#### Fred G. Clarke, Respondent, *v.*The New York Central and Hudson River Railroad Company, Appellant.

Tim’d Department,

May 7, 1913.

Carrier—negligence — loss of baggage by burning of station.

Action against a common carrier to recover for the loss of the plaintiff’s baggage by the burning of defendant’s station.

*Held,*that a judgment for the plaintiff entered upon the report of a referee, holding the defendant liable for negligence in not using the care which an ordinary person as warehouseman would exercise under the same circumstances, should be affirmed.

Howard, J., dissented, with opinion.

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme *195Court in favor of the plaintiff, entered in the office of the clerk of the county of Greene on the 14th day of October, 1912, upon the report of a referee.

*Amos Van Etten,*for the appellant.

*John L. Fray,*for the respondent.

Per Curiam:

The referee properly found the defendant liable for negligence in not using the care which an ordinary person as warehouseman would exercise under the same circumstances. Upon the authority of *Robinson*v. *N. Y. C. & H. R. R. R. Co.*(145 App. Div. 391; affd., 203 N. Y. 627) and *Hyman*v. *South Coast Hotel Co.*(146 App. Div. 341) the recovery is not limited to $150 for each person. The judgment is, therefore, affirmed, with costs.

All concurred, except Howard, J., dissenting in opinion.

Howard, J. (dissenting):

It does not seem to me that the negligence of the defendant has been established. The fire occurred in the night time; it was dark; the station agent was there alone. Pour colored men, strangers to him, came and told him of the fire; they gave him advice and offered to help him pull the baggage out. The agent did many things that were useless, as most people do on such occasions, but he did the one thing most important at such times—he attempted to put out the fire. Had he adopted the suggestion of the colored men he might have saved the plaintiff’s baggage. But he was not bound to do this; he was only bound to use his best judgment. In times of excitement, like this, everybody is giving advice. The' person in charge must think and decide with great swiftness, and he cannot always see that the advice which is offered is good; he cannot pick out the good advice from the bad. His rapid survey of the situation takes in and weighs many elements that the bystander does not know of and does not consider. The agent’s first thought in this instance was to put out the fire and save the station; this was uppermost in his mind. He *196was custodian of the baggage, and it was for him to determine whether or not it would be proper to permit these four strange men to pull it out into the darkness where he could no longer guard it. He had to glance about him and decide this question instantly. That these men were colored men signifies, of course, absolutely nothing in a legal sense. All races look alike before the law, and these men were, in truth, as the proof shows, honorable men; but the fact that they were colored men may have operated upon the agent in his hasty determination as to the proper course to pursue. After the thing has happened, it is easy to see what ought to have been done. Justice Brewer once said: *“*A wisdom bom after the event, is the cheapest of all wisdom. Anybody could have discovered America after 1492.” It was an error of judgment, not negligence, of which the agent was guilty, if he was guilty at all.

I think the judgment should be reversed, because of the failure of the plaintiff to establish the negligence of the defendant, and a new trial granted.

Judgment affirmed, with costs.