Zeigler v. Mobile & Ohio Railroad , 87 Miss. 367 ( 1905 )

Truly, J.,

delivered the opinion of the court.

At the conclusion of the testimony on behalf of the appellants, the appellee moved the court for a peremptory instruction, because the plaintiffs had failed to make out their case and because the appellee was “not liable for the loss of this trunk, as plaintiffs’ agent had failed to call for the trunk immediately on arriving at Okolona.” This was granted, and plaintiffs appealed.

The facts giving rise to this litigation are as follows: Zeigler Brothers are merchants. W. B. Smythe is their traveling representative and salesman, carrying a large trunk of samples, the property of his principals. On the occasion in question, Smythe, being at Columbus and desiring to, go' to Okolona, presented his trunk to the agent of appellee at Columbus, paid the excess baggage fee charged, received a check for the trunk, and took passage for Okolona. The train on which he arrived at Okolona' — 'and on which, his declaration avers, his trunk was also transported — reached that place about 7:30 p.m. Upon arrival at his destination the proof shows that Smythe delivered his check to the hotel baggageman and requested that the trunk be taken to the hotel that night. Owing to the lateness of the hour it was impossible to procure a delivery wagon, and, the trunk being too heavy for easy transportation by hand, it was left there to be delivered the following morning. That night the depot was destroyed by fire.

The law in our state regulating and prescribing the duty of railroad companies in handling baggage of passengers is found in Code 1892, § § 3568, 3569. The section first mentioned requires the carrier to receive and issue a check for the baggage of every passenger who exhibits a ticket, and then provides as follows: “Upon the arrival of the train at the station to which any trunk or baggage is checked, to put it off at a reasonably convenient place to be provided for the deposit of baggage; and it is the duty of the railroad company to safely keep the trunk or baggage at the station until the owner thereof or his agent shall demand the same.” Section 3569 provides that, if baggage be “carelessly or willfully” injured or lost by improper handling or otherwise, the railroad company handling the same shall be liable to the owner in a sum “not less than double the amount of actual damage.” These mandates of the law evidence an intention of imposing not only a strict liability, but a high degree of care, upon railroad companies in handling the baggage of passengers; but they seem to have escaped consideration in the trial court. The law does not require of the passenger that he shall “immediately upon arrival” at destination remove his baggage. On the contrary, it is a matter within common knowledge that at many places, when passenger trains arrive during the night, and for many other reasons, it is practically impossible to secure baggage immediately upon arrival. To hold that railroad companies are absolved from all liability for the handling and safekeeping of baggage at once upon its reaching the point to which it is checked would be to infringe upon the statute law and establish a rule too harsh and rigorous, in view of conditions attendant upon railway travel as it is known to exist.

It was manifest error to give the peremptory instruction in this case. The passenger produced his check for the baggage and (establishing value)' proved that it had not been delivered. This made out at least a prima facie case for appellants. This cast on appellee the burden of either producing the baggage or showing legal cause of exculpation from liability. We do not here decide, because not necessarily involved, when,' if at all, after arrival at destination, the relation of passenger and carrier ends and the liability of mere warehouseman accrues; but we do hold that, until the baggage safely reaches' its destination and the passenger has had reasonable time and opportunity to obtain it, the duty of the carrier is absolute.

We also hold that what constitutes reasonable time and opportunity must depend upon the peculiar circumstances of the particular instance, and is a question of fact to be passed on by the jury. , Reversed and remanded.