#### John Burkett, Respondent, *v.*The New York Central *&*Hudson River Railroad Co., Appellant.

(County Court, Franklin County,

June, 1898.)

Common carriers — Theft from a trunk, whose carriage was procured by fraud.

A discharged employee, by falsely representing to a. railroad company that he was still employed by it, procured the free carriage of .his trunk from one station to another, subsequently followed it to the point of destination by a free passage, also obtained by *&*similar fraudulent statement and, after seeing his trunk on the platform of that station at about seven o’clock in the evening, told the station agent not to . take it inside as he Would call for it in a short time. He did not call for it and during the night its contents were stolen. Held, that the railroad company was not liable to him for the loss. .

This action was brought in '.a Justice’s Court to recover the value - of the contents of a trunk, claimed to have been stolen therefrom while in charge of defendant at its station at Tupper Lake Junction^ Judgment was rendered upon the trial before the justice, without a. jury, for the sum of $44 damages and $3,95 costs, from which judgment the defendant appeals. ■ *l*¡.

M. E. McClary, for appellant.

J. W. Webb, for respondent.

Beman, J.

The defendant operates a line of railroad, extending from Hew York city to Loon Lake and beyond. On the 7th day of October, 1897,. the plaintiff was in the employ of the defendant ,as a laborer upon defendant’s road. Upon that day he quit defendant’s employ and. remained at Loon Lake station until about the 18th day of October upon which day he caused his trunk to be checked at Loon Lake station for Tupper Lake Junction without first having purchased a ticket for his own passage between said stations. The trunk was transported upon .the regular passenger train of defendant to Tupper Lake Junction station and safely landed upon the platform. • The plaintiff did not take passage to said station- on the same train that carried the trunk, but waited until a later hour *77in the day and then boarded a freight train at said Loon Lake station, and, having stated to the conductor that he was wrokin'g on the section between Loon Lake and Plumadore, and that he was being transferred to work for Mr. Black, the roadmaster, on the work train out of.Tupper Lake Junction station and that he was still in the service of the defendant, was permitted to ride upon said train without the payment of the regular fare between those ■stations.

It appears from the- evidence in the case that the plaintiff had not been in the employ of the defendant since the 7th day of October previous and was not in the employ of the defendant at the time he went to Tupper Lake Junction. Upon plaintiff’s arrival at Tupper Lake Junction at about seven o’clock in the evening he ■saw his trunk standing on the platform apparently in good condition, The ^plaintiff’s lodgings or boarding place while at Tupper Lake Junction was but a short distance from the railroad station, and* from the evidence in the case, independent of- any directions or instructions given by plaintiff to defendant’s agent at Tupper Lake Junction, it appears that the plaintiff had ample opportunity for seeing, and did see two or three times during the remainder of the night that his trunk still remained upon the platform where it had been placed immediately after it was delivered from the railroad train. Moreover it appears by the evidence of the telegraph operator and night watchman at the station, Mr. Gutman, who was called as a witness by the plaintiff upon the trial of the action, that he saw the plaintiff upon the arrival of the train or very shortly after and that he called witness’s attention to the trunk and remarked that “ the trunk was his and to leave it there and he would be over after it in a short time.” 1 It is evident from this remark of the plaintiff that he did not purpose and it was not his intention to subject the trunk to any further care by the defendant. Acting upon the directions given by plaintiff in that regard' and which are confirmed by the conductor of the train which brought plaintiff to Tupper Lake Junction, and who heard the conversation between the witness Getman and the plaintiff, the agents or employees of the company did nothing further with the trunk thereafter, than to place the same near the building, underneath a window therein, so that the' lights burning inside shone through the window and directly upon the trunk where it was lodged. From the evidence of the plaintiff himself it appears that-he left the trunk at-the station under the conditions as stated, for his own personal convenience, because of the *78fact of his intention to take passage on defendant’s train on the. following morning for Malone.

t is claimed by the plaintiff that the defendant is guilty of gross negligence in that it did. not cause the trunk to be placed inside of the railroad station or in some other safe place, thus preventing during the night the abstraction of plaintiff’s, wearing apparel there from, and his loss thereof. To sustain this position the .plaintiff cites the following cases: Gordon v. Grand St. *&*Newton. R. R. Co., 40 Barb. 456; Buffett v. Troy & Boston R. R. Co., 40 N. Y. 168; Edgerton v. New York & Harlem R. R. Co., 39 id. 227.

I find nothing upon examination of those cases that applies to the question involved in this appeal, The questions passed upon' there are as to the liability of the defendants for injuries- received by passengers while traveling in and upon public conveyances. The question involved here is, whether the defendant as a common carrifer is hable for the loss of plaintiff’s goods, stolen from his trunk after the same had been gratuitously transported from one station to. another upon defendant’s road, such transportation having been procured by false representations and by deception practiced upon defendant’s agents. In the case of Nolton v. Western R. R. Corp., 15 N. Y. 444, it was held that where a railroad .company voluntarily undertakes to convey a passenger upon then road whether with or without compensation, if such passenger be injured by culpable negligence of the agents of the company, the latter is hable, but, where the passenger is -carried gratuitously the liability of the carrier for an injury caused by the gross negligence of its agents, arises, not from .any implied contract', but from the violation of a duty imposed by circumstances. The difference between that case and this consists in the fact that the question involved in the former was. for damages for injury to the person, and in the latter the loss, of personal property. It is a well-settled, rule of law that a liabihty exists for any injury to a passenger on ,a railroad train which occurs through the negligence of' the company’s agents. It is equally a well-settled rule of law that the hability of a railroad company for the baggage of a passenger on its road continues to be that of a common carrier until the passenger has had a reasonable opportunity to remove the same from its custody. This doctrine is fully discussed and laid down in Dininny v. Railroad Co., 49 N. Y. 546, and Maxwell v. Girard, 84 Hun, 537. The case of. Michaels v. N. Y. Cent. R. R. Co., reported in 30 N. Y. 564, holds that the duty of a common carrier begins when the goods are re*79ceived into his custody for transportation and ends when they are securely and safely carried and delivered to the owner. It does not mean by this, however, that a common carrier is under obligations to house, care for or store the goods transported, except so far as is necessary to preserve them from immediate loss or damage other than through the act of God or of the public enemy.

The defendant in this case was under no obligation to place the trunk belonging to the plaintiff inside of its station or to exercise any further care or control over the same¡ after it had been gratuitously transported from Loon Lake to Tupper Lake Junction and safely landed upon the defendant’s platform. It was the owner’s duty, at once and with diligence to remove the trunk and so much time as he gave to his other business or pleasure to the neglect of taking charge of the property and removing it from the custody of the carrier cannot he allowed to him in estimating the time in which to take delivery. Hedges v. Hudson River R. R. Co., 49 N. Y. 223; Graves v. Fitchburg R. R. Co., opinion by Justice Parker in App. Div., 3d Dept., May 4, 1898, reported in 29 App. Div. 591.

If any obligation or drity on the part of the defendant had existed beyond the time of the delivery of the trunk at Tupper Lake, it must be considered that such obligation or duty was fully removed by the instructions and directions of the plaintiff, given to the defendant’s agent as testified to by the witnesses Murray and Getman, namely: ■—■ pointing to the trunk then upon the platform he said: “ That is mine, leave it there and I will be over for it in a short time.” And as testified to by Murray, plaintiff said, poining to the trunk, “ There is my trunk standing outside, I will be over after it in about fifteen or twenty minutes, don’t take it inside.” By such acts on his part I am convinced that it was the intention of the plaintiff to remove his trunk from the railroad platform and not require defendant’s agents to exercise any further care over the same, and defendant was relieved entirely from any responsibility therefor.

I arrive at my conclusions in.this case from these conditions and facts, namely: ■ First. That plaintiff procured free transportation of his baggage from Loon Lake to Tuppér Lake Junction, upon defendant’s passenger train, through fraud upon defendant’s agents.

Second. He subsequently by like means obtained passage for himself between those stations upon a train of the defendant’s not run for the purpose of carrying passengers.

Third. After the "arrival of the trunk at Tupper Lake Junction station, that plaintiff had ample opportunity to remove the same *80therefrom to his lodgings near by and it was his duty thus t.ó remove it. .

Fourth. Instead of removing the trunk as he should have done he gave directions to defendant’s agents that the trunk remain upon the platform until, he should call' for it, which as was stated by him would be in a very short time.

Fifth. That there is no evidence in. the case showing that the defendant was guilty of any negligence in not exercising more care concerning the property than was given to it while it remained in their ■ posssession and that the plaintiff was guilty of negligente under the evidence and all the circumstances of the case in permit-^ ting his trunk to remain upon the platform during the night, after' he had given notice to defendant’s agent that he intended to remove it, and in not requesting defendant’s agents to place the same within the station.

From these conclusions I am of the opinion that plaintiff ought not to recover, and the judgment rendered by the justice in this case should be reversed.

Judgment, reversed, with costs..