg. p. 333.

Under the contract for passage the defendant is not liable for damage to this trunk. Gurney v. Grand Trunk R. Co. 37 N. Y. S. R. 155, 14 N. Y. Supp. 321, Affirmed in 138 N. Y. 638, 34 N. E. 512; Orange County Bank v. Brown, 9 Wend. 116.

Mr. David Hays, for respondent: At common law the carrier of goods was responsible for all losses not occasioned by the act of God or of the public enemy.

Story, Bailm. § 491.

The right of a passenger to take with him as baggage such articles as may be reasonably necessary for his convenience on the journey has always been accorded by carriers of persons to attract travelers.

Merrill v. Grinnell, 30 N. Y. 594.

The term "baggage" was limited to such personal effects as were ordinarily taken by travelers for their personal use and convenience. The rule defining the general meaning of the word "baggage" has varied from time to time, according to changes in the customs of carriers and travelers.

Lawson, Bailm. § 273.

During the past quarter of a century a large and lucrative part of the passenger business of railroad companies has consisted in carrying traveling salesmen and their samples.

The judgment is conclusive with respect to the following facts:

1. That the defendant had notice that the trunk contained property other than Taylor's baggage.

2. That the defendant had notice that the trunk and its contents were not Taylor's property.

3. That it was the defendant's custom to check trunks of commercial travelers containing samples of merchandise in the same manner, and for the same compensation, and for transportation on the same trains, as ordinary baggage.

4. That the defendant's servants in its baggage room were authorized to check sample trunks of commercial travelers as baggage.

The plaintiff's right of action does not depend upon proof of all the foregoing facts, but they are all in the case, and strengthen his position.

Sloman v. Great Western R. Co. 67 N. Y. 208; Talcott v. Wabash R. Co. 159 N. Y. 461, 54 N. E. 1.

The regulation of the defendant, unknown to exact a release, cannot relieve the defendto the passenger, requiring its baggage agent ant from its responsibility.

Talcott v. Wabash R. Co. 159 N. Y. 461, 54 N. E. 1; 4 Elliott, Railroads, § 1649: Hutchinson, Carr. § 269; Lawson, Bailm. §

284.

Even if it had been the custom of the defendant to exact releases, and Taylor knew it, the defendant would, nevertheless, be liable in this case, having waived the condition.

Rathbone v. New York C. & H. R. R. Co. 140 N. Y. 48, 35 N. E. 418; Lake Shore & M. S. R. Co. v. Foster, 104 Ind. 293, 54 Am. Rep. 319, 4 N. E. 20.

The defendant is liable on the ground of negligence.

It has inured greatly to the profit of the railroads to have the system of the sale of goods on the road by commercial travelers substituted in place of the former custom of merchants making their purchases at the The plaintiff having proved delivery of the manufacturing centers. In order to promote property to the defendant in good condition, the change it was necessary for the railroad it, and the owner having demanded it at the and the defendant having assumed to carry companies to permit the sample trunks of place of destination, where the defendant the traveling salesmen to be carried on pas-produced it in a ruined condition, the damant's negligence. age is presumed to have been due to defend

senger trains with them.

Fairfax v. New York C. & H. R. R. Co. 67 N. Y. 11, 73 N. Y. 167, 29 Am. Rep. 119; Canfield v. Baltimore & O. R. Co. 93 N. Y.

The fact that merchandise so accepted by the carrier does not come within the definition of personal baggage cannot relieve the carrier from all liability respecting it. Schouler, Bailm. § 673; 4 Elliott, Rail-532, 45 Am. Rep. 268. roads, § 1649.

The defendant having received the trunk with notice that it contained property other than the personal baggage of the passenger, and having charged extra compensation for its transportation, it is liable for its loss.

Each party having clothed the court with the functions of the jury, the verdict for the plaintiff stands as would the finding of a jury. All the controverted facts and all inferable facts in support of the judgment will be deemed conclusively established in favor of the plaintiff.

Smith v. Weston, 159 N. Y. 194, 54 N. E. 38; Adams v. Roscoe Lumber Co. 159 N. Y. 176, 53 N. E. 805.

The facts set forth in the complaint constitute a cause of action for negligence, as well as for breach of contract.

Catlin v. Adirondack Co. 11 Abb. N. C. 377; Curtis v. Delaware, L. & W. R. Co. 74 N. Y. 116, 30 Am. Rep. 271.

The limitation contained in the passenger ticket does not affect the plaintiff's right to recover.

The ticket is a mere token or voucher, and a notice on it does not bind a passenger as by contract.

Perkins v. New York C. R. Co. 24 N. Y. 196, 82 Am. Dec. 281; Blossom v. Dodd, 43 N. Y. 264, 3 Am. Rep. 701.

Assuming the notice on the ticket to have

any force, it might excuse the defendant the failure to deliver it, but insists it is not from its common-law liability as insurer, but liable for its loss, with contents, for the reait would not excuse it from liability for neg-son that Taylor, when paying for excess of ligence, as it does not expressly exempt from such liability.

Mynard v. Syracuse, B. & N. Y. R. Co. 71 N. Y. 180, 27 Am. Rep. 28; Rathbone v. New York C. & H. R. R. Co. 140 N. Y. 48, 35 N. E. 418.

Bartlett, J., delivered the opinion of the

court:

baggage on the trunk, failed to inform the checkman that it contained samples. The learned counsel for the defendant very frankly states in his brief that it is true the trunk was what is commonly known as a "sample trunk," and had the appearance of one, but nevertheless argues that the plaintiff should have been nonsuited.

The liability of common carriers for the loss of sample trunks carried by commercial travelers in the transaction of their business has been frequently considered by the courts of this and other jurisdictions during the last twenty-five years, and, while the decisions are conflicting, many of them are distinguishable in their facts from the case at bar. The law relating to this subject has been in a state of evolution, and certain rules have finally been laid down in this state, calculated to protect the rights of both parties, in view of the fact that a vast amount of the wholesale business of the country is transacted through commercial travelers, to the great profit of the railroad companies and convenience of merchants. As this case is in the position where each party is to be regarded as having requested the direction of a verdict (a point we will discuss later), and the trial judge having directed a verdict for the plaintiff, all the controverted facts, and all inferences in support of the judg ment, will be deemed conclusively established in his favor.

This action is brought to recover the value of a trunk and its contents destroyed while in the possession of the defendant, to which it had been delivered by the plaintiff's assignors for transportation from Rochester to New York on the evening of October 23, 1897. Curtis & Wheeler were manufacturers of shoes in the city of Rochester, and Joseph E. Taylor acted as their traveling salesman on the 23d day of October, 1897, and had been in their employ in that capacity for a period of nine years. On the evening in question, Taylor, acting for his employers, went from Rochester to New York on business. Before starting he arranged with the baggageman of the defendant for the transportation of a trunk and an article called a "telescope." The trunk and its contents, consisting of samples of shoes, belonged to Curtis & Wheeler, except a few articles of wearing apparel, the property of Taylor, for which no claim is made. The telescope contained the wearing apparel of Taylor. For the trunk Taylor. received from the baggageman a card known as "Excess Baggage Check," for which he The defendant read in evidence certain paid 85 cents excess of baggage. For the tel-rules of the company which provide, in brief, escope he received the ordinary metallic that baggage consists only of necessary wearcheck. Taylor described the trunk, when a ing apparel, limited to 150 pounds in weight; witness at the trial, as a regular sample that sample baggage, of not more than 150 trunk, made of wood and covered with can- pounds, will be checked free for one person, vas, about 32 or 34 inches in height, 36 to regardless of the number or kind of tickets 38 inches in length, and 22 to 24 inches in presented. Rule 4 reads as follows: "Small width. The "number taker" of the Roches-cases or trunks containing merchandise will ter baggageroom was sworn, and stated that be carried as an accommodation to commerhe took a record of the baggage in and out. cial travelers, and may be checked when reHe produced a sheet containing a record cov-lease of liability, Form 220, is signed in conering October 23, 1897, which showed the de-sideration of its transportation on passenscription of plaintiff's baggage as a sample ger trains as baggage. In case personal bagtrunk. He further testified that he so desig-gage and samples are contained in same nated it from its appearance. Taylor testi-trunk, a release must be signed for samples, fied that he had been in the habit of leav- and agents will refuse to check the same uning Rochester with his samples on an aver-less this is done." The release referred to age of four, six, or eight times a year for absolves the company from all liability for about twelve years. The night checkman loss, detention, or damage to the trunk or was sworn for defendant, and stated that he its contents. It is urged on behalf of the did not know what the contents of the trunk defendant that rule 4 limited the authority were, and that nothing was said to him as to of the baggageman, and that he was unauthe contents. He was asked on cross-exam-thorized to check a sample trunk without exination if he remembered anything about acting the release. This court has held that this particular trunk, or its appearance. He the baggage agent stands in the place of the answered, "I couldn't just now; no." It is railroad company. Talcott v. Wabash R. to be observed that this witness was not Co. 159 N. Y. 471, 54 N. E. 1. And the recasked by defendant's counsel whether he record in the case before us shows that no reognized this piece of baggage as a sample lease was exacted, nor was plaintiff's agent trunk from its external appearance. He does not contradict the number taker as to the external appearance of the baggage showing it was a sample trunk. The defendant does not question receiving the trunk, or

aware of the rule. The plaintiff's agent testified that he had on a number of occasions signed this release when he desired to stop at several stations between Rochester and New York, as he could settle for excess of bag.

gage through to New York for less than to pay this excess from each station at which he stopped. On cross-examination he was asked:

Q. I ask you if you did not know the fact that when the baggagemaster knew that your trunk contained samples, or any other travel-tained merchandise, and the agent was exing man's trunk contained samples, that this release of liability was executed?

4. No, sir; I had no knowledge of that. I knew that I had from time to time executed those releases on my sample baggage.

On re-direct examination he was asked:

Q. When you say that you had executed those releases, you refer to the releases which you described before, in order to save paying excess of baggage from each place when you departed?

A. Yes, sir; no release was presented to me, nor did I sign any release, nor was I asked to, when I checked this trunk in controversy.

The defendant's checkman or baggagemaster does not deny this statement.

pany observed "they weighed light," and the traveler replied, "Yes; they contain samples of underwear." Judge Vann, referring to this incident in the opinion of the court, at page 471, 159 N. Y., and page 4, 54 N. E., said: "The number and appearance of the trunks was some evidence that they conpressly told that they contained samples. In view of the custom proved, that commercial travelers generally carry samples belonging to their employers in their trunks, this warranted the inference that the baggage agent knew the exact facts." In the case at bar there were facts warranting the submission of the question to the jury, or the trial judge, as to whether defendant was charged with knowledge of the character of the trunk, through its agent; the external appearance of a regular sample trunk; the readiness with which it was recognized as such by the official "number taker;" the fact that defendant was constantly checking sample trunks on all of its passenger trains except the Empire State Express; the further fact that for about twelve years plaintiff's agent had been traveling on defendant's road with a sample trunk, and leaving Rochester six or eight times a year; the fact that sample trunks were checked for the same compensation as ordinary baggage, these and any other relevant facts were properly considered when the verdict was directed, and the facts warranted by the evidence stand conclusively established in favor of the plaintiff. While it is doubtless the better practice, as suggested by defendant's counsel, that a traveler in charge of a sample trunk should state to the baggage agent the fact when he seeks to check it, yet if, in the haste of transacting such business, or where, by many rep

This case presents the question whether the baggageman of the defendant, who checked the lost trunk and collected excess of baggage thereon, knew that it was a commercial traveler's trunk, from surrounding facts and circumstances, and defendant was thus chargeable with notice. This court has held that notice may be given to the common carrier by other means than the direct statement of the owner that he is a commercial traveler, and that his trunk contains samples. In Sloman v. Great Western R. Co. 67 N. Y. 208, plaintiff's son, a lad of eighteen years of age, was employed by him as travel-etitions of the act, much is taken for ing agent to sell goods by sample. He had granted, this is not done, it would be a harsh two large trunks containing the samples, dif- and unreasonable rule that precluded the ferent from ordinary traveling trunks, and plaintiff from submitting to the jury the had a valise for his personal baggage. He facts surrounding the transaction. The redelivered the trunks to a baggagemaster at covery in this case was not on the contract of a railroad depot, and, when asked to which passage entered into when the plaintiff's station he wished them checked, replied that agent purchased his ticket, but on an inde he did not then know, as he had sent a des-pendent agreement for the transportation of patch to a customer at a certain place to know if he wanted any goods. If not, he desired them to go to a certain other place, where he expected to meet customers. Soon after he checked his baggage, and paid $2 for extra weight. Judge Rapallo, in his opinion, said: "It does not appear that it was stated, in terms, to the baggagemaster what the trunks contained, but the jury had the right to consider the sourrounding circumstances, the appearance of the passenger and of the articles, the conversation between the passenger and the baggagemaster, and the dealing between them, and, if they indicated that the trunks were not ordinary baggage, or received or treated as such, the jury had the right to draw the inference of notice, and that they were received freight." In Talcott v. Wabash R. Co. 159 N. Y. 461, 54 N. E. 1, it appeared that when weighing the trunks the agent of the com

the sample trunk as freight. In Sloman v. Great Western R. Co. 67 N. Y. at page 214, Judge Rapallo said: "From all the circumstances, the jury were, we think, authorized to draw the inference that the baggagemaster understood that the agent was traveling for the purpose of selling goods, and that these trunks contained his wares; that he was not entitled to have them carried as his ordinary baggage, and therefore, the extra charge was made, and they were carried as freight." In Talcott v. Wabash R. Co. 159 N. Y., at page 470, 54 N. E. 3, this case was cited and followed. The Sloman Case also authorizes a recovery by a plaintiff where this independent contract is made by his salesman as agent. 67 N. Y. 212. as There remains to be considered one other question. The learned appellate division in its opinion stated, in substance, that, as nei'ther counsel raised the point that there were