This case cannot be distinguished from Stimson v. Connecticut River Railroad, 98 Mass. 83. The only contract which the defendant had entered into in relation to the property which is the subject of this suit, was a contract with Kerr, the plaintiffs’ agent. This was a personal contract with Kerr for the safe transportation of himself and his personal baggage over the railroad. There was no evidence whatever of any contract by which the defendant agreed to receive and transport Kerr’s trunk as merchandise.
Upon the contract implied by the sale of a ticket to Kerr, the plaintiffs can maintain no action, and Kerr could not recover for the loss of the jewelry contained in his trunk. Jordan v. Fall River Railroad, 5 Cush. 69. Collins v. Boston & Maine Railroad, 10 Cush. 506.
There was no evidence which would justify a verdict for the plaintiffs upon the counts in tort. It appeared at the trial that Kerr bought of the defendant, in Boston, a ticket for New York by way of Worcester and Springfield. He stopped over a train at Worcester. In the afternoon he delivered the trunk to the baggage-master of the defendant at the station in Worcester, asking him to check the trunk through to Hartford. He gave no notice that it contained valuable property other than personal baggage, and did not ask the defendant’s agent to receive and transport it as merchandise. The agent received and checked it, in the usual course of business, as the baggage of a passenger.
The defendant thus received it under the contract implied in the sale of a ticket that it would safely transport the passenger and his proper personal baggage. The plaintiffs contend that the jury might find that the defendant’s agent knew from the appearance of the trunk that it was the trunk of a person “ known as a commercial traveller,” and contained merchandise. There was no evidence that he knew this. The most that the evidence shows is, that he may have suspected from the appearance of the trunk that it contained merchandise other than baggage. But this fact would not affect the rights of the parties. Kerr offered and delivered the trunk as his personal baggage; he thus repre*131sen bed. by implication that it contained no property not included within that class or description.
The carrier was justified in receiving the trunk as baggage, under this representation, although he doubted its truth, and the only liability he would assume would be the liability which would attach if it were true. Under such circumstances, the carrier, if liable at all for property other than baggage thus put into his custody, with a fraudulent concealment of its character and value, is only liable for gross negligence or fraud, of which there is no evidence in this case. Dunlap v. International Steamboat Co. 98 Mass. 371.
The plaintiffs offered to show “ that a large part of the defendant’s business consisted in transporting a large class of passengers known as commercial travellers, with trunks like this, containing merchandise of great value, and that these trunks are known as sample or merchandise trunks, and are of special construction, and in the course of that business the commercial travellers purchase tickets for the ordinary passenger trains and receive checks for their said trunks, and the defendant undertakes to transport the traveller and trunk accordingly for the price of the ticket.” The court properly rejected this evidence. The same evidence in substance was offered and rejected in Stimson v. Connecticut River Railroad, above cited.
It would undoubtedly be competent for a railroad corporation to agree to transport, at its risk, merchandise by a passenger train for the price of the ticket sold to the passenger. And if the defendant had made such an agreement specially with Kerr, or if it had by notice or otherwise made a general agreement that com mercial travellers might carry merchandise upon passenger trains at its risk, it might be liable in this action. But the offer of proof does not go far enough to show such an agreement.
The fact that commercial travellers or others are accustomed to carry merchandise in passenger trains without paying any more than the usual price of a ticket for a passenger, even if known to the carriers, will not render them liable for such merchandise. The travellers carry such merchandise at their own risk. The established rule of law which limits the responsibility of the carrier, upon the contract implied by the sale of a ticket to a passenger to the proper personal baggage of such passenger, *132cannot be annulled, and the liability of the carrier enlarged, without proof of an agreement to that effect entered into by the carrier.
For these reasons, we are of opinion that, upon the evidence in this case, the jury would not be justified in finding the defendant liable either in contract or tort.
Plaintiffs nonsuit