#### Minor v. The Chicago and North Western Railway Company.

Where a railway passenger, on arriving at his place of destination, takes his baggage into his own exclusive possession and control, but afterwards, for his own convenience, hands it to the baggage master at the depot to *be kept until sent*for, the company is not liable for the baggage as a common carrier, but is liable only for gross negligence, the bailment being gratuitous.

APPEAL from the Circuit Court for *Jefferson*County.

The case is stated by the court. The verdict and judgment were for the plaintiff; and the defendant appealed.

*JEnos & Hall,*for appellant.

*Gill &*Barber, for respondents,

cited 12 Wend., 591; 1 Smith’s L. C., 300; Redfield on Railways, p. 253, subd. 7 et seq.; 5 Term, 389; 8 M. & W., 258.

*By the Court,*

Cole, J.

The proof clearly shows that this was a case of gratuitous bailment, where the company was only bound to exercise slight diligence and was liable for gross negligence.

It appears from the respondent’s own testimony, that she was a passenger on the road of the appellant from Milton to Wat-ertown ; that she arrived at the depot of the company at Wat-*41ertown about 5 o’clock in tbe morning of tbe 7tb of November, 1863, and bad with ber a valise or band trunk wbicb sbe bad taken on to tbe cars witli her and kept under ber control. She says: - After tbe arrival at the depot, Mrs. Gay took the “ baggage and went with it into the sitting room; a man came “ soon after, and opened tbe baggage room, and commenced “ putting in baggage. I gave our baggage to him, and asked *“*if be could save-it for us a few hours till we would send for “ it; be said yes, he would, it would be safe there in the bag- “ gage room, and took it and put it in tbe baggage room. I saw “him putting baggage in and locking the door.”

It appears to us that this evidence shows, beyond all question, a case of gratuitous bailment. The respondent bad arrived at the end of ber route. Her fellow passenger bad taken tbe valise from the cars into tbe sitting room. Tbe baggage was under her exclusive control. Tbe liability of tbe company had ceased. It no longer bad possession of tbe baggage, or any control over it, until it was redelivered to tbe baggage master to be kept for a few hours in tbe baggage room for the mere convenience of tbe owner. Tbe liability of tbe company for tbe safe transportation of the baggage to tbe end of the route, wbicb had been fully discharged, would not again attach because, for ber own accommodation and convenience, sbe redelivered ber valise to tbe agent of tbe company to be placed in tbe baggage room. Suppose tbe respondent bad not been upon tbe train at all, but bad happened at the depot, and desired tbe baggage master to take ber valise and put it in tbe baggage room and keep it ¡for her a few hours until sbe should send for it: would not tbe liability of tbe company have been precisely the same it is now ? It appears to us that it would. Tbe fact that the respondent had been a passenger on tbe road cannot enlarge tbe liability of tbe company, because sbe bad arrived at ber destination, bad left tbe cars, and taken into ber exclusive possession and control ber baggage, when sbe gave it back to tbe agent to be kept for ber own convenience. See *42*Richards v. The London and South Coast R. R. Co.,*7 Man., Gran. and Scott, 839 ; *Butcher v. Same,*29 Eng. Law and Eq., 347; *Cohen v. Frost,*2 Duer, 335. The court instructed the jury that the company was liable for the exercise of ordinary care; whereas, if the bailmént was gratuitous, as the proof clearly shows that it was, the company was bound to a less degree of diligence and a more limited responsibility. Story on Bailment, §§ 174 et seq.

The judgment of the circuit court, is reversed and a new trial ordered.