Syllabus. believed there was no danger, and seeing nothing in the appearance of the water to suggest danger, pursued that which was the customary and proper course for boats to pursue in passing from above to below the line of the bridge? It appears from the findings that the lookout was not confined to one person, but that several were gathered in the pilot-house, on the lookout for all indications of danger, and all customary guards and warnings. We are of opinion that the conclusion of the Circuit Court was right, and that it would be placing too severe a condemnation on the conduct of the pilots in charge of the boats, to say that their error of judgment, their dependence on the appearance of the stream, and their reliance upon the duty of the defendants to place suitable buoys or other warnings, was such contributory negligence as would relieve the defendants from liability for the results of their almost confessed, and certainly undoubted, negligence. The judgment is affirmed. HUMPHREYS v. PERRY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS. No. 167. Argued and submitted March 23, 24, 1893. - Decided April 10, 1893. A travelling salesman for a jewelry firm bought a passenger ticket for a passage on a railroad, and presented a trunk to be checked to the place of his destination, without informing the agent of the company that the trunk contained jewelry, which it did, and without being inquired of by the agent as to what it contained. He paid a charge for overweight as personal baggage, and the trunk was checked. It was of a dark color, iron bound, and of the kind known as a jeweler's trunk. It had been a practice for jewelry merchants to send out agents with trunks filled with goods, the trunks being of similar character to the one in question, and, as a rule, they were checked as personal baggage. But there was no evidence tending to show that the railroad companies, or their agents, knew what the trunks contained: Held, (1) There was no evidence showing, or tending to show, that the agent Opinion of the Court. of the railroad had any actual knowledge of the contents of the trunk; (2) There was no evidence from which it could fairly be said that the agent had reason to believe that the trunk contained jewelry; (3) The agent was not required to inquire as to the contents of the trunk, so presented as personal baggage; (4) The company was not liable for the loss of the contents of the trunk. The cases on the subject, reviewed. THE case is stated in the opinion. Mr. Richard S. Tuthill, (with whom was Mr. Frederick C. Hale on the brief,) for appellees. Mr. Wells H. Blodgett, for appellants, submitted on his brief. MR. JUSTICE BLATCHFORD delivered the opinion of the court. This is an intervening petition, filed May 28, 1886, in the Circuit Court of the United States for the Northern District of Illinois, by John H. Perry, Arthur J. Perry, James K. Perry and Frank A. Perry, copartners under the firm name of Perry Brothers, in the suit pending in said court, of the Wabash, St. Louis and Pacific Railway Company against the Central Trust Company of New York and others, in which suit Solon Humphreys and Thomas E. Tutt had been appointed receivers of said railway. The intervening petition was filed against the receivers by leave of the court. It sets forth that the principal office of the firm of the petitioners is at Chicago; that on January 30, 1885, Arthur J. Perry, one of the firm, in carrying on its business, bought and paid for a ticket for his passage from Springfield, Illinois, to Petersburg, Illinois, over and upon the railroad of the company running between those two places, and at the same time checked with the company a trunk containing jewelry, watches and merchandise of the firm, such as was necessary for him to take with him in prosecuting the business of the firm, and such as is usually taken as baggage by travelling salesmen in prosecuting business similar to that of Opinion of the Court. the petitioners, for transportation by the company from Springfield to Petersburg; that for the transportation of the trunk he paid the company a sum of money additional to that which he had already paid for his ticket; that thereupon he entered the coach of the company, and the trunk was placed by its agents in the baggage-car of the company en route for Petersburg; that shortly before reaching that place, by the negligence and carelessness of the company in constructing and repairing its roadbed and track, and in running that train, the cars containing said Arthur J. Perry and said trunk were derailed, and the baggage-car containing the trunk was overturned and rolled down an embankment, and at the foot thereof, by the negligence and carelessness of the company in using in the car an unsafe, improper and dangerous kind of stove, and in having said stove unsecured or improperly secured, the baggage-car caught on fire and was totally consumed, together with said trunk, and the watches, jewelry and merchandise of the petitioners in the trunk were almost totally destroyed; that the value of the trunk and its contents was $9818.46; that the petitioners recovered from the debris of the baggage-car a part of the merchandise, so that their loss amounts to $9218.46; that the receivers were appointed May 29, 1884, and had possession of and were operating said road from Springfield to Petersburg at the time of the loss of the trunk; and that they had refused to allow the claim of the petitioners. The prayer of the petition is that the receivers answer the claim for damages. The answer of the receivers sets forth that at the time in question they were not prepared to carry articles of jewelry. and watches as baggage, and did not undertake or advertise themselves to the public as ready or willing to transport the same; that by the rules of the receivers, then in force and well known to the intervenors, the agents and servants of the receivers were not allowed to take trunks containing jewelry, watches and valuable merchandise as baggage; that on January 30, 1885, Arthur J. Perry, one of the intervenors, presented to the agent of the receivers, at Springfield, Illinois, the trunk in question and demanded a check therefor, and the Opinion of the Court. receivers then and there undertook to carry the trunk as containing only the personal baggage of said Perry; that he then and there wrongfully concealed from the said agent the fact that the trunk contained jewelry, watches or valuable merchandise, and by such wrongful conduct and fraudulent concealment of the contents of the trunk and their value, secured a check for it from the agent as baggage; that, because it was so checked, it was placed by the agent in a baggage-car and transported as ordinary baggage by the receivers over said line of road; that, before reaching Petersburg, on said day, the train containing the baggage-car in which the trunk had been placed became derailed, without fault or negligence on the part of the receivers or their agents or servants; and that, without any such fault or negligence, the baggage-car caught fire after being so derailed, and a portion of the contents of the trunk, so wrongfully and fraudulently shipped as baggage, was destroyed. The answer denies that the intervenors are entitled to any relief. On June 30, 1886, the court made an order referring the intervening petition to E. B. Sherman "to take proof and report the same to the court." Mr. Sherman was one of the masters in chancery of the court. He took proofs and made a report to the court, accompanied by the proofs, and filed October 23, 1888. In his report, he recites the order of reference as directing him to take evidence and report to the court "with his findings in the premises." He did report the evidence and also findings by him both of fact and of law. The receivers excepted to the report because (1) the findings were contrary to the evidence, (2) the findings were contrary to law, (3) the findings were contrary to the law and the evidence, (4) the finding should have been that the intervening petition be dismissed, (5) the intervenors were not entitled to the relief prayed for, and (6) the amount found by the master was excessive and not warranted by the testimony. The master found that the intervenors were entitled to recover from the receivers $7287.87, with costs. There was no exception to the fact that the master had found the facts and the law, or had departed from the order of reference, and neither Opinion of the Court. of the parties nor the court took any objection in that respect.1 The case was heard before the Circuit Court, held by Judge Gresham, 39 Fed. Rep. 417, on the report of the master and the exceptions thereto; and a decree was made, July 29, 1889, overruling the exceptions, confirming the report of the master, and decreeing in favor of the intervenors for $7287.87, and for the payment of that sum to them by the receivers, with costs, and $150 for master's fees. From this decree the receivers have appealed. On January 30, 1885, Arthur J. Perry, a member of the intervenors' firm, was in Springfield, Illinois, with a trunk of jewelry containing a stock of goods from which he was to make sales and deliveries to their customers. He there bought a passage ticket from the agent of the receivers, for his transportation to Petersburg, on their road, and presented his trunk to be checked to Petersburg as his personal baggage. The trunk was of a dark color, iron bound, weighed 250 pounds, and as to size was described in the evidence as being "what a sample-man would call small." The agent gave him a check for the trunk and collected from him 25 cents on account of its extra weight, only 150 pounds of personal baggage being carried free for each passenger. Nothing was said to the agent by Perry concerning the contents of the trunk, nor did he make any inquiries of Perry in regard to its contents. When the train had reached a point a few miles from Petersburg, the car in which the trunk was being conveyed was thrown from the track and was ignited from the fire in a stove on board, and the trunk and contents, to the value of $7287.87, were destroyed. There was evidence tending to show that the stove was cracked and that its door was without a latch or other fastening. As to the cause of the derailment, there was evidence tending to show that the night was cold, and that, as the train was rounding a curve, a rail broke under it. There was also evidence tending to show that many of the 1 The master states that a stipulation was made before him by the parties that he should report his findings in the premises, though no such stipulation is found in the record. |