[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 554 It is doubtless true that, although the liability of a common carrier ceases upon the failure of the passenger to call for baggage within a reasonable time after its arrival at the place of its destination, a modified liability, analogous to that of a warehouseman, continues. (Burnell v. The N.Y. Central RailroadCo., 45 N.Y., 184.) And this upon the ground that this modified obligation is incurred at the time of making the contract for the transportation of the passenger and baggage and is a part of the contract itself, and to remain in force for temporary convenience arising from such necessity, as sickness or accident, as will create the presumption that the occurrence which occasioned its being left was within the contemplation of the parties at the time of making the contract. (Id., 186, 188.) Unless the plaintiff has brought her case within this rule she was not entitled to recover. Her passenger ticket indicated her right to a passage to Palmyra; the check for her baggage indicated all that would be presumed from a contract to carry it to and safely deliver at that place. When she arrived there she was apprised by the station baggage-master, to whom she applied for permission to leave her baggage, that he was not allowed *Page 556 to keep baggage with a check upon it; that she could not leave it, and he could not take it, without she gave up her checks; thus, in substance, apprising her that he was without power to continue in force the obligation of the defendant indicated by the check, but that she could give up the check, leave the baggage, and it would be safe. She surrendered her check, and thus in effect admitted, not only the safe arrival but the delivery of her baggage; and accepted, instead of the obligation of the company, the agent's assurance that it would, if she left it where it was, be perfectly safe. If this arrangement was one which she understood to be made by the agent in behalf of the company, for the storage of her baggage after its obligations to her as carrier was at an end, she was in error. There was no evidence tending to show that the agent had power, after the obligation of the company was thus at an end, to bind it by a new arrangement, by which the company should assume the responsibility of a warehouseman. On the contrary, such an arrangement was in clear repugnance to the regulations of the company at the time of the occurrence; which the learned judge regarded as a full defence to this action, unless it suffered the agent to make such arrangement, notwithstanding the regulations; and in submitting this question to the jury he clearly erred; the case was without evidence to justify the submission of that question for their consideration. In the case of Dininny v.The New York and New Haven Railroad Co. (49 N.Y., 546) the arrangement to retain the baggage upon the surrender of the check was a necessity forced upon Dininny by the negligence and wrong act of the company; and upon that ground he recovered. (Id., 550, 551.)
This judgment should be reversed.