ed as free baggage to one passenger, and appellee was required and did pay 60 cents extra as overweight charges. The trunk contained about $1,700 worth of dental goodssteel instruments, presumably. These goods were used not only as samples by which other goods of a like quality were sold for future shipment, but they were sold from the stock in custody of appellee, and then delivered by him to the customers, if they so desired. The goods belonged to appellee's employers, the wholesalers. While the trunk was in appellant's possession it got wet, and the instruments were damaged by rust, it is claimed, to the extent of about $500. There was evidence for appellee that when the trunk was being loaded on the train the person handling it (whether a porter, roustabout, or baggage master, or whether connected with the railroad he did not know) remarked as to its extraordinary weight, and that appellee replied that it contained dental instruments. For appellant, its baggage master at the station at which the trunk was checked and shipped testified that he was in sole charge of the checking of baggage at that station, and that he was not, apprised of the nature of the contents of the trunk; but that it was customary with that road to ship drummers' sample trunks as baggage. The cause of the damage, and the extent of it, do not seem to be controverted by the proof. On this state of case the court gave the jury the following instructions: "No. 1. The court instructs the jury that if they believe from the evidence the defendant, while the plaintiffs' trunks were in its custody, left them exposed to rain, and that said trunks or contents became wet, and thereby damaged, they should find for the plaintiffs the actual damages which said trunks or merchandise therein sustained by reason of such injury, not exceeding the sum set out therefor in the petition. No. 2. If the jury believe from the evidence the plaintiffs' trunk, while in the custody and care of the defendant, was bursted or torn in handling, through the negligence or carelessness of the defendant's agents or servants, and that it was thereby damaged, they will find for the plaintiffs such damages as they sustained for this injury to their trunks, not exceeding the sum claimed therefor in the petition." Appellant asked for this instruction, which was refused: "The court instructs the jury that if they believe from the evidence that the trunks shipped by plaintiff contained merchandise which he was carrying for sale, and said merchandise was checked as baggage on the passenger cars by defendant, and at the time of said shipment plaintiff failed to make known to the agent of defendant who checked said baggage, or other agent authorized to ship and have said baggage checked and shipped on its passenger trains, the law is for the defendant, and the jury should so find." From a verdict and judgment in favor of appellee for $531.50 damages, this appeal is prosecuted.

The first instruction given to the jury assumes as a matter of law that the common carrier is accountable, under its liability as carrier, for all damage to the contents of trunks shipped as baggage, without reference to the nature or ownership of such contents, and regardless of the carrier's knowledge or notice or agreement as to such contents. The second instruction is not questioned on this appeal. The only legislation in this state on the subject of baggage is that found in section 783, Ky. St., as follows: "Every company shall furnish sufficient accommodation for the transportation of all such passengers and property as shall, within a reasonable time previous thereto, offer, or be offered, for transportation, at places established by the corporation for receiving and discharging passengers and freight, and shall, when requested, check every parcel of baggage taken for transportation, if there is a handle, loop, or fixture, so that the same can be attached, and shall give to the person delivering such baggage a check for the same." We are thus left to determine what is meant by the term "baggage" by reference to the common law. A very considerable number of adjudications have been rendered on this subject, as might naturally be expected. From them it may be stated that the word "baggage," as used in the connection under discussion, refers only to what the passenger takes with him for his own personal use and convenience, and which he has committed to the care of the carrier. Generally, the articles allowed as baggage to accompany the passenger, and which the carrier is bound to transmit as an insurer, are the personal apparel of the passenger, but may include a number of other articles, which may not unreasonably be designed for his pleasure, business, or convenience upon the journey which he is prosecuting. "In a general sense, it may be said to include such articles as it is usual for persons traveling to take with them for their pleasure, convenience, and comfort, according to the habits and wants of the class to which they belong." Oakes v. N. P. R. Co., 20 Or. 392, 26 Pac. 230, 12 L. R. A. 318, 23 Am. St. Rep. 126. Story on Bailments, sec. 499, thus states it: "By 'baggage' we are to understand such articles of necessity or personal convenience as are usually carried by passengers for their per sonal use; and not merchandise or other valuables, although carried in the trunks of passengers, which are not designed for any such use, but for other purposes, such as sale or the like." Bomar v. Maxwell, 9 Humph. 624, 51 Am. Dec. 682; Macrow v. Great Western Ry. Co. L. R. 6 Q. B. 612. Rorer on Railroads, 988, states it this way: "It is difficult to enumerate the articles that may be included, in each particular case, in the term 'baggage.' This depends much on the condition, habits, and circumstances of life of the passenger. Ordinarily, it includes a

*

trunk or trunks, with the necessary wearing apparel for both comfort and dress suitable to the condition in life of the person; but not money in larger amount than for necessary expenses, nor articles of merchandise or of virtu. As, ordinarily, only the wearing apparel and similar kindred articles are included in the personal baggage of the traveler, the carrier knows the probable extent of his liability in the event of the loss or damage of the baggage, and may reasonably be presumed to have regulated his charges and provided means for its safe-keeping proportioned to that liability. If, on the other hand, the passenger might include in his parcel valuable jewels, not properly classed as baggage, or plate, or merchandise, bonds, or money, of many thousands of dollars in value, and the carrier made liable for its loss without knowledge or notice of its extraordinary value, he is compelled to assume a responsibility for which he has not been paid in fact, and without an opportunity to provide that extraordinary care and attention which, by common prudence, would be due to such a valuable charge. Baggage, to a certain reasonable limit, and belonging to a passenger, is carried free, as an incident of the passenger's contract for passage. The common-law definition of baggage forms a part of the carrier's undertaking as though expressly stated and assented to at the time of the passage. The parties may, of course, vary this contract by agreement. If the carrier elects to receive and transport that as baggage which in fact is freight, and which it would have the right to refuse to take as baggage on its passenger trains, it ought to be liable therefor upon the same terms as if it were baggage. But this is not because of its common-law liability therefor, but because it has agreed by special contract for a consideration to be so bound. The elements of such a contract are sufficiently satisfied by an acceptance of the package or trunk by the carrier for transportation as baggage, with knowledge of its contents. Hutchinson on Carriers, sec. 685 (1st Ed.); Texas, etc., R. R. Co. v. Capps, 2 Willson, Civ. Cas. Ct. App. 33; Jacobs v. Tutt (C. C.) 33 Fed. 412; Central Trust Co. of New York v. Wabash, St. L. & P. Ry. Co. (C. C.) 39 Fed. 417; Humphreys v. Perry, 148 U. S. 627, 13 Sup. Ct. 711, 37 L. Ed. 587. The fact that the passenger paid for the extra weight of the trunk does not vary the rule; for, if the trunk or trunks contained enough of those articles clearly entitled to be classed as personal baggage of the passenger as to be over the weight allowed, and reasonably allowable, to each passenger for free carriage, he would have to pay a just compensation for its being carried. This fact alone is not no

tice that the package contains anything besides the usual articles entitled to be taken as personal baggage, the nature and probable value of which are generally well known. The carrier might refuse to carry on its passenger train articles not properly baggage. It could not be required to carry freight on passenger trains. Delivering to the carrier a trunk or closed package, ostensibly ordinary baggage, without a statement as to its contents, is equivalent to a representation by the passenger that it belongs to him, and contains only such articles as are properly classed as personal baggage. Haines v. Chicago, etc., Ry., 29 Minn. 160, 12 N. W. 447, 43 Am. Rep. 199; Michigan Central R. R. Co. v. Carrow, 73 Ill. 348, 24 Am. Rep. 248. If it contains other articles, and the carrier is not informed of the fact, it is a deception upon the carrier as to such articles, and as to such they are not covered by the carrier's contract. Story on Bailments (9th Ed.) sec. 565. In the event of loss of or damage to such articles while in the carrier's possession, without notice of their character when received and checked as baggage, or without a special agreement with reference thereto, it is not liable, except as in case of a bailee without hire. But notice in terms of the contents of the trunks is not required. It is sufficient if, from all the circumstances of the case, the jury may reasonably infer that the carrier's agent charged with the duty of receiving and checking baggage over its lines knew of the extraordinary contents of the package when he received it and checked it as baggage for the passenger; that is, knew that they contained merchandise or other articles than the traveler's wearing apparel. Sloman v. Great Western Ry. Co., 67 N. Y. 208; Brown v. Camden, etc., Ry. Co., 83 Pa. 316.

While it is true that a carrier cannot be made liable for the goods of another than the passenger or a member of his family traveling with him, which may be included in the passenger's baggage, yet the facts in this case tend to show that, although the goods belonged to the wholesale merchants. by an agreement between them and appellee he had such an interest in them, by reason of his being responsible to them for their loss or damage, and required to replace them in such event, that they may fairly be treated as his for the purposes of this action. The damage fell upon him. They were being carried for him. He was the passenger. We therefore conclude that the court erred in assuming appellant's liability for the damage to the dental instruments shipped as baggage.

The judgment is reversed, and cause remanded for a new trial under proceedings consistent herewith.

UNITED LAUNDRY CO. v. STEELE. (Court of Appeals of Kentucky. March 6, 1903.)

SERVANT'S PERSONAL INJURIES-ASSUMPTION OF RISK-PLEADING-INSTRUCTIONS.

While

1. Plaintiff had her hand crushed in a mangle, which originally had a metal guard to prevent the operator's hands from being drawn into the rollers. This guard was removed, and the roller was substituted; plaintiff being instructed that, if she accidentally got her hand under it, it would rise up and stop. working on the right-hand side of the machine, the plaintiff caught her hand under the roller, and it stopped, as she had been instructed it would; but when she was injured she was working on the other side of the machine, where the roller was not so arranged as to stop if the operator's hand was caught in it. Plaintif had never been told of this fact. Held, that she was not charged, as a matter of law, with notice of the difference in the action of the rol ler on the two sides of the machine.

2. Where the petition in an action by a servant for personal injuries alleged that they were received because of the dangerous and insecure condition of a machine, and the evidence showed that the condition complained of was in reality a fault in the construction of the machine, a charge that if there was a defect in the construction and arrangement of the machine, by reason of which plaintiff was injured while in the exercise of ordinary care, she was entitled to recover, was warranted by the pleadings.

Appeal from circuit court, Jefferson county, law and equity division.

"Not to be officially reported."

Action by Julia Steele against the United Laundry Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Fred Forcht, Jr., and W. H. Field, for appellant. Matt O. Doherty, for appellee.

HOBSON, J. On March 23, 1900, appellee Julia Steele, who is about 24 years of age, while operating in appellant's laundry what is known as a "mangle machine," had her hand caught and drawn between the rollers, severely crushing and burning it, in consequence of which her hand was painfully injured. She suffered much pain, and the hand is, to some extent, permanently disabled. The mangle machine consists of large rollers heated by steam, through which the clothes are passed and ironed. It is about nine feet wide, and is fed by two girls, who put the clothes in; there being two other girls to receive them as they come out. Appellee and another girl were feeding the machine. As originally constructed, there was a piece of iron fixed on the platform across which the clothes pass when fed into the machine, which served as a guard to keep the girls from getting their fingers in between the rollers, or getting them burned. In January, 1900, this metal guard was taken off, and what is called a "guard roller" was put on. The girls were instructed that the guard roller was for their protection, and that, if they got their hands under it, it would rise up and stop, and in this way would keep their hands from getting to the large rollers; the guard roller being placed on the platform, 72 S.W.-20

and just in front of the other rollers. Appellee worked on the right side of the machine, and while working there got her hand under the guard roller. It was raised up and stopped, as she was told it would do, and she got her hand out without trouble. But on the day in question she was working on the left side of the machine, which, as said, was nine feet wide. A piece of cloth that she was ironing would not enter the machine. She pushed it up the second time, and it failed to enter. She then caught it near the end, and, pressing her hands up near the roller, started it under the guard roller, and her hand was drawn under with the cloth. The roller was raised up as before, but did not stop. Instead, it continued to revolve, and drew her hand under it against the large roller, whereby she received the injury complained of. The cause of this was that the roller at one end fitted in a socket, and at the other end in a cogwheel, and when raised up on the right-hand side it stopped revolving, but when raised on the left it continued to revolve. Appellee was ignorant of this difference, and supposed it was as safe on one side as the other. She had not been informed that there was any difference, and this seems to have been her first experience to the effect that there was a difference. The instructions she had received were simply that the roller would rise up and stop if they got one of their hands under it, and she appears to have relied on this.

It is insisted that the court should have peremptorily instructed the jury to find for the defendant, and the cases of O'Hare v. Keeler (Sup.) 48 N. Y. Supp. 376; Day v. Achron (R. I.) 50 Atl. 654; Jones v. Roberts, 57 Ill. App. 56; Walsh v. Commercial Steam Laundry (Super. N. Y.) 31 N. Y. Supp. 833; and Pratt v. Prouty, 153 Mass. 333, 26 N. E. 1002-are relied on. But this case differs from any of those cited. Here the metal guard which was fixed on the platform, as the machine was originally constructed, was taken off after appellee entered the service, and the guard roller was substituted for it, upon the assurance to her that if her fingers got under the guard roller it would be raised up and would stop. This was true on the right side of the machine, and made the guard roller an ample protection on that side; but it was not true on the left side of the machine, and she was not informed of the difference. On the contrary, she was misled by the assurance given, as, from what was told her, she had a right to expect it to act alike on both sides. Instead of this, on the left side the roller, when raised up, would continue to revolve, and draw the hand under. We see nothing in the evidence to charge appellee, as a matter of law, with notice of this difference in the action of the roller on the two sides of the machine; and, under the evidence, this was a question properly submitted to the jury.

It was charged in the petition that appel

lee's injuries were received "by reason and because of the dangerous, defective, and insecure condition of the said machine, and of the appliances connected therewith." The court instructed the jury that if "there was a defect in the construction or arrangement of the machine, and by reason thereof there was danger attendant upon the operation of the machine, which was known, or by the exercise of ordinary care could have been known, to the defendant, or its officers or agents, or any of them, superior in authority to the plaintiff, and said defect and danger were unknown to the plaintiff, or by the exercise of ordinary care could not have been known to her, and she had not equal means of knowledge of said defect and danger with the defendant, or its officer or agents, or any of them superior in authority to her, and, by reason of such defect and danger, plaintiff was injured," she could recover, unless guilty of contributory negligence. It is complained that this instruction was not warranted by the allegations of the petition, and that under the pleadings the court should not have submitted to the jury whether there was a defect in the construction or arrangement of the machine. The charge in the petition was substantially that the machine was in a dangerous, defective, and insecure condition. Whether this defect was in the construction or arrangement of the machine, or otherwise, was not shown in the petition. The instruction of the court simply narrowed the general charge of the petition, submitting to the jury the alleged defect in the machine which the evidence for the plaintiff tended to establish. It was aptly averred in the petition that the defective condition of the machine was well known to the defendant and unknown to the plaintiff, and that prior to her injury she had been assured by it that the machine and appliances were in perfect order and condition, and that she relied upon this assurance. The case appears to have been tried on the merits. The defendant seems to have understood precisely what was claimed by the plaintiff, and was in no manner misled. Both sides got their case fairly before the jury on the merits. The verdict of the jury is not excessive or against the weight of the evidence.

ing that no grant of exclusive separate public emoluments or privileges shall be made to any man or set of men, except in consideration of public services; section 234, providing that all civil officers of the state at large shall reside in the state, and all officers of districts, counties, cities, or towns shall reside therein-Act March 3, 1884, incorporating a private police and detective agency, and providing that members thereof giving a bond and taking an oath to faithfully perform the duties of their office shall have authority to arrest and imprison, and riquiring no public service, and no qualification except ability to read and write English, and putting no limit on the time a member may discharge such powers, is unconstitutional.

Appeal from circuit court, Jefferson county, criminal division.

"Not to be officially reported."

George Swincher was convicted of carrying concealed a deadly weapon, and appeals. Affirmed.

Field & Forcht and Kohn, Baird & Spindle, for appellant. C. J. Pratt and M. R. Todd, for the Commonwealth.

NUNN, J. The appellant was tried in the Jefferson circuit court, criminal division, on November 29, 1902, and was convicted, and fined $50, and sentenced to jail for the term of 10 days, for the offense of carrying concealed on his person a deadly weapon. Appellant admitted that he carried concealed on his person the pistol, but claims that he was erroneously convicted, for two reasons: First. He claims that he ought not to have been found guilty, because at the time he carried the pistol and was arrested he was engaged in his duties as a private policeman, acting under appointment of the county judge of Jefferson county, Ky., and was a member of the Louisville Merchants' Private Police & Detective Agency, incorporated under the act of the General Assembly approved March 3, 1884. Second. That, if the court should decide that the act of the General Assembly referred to is unconstitutional, he in good faith believed it to be constitutional, and that he was justified by reason thereof in carrying the pistol; that he did not have any intention to violate the law, but, on the contrary, believed that he was performing his legal duty, and for these reasons he ought to have been acquitted.

For answer to the second proposition, it is sufficient to say that section 1309 of the Kentucky Statutes does not say whoever shall intentionally or willfully, and with intention to violate the law, carry concealed a deadly weapon, shall be punished, but says that whoever carries concealed a deadly weapon shall be punished as therein stated. Under that section, the good intent or the bad intent of the party carrying the weapon is immaterial, except to be presented to the jury or the court to mitigate or increase the punishment.

By section 1313, Ky. St., policemen of cities, when in discharge of their official duties, may carry concealed deadly weapons; and,