"Stipulated Valuation. "If any passenger stipulates for a greater sum than $100.00 for an adult, or $50.00 for a child, to be paid in case baggage is damaged, destroyed or lost, the charge for the increased valuation will be one-half of the current excess baggage rate per 100 lbs. of excess baggage (for the distance carried) for each $100.00 or fraction of $100.00 for the increased value stipulated, adding enough when necessary to make the rate end in zero or five. No charge less than 25 cents to be made. "Limited Liability. "This company will not be responsible in any sum greater than $100.00 for loss of or damage to baggage belonging to an adult passenger, or $50.00 for baggage for a child, unless a greater sum is stipulated and excess charges paid for increased valuation at time of checking.' Mr. Nuthall knew the rate upon excess baggage was governed by the price of the ticket, and that where the fare was from 1 cent to 20 cents the rate was 8 cents per 100 pounds, and where the fare was from 21 cents to 40 cents the rate upon excess baggage was 10 cents per 100 pounds, and so on. He knew that defendant had a tariff covering those charges for carrying excess baggage. The fare from Pinckney to Stockbridge was substantially 40 cents. Mr. Nuthall made no claim, when checking his baggage and paying the excess rate, that it was worth to exceed $100, and his testimony is undisputed that he did not know of a regulation or rule providing for different rates on excess baggage. Upon that subject he testified as follows: "Q. Did you know at this time that there was any rule or regulation relative to the limitation of the liability of the railroad company to $100? "A. No, sir. "Q. Was your attention challenged to any such liability, or called to it on that day, or was it mentioned to you? "A. No, sir." Mr. Nuthall took defendant's passenger train No. 29 from Pinckney to Stockbridge, his trunks going upon the same train. The trunks were put off in the usual manner at the depot. Mr. Nuthall observed them upon the depot platform before he left to go uptown. He said nothing to the agent or his helper at Stockbridge that evening. Leaving the train he went immediately to the waiting bus and was taken to his hotel. The checks for the trunks were given by Mr. Nuthall to the busman, who ran a dray line in connection with his bus line, and Mr. Nuthall instructed him to deliver the trunks to the hotel the following morning. Upon that subject he testified, upon cross-examination, as follows: "Q. You did not intend to take your trunks away from that depot that night? "A. I did not intend, did you say? "Q. No; you were going to leave your trunks until the next morning; that was your intention? "A. My intentions were governed to a certain extent by whether the drayman wanted to bring them that night or not. "Q. You did not ask the drayman to deliver your trunks to you that night? "A. The drayman asked me "Q. No; answer my question. 66 'A. I did not. "Q. What did the drayman ask you? * * * "A. He asked me if it would be all right to bring them in the morning. It was late, and the depot would close directly after the train left. I told him it would, if he would bring them over early in the morning. He was to bring my baggage to the sample room at the hotel. I did not make any request of the depot man at Stockbridge to leave his depot open to give a drayman an opportunity to take my trunks away that night. It was my purpose to take all my trunks up to town the next morning. I delivered my checks to the drayman; the busman, who was also the drayman. One man operates both wagons there, or did up to that time anyway." The defendant's helper and baggageman at Stockbridge, among other things, testified as follows: "Q. State whether or not it was customary for traveling salesmen coming in on that train to leave their sample trunks in the depot overnight. "A. It was customary. "Q. And that custom had prevailed for some time, had it, in Stockbridge? "A. Yes, sir." Mr. Nuthall, on his direct examination, had also testified as follows: "Q. What had been your custom and practice from the previous October of 1909 down to July 5, 1910, about what you would do with your trunks when you came into Stockbridge on that train?" Objection having been made to this question, the court said: "Go ahead; you may answer the question; I understand you are inquiring the custom and practice that is understood and acquiesced in by the carrier at Stockbridge? "Plaintiff's Attorney: Yes, your honor. "The Court: That is the custom of both of these people? "Plaintiff's Attorney: Yes, your honor. "The Court: Not his particular custom? "Defendant's Attorney: His custom would not bind us. His particular custom could not possibly bind the carrier without its being acquiesced in and understood by the carrier and accepted. "Plaintiff's Attorney: That is what I want, the custom that is understood by the carrier, by the railroad company itself, as you understand it, and that was acquiesced in and followed from the previous October down to this time in relation to your trunks. "A. Getting in on a late train we had always left them there overnight. * * * "Q. What would the baggage agent do with the trunks when you did that? * * * "A. Put them in the baggageroom, and keep them there overnight. "Q. Had that been the case since the previous October, down to this date? "A. Yes, sir." The baggageman's helper at Stockbridge was on duty alone when No. 29 arrived on the evening in question. He stayed at the depot until all the passengers who had come in on that train left, and then put the trunks, including those of plaintiff's, into the waiting room of the depot, the baggageroom being too small to care for all of the trunks. He then locked the depot and went home for the night, there being no more passenger trains scheduled to arrive at that station that evening, and Stockbridge was not a 24hour station. He testified that had he been requested he would have remained at the depot to permit Mr. Nuthall's trunks to have been taken to the hotel that evening, but Mr. Nuthall made no request to wait until he could get the trunks. The night was a very warm one. Defendant's depot was discovered on fire about half an hour after it had been closed. It was a wooden structure, and the building, together with plaintiff's trunks, was entirely consumed. Plaintiff brought suit to recover the value of seven sample trunks and their contents. The records of the defendant showed but four pieces of baggage were checked. There was a disputed question of fact as to whether there were seven or four trunks. The jury, by their verdict, found that plaintiff had but four trunks and their contents consumed. The declaration contained five counts. Four of them charged negligence on the part of the defendant. The plea was the general issue. Upon the trial plaintiff offered testimony tending to show that the fire arose from spontaneous combustion, caused from ignition of oil and waste kept in the baggageroom. The trial court submitted the following propositions to the jury by its charge: (1) Was defendant a carrier, or warehouseman of plaintiff's trunks? (2) Was the fire started by spontaneous combustion? The jury rendered a verdict in favor of the plaintiff in the sum of $815.77, which included the value of the four trunks, contents thereof, and interest thereon. Judgment was entered thereon. The defendant has brought the case here upon writ of error, and by appropriate assignments of error its counsel claim that the court erred in the following particulars: (1) In the refusal to instruct the jury, as requested, that defendant was not a carrier of the trunks in question, but was a warehouseman and only liable for negligence; (2) refusal of the trial court to permit defendant's Exhibit No. 3 to be introduced in evidence; (3) refusal of the trial court to instruct the jury, as requested, to the effect that plaintiff could not, in any event, recover more than the sum of $100 as the value of the trunks and contents. 1. It is the claim of defendant that the question of whether defendant was a common carrier or warehouseman was, under the testimony, a question of law and not of fact; the facts being undisputed. It is urged that the rule of law in this State is now settled, to the effect that a railroad company continues as a common carrier of baggage after its arrival at destination until a reasonable time has elapsed for delivery, and after such reasonable time its liability is that of a warehouseman, and it is not an insurer, but liable only for negligence. Defendant's counsel did not, in their brief, nor did they at the hearing, argue the question whether there was evidence of negligence on the part of the defendant, as the cause of the fire. It is the claim of the plaintiff that in determining whether a reasonable time had elapsed for the removal of plaintiff's baggage, and whether the defendant's liability had been changed |