Beers v. Boston & Albany Railroad , 67 Conn. 417 ( 1896 )

Baldwin, J.

If the defendant came under any obligation to make good the plaintiffs’ loss, it must have been either by virtue of some contract between them, or of actionable negligence.

No such contract is alleged, unless one can be implied from the reception by the defendant, at Albany, of their luggage, so checked as to indicate that it was to be transported over its railroad to Springfield. It is not averred that the person from whom they obtained the checks was an agent of the defendant, or had any authority to act or speak in its behalf; nor even that he was an agent of the Delaware & Hudson Canal Company, with which the defendant was in contract relations. His statements, therefore, and the plaintiffs’ reliance upon them, are of no importance except as evincing their good faith in the transaction. On the other hand, the effect of the reply was to admit that the defendant received the luggage, under the mistaken supposition that it belonged to passengers who had bought tickets over its road, and so that its transportation on its railroad had been duly paid for. Had trunks, marked as destined to Springfield, been received by the defendant without any particular contract or understanding in regard to their transportation, it would have assumed, simply from its position as a common carrier, an obligation to transport them safely, and have had a right to a proper compensation, when the service was performed. But an express contract existed between it and the Delaware & Hudson Canal Co., under which it was bound to receive the personal luggage of passengers who held tickets entitling them to pass over both roads between Saratoga and Springfield, and the defendant was led by the checks to suppose that the trunks of the plaintiffs were luggage of that character. It did not, therefore, receive them under such circumstances as to create such an implied contract with their owners. An implied contract between two parties is only raised when the facts are such that an intent may fairly be inferred on their part to make such contract. Such an intent may be implied, although it be certain that it never actually existed, but not unless the parties are in such relations that each ought to have had it.

In the case at bar, the facts not only do not justify but absolutely exclude such an implication. The plaintiffs did not intend to pay the defendant for the transportation of the trunks. They supposed that they had already paid for this, in purchasing tickets to New Haven by way of the Hudson River. ' The defendant did not intend to make any charge for their transportation. It supposed that compensation for this had been made already, under and as an incident of an express contract, made in its behalf by the Delaware & Hudson Canal Co., for the transportation of the owners as passengers over its railroad.

The plaintiffs and the defendant were alike misled by appearances. It is one of those cases where a loss must be sustained by one or the other of two parties, who are equally innocent of wrong, but one of whom placed it in the power of a third person to do the act which caused the injury. The plaintiffs acted in good faith in accepting the checks in question from some one in Saratoga, and causing them to be placed on their trunks; but it was this that induced the Delaware & Hudson Canal Co. to deliver the luggage to the defendant, at Albany, and the defendant to receive it as belonging to those whose right it was to have it transported over its line to Springfield. The plaintiffs could not in this way force the defendant into a contract relation which it certainly would never have intentionally assumed.

The defendant, having taken the plaintiffs’ property into its possession for transportation over a railroad which it operated as a common carrier, was not free from all responsibility for its safe-keeping, notwithstanding it accepted its custody without any contract, express or implied.

It is admitted by the pleadings that not only did the defendant run the train, in which the property was, upon a bridge which was and long had been so defective that it could not sustain such a burden, but also that no one was stationed there to give any warning of the danger or signal the train to stop, and that the luggage was destroyed by reason of its gross negligence in these respects, but “with out any willfulness, malice, or intentional wrong, or anything equivalent or amounting thereto.” The defendant did not receive the trunks in the capacity of a common carrier of goods for hire. They were delivered to it and accepted by it in the capacity of a common carrier of passengers for hire. In fact, there were no passengers to be carried, to whom they belonged, but this, whether then known or unknown to the defendant, would be no excuse for any willful or intentional injury to property actually in its possession. We think, however, that it was a sufficient excuse for the negligence which is confessed. Actionable negligence is the neglect of a duty. What duty did the defendant owe to the plaintiffs ? Simply that of abstaining from anything amounting to willful or wanton injury to their property in its possession. Gardner v. New Haven & Northampton Co., 51 Conn., 143, 150. That cannot be deemed a wanton exposure of it to destruction which consisted only in running a train of cars upon an unsafe bridge, by which its own property, as well as theirs, was involved in a common loss. “Negligence signifies a want of care in the performance of an act, by one having no positive intention to injure the person complaining of it.” Pitkin v. N. Y. & N. England Railroad Company, 64 Conn., 482, 490. It is true that this definition might not exclude the liability, in some instances, of a principal bn the ground of negligence, for damage consequent upon a direct act of violence or trespass on the part of servants; • but this is not a case of that description. The gross negligence with which the defendant was chargeable consisted wholly of omissions. There was no willful wrong, nor yet such reckless misconduct as can be deemed its equivalent.

Had the defendant voluntarily assumed the position of a depositary (taking this term in its strict meaning of a bailee without reward), it would not have been bound under the rules of the Roman law, which have become a part of the common law, to treat the plaintiffs’ property with any more care than it gave to its own. Coggs v. Bernard, 2 Lord Raym. 909 ; Dig., 16, 3, depositi vel contra, 32. Good faith would have been the measure of its obligations. Dig., 16, 3, 20. He who intrusts his property to a careless man, if loss ensues, must lay it to the account of his own imprudence in putting it into such hands. Inst., 3, 15, quibus modis re contrahitur obligatio, 3.

But in the case before us, the elements of a bailment are wanting, for there was no contract express or implied between the parties. 2 Kent’s Commentaries, *780. The defendant’s obligations, not being contractual, were less than those attaching to bailees of any class. No man can have the care of another’s property thrust upon him without his invitation or consent, in such a way as to raise a duty calling for the performance of positive acts of protection. He may be bound to refrain from acts of direct injury. This is a mere negation of wrongdoing. A man acts at his peril; but he is never liable for omissions, except in consequence of some duty voluntarily undertaken. Holmes on the Common Law, 82. Had the defendant willfully thrown the plaintiffs’ trunks from the bridge into the stream below, a liability would have been incurred; but this would have been an act of violence, not an absence of care. Gross negligence is not actionable where not even slight care was due. Dunlap v. International Steamship Co., 98 Mass., 371, 379. However blameworthy, it is still essentially different from intentional wrongdoing. Magna negligentia culpa est; magna culpa, dolus est. Dig. 50, 16, de verborum significations, 226.

Had the cheeks indicated that the trunks were to be sent over the river route, their reception by the defendant for carriage over its route would have presented a very different question. Fairfax v. N. Y. C. & H. R. R. R. Co., 78 N. Y., 167, 170.

The ruling on the demurrer, with which the pleadings under the original complaint were closed, was in conformity to the views which we have expressed. It is therefore unnecessary to inquire whether, had there been error, it would not have been waived by filing a substituted complaint. There is no error in the judgment appealed from.

In this opinion the other judges concurred.