upset by the many accidents and hindrances that may be met with on the way to the station. And it is just because of the irregularity of individuals that the stream of traffic is regular and easily managed.

in general.

In the result, therefore, I am of opinion that the majority of the court of appeal were right in the view they took. The nature of the case requires that a broad view Contracts of should be taken. The contract between the com- passengers pany and the passenger is not a contract in writing, with carriers defining with mathematical accuracy the precise limits of the incidental services which the company are prepared to render, and punishing every transgression, every attempt on the part of the passenger to exact more than his just measure of attention, with the loss of that security which belongs to a contract by common carriers. Railway companies do their best to adapt the conduct of their business to the habits of the travelling public, who resent nothing so much as petty and vexatious regulations; and so the contract becomes moulded in matters incidental to its main purpose by that which is, and is known to be, the ordinary and every-day practice of railway companies. A narrow, technical, and jealous view of the rights of individual passengers might, perhaps, enable railway companies to escape liability in some few cases: I much doubt whether it would tend to their advantage in the long run.

Order appealed from affirmed, and appeal dismissed with costs.

See Bunch v. Great Western R. Co., 26 Am. & Eng. R. R. Cas. 137, note, 148; Illinois Cent. R. Co. v. Troustine, 31 Am. & Eng. R. R. Cas. 99, note, IoI.

BLUMENTHAL

ข.

MAINE CENTRAL R. Co.

(Maine Supreme Judicial Court. December 17, 1887.)

Passengers' Baggage-Merchandise-Liability of Company.-A railroad company is not bound by the sale of a ticket to a passenger to carry merchandise offered as baggage, and is not liable as common carrier for the loss of merchandise so offered and received by it without any intimation of its true nature.

Same-Notice to Other Passenger Agents.-The fact that other agents had at other times and places received and checked the merchandise as

baggage with knowledge of its true nature will not operate as notice to the company of its nature as to the trip during which it was lost.

ON report from Kennebec Superior Court.

Assumpsit against the Maine Central R. Co. to recover the value of a valise and its contents checked as baggage at Bangor for Augusta. The opinion states the case.

F. E. Southard for plaintiff.

Baker, Baker & Cornish for defendant.

Facts.

EMERY, J.-The plaintiff's story is substantially as follows Just before the morning train was leaving for Augusta, he was at the Bangor station of the Maine Central Railroad, the defendant company, with a large valise, around which an oil-cloth cover was strapped with a common shawlstrap. This valise contained no personal baggage for use upon a journey, but only merchandise for sale. He purchased of the company's ticket agent a passage ticket for Augusta, and then having his ticket in his hand took the valise to the baggage master, and asked him to check it for Waterville, and received from him a check therefor. He did not inform the baggage master of the contents of the valise, but held the passage ticket so it could be seen. The baggage master made no inquiries. The plaintiff went to Augusta on the same morning train, giving up his passage ticket to the conductor. A few days later he presented his baggage check to the baggage master of the railroad company at Waterville, but his valise could not be found there. He has made no inquiries at Bangor, and has made no other effort to find his valise. He has now brought this action against the railroad company to recover the value of the merchandise, alleging, as a cause of action, its obligation to transport the merchandise safely, and its failure to do so.

Transportation of merchandise as baggage.

The plaintiff's purchase of a passage ticket entitled him to safe transportation of himself and his personal baggage on the same train. It entitled him to nothing else The company was thus under that obligation, but under no other obligation to him. There was created no obligation to transport the plaintiff's merchandise. Wilson v. Railway, 56 Me. 60. By going as he did with his valise to the baggage master, and asking for a baggage check for Waterville, without stating the contents of the valise, he evidently meant the baggage master to believe that he was intending to take passage on the train then about to leave, and that the valise contained only personal baggage, such as he was entitled to take with him as a passenger. The check was given him in that belief. He thus

committed a fraud upon the company to obtain free transporlation of his merchandise. His fraud, however, did not impose upon the company such an obligation. The baggage. master received the valise upon the implied assurance of the plaintiff that it contained personal baggage only. If that assurance was false, and the valise contained no personal baggage, neither the baggage master nor the company were bound to forward it, though they had received it.

The plaintiff further testified, however, that other baggage masters of the same company at other stations knew the usual contents of the valise, and he now urges that the Same-Notice company thus had notice of the contents at the to company's time it was received by the Bangor baggage master. agents. Notice to other baggage masters at other times and other places of matters existing only at those times and places, cannot affect the company at this time and place, where its only eyes and ears in this matter were those of its Bangor baggage master. The other baggage masters had nothing to do with the Bangor station, and were not servants of the company there.

Of course, the baggage master, having received the valise, could not lawfully throw it away, destroy it, or convert it, and if he or any of the company's servants had done so, the company may be liable therefor. There is no such evidence in this case, however. The valise may still be at Bangor waiting for the plaintiff to remove it, or, if lost, may have been lost without fault of the company. This action is for failure to transport safely, and the evidence does not show any such obligation on the company. Judgment for defendant.

PETERS, C. J., WALTON, DANFORTH, VIRGIN, and FOSTER, J.J., concurred.

What is Baggage.—See Henderson v. Louisville & N. R. Co., and note, 31 Am. & Eng. R. R. Cas. 95. 97; Pfister v. Central Pac. R. Co., and note, 27 Am. & Eng. R. R. Cas. 246–256; Kansas City, etc., R. Co. v. Morrison, and note, 23 Ïb. 481-486; Lake Shore, etc., R. Co., v. Warren, 21 Ib. 286; Anderson v. Wabash, etc., R. Co., 18 Ib. 377; Denver, etc., R. Co. v. Roberts, 18 Ib. 627; Texas, etc., R. Co. v. Capps, and note, 16 Ib. 118, 121; Texas, etc., R. Co. v. Ferguson, 9 Ib. 395.

Merchandise as Baggage.-A contract to carry a passenger implies a contract also to carry, without additional charge, his reasonable and ordinary baggage. Hutchings v. Western A. R. Co., 25 Ga. 61; Chicago & R. I. R. Co. v. Fahey, 52 III. 81; Cincinnati & C. A. L. R. Co. v. Marcus, 38 Ill. 219; Woods v. Devin, 13 Ill. 746; Perkins v. Wright, 37 Ind. 27; Wilson v. Grand Trunk R. Co., 56 Me. 60; Mississippi Cent. R. Co. v. Kennedy, 41 Miss. 671; Smith v. Boston & M. R. Co., 44 N. H. 325; Merrill v. Grinnell, 30 N. Y. 594; Fairfax v. New York Cent. & H. R. R. Co., 37 N. Y. Sup. Ct. (5 J. & S.) 516; Hirschsohn v. Hamburgh Am. Packet Co., 34 N. Y. Sup. Ct. (2 J. & S.) 521; Glasco v. New York Cent. R. Co., 36 Barb. (N. Y.) 557; Powell v. Meyers, 26 Wend. (N. Y.) 591; Pardee v.

Drew, 25 Wend. (N. Y.) 459; Camden & A. Trans. Co. v. Burke, 13 Wend. (N. Y.) 611; Orange County Bank v. Brown, 9 Wend. (N. Y.) 85; Peixotti 7. McLaughlin, 1 Štrobh. (Ś. C.) 468; Hanibal & St. J. R. Co. v. Swift, 79 U. S. (12 Wall.) 262; bk. 20 L. ed, 423, The Elvira Harbeck, 2 Blatchf. C. C. 336.

As the carrier of such baggage the carrier of the passenger incurs the full responsibility of a common carrier of goods and becomes an insurer of its safety against every accident which is not the act of God or the public enemy, or the fault of the passenger himself. See Hutchins v. Western R. 25 Ga. 61; Dibblev. Brown, 12 Ga. 217; Michigan Cent. R. Co. v. Carrow, 73 Ill. 348; Chicago & R. I. R. Co. v. Fahey, 52 Ill. 81; Illinois Cent. R. v. Copeland, 24 Ill. 332; Davis v. Michigan S. & N. Ind. R. Co., 22 Ill. 278; Woods v. Devin, 13 Ill. 746; Perkins v. Wright, 37 Ind. 27; Warner v. Burlington & M. R. R. Co., 22 Iowa 166; Moore v. Str. Evening Star, 20 La. An. 402; Blossman v. Hooper, 16 La. An. 160; Jordan v. Fall River, R., 59 Mass. (5 Cush) 69; Merrill v. Grinnell, 30 N. Y. 594; Fairfax v. New York Cent. & H. R. R. Co., 37 N. Y. Sup. Ct. (5 J. & S.) 516; Holdridge v. Utica B. R. R. Co., 56 Barb. (N. Y.) 191; Cham berlain v. Western Trans. C. Co., 45 Barb. (N. Y.) 218, Glasco v. New York Cent. R. Co., 36 Barb. (N. Y.) 557; Blanchard v. Isaacs, 3 Barb. (N. Y.) 388; Gore v. Norwich & N. Y. T. Co., 2 Daly (N. Y.), 254; Hawkins v. Hoffman, 6 Hill (N. Y.), 586; Duffy v. Thompson, 4 E. D. Smith (N. Y.), 178; Powell v. Myers, 26 Wend. (Ñ. Y.) 591 ; Pardee v. Drew, 25 Wend. (N. Y.) 459; Camden & A. R. & Trans. Co. v. Belknap, 21 Wend. (N. Y.) 354; s. c., 2 Am. Ry. Cas. 496; Cole v. Goodwin, 19 Wend. (N. Y.) 251; Hollister v. Nowden, 19 Wend. (N. Y.) 234; Camden & A. Trans. Co. v. ' Burke, 13 Wend. (N. Y.) 611; Orange County Bank v. Brown, 9 Wend. (N. Y.) 75; Sewall v. Allen, 6 Wend. (N. Y.) 335; s. c., 2 Wend. (N. Y.) 327, 341; Beckman v. Shouse, 5 Rawle (Pa.), 179; Dill v. South Carolina R. Co., 7 Rich. (S. C.) L. 158; Peixotti v. McLaughlin, 1 Strobh. (S. C.) 468; Johnson v. Stone, 11 Humph. (Tenn.) 419; Bomar v. Maxwell, 9 Humph. (Tenn.) 621; Wilson v. Chesapeake & O. R. Co., 21 Gratt. (Va.) 654; Hannibal & St. J. R. Co. v. Swift, 79 U. S. (12 Wall.) 262; bk. 20 L. ed. 423; Macrow v. Great Western R. Co., L. R. 6 Q B. 618; Le Conteur v. London & S. W. R. Co., 1 L. R. Q. B. 54, 59; Bayliss v. Lintott, L. R. 8 C. P. 345; Talley v. Great Western R. Co., L. R. 6 C. P. 44; Brooke v. Pickwick, 4 Bing. 218, 222; Christie v. Griggs, 2 Campb. 80; Midland R. Co. v. Bromley, 17 C. B. 372; Butchers v. London & S. W. R. Co., 16 C.. B. 13; Oxlade v. North Eastern R. Co., 15 C. B. N. S. 680; Great Western R. Co. v. Goodman, 12 C. B. 313; Marshall v. York, N. & B. R. Co., II C. B. 655; Richards v. London & S. Coast. R. Co., 7 C. B. 839; Clarke v. Gray, 6 East, 564; Williams v. Great W. R. Co., 10 Ex. 15; Johnson v. Midland R. Co., 4 Ex. 367, 372; Stewart v. London & N. W. R. Co., 3 H. & C. 135; Cohen v. South Eastern R. Co., L. R. 2 Ex. Div. 253; Walsh v. The H. M. Wright, 1 Newb. 494; Coggs v. Bernard, 2 Ld. Raym. 909; s. c., I Smith's Lead. Cas. 283; 2 Kent's Com. 527; 2 Kent Com. sect. 40. p. 600, 601 (14th ed.)

The baggage of passengers which a carrier undertakes by his contract to carry consists of such articles of personal convenience or necessity as are usually carried by passengers for their personal use. Dibble v. Brown, 12 Ga. 217; Parmela v. Fischer, 22 Ill. 212; Toledo & W. R. Co. v. Hammond, 33 Ind. 379; Doyle v. Kiser, 6 Ind. 242; Baltimore S. P. Co. v. Smith, 23 Md. 402; Stimson v. Connecticut R. R. Co., 98 Mass. 83; Smith v. Boston & M. R., 45 N. H. 325; Hawkins v. Hoffman, 6 Hill (N. Y.), 585; Pardee v. Drew, 25 Wend. (N. Y.) 459; Duffy v. Thompson, 4 E. D. Smith (N. Y.), 178; Cahill v. London & N. W. R. Co., 10 C. B. N. S. 154, aff'd on error 13 C. B. N. S. 818; Munster v. South Eastern R. Co., 4 C.

B. N. S. 676; 4 Jur. N. S. 738; 27 L. J. C. P. 308; Belfast v. Ballymenan R. Co. v. Keys, 9 H. L. Cas. 556. Merchandise and valuables, although carried in the trunks of passengers, are not baggage, and where the carrier of passengers does not undertake to transport them as such, he will not be liable for the loss thereof, see Pardee v. Drew, 25 Wend. (N. Y.) 459; Cahill v. London & N. W. R. Co., 13 C. B. N. S. 818; Great Northern R. Co. v. Shepherd, 8 Ex. 30; Belfast R. Co. v. Keys, 9 H. L. Cas. 566; Macrow v. Great Western R. Co., L. R. 6 Q. B. 612, except in case of gross negligence. Alling v. Boston & A. R. Co., 126 Mass. 121; Blumantle v. Fitchburg R. Co., 127 Mass. 322. Thus it has been held that samples of silk taken by a merchant's clerk with him in his trunk (Hawkins v. Hoffman, 6 Hill (N. Y.), 586); a muff, sack, and silver napkin-ring in a gentleman's trunk (Chicago, R. I. & P. R. Co. v. Boyce, 73 Ill. 510); a masquerade costume carried in a trunk. to be used at a ball (Michigan S. & N. I. R. Co. v. Oehm, 56 Ill. 293), and a feather bed not intended for use upon the journey (Connolly v. Warren, 106 Mass. 46; however, it would be different where the bed was intended for use); merchandise (Mississippi Cent. R. Co. v. Kennedy, 41 Miss. 671), such as a box of jewelry (Richards v. Westcott, 2 Bosw. (N. Y.) 589), silverware (Bell v. Drew, 4 E. D. Smith (N. Y.), 59), a stock for shoes and shoe-nails (Collins v. Boston & M. R. Co., 64 Mass. (10 Cush.) 506), a child's spring horse (Hudston v. Midland R. Co., L. R. 4 Q. B. 366), and articles of virtu, such as paintings, statuary, and antiquarian or geological specimens (see Hawkins v. Hoffman, 6 Hill (N. Y.), 586; Davis v. Michigan S. & N. I. R. Co., 22 Ill. 278; Stimson v. Connecticut R. R. Co., 98 Mass. 83), have all been held not to come within the term "baggage."

Merchandise Packed in Baggage. The carriers of passengers are not liable for merchandise when packed in the traveller's baggage in such a manner as not to disclose the fact that it is not all proper baggage, and the baggage is lost; in such a case it will be presumed that the carrier was misled into receiving it, whether the passenger intended to deceive him or not, and for that reason would be entitled to claim all the privileges of a gratuitous bailee. See Alling v. Albany R. Co., 126 Mass. 121; Collins 7. Boston & M. R. Co., 64 Mass. (10 Cush.) 506; Haynes v. Chicago, St. P., M. & O. R. Co., 29 Minn. 160; Cahill v. London & N. W. R. Co., 13 C. B. N. S. 818. Thus where wares and samples are stowed away in trunks, valises, carpet-bags, chests, and the like, with other common travelling contents, they are not baggage, and cannot be recovered for as such if lost. Stimson v. Connecticut R. R. Co., 98 Mass. 83; Mississippi R. Co. v. Kennedy, 41 Miss. 671; Cahill v. London & N. W. R. Co., 10 C. B. N. S. 154; s. c., 13 C. B. N. S. 818. But where a carrier has notice that articles are included in a passenger's luggage which are not properly baggage, such carrier will be liable for their loss. Great Northern R. Co. v. Shepherd, 8 Ex. 30; Cahill v. London & N. W. R. Co., 13 C. B. N. S. 818. Because, as it has been said, any carrier who knows that he is transporting certain property may silently reserve his right to charge for the service at the end of the journey; and hence the inclination shown in some late railway precedents of the highest importance to charge the passenger carrier to the full extent of a common carrier of freight, where he receives from a bona fide passenger articles which, packed so as not to have a false appearance of baggage, were offered to him in good faith; both parties being silent as to making a charge for their carriage." See Chicago, R. I. & P. R. Co. v. Conklin, 32 Kan. 55; Hannibal & St. J. R. Co. v. Swift, 79 U. S. (12 Wall.) 262, 271; bk. 20, L. ed. 423; Great Northern R. Co. v. Shepherd, 8 Ex. 30; s. c., 9 Eng. L. & Eq. 477.

44

In all cases where merchandise is so packed with baggage as to be obviously merchandise to the eye, and the carrier takes it without objection,