thereby from that of a common carrier to that of a warehouseman, the usage, custom, or course of business may, and should, be considered; and if it should appear that a custom exists whereby the common carrier retains the baggage overnight, then such custom becomes one of the important circumstances to be considered in determining whether or not a reasonable time had elapsed for the delivery of the package. Counsel on both sides have referred to Wallace v. Railway Co., 176 Mich. 128 (142 N. W. 558). This court there held, in substance, that the strict rule of liability for baggage of passengers continues after arrival of the passenger at his destination, and until the lapse of a reasonable time thereafter; what is a reasonable time is a question of fact for the jury, if there is any dispute about the facts. In that case Justice MCALVAY, speaking for the court, referred to 3 Am. & Eng. Enc. of Law (2d Ed.), p. 565, and cases there cited. It is there said:

"The troublesome question in this connection is as to what constitutes such reasonable time, and must be determined from all the circumstances of the case, such as the character of the station, the facilities there for receiving baggage, and the opportunities afforded by the carrier for delivering baggage when called for."

This question is largely one for the jury upon all the facts of the case, but when the facts are not disputed it is for the court to decide. In determining the question the jury must take into consideration all the circumstances shown by the evidence bearing upon that question, and the general and usual custom or manner in which the company transacted its business in relation to such baggage at the depot in question in regard to the delivery of such baggage.

In applying the rule that the liability of a carrier continues for such a reasonable time after the arrival of the train as is necessary to effect delivery, it is

necessary to determine what constitutes a reasonable time, and upon this point there is considerable difference of opinion. While it is said that the question is a mixed one of law and fact, if the facts only are in dispute it is a question for the jury, and one which is necessarily dependent upon the circumstances of each particular case. When the facts are in dispute the jury should decide, under the instruction of the court as to the law, and where the facts are undisputed, it is purely a question of law, and the court should decide it. In determining what is a reasonable time with respect to custody of baggage after it has reached its final destination, the course of business and practice of the carrier constitute an important element in the question. If it is customary for a carrier to close its depot so soon after the arrival and departure of an evening train that the baggage handlers do not customarily go to the depot at night, the failure of the passenger to remove his baggage until the next morning does not necessarily relieve the carrier from its liability as such in the interim. 5 Ruling Case Law, p. 216, and cases cited.

We have examined the cases cited by counsel for both parties. There is much force in the position taken by plaintiff's counsel that the custom of leaving baggage overnight was shown in this case by uncontradicted evidence; and upon that question the court might well have instructed the jury that the defendant was liable as a common carrier. We think the court should have so charged. However, the court permitted the jury to determine whether a reasonable time had elapsed, and, if so, whether there was any negligence for which defendant was liable as a warehouseman. The jury found, either that a reasonable time had not elapsed, and that defendant was liable as a common carrier, or that such time had elapsed, and defendant was guilty of negligence. In other

words, defendant was not prejudiced by the submission to the jury.

An examination of the authorities leads us to the conclusion that no error was here committed of which the defendant can complain, as we find there was some evidence in the case upon the question of negligence, and sufficient upon that subject to carry the case to the jury. The following cases refer to the subject of custom: Geo. F. Dittman Boot, etc., Co. v. Railway Co., 91 Iowa, 416 (59 N. W. 257, 51 Am. St. Rep. 352); Tallman v. Railway Co., 136 Wis. 648 (118 N. W. 205, 16 Am. & Eng. Ann. Cas. 711); McCoy v. Railroad Co., 84 S. C. 62 (65 S. E. 939); Ouimit v. Henshaw, 35 Vt. 605 (84 Am. Dec. 646); Powell v. Myers, 26 Wend. (N. Y.) 591; Moffat v. Railroad Co., 123 App. Div. 719 (107 N. Y. Supp. 1113).

2. As to the refusal of the trial court to permit defendant's Exhibit No. 3, being the tariff schedule, to be introduced in evidence, it was objected to upon the trial by plaintiff's counsel that this document and the evidence relating thereto were not admissible under the plea of the general issue; that in a tort action like the present against a common carrier to recover for loss of baggage, the defendant cannot rely upon a special contract limiting liability, unless the same has been specifically or affirmatively pleaded. Circuit Court Rule 7b provides as follows:

Our

"An affirmative defense, such as payment, release. satisfaction, discharge, license, fraud, or failure of consideration in whole or in part, and any defense which by other affirmative matter seeks to avoid the legal effect of, or defeat the cause of, action set forth in plaintiff's declaration, must be plainly set forth in a notice added to the defendant's plea.'

This rule took effect January 1, 1897, and was adopted by this court in pursuance of the provisions of section 10074, 3 Comp. Laws, which reads as follows:

"The Supreme Court may make such rules in relation to notice of matters intended to be given in evidence by either party, as shall be necessary to prevent surprise, and to afford opportunity for preparation for trial."

This rule has been applied by this court in the following cases: Bryant v. Kenyon, 123 Mich. 151 (81 N. W. 1093); Walbridge v. Tuller, 125 Mich. 218 (84 N. W. 133); Putze v. Insurance Co., 132 Mich. 670 (86 N. W. 814, 94 N. W. 191); R. K. Carter & Co. v. Weber, 138 Mich. 576 (101 N. W. 818); Scott v. Longwell, 139 Mich. 12 (102 N. W. 230, 5 Am. & Eng. Ann. Cas. 679); Richardson & Co. v. Noble, 143 Mich. 546 (107 N. W. 274); Baumler v. Insurance Co., 148 Mich. 430 (111 N. W. 1069). The following cases in other jurisdictions bear upon this subject: Aultman Co. v. Railway Co., 143 Iowa, 561 (121 N. W. 22); Michalitschke v. Wells Fargo & Co., 118 Cal. 683-689 (50 Pac. 847); Chicago, etc., R. Co. v. Dunlap, 71 Kan. 67 (80 Pac. 34); Missouri, etc., R. Co. v. Grocery Co., 55 Kan. 525 (40 Pac. 899); Lacey v. Railroad & Navigation Co., 63 Or. 596 (128 Pac. 999); Nashville, etc., R. Co. v. Parker, 123 Ala. 683 (27 South. 323); St. Louis, etc., R. Co. v. Wilson, 85 Ark. 257 (107 S. W. 978); Deierling v. Railroad Co., 163 Mo. App. 292 (146 S. W. 814). A reference to the above cases will show that they sustain the position claimed by the plaintiff. In our opinion the claimed defense, seeking to restrict the liability of the carrier, was not admissible under the general issue. Upon this subject the defendant's counsel cite the cases of Eureka, etc., Steel Works v. Bresnahan, 66 Mich. 489 (33 N. W. 834), and Rogers v. Robinson, 104 Mich. 329 (62 N. W. 402). It evidently escaped the attention of counsel that both of these decisions were made before the adoption of Circuit Court Rule 7, which materially changed the practice upon that subject.

3. What we have already said disposes of defendant's claim under this head. It may be said, however, that, it appearing that there was no fraud or deceit on the part of the plaintiff in checking the baggage, we think the case is controlled by Farnsworth v. Express Co., 166 Mich. 676 (132 N. W. 441), where reference is made to the proviso in section 40 of Act No. 300, Pub. Acts 1909, being the last clause of said section, which reads as follows:

"Provided, that nothing herein contained shall be so construed as to abridge or in any wise lessen the liability of any such common carrier as it now is under existing laws."

This court said:

"In view of the proviso of section 40, above quoted, we are of opinion that it was not the intention of the legislature to change the common-law liability of carriers as it had existed prior to the passage of the act."

Unless we are to overrule the Farnsworth Case, it must be held to be controlling of this question, notwithstanding the rulings of the Supreme Court of the United States in Boston, etc., Railroad v. Hooker, 233 U. S. 97, 34 Sup. Ct. 526, and kindred cases relating to the interstate commerce act and its amendments, which latter act differs materially from the Michigan act, above referred to, and contains no such proviso as that above quoted. So, in any view of the case which we are able to take, we are of opinion that the record discloses no error of which the defendant can complain.

The judgment of the circuit court is therefore affirmed.

BROOKE, C. J., and MCALVAY, KUHN, OSTRANDER, BIRD, MOORE, and STEERE, JJ., concurred.