§ 79. Luggage carried in car with passenger.

Where a passenger takes with him in the vehicle in which he is carried small articles of personal baggage it may be difficult to determine how far the responsibility of the carrier extends to them. It was clearly stated in an early English case that the carrier would be responsible for it: "If a man travel in a stagecoach and take his portmanteau, with him, though he has his eye upon the portmanteau, yet the carrier is not absolved from his responsibility, but will be liable if the portmanteau be lost." 14 And this doctrine has been extended to the case of railway carriage. If the railway porter takes luggage to carry for a passenger and places it in the train or in a cab, and it is lost, before it is redelivered to the passenger, the carrier is doubtless liable as such,15 the responsibility beginning when the luggage is delivered to the porter. The language used in several cases goes further, and appears to hold that where the luggage is placed by the porter in the carriage with the passenger the carrier continues responsible as such, being still in possession of the luggage.16 That this would be true if the luggage is placed in the carriage of the passenger, not at the request of the latter, but for the carrier's convenience, is, of course, clear; and this would be even more obvious if the passenger objected to such disposition of the luggage; 17 but the

& F. S. Ry. v. Miles, 40 Ark. 298, 40 Am. Rep. 10 (1883) (top of freight car); Merrill v. Eastern R. R., 139 Mass. 238, 1 N. E. 548, 52 Am. Rep. 705 (1885) (step of steam-car); New Orleans & N. E. R. R. v. Thomas, 60 Fed. 379, 9 C. C. A. 29, 23 U. S. App. 37 (1894) (top of cattle-car). 14 Chambre, J., in Robinson v. Dunmore, 2 B. & P. 416, 419 (1834). 15 Richards v. London & B. Ry., 7 C. B. 839, 18 L. J. (C. P.) 251 (1849); Butcher v. London & S. W. Ry., 16 C. B. 13, 24 L. J. (C. P.) 137 (1855); Le Conteur v. London & S. W. Ry., 6 B. & S. 961, L. R. 1 Q. B. 54 (1865).

16 Munster v. South Eastern Ry., 4 C. B. (N. S.) 676, 27 L. J. (C. P.) 308 (1858); Le Conteur v. London & S. W. Ry., 6 B. & S. 961, L. R. 1 Q. B. 54 (1865); Talley v. Great Western Ry., L. R. 6 C. P. 44 (1870). 17 Munster v. South Eastern Ry., 4 C. B. (N. S.) 676, 27 L. J. (C. P.) 308 (1858).

English courts go further: "It is the every-day's practice of passengers by railways to carry cloaks and such like articles with them in the carriages, with the consent of the company, and it cannot be said that the company have on that account parted with their custody of them as carriers." 18 It is, however, clear that the carrier is not, under such circumstances, an insurer and that the amount of care required of it is materially lessened by the fact that the passenger is in actual control.19 § 80. American rule as to luggage carried by passenger.

In this country (very likely because of a different usage as to the matter, the railroad company here not taking charge of personal luggage, as a matter of course, by its porters or other servants) it has never been supposed that the railroad company assumed possession of personal luggage taken into its train by a passenger; and it has therefore never been held liable for such luggage as carrier.20

And so a steamboat company is not a carrier of the passenger's watch and clothing, which he wears on his person, or the

18 Lush, J., in Le Conteur v. London & S. W. Ry., supra.

19 Talley v. Great Western Ry., L. R. 6 C. P. 44 (1870).

20 United States-Henderson v. Louisville & N. R. R., 123 U. S. 61, 31 L. Ed. 92 (1887); Walsh v. The Wright, Newb. 494, Fed. Cas. 17,115 (1854).

Massachusetts-Murray v. International St. Ship Co., 170 Mass. 166, 48 N. E. 1093, 64 Am. St. Rep. 290 (1898); Kingsley v. Lake Shore, etc., R. Co., 125 Mass. 54, 28 Am. Rep. 200 (1878).

Mississippi-Illinois Cent. R. Co. v. Handy, 63 Miss. 609, 56 Am. Rep. 346 (1886).

New York-Weeks v. New York, etc., R. Co., 72 N. Y. 50, 28 Am. Rep. 104 (1878); Schalscha v. Third Ave. R. Co., 19 Misc. (N. Y.) 141, 43 N. Y. Suppl. 251 (1897); Tower v. Utica & S. R. R. Co., 7 Hill (N. Y.), 47, 42 Am. Dec. 36 (1844).

Ohio-Greenfield First Nat. Bank v. Marietta, etc., R. Co., 20 Ohio St. 259, 5 Am. Rep. 655 (1870).

Pennsylvania—American Steamship Co. v. Bryan, 83 Pa. St. 446 (1877). Texas-Bonner v. Demendoya (Texas App., 1891), 16 S. W. 976 (1891),

luggage he takes with him into his stateroom, since the possession of it is not given to the company.21

Sleeping car companies are held not liable for hand baggage of passengers upon the same principles, but of course the danger from theft from sleeping passengers being peculiar, the company owes to them the utmost protection, and the porter must keep continual watch.22

21 United States-The R. E. Lee, 2 Abb. (U. Ś.) 49, Fed. Cas. 11,690 (1870); Walsh v. The H. M. Wright, Newb. Adm. (U. S.) 494, Fed. Cas. No. 17,115 (1854).

Kentucky Steamboat Crystal Palace v. Vanderpoot, 16 B. Mon. (Ky.) 302 (1855).

Maine-Abbott v. Bradstreet, 55 Me. 530 (1868).

Massachusetts-Clark v. Burns, 118 Mass. 275, 19 Am. Rep. 456 (1875). Michigan-McKee v. Owen, 15 Mich. 115 (1866).

Pennsylvania—American St. Ship Co. v. Bryan, 83 Penn. St. 446

(1877).

Wisconsin-Gleason v. Goodrich Transp. Co., 32 Wis. 85, 14 Am. Rep. 716 (1873).

Contra, New York- Gore v. Norwich Trans. Co., 2 Daly (N. Y.) 254 (1867); Mudgett v. Bay State St. Beat Co., 1 Daly (N. Y.) 151 (1861); Van Horn v. Kermit, 4 E. D. Smith (N. Y.) 453 (1855); Crozier v. Boston, etc., Steamboat Co., 43 How. Pr. (N. Y.) 466 (1871). These cases place the liability of the company on the same ground as that of an innkeeper.

22 United States-Barrott v. Pullman's Palace Car Co., 51 Fed. 796 (1892).

Alabama-Cooney v. Pullman Palace Car Co., 121 Ala. 368, 25 So. 712, 53 L. R. A. 690 (1898); Pullman Palace Car Co. v. Adams, 120 Ala. 581, 24 So. 921, 74 Am. St. Rep. 53, 45 L. R. A. 767 (1898).

Georgia-Pullman's Palace Car Co. v. Martin, 95 Ga. 314, 22 S. E. 700, 29 L. R. A. 498 (1894).

Kentucky-Pullman's Palace Car Co. v. Hunter, 21 Ky. 1248, 54 S. W. 845, 47 L. R. A. 286 (1900); Pullman's Palace Car Co. v. Gaylord, 9 Ky. L. Rep. 58 (1887).

Mississippi-Ill. Cent. R. Co. v. Handy, 63 Miss. 609, 56 Am. Rep. 846

(1886).

Missouri-Hampton v. Pullman Car Co., 42 Mo. App. 134 (1890); Wilson v. Baltimore, etc., R. Co., 32 Mo. App. 682 (1888); Root v. N. Y. Cent. Sleeping Car Co., 28 Mo. App. 199 (1887).

New York-Williams v. Webb, 22 Misc. (N. Y.) 513, 49 N. Y. Suppl. 1111, 27 Misc. (N. Y.) 508, 58 N. Y. Suppl. 300 (1899).

TOPIC C.-WHETHER THERE HAS BEEN BAILMENT

MADE OF

GOODS.

§ 81. Owner accompanies the goods and retains possession.

If the owner of goods goes along with them and retains possession of them, the person who furnishes the vehicle is not a carrier, since he is not a bailee. This was the position of affairs presented by the leading case of the East India Company v. Pullen.1 The defendant in that case was a common lighterman. "It was the usage of the company on the unshipping of their goods to clap an officer, who is called a guardian, in the lighter, who, as soon as the lading is taken in, puts the company's lock on the hatches, and goes with the goods to see them safe delivered at the warehouse." This usage having been followed, and part of the goods lost, the company sued the defendant. At the trial, before Lord Chief Justice Raymond, the court "was of opinion this differed from the common case, this not being any trust in the defendant, and the goods were not to be considered as ever having been in his possession, but in the possession of the company's servant, who had hired the lighter to use himself. He thought, therefore, the action was not maintainable, so the plaintiffs were nonsuited." 2

§ 82. Owner accompanies the goods without retaining pos

session.

If the shipper or his servant merely goes along with the goods and has an eye on them for greater security, while the carrier has the possession or general control, the carrier becomes re

Pennsylvania-Pfaelzer v. Pullman Palace Car Co., 4 Wkly. Notes Cas. (Pa.) 240 (1877).

Texas-Pullman Palace Car Co. v. Pollock, 69 Tex. 120, 5 S. W. 814, 5 Am. St. Rep. 31 (1887).

11 Strange, 690 (1726).

2 See, also, White v. Winnisemmet Co., 7 Cush. 155 (1851); New York v. Starin, 106 N. Y. 1, 12 N. E. 631 (1887).

sponsible as such upon assuming possession. So, where a servant of the shipper went along with the carrier, on account of the carrier being a stranger to the shipper, this was held not to negative the carrier's responsibility, the case being distinguished from the usage of the East India Company, "who never intrust the lighterman with their goods, but give the whole charge of the property to one of their officers." In this case, the court said the defendant "must have had possession of them for the purpose of carrying his contract into effect, which he could not have done without such possession." 3

§ 83. Cattle carried with a drover furnished by the owner.

Though the owner of cattle or his servant may accompany the cattle, as a drover, while they are being carried, and may care for them, feed and water them, and help load and unload them, the railroad company is none the less the bailee and carrier of the cattle; "he must do all this while the cattle are in the possession of the railroad company and at such times as it chooses to select for the purpose.'

§ 84. Goods taken across a ferry by the owner.

In the case of a ferry, the fact that the owner usually goes along with the goods and often retains the entire charge and management of them (as for instance where he drives a horse on the ferryboat and manages him while on the boat), materially modifies the relation of carrier and shipper, so that the carrier

3 Robinson v. Dunmore, 2 B. & P. 416 (1801). See, also, Brind v. Dale, 8 Cas. & P. 207 (1837); Cohen v. Frost, 2 Duer, 335 (1853); Hollister v. Nowker, 19 Wend. (N. Y.) 234 (1838).

4 Dennison, J., in Atchison, T. & S. F. R. R. v. Ditmars, 3 Kan. App. 459, 43 Pac. 833 (1896). To the same effect, McAlister v. Chicago, R. I. & P. R. R., 74 Mo. 351 (1881; D. U. Verrick v. Mo. Pac. R. R., 57 Mo. App. 550 (1891); Feinberg v. Delaware, L. & W. R. R., 52 N. J. L. 451, 20 Atl. 33 (1889); Harris v. Northern Indiana R. R., 20 N. Y. 232 (1859).