1 Story on Bailm. § 599; 5 Petersdorff, Abr. Carriers, p. 55, note; Wayde v. Carr, 2 Dowl. & Ryl. 255.
2 Ibid.; Wordsworth v. Willan, 5 Esp. 273.
3 Turley v. Thomas, 8 Car. & P. 103.
4 Wordsworth v. Willan, 5 Esp. 273; Mayhew v. Boyce, 1 Stark. 423.
5 Aston v. Heaven, 2 Esp. 533.
6 Crofts v. Waterhouse, 3 Bing. 321; Chaplin v. Hawes, 3 Car. & P. 554; Mayhew v. Boyce, 1 Stark. 423; Munroe v. Leach, 7 Metcalf, 274.
7 Butterfield v. Forrester, 11 East, 60; Bridge v. Grand Junction Railway Co., 3 Mees. & Welsb. 244; Smith v. Smith, 2 Pick. 621; Brown-ell v. Flagler, 5 Hill, 282; Lane v. Crombie, 12 Pick. 177; Burckle v. N. Y. Dry Dock Co., 2 Hall, 151; Noyes v. Morristown, 1 Vt. 353.
8 Palmer v. Grand Junction Railway Co., 4 Mees. & Welsb. 749; Pick-ford v. Grand Junction Railway Co., 8 Mees. & Welsb. 372; Gisbourne v. Hurst, 1 Salk. 249; Cairns v. Robins, 8 Mees. & Welsb. 258; Brooke v. Pickwick, 4 Bing. 218; Jones v. Voorhees, 10 Ohio, 145; Powell v. Meyers, 26 Wend. 591; Hollister v. Nowlen, 19 Wend. 234; Colew. Goodwin, 19 Wend. 251; Orange County Bank v. Brown, 9 Wend. 85. But it is way-bill, or even labelled and directed, unless he be specially-required to do so.1 But a passenger has not a right to have his baggage sent at an earlier or later train than that by which he goes himself, for the compensation of his own fare; if the carrier carry it in this manner, he has a right, in the absence of contract or usage, to demand additional compensation for its transportation.2 If a person gives his luggage to his servant to carry by an earlier train than he himself is to go in, and the servant carries the same as and for his own luggage, the master cannot maintain an action for its loss.3 Where a person proposes only to carry passengers, and not goods, and receives pay only for the former, he is not a common carrier of the goods, but only a gratuitous bailee.4
But if a passenger do not surrender his luggage to the carrier, but take it into his own charge, the carrier has been held, in this country, not to be liable in case of its loss.1 In England it has been decided that if a traveller take into the stagecoach or railway carriage his portmanteau, the carrier is not absolved from responsibility, but will be liable if it be lost2 through the carrier's negligence.3 Yet if the thing be tendered to the carrier for conveyance, and he direct the passenger to place it in any part of the vehicle, he will be responsible for its safety. The true test seems to be, both in England and America, whether the passenger has retained exclusive control and custody of his property, or whether he merely endeavored to take extra and additional care of it, besides what he expected the carrier to do; in the one case he must bear the loss himself,4 in the other he has a claim against the carrier.5 For instance, a carrier is liable for a passenger's baggage stolen from his state-room on a boat, without his negligence, although he has the key. It is not then in the exclusive care and custody of the passenger.6 Nor is it necessary that the luggage of the passenger should be booked or entered on the not universally agreed that as to baggage the liability of a passenger carrier is exactly that of a common carrier of goods. See Munster v. South Eastern Railway Co., 4 C. B. (n. s.) 676; Talley v. Great Western Railway Co., Law R. 6 C. P. 44, 51 (1870). It has, indeed, been held that a carrier is not liable for the baggage of a passenger, lost through his negligence in leaving the car where it is, and going into another one, during which time it is stolen. Talley v. Great Western Railway Co., Law R. 6 C. P. 44 (1870).
1 Tower v. Utica & Schenectady Railroad Co., 7 Hill, 47; Cohen v. Hume, 1 McCord, 439.
2 Robinson v. Dunmore, 2 Bos. & Pul. 416; Richards v. The London, Brighton, & South Coast Railway Co., 7 C. B. 839; Butcher v. The London & S. W. Railway Co., 16 C. B. 13; 29 Eng. Law & Eq. 348. But see contra, Boys v. Pink, 8 Car. & Payne, 361; Syms v. Chaplin, 5 Ad. & El. 634.
3 Talley v. Great Western Railway Co., Law R. 6 C. P. 44 (1870).
4 See Cohen v. Frost, 2 Duer, 335; Abbott v. Bradstreet, 55 Me. 530; Steamboat Crystal Palace v. Vanderpool, 16 B. Monr. 302.
5 See Le Couteur v. London & S. W. Railway Co., 6 B. & S. 961 (1865); Fisher v. Clisbee, 12 I11. 344.
6 Gore v. Norw. & N. Y. Transp. Co., 2 Daly, 254 (1867); Mudgett v. Bay State Steamboat Co., 1 Daly, 151.
§ 973. The term luggage or baggage, for which a common carrier is responsible, is restricted to articles carried for the personal use and convenience of the traveller, and does not include merchandise or other articles carried for other purposes, as for sale. So a carrier is not liable for money which is being carried for one not a passenger by one who is a passenger, where the money is destroyed by an accident and the burning of the cars; although such accident arose from the negligence of the carrier and his agents.5 Yet it has been said, that, although carriers of passengers are not ordinarily liable for merchandise when packed up with a traveller's luggage,6 still if the merchandise be so packed as to be obviously merchandise, so that any one looking at it would perceive it to be so, the carrier would be liable if he received it without objection.7
§ 974. The following articles have been held baggage within the rule of a carrier's liability: apparel and jewelry for personal ornament; 1 a watch,2 but not large quantities of watches intended for sale;3 tools of a mechanic to the value of fifty-five dollars;4 a pocket-pistol carried in the trunk;5 and other articles necessary for the personal convenience of the passenger;6 laces for wearing apparel;7 and money necessary for travelling expenses and personal use, to a reasonable amount;8