Contract in re

negligence. The negligence in question was leaving his portmanteau in a carriage unprotected by his presence; it was found at the end of a journey cut open and its contents rifled in a carriage which he had originally travelled in as far as Swindon, but which he had negligently omitted to re-enter upon leaving the refreshment-room at that station. It is obvious that if the court were right that the general liability of the company was modified by the undertaking of the passenger to look after his own luggage while it was in the passenger carriage, he had omitted that duty. But suppose the loss had happened by reason of some circumstance which would have been no breach of that modifying stipulation, could it have been contended that the company were not ceiving hand responsible as common carriers because they were baggage. carrying for hire in one part of the train and not in another? If the view thus assumed is the correct view of the law, and I think it is, the moment the porters received Mrs. Bunch's luggage, whether van- or hand-luggage, they received, for carriage to Bath, all the luggage of the passenger; they received the van-luggage to be put into the van; they received the hand-luggage to be put into the passenger carriage; and I think the learned judge was entitled to infer that their practice, and therefore their contract, in receiving hand luggage, was to put it into the passenger carriage, or if the railway company did not then bring up the train to the platform, to take care of it until the carriage was drawn up and in a position to receive the hand-luggage, which, in my view, the porter, as the agent of the railway company, had accepted and received for that purpose.

For these reasons, I am of opinion that the judgment of the court of appeal was right, and I move your lordships that that judgment be affirmed, and that this appeal be dismissed with costs.

Case stated.

LORD WATSON.-My lords, this appeal brings up for consideration the decision of a county court judge, which the higher courts and this house have no jurisdiction to review, except in so far as it involves principles of law. It is impeached upon this ground, mainly, that there was no evidence before the learned judge from which it could be reasonably inferred that, at the time when it disappeared, the respondent's Gladstone bag had been delivered to, and was in the possession of, the appellant company for the purpose of carriage. The evidence it is said, points to, and only warrants, the conclusion that the bag was in the custody of a railway porter as bailee for the respondents.

In Butcher v. London and South Western R. Co., 16 C. B.

porters take

22, Jervis C.J. observed, in reference to luggage which had been conveyed in the same carriage with its owner, "that, though not in express terms engrafted into it, it is obligation of a part of the contract of a railway company with company when its passengers, that their luggage shall be deliv- charge of pasered at the end of the journey, by the porters or sengers' lugservants of the company, into the carriages or other gage. means of conveyance of the passengers from the station." What was thus said of the termination applies equally to the commencement of a railway journey. In the ordinary course of business a passenger's luggage is received at the entrance to the station by the servants of the company, and is by them conveyed either to the van or to the carriage in which he intends to travel. I do not mean to say that railway companies are under any statutory or other obligation fo provide that accommodation; but they find it for their interest to do so; and, in taking charge of luggage for these purposes, their servants act within the scope of their implied authority. Their duty is, according to prevailing usage, limited to the transport of passengers' luggage from the vehicle which brings it to the station to a train which is about to start, and does not extend to their taking charge of luggage which cannot, in any reasonable sense, be considered as in actual course of transit. It may be that railway porters do sometimes undertake the charge of luggage which is merely intended for future transit; when they do so, they exceed the limits of their implied authority, and, in that case, their possession cannot be regarded as the possession of their employers.

tion and departure of

If the respondents had gone to Paddington station at noon of the 24th of December 1884, and had then left their Gladstone bag with a porter in order that it might ac- Time between company them on their journey to Bath by the arrival at sta5 P.M. train, I should have had no hesitation in holding that the appellant company had not be- train. come responsible for its safe custody during the interval. In that case, it would have been in accordance with well-known practice, and therefore an implied term of the subsequent contract between the parties, that the company were not to be liable, unless the luggage was duly deposited in the office provided for that purpose. On the other hand, if the 'respondents had arrived at the station at 4.55 P.M., I entertain as little doubt that the delivery of their Gladstone bag to a porter, for the purpose of its being conveyed to the carriage in which they were about to travel, would have made the possession of their porter that of the appellant company.

Whether passengers' luggage, delivered to a railway porter,

are

when passen

is in his possession for present, or merely with a view to future Same Company transit, is necessarily a question of degree, dependliable ing upon the circumstances of the case. Railway ger is prosecut companies, as a matter of fact, frequently provide ing his journey. for the travelling public, not only booking offices, but refreshment rooms, and other conveniences; and passengers who merely avail themselves of such accommodation as incidental to their use of the railway, cannot be held to have temporarily ceased to prosecute their journey. It is impossible to fix any precise limit of time prior to the starting of a particular train, within which the company are to be liable for passengers' luggage delivered to their servants for conveyance by it, and beyond which they are not to be liable. In my opinion the company are responsible for luggage delivered to, and in the custody of, their servants, for the purpose of transit, whenever it can be reasonably predicated of the passenger to whom it belongs that he is actually prosecuting his journey by rail, and is not merely waiting in order to begin its prosecution at some future time.

Facts stated

In the present case, the evidence shows that the female respondent arrived at Paddington station forty Bag in charge minutes before the train by which she and her husof porter for band travelled was timed to start. She gave her present transit. luggage into the charge of one of the appellant company's porters, saw part of it labelled, and directed the porter to place the Gladstone bag, which was not labelled, in the same compartment with herself. The respondent then left the platform, and went to the booking office, for the purpose apparently, either of taking her ticket, or of seeing that her husband procured it for her. She there met her husband, who had taken a ticket, and on their return to the platform, about ten minutes after her arrival, they found that the labelled luggage had been placed in the van, and that the porter and the Gladstone bag had both disappeared. In these circumstances, I think the county court judge might reasonably come to the conclusion that the bag continued to be in the custody and possession of the appellants for the purposes of present and not of future transit from the time when it was delivered to their porter until its disappearance.

In the argument for the appellants considerable stress was laid upon the fact that at the time when Mrs. Bunch left her luggage upon the platform, the five o'clock train had not Train not come alongside it. That circumstance does not seem to me to be very material, because a passen-Conversation ger can have no personal knowledge of it until he with porter. reaches the platform. What appears to me to be matter of more consequence in the present case is, that it was

drawn up

Christmas eve

Christmas eve; that there was a great crowd of passengers intending to travel by the train in question; and that the servants of the company, as might have been anticipated, were, at the time when Mrs. Bunch arrived at the station, inviting passengers to take tickets, and receiving their luggage for the purpose of its being put in the train. I attach no importance to the question put by Mrs. Bunch to the porter, or to his asurance, in reply, that her luggage would be quite safe, and that he would put it in the train. A conversation of that kind could not alter the contractual relations between her and the company.

Inference of

negligence.

On the assumption that the appellant company did become responsible for the safe keeping of the bag in question, it was argued on their behalf, that there was no evidence before the county court judge to justify the inference that its loss was due to their negligence. Upon that point I am of opinion that the evidence was sufficient to sustain the inference, but I am by no means satisfied that, in order to entitle them to judgment, the respondents were bound to prove that the appellants had been negligent. That depends upon the nature of a railway company's contract liability for hand-luggage, including in that term heavier articles, such as are commonly put in the van, when these are placed, or intended to be placed, with the assent of the company's servants in the carriage in which their owner intends to travel, as well as lighter articles which are generally, if not invariably, carried beside him.

der which

un

It does not admit of question that passengers' luggage, duly delivered to the company's servants for carriage in the railway van, remains during its transit at the risk Contract of the company as common carriers; but it has hand luggage always been held that it would be unreasonable is carried. and unjust to make the company liable as insurers, in cases where the passenger has assumed, in whole or in part, the custody and control of his own luggage. Whilst they have been in agreement to that extent, eminent judges have differed as to the nature of the contract under which hand luggage is carried, some being of opinion that it is, from first to last, a contract to carry such luggage on the same terms as its owner, that is to say, with ordinary care, others being of opinion that it is throughout a contract of common carriage, modified by the personal interference of the passenger. Whichever of these views be accepted, it is manifest that, in many instances, the resulting liability of the company will be precisely the same, but, according to the second of them, the full responsibility of the company may revive on occasions when, from causes incidental to his journey, the interference of the passen

ger ceases for a time, and his hand luggage is committed to the exclusive charge of their servants.

Same-Au

thorities ex

At present the ruling authority upon this point is Bergheim v. Great Eastern R. Co, 3 C. P. D. 221, where it appears to have been decided by the court of appeal, amined. consisting of the noble and learned lord opposite (Lord Bramwell), the present Master of the Rolls, and Cotton LJ., that the contract of the company, with respect to handluggage, is merely to carry with ordinary care. Cotton L.J., who delivered the judgment of the court, said: "The company, therefore, must, according to ordinary principles be held liable in respect of those goods as bailees for hire and contractors to carry, and, therefore, liable for loss or injury caused by negligence, but not otherwise; the company have, in fact, the same liability with respect to the carriage of those goods as they have with respect to the carriage of the passenger himself. This is our view on prinple." The observations thus quoted were directed to the special case of a passenger's luggage which had been placed, at his request, and with the assent of the company, in the carriage in which he was to travel; and the learned judge possibly did not intend to extend the principle to luggage in the exclusive custody of the company's servants, for conveyance to or from the carriage. However that may be, I prefer the principle which appears to me to have been adopted in Richards v. London, Brighton & South Coast R. Co., 7 C. B. 839; and Butcher v. London & Southwestern R. Co., 16 C. B. 13. I think the contract ought to be regarded as one of common carriage, subject to this modification, that in respect of his interference with their exclusive control of his luggage, the company are not liable for any loss or injury occurring during its transit, to which the act or default of the passenger has been contributory.

I am, therefore, of opinion that the order of the court of appeal ought to be affirmed with costs.

ters.

LORD BRAMWELL.-My lords, it is the custom for English railway companies, at all events for the appellants, to have Custom of rail- porters at the entrance of their railways to receive ways as to por- the luggage of passengers and convey it to the van or carriage in which it is to be carried. Whether this is a duty imposed on the companies, or a voluntary act on their part, is immaterial. It is a duty they undertake, at least this company does, and must, like other duties, be performed with skill, and without negligence.

What is this duty? I have said, to carry the passenger's