CH. XV. s. 3. does not apply to passengers' luggage (a), has been treated as The companies being bound to carry passengers' luggage, being bound to carry it up to a certain weight for nothing, and being liable as insurers for the loss of it, the important question arises, what is "luggage" and what is not? The answer must first be sought in the special Act of each company. The clauses of those Acts respecting luggage, however, will, it is believed, be usually found to follow the common form given above (p. 412), and the judgment of Parke, B., in Great Northern Rail. Co. v. Shepherd (c), contains the rule, of almost universal application, that under the term "luggage" may be comprised the clothing of the passenger, and everything required for his personal convenience, and perhaps even a small present or a book, but certainly not merchandise and materials intended for trade, and to be sold at a profit. It is clear enough, therefore, that merchandise is not lug gage (d), and upon the same principle the papers of a solicitor have been held not to be comprised in the term (e). What a passenger may take (besides clothing) as required for his personal convenience is not so easy to determine. But both a child's rocking-horse (f) and house linen (g) have been alike excluded from the term. In one case (h), where a portmanteau was lost for three months, during which the contents were spoilt by the corruption of a brace of pheasants packed therein, the plaintiff recovered the full value, but the amount of damages had been agreed upon, the argument before the High Court turning upon other considerations, and it is submitted that damages in respect of the delay only could be recovered, on the ground of improper packing (1), and because pheasants are not personal luggage. The liability of the railway companies as insurers of luggage extends not merely to the actual transit on the line, but to the (a) Stewart v. London and North Western Rail. Co. (1864), 3 H. & C. 135. (b) Per Brett, L.J., in Cohen v. South Eastern Rail. Co. (1877), 2 Ex. D. at p. 264. (c) Shepherd's case (1852), 8 Ex. 30. (d) And see Cahill v. London and North Western Rail. Co. (1861), 10 C. B., N. S. 154; Keys v. Belfast, &c., Rail. Co. (1861), 9 H. L. C. 556. If the company take as personal luggage what they have notice not to be such, they are liable, but no contract arises with respect to goods taken as luggage from the representation of the passenger. 16. (e) Phelps v. London and North West ern Rail. Co. (1865), 19 C. B., N. S. 321. Semble, that if each passenger is allowed 56 lbs. weight of luggage, a man and his wife may carry 112 lbs. between them, although the wife's personal luggage is only 3 lbs. weight. Great Northern Rail. Co. v. Shepherd, ubi supra. (f) Hudston v. Midland Rail. Co. (1869), L. R., 4 Q. B. 366. (g) Macrow v. Great Western Rail. Co. (1871), L. R., 6 Q. B. 612. (h) Hooper v. London and North Western Rail. Co. (1880), 50 L. J., Q. B. 103. (i) See per Mathew, J., in Baldwin v. London, Chatham and Dover Rail. Co. (1882), 9 Q. B. D. at p. 581. period when the luggage is being taken to or from any vehicle by which a passenger comes to or leaves the station of arrival or departure (k), and, it seems, to the period during which the luggage will be lying on the platform of a station. Even where a passenger declared his intention of taking his bag in the train with him, and left it on the platform while he went to get his ticket, the Court held that there was evidence to go to the jury that the passenger had entrusted the bag to the company through a porter, who had offered to label it as "passenger's luggage" for his destination (1). CH. XV. s. 3. In Great Western Rail. Co. v. Bunch and Wife (m), Mrs. Custody of luggage on Bunch arrived at Paddington Station at 4.20 p.m. on Christmas platform. Eve, having with her a portmanteau, a hamper, and a Gladstone Mrs. Bunch's bag, intending to go to Bath by the 5.0 p.m. train, which was not case. yet alongside the platform. A porter took the whole luggage, and she saw the portmanteau and hamper labelled, and told him that she wished it to be put into a carriage with her. He assured her that it would be safe, whereupon she left him to meet her husband, upon her return with whom in about ten minutes, the bag was found to have disappeared. The House of Lords (Lord Bramwell, diss.) gave judgment for the plaintiffs in an action for the loss of the bag, affirming the judgment of the Court of Appeal in Bunch v. Great Western Rail. Co. (n), in which Lord Esher, M.R., said that the liability of the company was that of common carriers, and both Lord Esher and Lindley, L.J., that the company could not shield themselves by a public notice that their servants had orders not to take charge of any luggage or parcels, or by a regulation in their time-tables that they would not be liable for luggage taken with passengers into the carriages. arrival of passenger. Much more, then (as had been previously held), if a passenger Too early arrive at a station half an hour too early, and gives luggage to a porter, who undertakes to label it, the luggage is thenceforward in the custody of the company as common carriers, and a notice. by the company that "the company's servants are forbidden to take charge of any articles," and that "any article which a (k) Agrell v. London and North Western Rail. Co., 34 L. T. 134, n., per Pollock, B. See also Richards v. London, Brighton and South Coast Rail. Co. (1849), 7 C. B. 839; Butcher v. London and South Western Rail. Co. (1855), 16 C. B. 13. (1) Leach v. South Eastern Rail. Co. (1876), 34 L. T. 134. (m) Great Western Rail. Co. v. Bunch (1888), 13 App. Cas. 31. The decision was that there was evidence on which the County Court Judge might reasonably find that the bag was in the custody (n) Bunch v. Great Western Rail. Co. CH. XV. s. 3. Delivery of luggage on conclusion of journey. Servant's luggage. Cloak-room. Van Toll v. S. E. R. Co. passenger wishes to leave at a station should be deposited in the cloak-room" does not apply to such a case (o). But where the plaintiff, allowing his luggage to be taken from him by a porter, gave no instructions to the porter as to his destination, but the porter leaving, and no other porter coming forward, labelled his own luggage and then went off to the refreshment-room, the Exchequer Chamber held that the plaintiff could not recover for the loss of his luggage (p); and where a passenger missed his intended train, and left his luggage in charge of a porter until the starting of the next, which was timed not to start for an hour, while he himself left the station, and went into the billiard-room of an hotel, it was held that the porter took charge of the luggage on his own responsibility, and that the company were not liable for the loss of it (q). Upon the arrival of a train at a station, it is the duty of the company to have passengers' luggage ready for delivery on the platform, at the usual place of delivery, and to keep it there for a reasonable time until the passenger in the exercise of due diligence can receive it (); but if the passenger has an opportunity of taking it away, and instead of taking it away, leaves it to a porter to take care of for a time, there has been a delivery by the company to the passenger and re-delivery by the passenger to the porter as the agent of the passenger, not the servant of the company, and the company are not liable for a loss (s). A servant's livery is his luggage, although it is the property of his master, but the master can sue for damage done to it although the contract of carriage was made with the servant alone (t). We now pass to the question of the liability of railway companies in respect of passengers' luggage deposited in cloak-rooms. There is no obligation on the companies to warehouse luggage, and luggage when warehoused is not within the terms of the 7th section of the Railway and Canal Traffic Act, which requires that the conditions upon which luggage is carried by the company should be reasonable and signed (u). It has, however, long been the practice of the companies to refuse to warehouse luggage except upon particular conditions, such as that they will not be (0) Lovell v. London, Chatham and Diver Rail. Co. (1876), 45 L. J., Q. B. 476. (p) Agrell v. London and North Western Rail. Co., 34 L. T. 134, n., supra. (q) Welch v. London and North Western Rail. Co. (1885), 34 W. R. 166. (r) Patscheider v. Great Western Rail. Co. (1878), 3 Ex. D. 153; Firth v. North Eastern Rail. Co. (1848), 36 W. R. 467. (s) Hodkinson v. London and North Western Rail. Co. (1884), 14 Q. B. D. 228. (t) Meux v. Great Eastern Rail. Co., [1895] 2 Q. B. 387. (u) Van Toll v. South Eastern Rail. Co. (1862), 21 L. J., C. P. 241. It is said by Byles, J., in this case, that where a passenger puts a cloak-room ticket into his pocket without reading it he assents to its terms, if they be reasonable, otherwise not. answerable for the loss of luggage above a certain value, usually 10., and so forth. These conditions must be brought to the notice of the passenger, otherwise he will not be bound by them. Whether they have been brought to his notice or not is a question of evidence in each case (x). Cн. XV. s. 3. Notice of passenger. Henderson v. Railway companies have a lien on luggage for unpaid fare (y), conditions to though no right to sell the luggage (2), and have been held to have a lien against the owners of a sewing-machine, deposited Stevenson. with them by the hirer under a hire-and-purchase agreement, for Lien on the payment of the cloak-room charges (a). (e) The Carriage of Passengers. luggage. tickets. A condition that a deposit on a season ticket shall be forfeited Season to the company if the season ticket be not given up on the very day after expiring is good, and strictly enforceable (b), and so is a condition that a cheap excursion ticket shall, if used for any other Excursion station than that for which it is issued, be forfeited and the full fare charged (c), and such a condition applies to stations beyond that named on the ticket, as well as to intermediate stations (d). tickets. not liable as Readhead v. Midland The obligation of railway companies to carry passengers appears to differ little from their obligation to carry goods, and has already been discussed. But the liability of the companies as carriers of passengers differs materially from their liability as carriers of goods. In respect of the carriage of passengers, railway com- Companies panies are not insurers, but are liable for negligence only. This insurers. rule appears to have been always tacitly assumed; but it was first expressly affirmed in 1869 by the decision of the Exchequer Chamber in Readhead v. Midland Rail. Co. (e). In that case the carriage in which plaintiff was travelling got off the line and was upset, owing to the breaking of the tyre of one of the wheels. Such breaking arose from a latent defect in the tyre, which was not attributable to any fault on the part of the manufacturer, and could not be detected previously to the breaking. The Court of Queen's Bench decided that the defendants were not liable, and the Exchequer Chamber affirmed that decision. (a) See Hodges on Railways, 7th ed., at p. 591, citing and distinguishing Henderson v. Stevenson (1875), L. R., 2 Sc. App. 470; Parker v. South Eastern Rail. Co. (1876), 34 L. T. 654; 45 L. J., C. P. 515; and Harris v. Great Western Rail. Co. (1876), 1 Q. B. D. 515. (y) See Wolf v. Summers (1811), 2 Camp. 631; 12 R. R. 764. (z) See Wallis v. London and South Western Rail. Co. (1870), L. R., 5 Ex. 62; Manchester, Sheffield and Lincolnshire Rail. Co. v. North Central Waggon Co. C.C. (1888), 13 App. Cas. 554. (a) Singer Manufacturing Co. v. London and South Western Rail. Co., [1894] 1 Q. B. 833. (b) Cooper v. London, Brighton and South Coast Rail. Co. (1879), 4 Ex. D. 88. (c) Great Northern Rail. Co. v. Palmer, (e) Readhead v. Midland Rail. Co. 27 CH. XV. s. 3. (Carriage of Action for injury is action of tort. Costs, as in action of tort. Master and servant. Company not bound to take extra If the facts proved are equally consistent with the exercise and with the omission of proper care as to examination for defects, the plaintiff must be nonsuited (ƒ). The action for negligence in carrying a passenger is an action "founded on tort," within the meaning of sect. 116 of the County Courts Act, 1888, 51 & 52 Vict. c. 43, and not upon contract, even although the passenger has taken a ticket (g), and whether the negligence charged is of omission or commission (h), so that if the plaintiff recover less than 107. in an action in the High Court he is not entitled to any costs, and if he recover 10l. or upwards but less than 201., he is entitled to costs on the County Court scale only, "unless a judge of the High Court certifies that there was sufficient reason for bringing the action in that Court, or unless the High Court or a judge thereof at chambers shall by order allow costs." Yet, if he recover 20l. or upwards, he is, subject to the general discretion of the Court as to costs, entitled to his full costs, whereas if the action had been "founded on contract" he would, on recovery of less than 201., be entitled to no costs, or on recovery of 201. or upwards, but less than 50, to County Court costs only. A master cannot sue the carrying company in an action of contract for injury to his servant on a journey for which the servant has taken the ticket (i), but he may sue, "for a pure tort," a company whose train comes into collision with the train of the carrying company (k); and it is conceived that the master's right of action for the tort is general. The duty, however, of a railway company arises out of its contract, and that contract is to carry the passenger upon the ordinary care. contracted journey with due care and diligence, and to afford him reasonable accommodation in that behalf, and there is no duty on a company to protect a passenger against extraordinary danger such as that arising from an unexpected landslip, or storms, or riot at a station, or from unknown peculiarities of his own (l). Liability where fare not paid. Unless there be an intention in the passenger to defraud, the mere non-payment of fare will not, it seems, exempt the company from liability; a newspaper reporter travelling with a free pass (m), and a child above three carried free (n), have been held entitled (f) Gilbert v. North London Rail. Co. (1883), 1 C. & E. 31. (9) Taylor v. Manchester, Sheffield and Lincolnshire Rail. Co., [1895] 1 Q. B. 134, C. A. (h) Kelly v. Metropolitan Rail. Co., [1895] 1 Q. B. 944, C. A. (i) Alton v. Midland Rail. Co. (1865), 34 L. J., C. P. 292; 19 C. B., N. S. 213. (k) Berringer v. Great Eastern Rail, Co. (1879), 4 C. P. D. 163. (1) See Pounder v. North Eastern Rail. Co., [1892] 1 Q. B. 385. (m) Great Northern Rail. Co. v. rison (1854), 10 Ex. 376, Ex. Ch. Har (n) Austin v. Great Western Rail. Co. (1867), L. R., 2 Q. B. 442. That the train was a "parliamentary one" seems to make no difference. |