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Zetler v. Tonopah and Goldfield Railroad Co.

December 31, 1912

ANTONE ZETLER, RESPONDENT V. TONOPAH AND GOLDFIELD RAILROAD CO., APPELLANT.


Appeal from the Seventh Judicial District Court, Esmeralda County, Nevada; Theron Stevens, Judge.

Campbell, Metson & Brown, Walter Shelton and Huger Wilkerson, for Appellant.

H. H. Brown, for Appellant, on petition for rehearing.

James Donovan, for Respondent.

By the Court, Talbot, J.:

This is an appeal from a judgment in favor of the plaintiff for $783.95 for damages for the loss of baggage and from an order denying defendant's motion for a new trial.

[1] The baggage was checked on a ticket which bore a number of written conditions, among which was the one: “It is agreed that the value of the baggage transported under this ticket shall not exceed one hundred dollars.” Under the contentions made it may be conceded for the purposes of this case that “it is competent for passenger carriers by specific regulations which are reasonable and not inconsistent with any statute or its duties to the public, and which are distinctly brought to the knowledge of the passenger, to protect themselves against liability as insurers of baggage exceeding a fixed amount in value, except upon additional compensation proportioned to the risk.” (Moore on Carriers, sec. 52.) Even if so, it has been held, where such is acknowledged to be the law by decision or even by statute, that the carrier is liable for the baggage lost through his negligence, notwithstanding a valid contract limiting the amount of the liability. (Tewes v. North German Lloyd S. S. Co., 42 Misc. Rep. 148, 85 N. Y. Supp. 994; Holmes v. North German Lloyd S. S. Co., 184, N. Y. 280,77 N. E. 21, 5 L. R. A., N. S., 650; Saleeby v. Central R. Co. of New Jersey, 99 App. Div. 163, 90 N. Y. Supp. 1042; Williams v. Central R. Co. of New Jersey, 93 App. Div. 582, 88 N. Y. Supp. 434; Saunders v. Southern Ry. Co., 128 Fed. 15, 62 C. C. A. 523; Bank of Kentucky v. Adams Exp. Co., 93 U. S. 174, 23 L. Ed. 872; New York Cent. R. R. Co. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627.)

[2] As it appears that the damage was occasioned by the delivery of the trunk by the plaintiff at the baggage

[35 Nev. 381, Page 385]

room to some person not entitled to receive it, we think this was such negligence on the part of the company as to render it liable for the value of the articles lost, notwithstanding the contract.

Respondent moved to strike the statement from the files because not filed in time, but we think it was filed within the time properly allowed by extensions.

The judgment of the district court is affirmed.

Sweeney, C. J.: I concur.

Norcross, J., dissenting:

I am unable to concur in the conclusions reached by my associates in this case. The main question involved is of first impression in this court and concerns an ...


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