the carriage is initiated limiting and defining the liability of railway companies for baggage; but the rights of the parties are to be determined by the laws of the state where the deliveries are to be made.'

154. Act of God as Releasing Carrier.

While a sudden or extraordinary flood in a stream must be regarded as an "act of God," yet the carrier-in order to avail itself of this exception to its liability-must use all reasonable means to prevent the consequences of a sudden rise in the stream. It will be a question for the jury to determine whether, after the baggage had been received by the carrier, all reasonable and proper means were used by the carrier, to avoid the consequences of such flood and remove the baggage beyond danger. And, if any negligence is found chargeable to the carrier in this regard, it will be answerable for all damages suffered. The Johnstown flood of 1889, which was of such extraordinary character that a carrier was not bound to anticipate or provide against it, and which came with such suddenness and power that escape from it was impossible, was an inevitable accident or act of God in respect to the loss of baggage on a railroad train, where the utmost care was exercised by the agents and employés of the carrier to escape the dangers of which they had knowledge or which they had reasonable ground to apprehend."

§ 155. There must be a Delivery of Baggage to the Carrier.

It will relieve the carrier from its liability where the passenger displays want of reasonable care over the property retained for personal use under his immediate charge. Thus where a passenger on a parlor car got off at a station for refreshments, leaving property on her seat which she did not put under the charge of defendant or its agents, and the article was stolen during her

'Curtis v. Delaware, L. & W. R. Co. 74 N. Y. 116. Strouss v. Wabash, St. L. & P. R. Co. 17 Fed. Rep. 209.

Long v. Pennsylvania R. Co. 14 L. R. A. 741, 1 Pa. Adv. 146.

absence, such inattention was contributory negligence which would defeat a recovery.' Where a common carrier undertakes to carry baggage without reward it is liable only as a gratuitous bailee for bad faith or gross negligence. Where the carriage is also over connecting lines, the liability for lost baggage must be determined as in case of through tickets over connecting roads. See section 158.

Leaving out of view any statute, railway companies are to be regarded as responsible for the passengers' luggage which they have taken under their control.'

The courts have held that, inasmuch as railroad companies have voluntarily made their baggage checks evidence in regard to the delivery of baggage to them, the courts will hold such checkswhen in possession of the traveler-as evidence against the company of the receipt of the baggage. And, the delivery of a baggage check by the carrier to the passenger will be treated as prima facie evidence of the receipt of the baggage, and the burden of proof is upon the carrier to show its non-receipt. Where, on the

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production of a nickel plated check, the baggage master has testified that a check of that kind was never used on through baggage, to his knowledge, it was proper to inquire whether his position was such that he would have known if they had been so used.*

Where articles of wearing apparel, wrapped in a shawl fastened in a strap, and properly addressed, were handed to a porter with the request that they be labeled and placed in the luggage van, and this was refused, the porter insisting upon placing it in the carriage with the plaintiff, notwithstanding the statement by the passenger that such deposit would be at the risk of the carrier, the package having been left by mistake in the carriage, the carrier was held answerable.'

While the carrier will not be responsible for merchandise co1 Whitney v. Pullman Palace Car Co. 3 New Eng. Rep. 358, 143 Mass. 243. Rice v. Illinois Cent. R. Co. 22 Ill. App. 643. See Gray v. Missouri River Packet C. 64 Mo. 47; Flint & P. M. R. Co. v. Weir, 37 Mich. 111. Macrow v. Great Western R. Co. L. R. 6 Q. B. 612; Cohen v. Southeastern R. Co. L. R. 1 Exch. Div. 217; L. R. 2 Exch. Div. 253; 46 L. J. Exch. 418. Denver, 8. P. & P. R. Co. v. Roberts, 6 Colo. 333.

'Chicago, R. I. & P. R. Co. v. Clayton, 78 Ill. 616.

Lake Shore & M. S. R. Co. v. Lassen, 12 Ill. App. 659.

'Munster v. Southeastern R. Co. 4 C. B. N. S. 676.

mingled with the personal luggage of the passenger, without notice, yet, if the merchandise be carried openly and so packed that its nature is obvious, and the carrier does not object to it, it will, under some of the authorities, be liable. The rule in England as to delivery seems to be, that the luggage of a passenger by railway, though never actually delivered to any servant of the company. but kept by the passenger during the journey, is nevertheless, in the custody of the carrier so as to render it responsible for the loss.'

Under the ordinary contract of carriage, articles of great value forming no part of the passenger's ordinary baggage or personal equipment, carried about the person of the traveler, violently taken from the passenger by robbers, without gross negligence or fraud on the part of the carrier, will not render the latter liable, although negligent in the exercise of the duty of protecting its passengers from violence."

The passenger retaining luggage in the ear with him does so under the implied condition that he will take ordinary care of it, and where he leaves the car--not removing his baggage and completes his journey in a different car, the carrier will not be responsible for his baggage.'

But, if articles of personal luggage are retained by the passenger exclusively within his own control, and are lost from the negligence of the carrier or its servants, and without fault of the passenger, the carrier will be liable. Many authorities hold that under the law of carriers, the baggage for which a carrier, as such, is responsible must be of the class that can with propriety be placed in the baggage room of a steamer or must be delivered to the clerk of the boat or some officer authorized to receive it, and it does not consist of such articles as the passenger necessarily keeps in his possession, such as a hand-bag, wearing apparel about his person, a "companion case," for toilet articles, jewelry and the like, kept

'Great Northern R. Co. v. Shepherd, 8 Exch. 30.

2 Weeks v. New York, N. H. & H. R. Co. 72 N. Y. 50.

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Talley v. Great Western R. Co. L. R. 6 C. P. 44; Bergheim v. Great Eastern R. Co. L. R. 3 C. P. Div. 221.

Kinsley v. Lake Shore & M. S. R. Co 125 Mass. 54; Le Couteur v. London & S. W. R. Co. 6 Best & S. 961; Gamble v. Great Western R. Co. 3 Grant, Er. & App. U. C. 163.

in a state room, which is unlocked.' But it has been held that ordinary baggage may be taken to the state room, when it can be locked, except as against the passenger carrier, and the liability remain. Perhaps the true rule is, that unless the carrier indicate to the contrary, his provision of locks for the state rooms, will authorize the passenger to keep therein such articles of necessary use, including wearing apparel that may be required on the trip, without release of the carrier's liability. The duplicate key is a possession of the room by the carrier and unless the carrier be guilty of contributory negligence, as in leaving articles in an unlocked room, this possession is sufficient to charge the carrier. If the carrier omit any duty of care, and this result in loss of baggage or what the passenger may properly take on his journey for his necessities or convenience, the carrier will be liable.

Where a passenger occupying a berth in a sleeping car was robbed of his pocketbook during the night while asleep, the fact that the porter was found asleep in the early morning, and that he was required to be on duty for thirty-six hours continuously, and that another larceny was committed about the same time, are evidence of negligence properly submitted to the jury. Although the car company may not be liable as insurer or bailee, yet the law raises the duty on the part of the company to afford to the ticket holder protection to himself and his property from danger from thieves and otherwise.'

The measure of damages for negligence in such cases extends only to a passenger's clothing and personal ornaments, small articles carried in the hand and a reasonable sum of money for traveling expenses, considering his circumstances in life. Carriers, it has been said, do not undertake to carry and safely deliver

'The R. E. Lee, 2 Abb. U. S. 49; American SS. Co. v. Bryan, 83 Pa. 446; Abbott v. Bradstreet, 55 Me. 530; The Crystal Palace v. Vanderpool, 16 B. Mon. 302; Clark v. Burns, 118 Mass. 275.

Gore v. Norwich & N. Y. Transp. Co. 2 Daly, 254; Mudgett v. Bay State S. B. Co. 1 Daly, 151; Macklin v. New Jersey S. B. Co. 7 Abb. Pr. N. S. 229; Van Horn v. Kermit, 4 E. D. Smith, 453.

Gleason v. Goodrich Transp. Co. 32 Wis. 85.

Lewis v. New York Sleeping Car Co. 3 New Eng. Rep. 358, 143 Mass. 267; See also Pullman Car Co. v. Gardner, 3 Pennyp. 78.

Blum v. Southern Pullman Palace Car Co. 1 Flipp. 500; Root v. New York Cent. S. C. Co. 28 Mo. App. 200; Wilson v. Baltimore & O. R. Co. 32 Mo. App. 682.

the effects of travelers not transferred into their custody, and it cannot be held that money in a passenger's clothing, worn during the day and placed under his pillow at night, is in the custody of the corporation which carries and furnishes travelers with berths in sleeping coaches.' But a sleeping car company is bound to have an employé charged with the duty of carefully and continually watching the interior of the car while berths are occupied by sleepers.'

A sleeping car company is not liable for money stolen by one of its employés from a passenger on its car, except to the extent of a sum reasonably sufficient for the expenses of the journey which such a passenger is undertaking. The extent of a carrier's liability concerning a passenger's baggage has been discussed by an equally divided court in Michigan. A steamboat owner was sued for property claimed to have been stolen from a state room while the passenger was asleep. The court below gave judgment for defendant. The opinion of two judges for reversal placed the liability on the ground that the defendant was, as to the loss in question, in the position of an innkeeper. The opinion in favor of affirmance held he was not an innkeeper in fact, and that as passenger carrier he was not so broadly liable as an innkeeper, and only liable for articles placed in his custody. The case, therefore, decided nothing beyond the fact that the liability for baggage is not larger than that of an innkeeper, although in some respects analogous. It was subsequently held by that court that an innkeeper is not liable for loss by accidental fire.*

The carrier is not liable as insurer for the personal baggage of passengers retained under the latter's independent control. This liability for loss of baggage extends only, according to some of the cases, to such as is delivered to the care of the carrier or his

1Carpenter v. New York, N. H. & H. R. Co. 11 L. R. A. 759, 124 N. Y. 53; Lewis v. New York S. C. Co. 3 New Eng. Rep. 358, 143 Mass. 264.

'Pullman Car Co. v. Gardner, 3 Pennyp. 78; Blum v. Southern Pullman Palace Car Co. 1 Flipp. 500; Carpenter v. New York, N. H. & H. R. Co. 11 L. R. A. 759, 124 N. Y. 53.

Illinois Cent. R. Co. v. Handy, 63 Miss. 609.

McKee v. Owen, 15 Mich. 115.

'Cutler v. Bonney, 30 Mich. 259.

Talley v. Great Western R. Co. L. R. 6 C. P. 44, 40 L. J. C. P. 9.