I am unable to concur in the opinion- of Mr. Justice Clarke. The -rule of" law which lie invokes has, as it seems to me,, ho application. The complaint was dismissed at the opening of the trial, and to determine whether error was committed in making this disposition of it the ruling must be considered in', practically the same Way it Would have to be if the complaint had been dismissed at the close of the trial, plaintiff having established by proof every fact alleged. . .
The obligation assumed by the defendant when it accepted the plaintiff as a passenger Was to safely carry him to his destination,, including the wearing apparel which he had on and, if upon- his person, such' articles as are usually worn for ornament or convenience, and money sufficient to defray the necessary expenses during his *715journey. Here the property Which was lost consisted of $1,180 in cash and a gold watch which were carried, not by the plaintiff, but by his wife, who, for that purpose, must be deemed to be his agent. The money and watch were not carried by the wife about her person, but in a handbag. The defendant had no knowledge of the contents of the bag. ' It never had possession of it, and at the time of its loss the possession had been intrusted by plaintiff to another. The specific allegations of the complaint, so far as the same relate to defendant’s negligence and the loss, are as follows :
“ Third. That on the 11th day of August, 1902, about 10 o’clock in the morning thereof, the plaintiff and his wife were passengers on the train of defendant running from Amenia to Hew York city, and had paid their fare as such passengers between such points.
“Fourth. That while on the said train as such passengers, when about three miles north of .Pawling, Hew York, the defendant * * * so carelessly and negligently operated the said train * * * and * * * so negligently * * * constructed, inspected and maintained its railroad track at said place * * * that said track broke or shifted and gave way, throwing said train-from its track " and a car of same in which plaintiff and his wife were riding was turned over * * * without negligence or fault on their part * * *.
“ Fifth. That solely by reason of' defendant’s, its agents’, ■ servants’, trackmen’s and employees’ negligence and fault aforesaid, the sum of One thousand one hundred and eighty and 00/100 dollars ($1,180.00) in lawful money of the United States, and also a gold watch of the value of Fifty and 00/100 dollars ($50.00), all of which belonged solely to plaintiff, and which were in the hand-bag of his wife, who occupied the same seat in the said car of said train, were entirely lost or destroyed.”
It will be noticed that there is no-allegation in the complaint that the money lost was being carried to. defray the expenses of the journey of the plaintiff or his- wife, or that it was necessary for that purpose, and the fact that the watch was carried in a bag would seem to negative the idea that the plaintiff considered it either an article of ornament or convenience. But it is suggested in the prevailing opinion that it was for the jury to say whether the watch was a “ ‘ necessary, convenient and ornamental, reasonable, personal chat*716tel,’ and whether, the money or any part thereof -came within, tlie definition of a reasonable and suitable amount for the journey contemplated.”' It cannot be that the jury could pass upon these questions without some proof, and if the'plamtiif could offer prodi bearing on those subjects, in the absence of allegations in the complaint to that effect, then the complaint serves little or no purpose except to ensnare and entrap the defendant as to the issues to be tried'.
If it he trim that the question of whether or not the complaint was properly dismissed must be determined in precisely.the same way it would have td be had the dismissal taken place at the close of the trial, plaintiff having ■ established only the facts alleged in the complaint, then to submit the questions, referred to to the jury is to permit them to find a verdict not based on evidence.
The authorities cited in the prevailing opinion as sustaining the conclusion there reached are not in point. Merrill v. Grinnel(30 N. Y: 594) and Fairfax v. N. Y. C. & H. R. R. R. Co. (73 id. 167) were to recover for the loss of baggage which had been delivered to the defendants. Carpenter v. N. Y., N. H. & H. R. R. Co. (124 N. Y. 53) was to recover for money lost by plaintiff while occupying a berth in a sleeping car and for which he had.paid a certain sum in addition to his regular transportation. Adams v. New Jersey Steamboat Co. (151 N. Y. 163) was to recover for money lost by plaintiff while occupying a stateroom on defendant’s boat and for which extra compensation had been paid. ;
Weeks v.N. Y., N. H. & H. R. R. Co. (72 N. Y. 50), however, is in principle in point. There, action was brought to recover the value of certain bonds taken from the plaintiff while a passenger' on defendant’s road, and it was held that the plaintiff, in the absence of proof of gross negligenée or fraud, could not recover even though defendant were negligent in the exercise of its duty of protecting the plaintiff as a passenger from violence, and in delivering the opinion the court took occasion to define the obligation which a carrier assumes towards a passenger with respect to personal effects. It said, Judge Folger writing the opinion,'that “ Such a carrier is bound to take the passenger and to carry together with him his luggage, reasonable in size and weight and in kind and value of the articles filling it, such as is naturally and *717usually required by a passenger and reasonable for his personal use while on the way or at his place of destination. Should that luggage be lost by the carrier,, or misdelivered, or stolen from him, though it may contain large sums of money or articles of great value or things not destined for personal use,, the-carrier is not, however, liable for them, but for so much of the contents as falls within the classification we have given above. In the same way (though we do not pass authoritatively upon it), should a passenger be assailed in the vehicle of the carrier in such circumstances -as that it was, a breach of the duty of the latter that it failed to protect the former from violence, and should he be robbed of portions of his clothing, or usual and reasonable articles of personal ornament, his watch or his purse with the money for his traveling and other personal expenses, it may be that the carrier would be liable for the loss which its passenger had sustained. But if the passenger had seen fit privately to place and cany upon his person securities or articles of great value not. falling within the above category, without the knowledge of, or notice to, the carrier, and in the melee they should be lost or stolen, the latter is not liable for them. He has entered into no especial contract to. carry and deliver them.”
Another case in point is First National Bank of Greenfield v. M. & C., R. R. Co. (20 Ohio St. 259). There the plaintiff intrusted to a messenger, who was a passenger on one of defendant’s cars, a package of money. The car in which the messenger was riding; while crossing a bridge, was thrown into a river by reason of defendant’s negligence in maintaining the bridge. The car took fire and the money was burned. It was held that defendant was not liable.
So, also, is Hillis v. C., R. I. & P. Ry. Co. (72 Iowa, 228). There plaintiff was a passenger in one of defendant’s cars. He had §500 in money in an envelope in his overcoat pocket. The overcoat he gave to a porter, who hung it in plaintiff’s berth. The car was subsequently derailed by reason of defendant’s negligence and the money lost. It was held defendant was not liable, there being no proof that the money was necessary to' defray plaintiff’s traveling expenses.'
The liability in the present case, if any exists, depends, of course, upon the contract between the parties.. That contract, as we have already seen, did not contemplate the transportation of anything. *718more than ordinary wearing apparel, articles usually worn by a person for ornament or convenience, and money necessai'y to defray the expenses of the journey. There, are no allegations in the complaint which bring either the money or watch within this rulé,, and the fact that the plaintiff did not. have possession of either, but had intrusted them to another, would seem to be proof that they were not designed for either purpose. The plaintiff certainly could not have made proof that they Were without amending his complaint, aná no request to amend was made. •
It seems to me, therefore, that the complaint was properly dismissed and the judgment appealed from should be affirmed.
-Judgment reversed, new trial "ordered, costs to appellant to abide event.