We think this judgment must be reversed upon the ground that it clearly appears that the portmanteau was taken in charge by the defendant and transported to New York, and there deposited by it in its baggage-room. The defendant thus incurred the responsibility of a warehouseman, at least, without regard to the question which has been argued whether it became liable as a common carrier. When the plaintiff demanded the article it had disappeared, and no account is given of the cause of such disappearance. This is prima facie evidence of negligence. (Steers v. Liv., N.Y. and P. Sts. Co., 57 N.Y., 1.) The facts proved show that the loss was quite as likely to have arisen from a misdelivery as from theft. There was no evidence that there had been any burglary or larceny in the room, or that any other baggage was missing. It is true that the person in charge of the baggage-room testifies that although he personally made all the deliveries he did not deliver this portmanteau to any one; still, if he delivered it by mistake, it is quite possible that he would have no recollection of having done so; and the facts testified to by him, if he is accurate in his statements, show that it is scarcely possible that the portmanteau could have got out of the room without his having delivered it.
Upon this evidence the question of negligence was one of fact which should have been submitted to the jury, as requested by the plaintiff's counsel. The proof of the general care, with which the baggage-room and its contents were guarded, was *Page 15 not sufficient to establish conclusively that there was no want of care in this particular instance. (Burnell v. The N.Y. Cen.R.R. Co., 45 N.Y., 184.)
The judgment must be reversed and a new trial ordered, with costs to abide the event.
All concur.
Judgment reversed.