* * *

"The order of the judge was in substantial compliance with the statute, and stayed 'all proceedings on the part of the plaintiff in execution of the judgment.' But this did not affect the validity or effect of the judgment pending the appeal, so far as it bore upon and restrained the action of the defendant, its servants or agents. It did not absolve them from the duty of obedience, and permit them to do that which the judgment absolutely prohibited, and the doing of which would, as adjudged by the court, cause irreparable mischief to the plaintiff, or an injury which could not certainly be compensated in damages. The statute does not, and the judge's order staying the plaintiff did not, and could not, derogate from the efficiency of the judgment in its operation upon and effectually restraining all acts by the defendant in violation of its mandate. The court should have, and doubtless has, the power, notwithstanding an appeal, especially so long as the action is pending in the same court upon an appeal from the Special to the General Term, to command respect for its judgments and obedience to its mandates until they are reversed. This power is essential to the administration of justice, and to the respect which courts of justice have a right to demand from suitors. It would seem to be preposterous that a party could, by the mere order of the court staying his hands from executing a judgment not yet executed, be deprived of the whole fruit of the judgment by the lawless act of the defeated party pending an appeal, without remedy; that he must stand by, and without possibility of redress, see the subject-matter of the litigation destroyed, so that if he succeeds in affirming the judgment it will be a barren victory.

"If the respondent here is right in its contention, pending an appeal from a judgment staying waste, which, if committed, will destroy the freehold, the appellant, in simply staying the plaintiff's proceedings on the judgment, may with impunity do the very act forbidden and destroy the freehold. This would be to give the latter injunction, staying action by the one party upon the judgment, effect as working a dissolution of the permanent and general injunction, before granted, restraining the other party from doing any act affecting the subject of the litigation. The judgment, so far as it enjoined the defendant, needed no execution. It acted directly without process upon the defendant, and the stay only operated to prevent the collection of the costs awarded."

See, also, Hicks v. Michael, 15 Cal. 107; Ortman v. Dixon, 9 Cal. 23; State, ex rel. Matthews, v. Chase, 41 Ind. 356; 2 High on Injunction (3d Ed.), § 1698; Central Union Telephone Co. v. State, 110 Ind. 203; Heinlen v. Cross, 63 Cal. 44.

The effect of the appeal is not to dissolve the injunction, and while it continues in force it may not be ignored. Did the defendant violate its terms? It would profit no one to review the evidence; but we think it clear the defendant did ignore the provisions of the injunction, and should be punished as for contempt.

The extent of the punishment and the need of a reference will be determined on the settlement of the decree. CARPENTER, GRANT, MONTGOMERY, and HOOKER, JJ., concurred.

WITHEY v. PERE MARQUETTE RAILROAD CO.1

1. CARRIERS-INFANTS-BAGGAGE-LOSS-LIABILITY TO PARENT. A father, paying full fare for himself, traveling with an infant of such tender years that by custom no fare is demanded for its carriage, may recover upon the contract of carriage, for the loss or injury of articles bought and used for the child, which articles are a part of the father's baggage.

2. SAME-Wife's Jewelry.

Where a husband buys railroad tickets for himself and wife, and has their baggage checked thereon, the contract of carriage is with him as to both of them, and he can recover thereon for the loss or injury of articles of jewelry belonging to her, which were not given or furnished by him.

1 Rehearing denied November 6, 1905.

3. EVIDENCE-OPINIONS-VALUE-EXPERTS.

In an action against a carrier for injury to baggage, witnesses who have inspected various articles of wearing apparel claimed to have been injured, may, after describing the injuries, state the amount, which, in their opinion, such articles are depreciated in value by the injuries.

4. TRIAL-INJURY TO CHATTELS-INSPECTION BY JURY. Refusal of the court to require production before the jury of articles of wearing apparel claimed to have been injured by defendant, held, not an abuse of discretion, defendant's witnesses having been given full opportunity to inspect them before trial.

Error to Kent; Perkins, J. Submitted January 10, 1905. (Docket No. 29.) Decided September 28, 1905.

Assumpsit by Charles S. Withey against the Pere Marquette Railroad Company for breach of contract of carriage. There was judgment for plaintiff, and defendant brings error. Affirmed.

Frederick W. Stevens (Charles McPherson, of counsel), for appellant.

Crane & Norris, for appellee.

OSTRANDER, J. On Saturday, December 26, 1903, plaintiff, his wife, and their 21 months' old child were passengers on defendant's road from Monroe, where they had passed Christmas with relatives, to Grand Rapids, their home. As baggage they had on the same train two trunks. These trunks contained various articles of dress and of the toilet; some intended solely for the use of the infant. They contained, also, some articles of jewelry used by and intended for use by the wife, which had been given her by others than her husband, which she took to Monroe with her on her visit, and some gifts made to plaintiff and his wife and to the child at Monroe.

Plaintiff purchased at Monroe two full fare tickets to Grand Rapids, no ticket for the infant, checked the trunks, and received the checks issued for them. At East Paris,

near Grand Rapids, the train in question was in collision with an east-bound passenger train. On the following Monday the baggage was delivered at plaintiff's place of residence, and later, at defendant's freight depot, plaintiff's wife picked out from a quantity of goods certain articles which had been in the trunks. As delivered, the trunks, which were broken, contained a portion only of their original contents, and also articles, some of them greasy, not belonging to plaintiff or his wife, coal, and pieces of earth or mud. The contents of the trunks were mussed, and some of them stained and greased and spotted with mud. In January, 1904, a claim, which reads: "I herewith present my claim for damages sustained by Mrs. Withey and myself in your wreck of December 26, amounting to $386.25"-with a list of articles and figures, was presented to defendant, and later plaintiff began this suit.

The action is assumpsit. Liability of defendant is predicated upon the contract of carriage, the nonperformance of the contract by defendant, and the injury of the baggage. No contention was made in the court below respecting the negligence of the defendant and resulting liability to pay plaintiff the damages he sustained.

The case comes here upon 25 assignments of error, which may be grouped, and which counsel for defendant has grouped and discussed, under four propositions. Stating these propositions as they are understood, and in the order in which they will be discussed, they are: (1) That plaintiff was not entitled to recover (as he did) for destruction of and damages to articles intended for the sole use of the infant; (2) that he was not entitled to recover (as he did) for loss of and damages to the articles of jewelry belonging to his wife; (3) that the court improperly admitted opinion evidence as to the amount or sum of the damage to particular articles; and (4) that the court should have required, upon defendant's application, production of the damaged articles, so far as they could be produced, for exhibition to the jury.

1. It is contended that, because no fare was paid for the infant-because it was carried free the defendant "was a gratuitous bailee as to the baby, and the transportation as baggage of articles intended solely for its use was a mere incident to that gratuity," and the case of Flint & Pere Marquette R. Co. v. Weir, 37 Mich. 111, is relied upon to sustain the contention. In that case the form of action was, as it is here, assumpsit. The plaintiff, on a passage from Detroit to Saginaw upon defendant's road, lost, as he claimed, his trunk, containing personal effects. It appeared that both plaintiff and his trunk were being carried, not for hire, but gratuitously. It was held that, in the absence of a contract for carriage, damages for loss of the baggage could not be recovered in assumpsit. The rule in the case cited does not control "the present case. Even if it can be said that the child was carried free, a point which we do not consider, it by no means follows that the articles in question, the child's wearing apparel, were carried free. The clothing of the infant was the property of the father, and was in the trunks of the father, with whom the defendant had made a contract of carriage, both of his person and his baggage.

While it is asserted on the part of defendant that it had the right to charge for the carriage of the infant, it is not claimed that under its rules and practice it does charge anything for the carriage of infants of the age of plaintiff's child. Nor do we base our determination at all upon the fact, which appears in the record, that the infant occupied for hire a seat in the parlor car during the trip. What we hold, and what we think the correct rule of law, is that a father, paying full fare for himself, traveling with an infant child of such tender years that by custom no fare is demanded for its carriage, may recover upon the contract for carriage for the loss or injury of articles bought and used for the child, which articles are a part of, and packed and carried with, his baggage, and upon the ground that such articles are the property of the par