Cary v. Cleveland and Toledo Rail Road Company. ant to carry the lady and her baggage beyond the termination of its road, cannot be alleged. The proof was that she applied to the defendant's clerk and servant for a passage ticket by rail road from Toledo to Buffalo, and was furnished with tickets which carried her to Buffalo over the defendant's road and the other intermediate roads; and the defendant's clerk receiving the fare for the whole distance. Some contract was made by the defendant at that time, and if, upon the evidence, the defendant desired to make a question whether it was a contract for carriage by the defendant for the whole distance, or whether, in entering into the contract, the defendant represented and contracted for and in behalf of other corporations or individuals, as to a part of the distance, he was entitled to have such question passed upon by the jury; that is, if there was a doubt as to what the contract was, it was a proper question for the jury. But there was certainly evidence to carry the cause to the jury upon the question whether or not the defendant had contracted as alleged. The remaining point, that the proofs were insufficient to sustain the action, was not probably relied upon, aside from the specific questions made. The court properly denied the motion for a nonsuit. The defendant then gave evidence to show the connection and business relations to each other of the several rail roads forming the line between Toledo and Buffalo; that each road received the established fare for carrying each passenger over its road; that at Buffalo and Toledo tickets were sold for the whole distance; at the latter place, by the defendant's servants and agents, and at the former by the servants and agents of the Buffalo and State Line Rail Road Company; that the moneys received by the respective companies were deposited daily to the credit of the company by whom they were received; and that settlements were periodically made between the several companies. It was also proved that at Cleveland the passengers and baggage were changed to and from the defendant's cars, which did not pass over the roads of the other companies, and that separate Cary v. Cleveland and Toledo Rail Road Company. tickets for passage over the several roads, but printed on the same slip of paper, were issued to passengers purchasing at Buffalo and Toledo. Evidence was also given tending to show that the baggage in question was delivered by the defendant to the Cleveland, Painesville and Ashtabula Rail Road Company, at Cleveland, and that it arrived at Buffalo and was destroyed by fire the same night. The train upon which the plaintiff's assignor was a passenger was due at Buffalo about 5 o'clock in the afternoon and in time to connect with a train going east on the New York Central Rail Road, but was detained by obstructions, and did not arrive until about 10 o'clock in the evening and after the eastern train had left; and this arrived at the same time with two other trains which had also been detained by the same causes. The owner of the baggage did not claim it that evening, but went directly from her car, which could not enter the car house, to a hotel. There was an unusual crowd of passengers and accumulation of baggage. The car house, with much of the baggage, was destroyed that night, and the owner of the trunk in suit was unable to procure it when she called for it the next morning. The servants of the rail road companies were ready and offered to deliver the baggage that arrived on those trains the same evening, and did deliver all that was claimed. At the close of the evidence the defendant's counsel again asked for a nonsuit, on the grounds: 1. That the defendant had not legal capacity or power, under or by its charter, to contract to carry a passenger or the trunk and contents beyond the limits of the state of Ohio; that the contract of the defendant to carry Miss Bedell and her trunk to Buffalo was illegal and void; and that the defendant was not estopped from repudiating the contract and insisting upon this defense; and 2. That the liability of the defendant as a common carrier ceased when the trunk arrived at Buffalo; and there was no evidence of any negligence at Buffalo whereby the trunk Cary v. Cleveland and Toledo Rail Road Company. was lost; and that the onus of proving such negligence was upon the plaintiff. The motion was denied by the court; and as these two propositions in connection with those urged at the close of the plaintiff's case, somewhat modified in form, constitute the basis of the several exceptions to the charge or rulings of the judge in submitting the case to the jury, they may be considered in the same connection. The court charged the jury," 1st. That the defendant was not discharged by the delivery of the trunk in question to the Cleveland, Painesville and Ashtabula Rail Road Company; 2d. That the contract of the defendant was to deliver the trunk at Buffalo, and refused to change the converse of the first proposition. As the question relating to the discharge of the defendant from liability by the delivery of the trunk to the Painesville road depends entirely upon the terms of the contract, and its validity, if for carriage of the passenger and her baggage east of Cleveland, the exceptions need not be farther considered in this connection, except to repeat the remark before made that the defendant did not ask to have the jury decide what the contract in fact was. Had it done so, and the court had decided it as matter of law, it might perhaps have been error. The counsel did not object that the court, by passing upon the question, invaded the province of the jury, but the exception was based rather upon the ground that the defendant had not contracted, because it could not lawfully contract for service beyond Cleveland. In Muschamp v. The Lancaster and Preston Junction Railway Co. (8 M. & W. 421,) in a case somewhat similar, it was treated by the court as a proper case for the jury to determine what the contract was; whether the railway company had undertaken to carry a parcel beyond the terminus of its road, or had agreed to carry it to its terminus and there deliver it to another carrier, for transportation. The court held that they could not say that the latter was the import of the contract, as was asked by the defendant to be decided in this case. It was assumed by the defendant's counsel to be a proper Cary v. Cleveland and Toledo Rail Road Company. question for the court, as there was no dispute about the evidence; and when a question is so treated the party cannot, upon appeal, insist that it should have been submitted to the jury. (Barnes v. Perine, 2 Kernan, 18.) If there was evidence upon which the jury might have found the contract as alleged by the plaintiff, rather than as claimed by the defendant, as a question of fact, the ruling and decision of the court will be sustained in other words, there is no error for which the judgment will be reversed. That the evidence was sufficient to establish the contract in accordance with the ruling of the court, will be seen by cases which will be referred to in considering the power of the defendant to make such contract. The court further charged, 3dly. That' she (the passenger and owner of the trunk) was not bound to get her trunk in the shortest possible time, but that she must take it within a reasonable time. 4th. That it was a question, under all the circumstances, for the jury, whether she claimed it in a reasonable time. That if the trunk was delivered to Miss Bedell (the owner) at Buffalo, so as to discharge the defendant from liability as a common carrier, the question then was whether there was negligence on the part of the Buffalo and State Line road, and if there was, then the defendant was liable. He refused to charge as matter of law that, before the fire occurred, the defendant was discharged from its liabilities as a common carrier by the delivery of the trunk at Buffalo, and its deposit in the baggage room without its having been called for; but in response to a request so to charge, instructed the jury that if Miss Bedell demanded the trunk in what, under all circumstances, was a reasonable time after its arrival, the defendant was not discharged; and if she did not demand it in a reasonable time, then the company would become warehousemen. If the Buffalo and State Line road company was guilty of negligence after its liability as a common carrier ceased, and its duty as warehousemen commenced, the defendant was still liable for the trunk. There is no claim that the trunk was in truth delivered to Miss Bedell at Buffalo, and Cary v. Cleveland and Toledo Rail Road Company. therefore what was said by the judge in that connection, in regard to the liability of the defendant for subsequent negligence of the Buffalo and State Line Rail Road Company in further caring for the property, was irrelevant and need not be considered here. The relative rights of passengers and rail road companies in regard to the delivery of the luggage at the end of the passage, and the liabilities of the companies in respect to it, and the time when their responsibility as carriers cease, has not been much discussed, so far as adjudged cases have come under my notice. The duties which the proprietors of rail roads owe to their passengers, in respect to their baggage, are not in all respects analogous to the duties resulting from the ordinary contract for the carriage of merchandise, or from the liabilities of a common carrier of merchandise. Still the rules which govern that class of bailments furnish, in most cases, the rules by which rights and liabilities of passengers and rail road proprietors may be determined. The court, in Thomas v. Boston and Prov. R. R. Corporation, (10 Metc. 472,) in which it was held that proprietors of a rail road, who transport goods over their road and deposit them in their warehouse without charge until the owner or consignee has a reasonable time to take them away, are not liable as common carriers for the loss of the goods from the warehouse, but are liable as depositaries, only for want of ordinary care, carefully avoided expressing an opinion as to the liability of the company for the baggage of passengers. Hubbard, J., says: "Neither do we intend to discuss the rights of passengers on rail roads in regard to their persons and baggage, nor the peculiar liabilities of the proprietors in regard to both. We confine ourselves strictly to the case of merchandise deposited after it has been transported to its place of destination." If the rule is that the liability of the carrier of persons and their baggage, as a carrier of the baggage, ceases at the instant of its arrival at the terminus at which it is to be delivered, or as soon as it can be claimed by and delivered to the owner, then the charge of the judge was erroneous in the case before us. |