that there was any lease by which the defendant run its trains over the bridge, and to the depot at Atchison. Under this evidence, the defendant insists that it cannot be sued in the county of Atchison, for the reason that it does not lease, own, or control any line of road in the city of Atchison. The record shows that this action was brought in Justice's Court, and appealed by defendant to the District Court, where the case was tried upon the bill of particulars as filed in the Justice's Court. Nowhere does the record disclose any objections to the jurisdiction of the court, either before the justice of the peace or the District Court; and the first objection made to the jurisdiction of the court was made in the motion for a new trial. This seems to us to be too late to raise that question. If the defendant desired to challenge the jurisdiction of the court, it ought to have done so at an earlier period in the history of this case. Miller v. Bogart, 19 Kan. 117; Railroad Co. v. Akers, 4 Kan. 453; Shuster v. Finn, 19 Kan. 114.

Validity of contract limiting liability.

The second reason assigned why this judgment should be reversed or modified is, that the ticket issued by the defendant, and under which this baggage was checked, was a contract limiting the liability of the defendant, in case of loss of baggage, to $100. It is perhaps true that the defendant might, by a special contract, limit its liability so as not to be responsible in case of loss of baggage beyond a given sum, provided the contract was a reasonable restriction. In this case there was no contract on the part of the plaintiff, and no knowledge was conveyed to her of any intention on the part of the defendant to limit its liability, save and except what the ticket itself contained; and this was. not read, or its contents made known, to the plaintiff. Can this be called or implied a contract? We think that, before the plaintiff can be bound by the declarations in the ticket for transportation on a passenger-train, the restrictions or limitations sought to be made must be known to her, and she must have accepted the ticket with a full knowledge of the restrictions contained therein. This ticket contained a blank for the signature. of the purchaser, and that signature was to be witnessed by some one. This was not done in this case. The object of that blank space being left there was, doubtless, that the attention of a purchaser might be called to the conditions of the ticket, and, when called to sign it, he would then know its contents. This would constitute a contract between them, but without it there would be no contract, and no restriction or limitation of the liability of the company. The ticket is not a contract of itself; it is simply evidence of a contract. Lawson, Cont. sects. 106, 107. Before the giving of this ticket there was nothing said between

the parties that one was to limit his liability under certain conditions or circumstances, and consequently the ticket could not be evidence of a contract that did not exist. Again, where a person purchases a ticket, he does not expect that thereby he is making a contract limiting the liability of the railroad company, but simply that he is receiving a check showing that the fare has been paid over the line to the place of destination, wherever that may be. Railroad Co. v. Campbell, 36 Ohio St. 657; s. c., 3 Am. & Eng. R. R. Cas. 246; Railroad Co. v. Fraloff, 100 U. S. 24; Railroad Co. v. Roach, 35 Kan. 740; s. c., 27 Am. &. Eng. R. R. Cas. 257, and cases there cited.

But defendant insists that this baggage was not destroyed or injured while in its possession or under its control, but after it had been transferred to the employees of the union

Defendant's

tion of bag.

gage.

depot at Council Bluffs. True, the baggage was in negligence the union depot when it was destroyed; but it was caused destructhere in the same condition that it was left or placed in by the agents of the defendant. Its employees had placed it upon the truck; and after it was placed there, with other baggage, nothing was done to it by the employees of the Union Depot Company to cause its destruction; but it was destroyed by reason of improper baggage having been placed on top of the trunks, the contents of which when placed in the depot were spilled over the baggage, thus destroying it. Then, it was the act and negligence of the defendant that caused the injury. It had received a box not in condition to be taken as baggage, containing a jug of acid, which was liable to be broken, and its contents spilled over the baggage, and had carelessly and negligently placed such box on the trunk of the plaintiff. Without passing upon the question as to the liability of the defendant, had the baggage been transferred to a connecting line, and then by the negligence of the employees of said connecting line the baggage had been lost, we hold that the defendant, by its negligence and carelessness, caused the destruction of this baggage, and is liable therefor.

It is recommended that the judgment of the court below be affirmed.

BY THE COURT. It is so ordered; all the justices concurring.

Limiting Liability for Baggage.

See Mauritz v. New York, etc., R. Co., 21 Am. & Eng. R. R. Cas. 286, note 292; Baltimore & O. R. Co. v. Campbell, 3 Ib. 246.

GREAT WESTERN R. Co.

ย.

BUNCH.

(House of Lords, Law Reports, 13 App. Cas. 31.)

Passengers' Baggage — Delivery to Porter- Liability of Company. — An intending passenger arrived at a railway station at 4.20 P.M. on Christmas Eve, with a travelling-bag and two other articles of baggage, in order to travel by the 5 P.M. train. A porter labelled the two articles, and took all the articles to the platform, the train not then being at the platform. The passenger told the porter she wished the bag to be put into a carriage with her, and asked if it would be safe to leave it with him. He replied that it would be quite safe, and that he would take care of the baggage and put it into the train. She then went to meet her husband and get her ticket. Ten minutes after she had left the baggage, she and her husband returned together to the platform, and found that the two labelled articles had been put into the baggagecar of the train, but that the porter and the bag had disappeared. In an action against the railway company for the loss, held, that there was evidence upon which the trial court might reasonably find that the bag was in the custody of the railway company for the purposes of present and not of future transit from the time when it was delivered to its porter until its disappearance, and that its loss was due to their negligence.

Same Liability of Company - Common Carriers. A railway company accepting passengers' baggage, to be carried in a carriage with the passenger, enter into a contract as a common carrier, subject to the modification, that, in respect of his interference with their exclusive control of his baggage, the company is not liable for any loss or injury occurring during its transit, to which the act or default of the passenger has been contributory. Disapproving Bergheim v. Great Eastern Railway Company (3 C. P. D. 221).

Lord Bramwell dissents.

APPEAL from decision of the Court of Appeal (17 Q. B. D. 215). In an action brought by the respondents against the appellants in the Marylebone County Court to recover damages for the loss of a bag and its contents, the following evidence was given :

On the 24th of December, 1884, the respondent, Mrs. Bunch, arrived at the Great Western Railway Station, Paddington, at 4.20 P.M., with a portmanteau and hamper, and also a Gladstone bag belonging to her husband, the other respondent, for the purpose of travelling to Bath by the 5 P.M. train. A porter came forward, and put all the luggage on a trolley, labelled the portmanteau and hamper, and wheeled the trolley on to the platform. Mrs. Bunch told the porter that she wished the bag to be put into a carriage with her, and asked him if it would be safe to leave it with him. The porter replied that it would be quite safe,

and that he would take care of the luggage and put it into the train. Mrs. Bunch then left the porter standing by the luggage on the platform, and went to the front of the station to meet her husband and get her ticket, and found that he had just arrived from the Moorgate street station, where he had taken a through ticket for himself to Bath, and that on his arrival at the Paddington station he had also taken there a ticket for her to Bath. Ten minutes after Mrs. Bunch had left her luggage with the porter on the trolley, she and her husband returned together to the place where she had left the trolley, and found that it had been taken away, and that the portmanteau and hamper had been put into the van, but that neither the bag nor the porter were forthcoming. There was a great crowd, it being Christmas eve.

Similar tickets to those taken by the plaintiffs were put in, and purported to be "issued subject to the conditions stated on the company's time bills;" and a copy of the "time bills" was also put in, containing certain general notices and regulations," which it was contended were the "conditions referred to by the tickets; and likewise a copy of a printed notice, in large characters, which was affixed in the labelling vestibule. Amongst the general notices and regulations contained in the time bills were the following:

"LUGGAGE-The company will not in any case be liable for luggage taken with the passengers into the carriages, but only when it is properly labelled and placed in a luggage van. The company will not be responsible for luggage not labelled, or improperly labelled."

The material parts of the notice affixed in the labelling vestibule were as follows:

"Passengers are required to see their luggage duly labelled, as until so labelled it will not be put into the trains, nor will the company assume or incur any responsibility whatever in respect thereof."

"The company's servants have strict orders not to take charge of any luggage or parcels, and if passengers are desirous of leaving them under the charge of the company they must themselves take or see them taken to and deposited in the cloak-room."

The county court judge found that the time when the luggage was entrusted to the porter was a reasonable and proper time before the departure of the train, and that the porter was guilty of great negligence in not being in readiness to put the bag into the carriage with Mrs. Bunch on her return, as promised; and he gave judgment for the plaintiff, Mr. Bunch, for £18, and non-suited the female plaintiff.

The defendants having obtained a rule in the Queen's 34 A. & E. R. Cas.-15

Bench Division calling on the plaintiffs to show cause why judgment should not be entered for the defendants or a new trial had, Day and A. L. Smith, JJ., differed, Day, J., giving judgment for the defendants, and A. L. Smith, J. (who was of opinion that the defendants were liable) withdrawing his judgment. The rule was accordingly made absolute to enter judgment for the defendants.

The court of appeal (Lord Esher, M.R. and Lindley, L.J., Lopes, L.J., dissenting) reversed the decision of the Queen's Bench Division and restored the judgment in favor of the plaintiff, Mr. Bunch. 17 Q. B. D. 215. Against this decision the defendants now appealed.

During the argument in this house it was agreed between the learned counsel that it was to be taken as a fact that the train was not at the platform when Mrs. Bunch arrived there with the porter and the luggage.

Sir H. James, Q.C., and R. S. Wright for appellants.
C. C. Scott for respondents.

Finding of county court

of fact.

LORD HALSBURY, L.C.-My lords, the form in which this question arises for your lordships' decision is one which precludes any consideration of the propriety or impropriety of the decision of the learned county as to questions Court judge as to any question of fact as to which there was legal evidence before him. I must observe that both the learned judges in the divisional court appear to me to have treated questions so conclusively found, as nevertheless open to review. It is, perhaps, not surprising that when questions arise upon what either are, or are assumed to be, matters of daily experience, even a judge is tempted to import his own knowledge, and so give a color to facts which he ought to treat as finally and conclusively decided by the tribunal to whom they have been remitted.

Now, in this case the facts have not been specifically found; but the learned judge has found a verdict for the plaintiff, and has stated that finding together with the evidence. If therefore it is possible to find a verdict for the plaintiff upon that evidence, the plaintiff is entitled to maintain his verdict. It seems to me that the two contentions which have been in debate before your lordships would resolve themselves into a question of fact, upon which there might be a difference of opinion if the facts were here open to review. Your lordships, in the first place, have to ascertain, not from any written instrument, nor from any express words of contract. what were the contract relations between the plaintiffs and the defendants. I confess I should have been better satisfied if some evidence directed to what was the practice of the