All fraud, or wilful misrepresentation, or intentional concealment, on the part of the sender of goods, or of the passenger, extinguishes the liability of the common carrier, so far as it is affected by such misconduct; and this must be equally true whether the fraud consists in the disregard of a notice, or, where there is no notice, in an intention to cast upon the carrier * a responsibility which he is not obliged to assume, which he does not know of, and against which he cannot therefore take the proper precautions. (c) 1
Indeed, the principle that the carrier is bound only by a responsibility which he knows and can provide for, seems to be the principal cause of a recent modification of his liability in respect to the baggage of a passenger, which appears now to be quite well settled. It may be stated thus: the common carrier of passengers is not liable as such for the loss of their baggage, beyond that amount which he might reasonably suppose such passenger would carry with him; nor for property such as is not usually included within the meaning of baggage. Thus, not for goods carried by way of merchandise; (d) 2 nor for a larger sum of
Street R. Co. 7 Am. Law Reg. 284; State of New York v. Mayor, etc. of New York, 8 Duer, 119.
(c) Gibbon v. Paynton, 4 Burr. 2298; Kenrig v. Eggleston, Aleyn, 93; Tyly v. Morrice, Carth. 485; Anon. cited by Hale, C. J., in Morse v. Slue, 1 Vent. 288; Titchburne v. White, 1 Stra. 145. And see Batson v. Donovan, 4 B. & Ald. 22.
(d) Therefore the word "baggage" has been held not to include a trunk containing valuable merchandise and nothing else, although it did not appear that the plaintiff had any other trunk with him. Pardee v. Drew, 25 Wend. 459. So in Hawkins v. Hoffman, 6 Hill (N. Y.), 586, it was held, that the term " baggage" did not embrace samples of money than the passenger might reasonably take on such a journey for his expenses. (e) 1 But there may be * spe cial articles, as fishing gear, or sporting apparatus, which one carries for his amusement; (f) and in these and other cases merchandise carried by a passenger in a trunk, with a view of enabling him to make bargains for the sale of goods. But in Porter v. Hildebrand, 14 Penn. St. 129, where the plaintiff was a carpenter, moving to the State of Ohio, and his trunk contained carpenter's tools to the value of $55, which the jury found to be the reasonable tools of a carpenter, it was held, that he was entitled to recover their value. See also Dwight v. Brewster, 1 Pick. 60; Beckman v. Shouse, 6 Rawle, 179; Bomar v. Maxwell, 9 Humph. 621; Great Northern Railway Co. v. Shepherd, 9 E. L & E. 477, 14 id. 867, 8 Exch. 30; Mad River and Lake Erie Railroad Co. v. Pulton, 20 Ohio, 318; Smith v. Boston, etc. R. R. Co. 44 N. H. 326.
1 Where a common carrier, by his contract, limits his liability to a specified amount, if the value of the property is not stated by the shipper, and the goods are of greater value than the amount specified, silence alone on the part of the shipper as to the real value, although there be no inquiry by the carrier and no artifice to deceive, is fraud in law, which discharges the carrier from liability for ordinary negligence. Magnin v. Dinsmore, 62 N. Y. 85.
2 Ailing v. Boston, etc. R. Co. 126 Mass. 121; Blumantle v. Fitchburg R. Co, 127 Mass. 322. See Michigan, etc. R. Co. v. Carrow, 78 Ill. 348.
(e) Thus, in the case of Orange County Bank v. Brown, 9 Wend. 86, it was held, that the owner of a steamboat used for carrying passengers, was not liable for a trunk, containing upwards of $11,000 in bank-bills, brought on board by a passenger as baggage, the object being the transportation of money. And in Hawkins v. Hoffman, 6 Hill (N. Y.), 688, it was doubted by Bronson, J., whether money to pay travelling expenses could be included within the term baggage. "Men," says he, "usually carry money to pay their travelling expenses about their persons, and not in their trunks or boxes; and no contract can be implied beyond such things as are usually carried as baggage." It is, however, well settled that a traveller may carry, as a part of his baggage, a reasonable amount of money to pay his expenses. Thus, in Jordan v. Fall River Railroad Co. 6 Cush. 69, it was held, that common carriers of passengers are responsible for money bona fide included in the baggage of a passenger, for travelling expenses and personal use, to an amount not exceeding what a prudent person would deem proper and necessary for the purpose. And Fletcher, J., after a critical examination of the case, said: "Upon consideration of the whole subject, and referring to the cases, the court have come to the conclusion, that money, bona fide taken for travelling expenses and personal use, may properly be regarded as forming a part of a traveller's baggage. The time has been, in our country, when the character and credit of our local currency were such, that it was expedient and needful, for persons travelling through different States, to provide themselves with an amount of specie, which could not conveniently be carried about the person, to defray travelling expenses. But even if bills are taken for this purpose, it may be convenient and suitable that they should be, to some amount, placed in a travelling trunk, with other necessary articles for personal use. This would seem but a reasonable accommodation to the traveller. It has been objected, that the carrier will not expect that there will be money with the baggage, and will not therefore be put upon his guard. But surely a carrier may very naturally understand and expect, that a passenger will place his money, for expenses, or some part of it, in his trunk, instead of carrying it all about his person; he certainly might as naturally expect this as that there would be jewels or a watch in a travelling trunk, for which articles a carrier has been held responsible. The passenger is not bound to give notice of the contents of his trunk, unless particular inquiry be made by the carrier. But it must be fully understood that money cannot be considered as baggage, except such as is bond fide taken for travelling expenses and personal use, and to such reasonable amount only as a prudent person would deem necessary and proper for such purpose. But money intended for trade, or business, or investment, or for transportation, or any other purpose than as above stated, cannot be regarded as baggage." See, to the same effect, Weed v. S. & S. Railroad Co. 19 Wend. 684; Bomar v. Maxwell, 9 Humph. 621; Johnson v. Stone, 11 Humph. 419; The Ionic, 6 Blatchf. C. C. 638. This case holds, that a gold watch and chain, gold ornaments for presents, and American coin, are not "luggage." See also Dunlap v. International R. R. Co. 98 Mass. 871.
(f) "If one has books for his instrucit may often be very difficult to draw the line between what would come within the liability of the carrier, and what would not. The question would not only be materially affected by circumstances, but is one of those upon which different individuals would be very likely to differ; and it is perhaps impossible to fix upon anything like a definite standard. But the principle is plain enough, and the reason and justice of it are undeniable. And the difficulty in the application of the principle, whether by the court or by the jury, is of a kind which must often occur in the administration of the law. It must always be a question of mixed law and fact, where the court state the principle, and illustrate its bearing upon the case at bar, as they see fit, and the jury apply the principle so stated as they best can.
1 An opera-glass is "baggage," Toledo, etc. R. Co. v. Hammond, 38 Ind. 879; but not an emigrant's feather-bed, not intended for use on the journey, Connolly v. Warren, 106 Mass. 146.
A passenger in a railway train, may consider one who takes charge of the baggage, on arrival at a place, as the agent of the company, and notice to him concerning the baggage is notice to the company. (ff)
We have treated of steam railway companies; but in most of our large cities there are now horse-railroads. A few cases have arisen concerning their rights and liabilities. It seems that the iron rails laid by such a company in a public street are still their property, and another company authorized to lay a track in the same direction for a part of their route, have no right to pass over their rails. (fg)
A regulation by such a company that passengers shall not get tion or amusement by the way, or carries his gun or fishing tackle, they would undoubtedly fall within the term baggage, because they are usually carried as such." Per Bronson, J., in Hawkins v. Hoffman, 6 Hill (N. Y.), 686. So in Brooke v. Pickwick, 4 Bing. 218, and McGill v. Rowand, 3 Penn. St. 451, carriers were held responsible for ladies' trunks containing apparel and jewels. So in Woods v. Devin, 18 Ill. 746, a common carrier of passengers was held liable for the loss of a pocket-pistol and a pair of duelling pistols, contained in a carpet-bag of a passenger, which was stolen out of the possession of the carrier. And in Jones v. Voorhees, 10 Ohio, 146, it was held, that a gold watch of the value of ninety-five dollars, was a part of a traveller's baggage, and his trunk a proper place to carry it in. But see Bomar v. Maxwell, 9 Humph. 621, where the plaintiff's trunk contained "a silver watch, worth about thirty-five dollars: also, medicines, handcuffs, locks, etc, worth about twenty dollars," and the court said: "The watch alleged to have been in the trunk, clearly does not fall within the meaning of the term baggage ; and much less the handcuffs, locks, etc.; these certainly do not usually constitute part of a gentleman's wardrobe, nor is it perceived how they are necessary to his personal comfort on a journey in a stage-coach." In Parmelee v. Fischer, 22 Ill. 212, it is laid down, that damages may be assessed for such articles of necessity and convenience as passengers usually carry for personal use, comfort, instruction, amusement, or protection, having regard to the length and object of their journeys; and in Davis v. Mich. S. & N. Ind. R. R. Co. id. 278, it was held, that a revolver is included in personal baggage.
(ff) Ouimit v. Henshaw, 86 Vt. 606.
(fg) Jersey City, etc. R. R. Co. v. Jersey City, etc. R. R. Co. 20 N. J. Eq. 61.
off or on their cars by the front platform, is held to be reasonable; and one knowing the rule, and injured while violating it, cannot hold the company liable, even if permitted by the driver to get on in front. (fh)