Robbins v. The Hudson River Railroad Company.

It was

tributed to the accident. This motion was denied. renewed when all the evidence had been given, and was again denied. Each decision was excepted to, but the defendants have not appealed.

The testimony of Robbins as to his own experience and practice in carting goods from defendants' depot, and his ignorance of the alleged rules, that the carmen should not go into the freight sheds, corroborated by that of Ryerson, presented a case, which precluded a dismissal of the complaint on the ground first stated.

On the evidence, as it is presented by the appeal, the judge could not properly dismiss the complaint on the second ground. The case was one calling for the decision by a jury of the disputed questions of fact.

It being proper to submit the questions of fact to the jury, and they having found that the plaintiff was injured by the negligence of the defendants, and without fault on his part, the verdict must be set aside.

With such a verdict upon the record, the farther part of it, that the plaintiff is entitled to but six cents damages, is contrary to the clear and uncontroverted evidence, to the law of the case, and to the charge of the court in that behalf. The damages are clearly inadequate, (2 E. D. Smith, 349.)

The order must be reversed and a new trial granted, and the costs of the former trial, and of the subsequent proceedings, including the costs of this appeal, must be ordered to be costs in the cause, and to abide event. (Knapp v. Curtis and Root, v. 9 Wend. R. 60.)

Ordered accordingly.

Richards v. Wescott.

EDWARD C. RICHARDS, Plaintiff and Appellant v. ROBERT

H. WESCOTT and JOSEPH A. HYATT, Defendants and Respondents.

1. Where an ordinary traveling trunk is delivered as such to expressmen, to be carried by them and left at a designated railroad passenger depot, and it contains valuable jewelry belonging to a third person, which fact is not disclosed to them, and the trunk and all of its contents, except the jewelry, are delivered, and the jewelry is lost without their fault, they are not liable for it.

2. The acceptance of such a trunk, on an application to receive and deliver it, is an undertaking to carry and deliver it, with the articles of personal convenience ordinarily carried by travelers that may be contained therein, and nothing more.

3. To hold them responsible in such a case for the safe delivery of jewelry therein, belonging to a third person, and intended by him for sale as merchandize, would operate as a fraud on them, which the law will not sanction, though there may have been no actual intent to defraud, in not disclosing the contents of the trunk.

(Before BosWORTH, Ch. J., and PIERREPONT and MONCRIEF, J. J.) Heard May 17, decided June 2, 1860.

APPEAL by the plaintiff from a judgment ordered at a trial had June 10, 1859, before Mr. Justice PIERREPONT and a jury.

This action is brought against the defendants as common carriers, to recover the value of a box of jewelry, alleged to have been delivered to the defendants at Brooklyn, Nov. 7, 1855, in a trunk to be carried by them to Buffalo, and there delivered to the plaintiff. This case was previously tried, and the proceedings on that trial are reported in 2 Bosw. 589. By consent of the parties, the jury on the present trial found as facts, the same facts as were found by the jury on the former trial. The facts as found, and the proceedings on the trial had subsequently to such finding, are stated in the case as follows, viz:

1st Ques. Was the trunk in question delivered to the defendants by a William P. Davis, to be transported from

Richards v. Wescott.

Brooklyn to the New York and Erie railroad depot in New York city? A. Yes.

2d. Did it at that time contain the jewelry in question? A. Yes.

3d. Was the trunk and jewelry delivered at the depot in New York? A. No.

4th. What was the value of the said jewelry? A. $432.90. 5th. Did Davis prepay for its transportation? A. Yes. 6th. Were the contents of the trunk asked for by the defendants, or made known to them by Davis, at the time of its delivery to them for its transportation? A. No.

7th. Is it the custom of the city express companies in general, or of the defendants' company in particular, to charge for the transportation of articles according to their value? A. It is when articles are known to be of extra value. 8th. Was the usage or rule in the above particular (if the jury shall find such to have been proved) communicated to Davis before the defendants undertook the transportation of said trunk, or was such usage known to him? A. It was not communicated to Davis, and we have no proof that he knew it of his own knowledge.

9th. Was the trunk in question a traveler's trunk, in the common meaning of that word? A. It was.

10th. Was this trunk to be delivered at the passenger depot or at the freight depot, at the city of New York? A. Passenger depot.

11th. If you say that the trunk was not delivered at the depot in New York city, what became of it? A. By mistake it was delivered to the People's Line steamer, Isaac Newton.

12th. If, in answer to the last question, you say it was delivered by mistake at the wrong place, and afterwards. sent by the defendants to Buffalo, state whether that was done by the defendants voluntarily, and without any further pecuniary compensation or consideration? A. It was.

13th. Upon the arrival of the trunk in Buffalo, what were its contents, and was the jewelry in the trunk? A. The trunk was broken open and the jewelry missing.

Richards v. Wescott.

14th. If you say, in answer to the last question, that the jewelry was not in the trunk on its arrival at Buffalo, was it lost or abstracted before or after its delivery at the wrong place in the city of New York (such place being the steamboat Isaac Newton, belonging to the People's Line,) or was it lost or abstracted before the agreement of the defendants to deliver the same in Buffalo? A. After its delivery at the wrong place, but we have no evidence or means of knowing whether lost or abstracted before or after the agreement to deliver the same in Buffalo.

15th. What was the customary charge for the transportation of a traveler's trunk from Brooklyn to New York? A. Twenty-five cents.

16th. If you say Davis prepaid for the transportation of the trunk, did he so pay as a distinct item, or was the charge for the trunk and box of pictures lumped together, and paid as one item? A. As two distinct items.

17th. Who was the owner of the jewelry in the trunk? A. Mr. Richards, the plaintiff.

18th. Was the jewelry intended for merchandise, or did it constitute a part of a traveler's equipments or baggage? A. It was merchandise.

19th. Did the defendants know that Davis had on former occasions carried jewelry in his trunk? A. No.

The defendants here rested, and their counsel on the above findings of fact, and on the whole case, moved for a non-suit on the following grounds:

First. No allegation in complaint that trunk was lost, without fault of the plaintiff, and the proof shows that accident may have happened through fault of plaintiff. Plaintiff's negligence was, in not telling the carrier that the trunk contained jewelry. It was delivered as a trunk of ordinary clothing.

Second. Fraud upon carrier in not disclosing contents of trunk.

Third. A total failure of consideration between parties, no contract to carry jewelry.

Fourth. Contract proved different from that in complaint;

Richards v. Wescott.

not a variance, but a total failure of proof. Contract alleged is to carry to city of Buffalo. Proof shows it was to carry to depot, New York. Subsequent agreement to carry to Buffalo not sustained by any consideration, or if there was, then the defendants are liable only as private carriers, and not as common carriers.

Fifth. Contract was with Davis to take his trunk. No contract with the plaintiff.

Sixth. That oh the facts the plaintiff was not entitled to

recover.

And the plaintiff asked that the case go to the jury with the following instruction:

"If the jury think there was no intentional fraud practiced by Davis in delivery of the trunk, they must find for the plaintiff." Which the court refused, but granted the non-suit, and to which plaintiff's counsel excepted.

The testimony on the second trial was the same as on the first, except that some additional testimony was given by the defendants.

Judgment of non-suit having been entered, the plaintiff appealed from it to the general term.

R. A. Watkinson, for Appellant.

I. Plaintiff was entitled to have the case go before the jury, as a new trial had been awarded, and the question involved under the opinion of general term, and as put before the court on second trial, was one of fraud. (Zabriskie v. Smith, 3 Ker. 332; Nichols v. Pinner, 18 N. Y. 297; Griffin & Buel v. Marquardt, 17 N. Y. 30.)

II. The non-suit was erroneous. The first, third, fourth, and fifth grounds are insufficient; and so decided by this court in this case. (2 Bosworth R. 589.)

III. The second is erroneous, because the question of fraud was not set up in the answer. And it cannot be proven under a mere denial of receipt of goods. Nor can the court infer fraud, and remedy the defect. In a court of law fraud