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W. 548. And it is not necessary to the commencement of the lia. bility, that the owner shall have placed himself in such a position that he cannot withdraw his baggage: Green v. Milwauked etc. R. R. Co., 41 Iowa, 410.
But baggage received by a carrier for the accommodation or convenience of an intending passenger, at an unreasonable period of time before passage is to be taken, is held in the capacity of warehouseman only: Little Rock etc. Ry. Co. v. Hunter, 42 Ark. 200; Illinois Cent. R. R. Co. v. Tronstine, 64 Miss. 834, 2 South. 255. This rule finds illustration where baggage is brought to a depot under the impression that it can be carried by the first train, but upon learning that it must await the departure of a later train, the owner leaves it for such train: Goodbar v. Wabash Ry, Co., 53 Mo. App. 434; and where the owner leaves his trunks with the freight agent for storage over night, intending next day to take them to the passenger depot and have them checked for transportation: Van Gilder v. Chicago etc. R. R. Co., 44 Iowa, 548; and where a steamship company received a valise on Saturday for the convenience of the owner, who was to sail Monday, and by a rule of the company the baggage could not be checked until the presentation of a ticket, which was not done until Monday, when the valise was not to be found: Murray v. International Steamship Co., 170 Mass. 166, 64 Am. St. Rep. 290, 48 N. E. 1093.
b. Termination of Liability as Carrier.—The strict liability of a carrier for the baggage of a passenger continues, upon its arrival at its destination, until the owner has been afforded a reasonable time and opportunity to remove it. After he has been given a reason. able time and a fair opportunity to take charge of his effects, but has failed to do so, the responsibility of the carrier becomes reduced to that of a warehouseman: Kansas City etc. Ry. Co. v. McGahey, 63 Ark. 344, 58 Am. St. Rep. 111, 38 S. W. 659; Pennsylvania Co. v. Liveright, 14 Ind. App. 518, 41 N. E, 350, 43 N. E. 162; Kansas City etc. R. R. Co. v. Patten, 3 Kan. App. 338, 45 Pac. 108; Louisville etc. R. R. Co. v. Mahan, 71 Ky. (8 Bush) 184; Wald v. Louisville etc. R. R. Co., 92 Ky. 645, 18 S. W. 850; Nealand v. Boston etc. R. R., 161 Mass. 67, 36 N. E, 592; Laffrey v. Grummond, 74 Mich. 186, 16 Am. St. Rep. 624, 41 N. W. 894; Cohen v. St. Louis etc. Ry. Co., 59 Mo. App. 66; Blackmore v. Missouri Pac. Ry. Co., 162 Mo. 455, 62 S. W. 993; Van Horn v. Kermitt, 4 E. D. Smith (N. Y.), 453; Torpey v. Williams, 3 Daly, 162; Klein v. Hamburg etc. Packet Co., 3 Daly, 390; Jones v. Norwich etc. Trans. Co., 50 Barb. 195; Mattison v. New York Cent. R. R. Co., 57 N, Y, 552; on v. New York etc. R. R. Co., 76 N. Y. 381; Kahn v. Railroad Co., 115 N. C. 638, 20 S. E. 169; Texas etc. Ry. Co. v. Capps, 2 Willson (Tex. App. Civ.), sec. 35; Hoeger v. Chicago etc. Ry. Co., 63 Wis. 100, 53 Am. Rep. 271, 25 N. W. 435.
What constitutes a reasonable time and opportunity for a passenger to remove his baggage upon its arrival at the journey's end
depends upon the peculiar facts and circumstances of each particular case. And if the facts are in dispute, it is a question for the jury; but if they are not, it is a question of law for the court: Kansas City etc. Ry. Co. v. McGahey, 63 Ark. 344, 58 Am. St. Rep. 111, 38 8. W. 659; Louisville etc. R. R. Co. v. Mahan, 71 Ky. (8 Bush) 184; Roth v. Buffalo etc. R. R. Co., 34 N. Y. 548, 90 Am. Dec. 736; Bur. gevin v. New York etc. R. R. Co., 69 Hun, 479, 25 N. Y. Supp. 415; Mortland v. Philadelphia etc. R. R. Co., 81 Hun, 473, 30 N. Y. Supp. 1021.
It is said that the reasonable time within which the owner must apply for his baggage, when it is transported on the same train on which himself traveled, 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 crowded condition of the depot at the time: Chicago etc. R. R. Co. v. Addizoat, 17 Ill. App. 632; Ditman Boot etc. Co. v. Keokuk etc. R. R. Co., 91 Iowa, 416, 51 Am. St. Rep. 352, 59 N. W. 257. The customs of the railway and of the station, and the manner of transporting baggage therefrom must be considered: Mote v. Chicago etc. R. R. Co., 27 Iowa, 22, 1 Am. Rep. 212. It would seem, too, that regard should be had to the weight, quantity, and character of the baggage, and the facilities for having it delivered at the owner's residence or stopping place if it is so cumber: some that he cannot be expected to assume personal control of it.
The lateness of the hour at which the baggage arrives is held not to excuse the owner from promptly claiming it: Kansas City etc. Ry. Co. v. McGabey, 63 Ark. 344, 58 Am, St. Rep. 111, 58 S. W. 659; Ditman Boot ete. Co. v. Keokuk etc. R. R. Co., 91 Iowa, 416, 51 Am. St. Rep. 352, 59 N. W. 257; Ouimít v. Henshaw, 35 Vt, 605, 84 Am. Dec. 646. If it arrives in the evening, and is not demanded or called for until the next morning, the responsibility of the carrier through the night is ordinarily held to be that of a warehouseman only: Graves v. Fitchburg R. R. Co., 51 N. Y. Supp. 636, 29 App. Div. 591; Jacobs v. Tutt, 33 Fed. 412; Wiegand v. Central R. R. Co., 75 Fed. 370. But this rule must be relaxed to meet particular cases. Thus where a train arrives late, the night is inclement, and the number of passengers unusual, with a corresponding accumulation of baggage, a woman passenger is not bound to demand her baggage: Cary v. Cleveland etc. R. R. Co., 29 Barb. 35. And if it is customary for a carrier to close its depot so soon after the arrival and departure of an evening train that the baggage handlers do not customarily go to the depot at night, and, if the only way that baggage arriving on the train can be obtained is by special request, surrender of check, and having it left outside the depot, the owner of baggage so arriving is not guilty of negligence in leaving it in the depot over night without effort to remove it, and in case of its destruction during that time he may recover its value: Ditman Boot etc. Co. v. Keokuk etc. R. R. Co., 91 Iowa, 416, 51 Am. St. Rep. 352, 59 N. W. 257.
Indeed, it seems to us that the cases must be frequent when a delay to call for baggage until the next morning after its arrival cannot be considered unreasonable. Moreover, we incline to the view that such a delay, under ordinary circumstances, is not unreason. able: See Burgevin v. New York etc. R. R. Co., 69 Hun, 479, 23 N. Y. Supp. 415.
When a steamboat arrives at its destination at night, and the passengers accept the captain's invitation to remain on board until morning, the carrier is liable for the loss of their baggage occasioned by the accidental burning of the vessel during the night: Prickett v. New Orleans Anchor Line, 13 Mo. App. 436. So, where a passenger gets off a boat at night, leaving his trunk on board, with the assent of the captain, on his assurance that it will be safe, and it is delivered to another person, on a forged order, the next morning, the carrier is liable: Powell v. Myers, 26 Wend. 591.
If a passenger does not call for his baggage until the second day after its arrival, he cannot hold the carrier to its extraordinary lia. bility during the time the baggage remains at the depot: Mote v. Chicago etc. R. R. Co., 27 Iowa, 22, 1 Am. Rep. 212; Burnell v. New York Cent. R. R. Co., 45 N. Y. 184, 6 Am. Rep. 61. And a carrier is liable only as warehouseman where a trunk arrives in the morning, and not being called for, is placed in the baggage-room from whence it is stolon that night, the owner not calling until late the next day: St. Louis etc. Ry. Co. v. Terrell (Tex. Civ. App.), 72 8. W. 430.
The fact that a passenger is taken sick, and is given a lay-over ticket, so that he does not reach his destination as soon as his bag. gage, is held not to extend the liability of the carrier as insurer beyond what it otherwise would be: Chicago etc. R. R. Co. v. Boyce, 73 Jll. 510, 24 Am. Rep. 268. But if a passenger, because of lameness, is unable to take his baggage on arriving at his destination, and ar. ranges with the baggage-master to retain it until he can send for it, the liability as carrier continues until it is sent for: Curtis v. Avon etc. R. R. Co., 49 Barb. 148. Ordinarily, however, a passenger cannot extend the carrier's liability as insurer by failing to call for his baggage on account of his peculiar circumstances: Kansas City etc. Ry. Co. v. McGahey, 63 Ark. 344, 58 Am. St. Rep. 111, 58 S. W. 659.
Notice to a passenger of the arrival of her baggage is not necessary to relieve a railroad company of its liability, when she is informed as to the particular time when it will arrive, but does not call for several days there:fter: Indiava etc. R. R. Co. v. Zilly, 20 Ind. App. 569, 51 N. E. 141.
If a passenger, after reaching the end of his journey, leaves his baggage with the carrier over night, without any arrangement in regard thereto, and for his own convenience, the liability of the car. rier is simply that of an ordinary bailee: Roth v. Buffalo etc. R. R. Co., 34 N. Y. 518, 90 Am. Dec. 736. If he requests the carrier to store his baggage until he calls for it, he cannot hold the carrier to its rigorous responsibility: National Steamship Co. v. Smart, 107
Pa. St. 492. Clearly, if he takes his baggage into his own possession, but afterward, for his own convenience, redelivers it to the baggage. master to be kept until sent for, the carrier is liable only as a warehouseman: Minor v. Chicago etc. Ry. Co., 19 Wis. 40, 88 Am. Dec. 670.
In case he takes a portion of the contents of his trunk, but leaves the trunk, for convenience and with the agent's consent, at the station, the railroad company's liability as carrier ceases and its liability as warehouseman begins: Galveston etc. Ry. Co. v. Smith, 81 Tex. 479, 17 S. W. 133, (Tex. Civ. App.) 24 S. W. 668. And where a theatrical company takes such baggage as it desires for the night, leaving the renainder in the car at the suggestion of the bag. gage-master, the responsibility of the carrier is reduced to that of a warehouseman: Mortland v. Philadelphia etc. R. R. Co., 81 Hun, 473, 30 N. Y. Supp. 1021,
It is the duty of the carrier, as to baggage which has reached its destination, to have it ready for delivery at the usual place until the owner, in the exercise of due diligence, can call for and receive it: St. Louis etc. Ry. Co. v. Terrell (Tex. Civ. App.), 72 8. W. 430. In order to relieve itself of its extraordinary liability for the bag. gage, the carrier must have a baggage-master at hand to deliver baggage for a reasonable time after its arrival, and at reasonable hours thereafter: Toledo etc. R. R. Co. v. Tapp, 6 Ind. App. 304, 33 N. E. 462; Dininay v. New York etc. R. R. Co., 49 N. Y. 546. In both of these cases the owner attempted to obtain his baggage, but was unable to do so because it had been locked up in the depot and the baggage-man was not at hand. See, also, Georgia R. R. etc. Co. v. Phillips, 93 Ga. 801, 20 S. E. 646.
In Felton v. Chicago etc. Ry. Co., 86 Mo. App. 332, a passenger got off the train at a station without a night agent, went to the baggage car for his trunk, but did not find it. He could obtain no definite information when the trunk would be likely to arrive. It arrived the next afteruoon, and that night was burglarized in the station, He called for it the following day, having gone to the country in the meantime. It was held that the carrier's liability was not reduced to that of a warehouseman.
Connecting and Intermediate Carriers. If a passenger's journey extends over two or more connecting lines of transportation, the relation of common carrier to his baggage, under ordinary circumstances, continues throughout the route. The liability of one carrier continues until that of the next one commences; and the liability of the latter does not commence until there is a delivery to it, or at least until there is what can be considered as an equivalent to a tender of delivery. If one carrier places the baggage in its station to await the departure of the train over the succeeding carrier's line, its responsibility as carrier still continues: Ouimit v. Henshaw, 35 Vt. 605, 84 Am. Dec. 646.
UNION PACIFIC RAILROAD COMPANY v. COLORADO POSTAL TELEGRAPH-CABLE COMPANY.
[30 Colo. 133, 69 Pac. 564.] EMINENT DOMAIN–Authority of Commissioners.- Commissioners appointed in condemnation proceedings are not to determine the question of public use, nor the question of necessity for the taking, except as to the amount of land or the width of the right of way.
EMINENT DOMAIN_Public Use and Necessity, Waiver of. The questions of public use and necessity for the taking in condemna. tion proceedings, are for the court, and if not presented to it for de termination before the appointment of commissioners, are waived. (pp. 109, 110.)
EMINENT DOMAIN-.Private Use, What does not show.. The fact that a corporation, seeking to condemn a right of way for å telegraph line, was organized for the purpose of selling or disposing of the lines which it might construct or acquire, and testimony offered that it is the creature of a foreign corporation, and has no intention to operate the line except in the interest of, and in connection with, that corporation, does not establish an intent in law to take the property for a private use. (p. 111.)
CORPORATION--Collateral Attack on Charter. If it appears from the articles of a corporation that it is duly organized and existing under the laws of the state, its charter cannot be attacked in & collateral proceeling. (p. 111.)
EMINENT DOMAIN-Discretion in Locating Route.--The discretion which a telegraph corporation may exercise in locating its line cannot be interfered with in the absence of a showing of bad faith, a malicious motive, or that the taking of a particular tract sought to be condemned would entail a great loss which might readily be avoided. (p. 112.)
EMINENT DOMAIN-Telegraph Line, Leave of Towns to Construct.-In proceedlings to coudemn land for a telegraph line over the right of way of a railroad, the fact that the line cannot be constructed through the towns along the route without their consent, is a question which does not concern the railroad company. (p. 113.)
EMINENT DOMAIN—Telegraph Line-Public Use.--A petí. tion in condemnation proceedings for a telegraph line, which alleges that the petitioner is a corporation organized to erect and maintain lines of magnetic telegraph, is not insufficient in failing to show that the use of the line is to be public. (p. 113.)
EMINENT DOMAIN_Property Devoted to Public Use.--A Telegraph Company may condemn a right of way over that of a railroad along which there is already a telegraph line. (p. 114.)
EMINENT DOMAIN-Property Devoted to the Same Use.-Property devoted to a public use may be condemned for the same or a different public use, when the uses for which it is already held are not thereby materially interfered with. (p. 114.)
EMINENT DOMAIN.—The Title Acquired by a Telegraph company by condemnation proceedings in the right of way of a railroad is merely an easement, and damages for the taking should be assessed on that basis. (p. 115.)