By the Court,
Johnson, J-.The first point made by the defendant is, in substance, that there is no sufficient evidence to show any undertaking, on its part, to transport Mrs. Eyan and her goods from Albany to Charlotte, over its road. But • I think the evidence is abundantly sufficient to prove such an undertaking. The contract was made in the city of Hew *561York, between Mrs. Eyan and a person professing to act as agent, to transport her and her baggage from that place to Cobourg in Canada. She paid the amount required for the transportation of herself and baggage to the place of destination, and received three tickets j one for a passage by steamboat to Albany, another for a passage over the defendant’s road to Charlotte, and a third from that place to Cobourg. When she arrived at Albany her baggage was placed in the baggage car, where the baggage of passengers is usually carried, in the same train in which she took her passage in one of the passenger cars. The conductors upon the route received the ticket as evidence of her right to ride upon the cars as a passenger, marking it, and taking it up at or near the end of the route, in the usual manner, without demanding payment of any other fare by her. The defendant’s agents, whose business it is to look to such matters, having accepted and treated her evidence or token of the right claimed and exercised by her, as sufficient, the law will presume the undertaking valid and binding, until the contrary appears.
The question then arises, whether the contract was broken by the defendant, so as to give a right of action to the person with whom it was made, or his assigns. This depends upon the question whether it was performed by the defendant according to its- tenor and effect. That it was not so performed on the part of the defendant is, I think, rendered entirely clear by the evidence. The contract obviously was to transport Mrs. Eyan, and her baggage with her at the same time, as personal baggage. A considerable portion of the property, as appears from the evidence, was not such as would have been regarded as personal baggage, which the defendant would have been bound to transport, under an undertaking to carry the person merely. Such an undertaking implies'an agreement to carry with the passenger such limited quantity of articles, for personal use, pleasure or amusement, only, as are usually carried by travelers. (Hawkins v. Hoff*562man, 6 Hill, 586.) But here was an express contract. A portion was deducted as baggage which the passenger had the right to have carried in consideration of the fare paid by her for the passage of herself, and the balance was charged and paid for as extra baggage. It was not received or treated as ordinary freight, but as baggage, to be carried with the passenger, upon the same train.
The obligation of a rail road company undoubtedly is to take whatever is delivered and received as baggage from a passenger, in the baggage car of a passenger train in which the passenger takes his passage, and take it along with and deliver it to the passenger at the place of destination, in the usual manner of transporting and delivering baggage. And in this resjoect the obligation is the same, whether the baggage is within the quantity allowed to a passenger to be carried without any charge, other than the ordinary fare of the passenger, or whether it is an extra quantity, for which an additional charge is made. If it is taken as the baggage of the passenger, whether ordinary or extra, it is to be carried with the passenger, unless there is some agreement to the contrary. Any other rule would be productive of great inconvenience and hardship, if not loss, and would subject travelers, often, to intolerable delays and annoyances. The judge was right, therefore, at the circuit, in charging the jury that the property in question, under the circumstances of the case, was to be regarded and treated as personal baggage.
It is abundantly established by the evidence that the defendant did not take the baggage to the place of destination on its line, with the passenger, and that it had not been found, or delivered or offered, by the defendant, at the time of the commencement of this action, which was about two weeks after the passage. A right of action had therefore, undoubtedly, accrued when this action was commenced. No question was raised upon the trial, nor upon the argument, *563in respect to the measure of damages which the plaintiff was entitled to recover.
[Monroe General Term, June 2, 1862.Johnson, Welles and Campbell, Justices.]
The judge very properly refused to charge the jury, as requested by the defendant's counsel in his second proposition. There was no evidence on which any such charge could be based. It having been made clearly to appear that the property did not arrive with the passenger, and could not be found, although inquired after and searched for, and that it could not be found several days afterward, and there being no pretense that it had ever been delivered or offered to the owner, or any notice given of its" having been subsequently discovered, there was nothing upon that subject which could have been properly submitted to the jury. The only evidence which the defendant gave, was that some goods of a similar description were seen in the warehouse at Charlotte in the following ¡November. The goods were taken by the defendant about the middle of July, and no evidence of their having been seen by any one after that time, until ¡November following. Most certainly, upon this evidence, the jury would not have been warranted in finding that the property had been delivered at Charlotte in the usual way, and within the proper time. There was, I think, no error in the charge, or in the refusal to charge as requested; and a new trial must be denied.