#### St. Louis Southwestern Railway Company v. Johnson.

Opinion delivered April 22, 1907.

Trial — directing verdict. — ■A passenger sued a railway company, alleging loss of her trunk containing numerous articles of baggage, of which a hill of particulars was filed. Defendant did nott raise any issue as to plaintiff’s right to transport any of the articles contained in .the trunk. No fact was developed in plaintiff’s examination which affected her credibility unless it be her interest; nor was her testimony contradicted in any manner. Held, that the court properly directed a verdict for the amount sued for.

Appeal from Monroe Circuit Court; George M. Chapline, Judge;

affirmed.

Sam. H. West and T. C. Hawthorne, for appellant.

1. The court erred in directing a verdict for the plaintiff.

2. Without previous notice to the agents of the company that such things as field glasses, opera glasses, jewelry, etc., are to be included, no recovery can be had for their loss and in this case the question should have been submitted to the jury whether such articles were fairly to be construed as baggage. 100 U. S. 24; 57 Am. Rep. 230; 11 Humph. 420; Hutchinson on Carriers, § 679; 25 S. W. 60; 74 Ark. 125.

Thomas & Tee, for appellee.

No issue was raised in the lower court, either in the answer or in the evidence, that the jewelry, etc., mentioned in the bill of particulars were not baggage. There is no denial of the contents of the trunk nor of the value of the articles contained in it. The court properly directed a verdict for the plaintiff.

57 Ark. 461; 76 Ark. 520; 75 Ark. 406; 71 Ark. 447. For definition of baggage, see 65 Ark. 366. Shotguns in a lost valise were held to be baggage. 74 Ark. 126. Also money carried as baggage. 60 Ark. 433.

Battle, J.

Annie R. Johnson brought this action, in the Monroe Circuit Court, against the St. Louis Southwestern Railway Company to recover the value of lost baggage, alleging that on or about the 27th day of January, 1906, she purchased from the defendant, at Memphis, Tenn., a ticket for her transportation from that place to Clarendon in this State, and received a check *366from.it foriher trunk) and its .contentsand .through the .negligence of the defendant her trunk and its contents, of the value of $650.97, were lost; and shé filed a bill of particulars with her ootnplainR)showing the .contents of. .the trunk .and 'the) value .of 'each itérn'thereof,1 amounting in'the aggregate tó $650.97.

T.o the. complaint of plaintiff the defendant answéred and denied,fhat..plaintiff_ deljvpred, a.trunk to It aRMémphis,. Tenn.; that it received a .trunk from: her and checked it; .that, it was lost'through'its negligence; that it contained the items in the bill of particulars filed with her complaint; the' value ' of each item, a’s stated in-the bilb of particulars; and'that it is liable for the loss of the same. .

Mrs. Annie R. Johnson, in her own behalf, testified that she went from'Clarendon, in this State, to Memphis, Tenn., in á train of the defendant for the purpose of' attending 'the theatre and visiting ' friends; that about the ' 27th of January, 1906, she purchased ' a' ticket" from the defendant at Memphis' 'for ‘her transportation ‘from that place'to Clarendon and'a check for hér trunk;' and ’ returned tó the latter' place. " The evidence' shows clearly’that'the defendant" gave her'a check for'her trunk, "and was 'in duty bound to transport it from Memphis to Clarendon. She testified as to the contents of the trunk, stating the articles contained and their value, which) .amounted-in the aggregate to $650.97 ; and that these articles were put in her trunk, and carried for her personal use,and conveniepce-on, that, journey; and. that the trunk .and.its contents were; neyer. delivered to her — were lost ,

'/.¡...Qther, evidence,.yyas adduced, 1b,y .both .parties, .but ,we have failed to,see’after carefui reading that it conflicts in any manner with the,,testimony oRMrs. Johnson, . . , , ,

,, Rhe, .coupRinstructed .the jury to return ,a verdict,in, favor of the plaintiff for the amount sued for, whiph they did,., To the giving pf w^iich..instruction the defendant'at the .rime ex-qeptpd., ni , ,,,

h. ¶, Dpif errant requested .the cqurt to' ipstr-uct the jury as follows:', ’ ' ' . .

r,,“i. , Thq jupy was .instructed .to retprn a( verdipt .for the defendant in .this case. .. , ■

“2. Carriers are responsible to passeñgers for loss of bag*367gage. The baggage must consist of wearing apparel of the passengers. No such things as field glasses, opera glasses, jewelry and ithimbles can be recovered a<s baggage unless some notice is given to the conductor or its agents that such articles are included in the baggage.”

The court refused to grant the requests.

The right of the plaintiff to the transportation of the articles contained in the trunk, if such as alleged by her, as baggage, was not questioned in the pleadings. No issue controverting that right was raised in the pleading or evidence Her knowledge of the value of the contents was not impeached 'by the asking of any question as to facts affecting the value. No fact was developed by her examination in chief and cross-examination, unless it be her interest, which affected her credibility. Many questions touching her knowledge of the value might have been propounded to her Which were unasked. Her knowledge of facts stated and veracity were not attacked..

We see no reason why the jury should have rejected her testimony. The court committed no error in instructing them to return a verdict in her favor for the amount sued for. American Central Insurance Co. v. Noe, 75 Ark. 406.

Judgment affirmed.

Riddick, J., dissented.