Gillette v. Goodspeed

Baldwin, J. A ferry can only be maintained by authority from the State, and is the proper subject of public regulation. Enfield Toll Bridge Co. v. Hartford & New Haven Railroad Co., 17 Conn. 40, 64. Our laws provide that every ferry shall be furnished with a boat properly provided and manned, sufficient for the safe and speedy transportation of passengers, their teams, and other property; that two commissioners shall be appointed for each ferry, who shall, as often as they deem necessary, carefully inquire into its management, inspect the boats, and see that it is kept according to law; that, should they at any time find that it is not so maintained, they shall order the town or towns in which it is situated to make the defect good within such time as they shall appoint; and that if this order is not obeyed, they shall themselves cause the deficiency to be repaired or supplied as soon as possible; the expense to be liquidated by the Superior Court, which shall issue execution therefor in their favor against the defaulting town or towns. It is further provided that any person who is bound to maintain a ferry between towns, may be compelled by them so to do, and to reimburse them for all charges legally incurred b}r them by reason thereof; and that if he should, in the opinion of the commissioners, neglect to maintain it according to law, they can make an order against him for its maintenance, on pain of his forfeiting all his interest to the town or towns in or between which the ferry is situated. General Statutes, Chap. CLXII, p. 604. [368] A special tribunal has thus been erected for the inspection of ferryboats, with power to pass summary orders for any changes in them deemed necessary for the safety of passengers or their teams, and to enforce them, in case of need, at the expense of the town or towns in which the ferry landings may be. The defendant’s boat was provided with rings, ropes and chains, for securing horses and vehicles. It had been thus equipped for many years, during which it had transported over a hundred thousand horses without injury to any. It is found that horses fastened to such rings are less likely to go overboard than if held bjr their owners, but are liable to injure themselves, and, in view of all risks of danger, are probably not so safe as when held by men of ordinary strength. The complaint charges the defendant with fault in two particulars. One is the making of unnecessary noise in the use of the steam power by which the boat was run; but the finding is that in this respect there was no want of reasonable care. The other is neglect to provide the ends of the boat with any chain, gate, or other guard. By this averment the plaintiff asks the courts to pass upon a matter peculiarly within the jurisdiction of the ferry commissioners. Whether a certain ferryboat should be equipped with a certain kind of apparatus or safeguard, in preference to any other, for the protection of horses, is a practical question which can best be determined by those specially familiar with the ferry business and the particular local circumstances affecting the particular ferry. It is found that the defendant has not failed to meet every requirement of the commissioners on his ferry. It must be assumed that those public officers have done their duty. If they have not ordered him to replace or supplement his apparatus for securing horses and teams from risk of injury, by gates, chains, or other guards at either end of the boat, it is presumably because they deem it unnecessary or unwise. Any such safeguards, if maintained throughout the trip, must [369] to some extent be an impediment to a speedy landing ; and if removed before the shore were reached, the act of their withdrawal might lead horses to suppose the time had come to start, and so become uneasy and restive. The balancing of advantages and disadvantages between the adoption of one or another method of promoting the convenience and safety of travelers in these respects, is an appropriate function of the commissioners set by tbe State to oversee this ferry. The finding of the Superior Court that the defendant was negligent in not providing gates, chains, or other barriers, at the end of the boat, cannot support the judgment, unless it further appears that he was under a legal obligation to make such a provision. Guards of this description certainly cannot be said to be necessary in every ferryboat. The ferryman is not an insurer of the safety of passengers, or of the property in their keeping. Evans v. Goodrich, 46 Minn. 388; Loftus v. Union Ferry Co., 84 N. Y. 455. The only negligence on the part of the defendant, which is stated in the finding, is a failure to perform the duty which it was assumed that the law imposed upon him of equipping his boat at both ends with guards. It is found that he provided for the protection of the plaintiff’s team means which, if used, would have prevented the accident, and that the plaintiff knew of these means, and did not use them, believing his horse to be kind and gentle. It is not found that the defendant was negligent under such circumstances in failing to ask the plaintiff to thus secure his team; and a finding of negligence on such ground could hardly be defended. The question of negligence depends wholly on the ruling of the court that it was the duty of the defendant to provide his boat at all times with the guards specified. Had it appeared that the attention of the ferry commissioners had been directed to this matter and an order made regulating the use of guards, a'compliance with that order might have protected the defendant; and certaiuly would, unless the evidence showed that for reasons peculiar to this case the requirements of ordinary prudence called for additional and special pre [370] caution. Nolan v. N. Y., N H. & H. R. R. Co., 53 Conn. 461, 473; Dyson v. N. Y. & N. E. R. R. Co., 57 id. 9, 22; Rowen v. N. Y., N. H. & H. R. R. Co., 59 id. 364, 369; Bates v. N. Y. & N. E. R. R. Co., 60 id. 259, 266. And in the absence of any such order, the presumption arising from the failure of the commissioners, for more than twenty years, to prescribe this special equipment, is entitled to some weight 'in deciding the question of legal duty. We do not think that guards of the kind described are so clearly requisite to the safe transportation of property by ferrymen, that the law imposes upon each one the duty of providing such guards. There is nothing in the present case to indicate any special duty belonging to this ferryman. It follows that the plaintiff failed to prove any actionable negligence. Had he been entitled to recover, it would have been proper to include, as was in fact done, the value of the wagon in the damages assessed. If goods in the hands of a bailee are lost by the wrongful act of a third party, the latter is liable to him for their full value, unless the owner interposes by a suit for his own protection. The sum recovered by the bailee, above what is necessary to compensate him for the loss of his possession and special property, he will hold in trust for the owner; and the wrong-doer cannot complain that he is made to pay greater damages than the plaintiff has sustained, because the plaintiff, for all the purposes of the action, represents the owner, and occupies his place. White v. Webb, 15 Conn. 302. There is error, and a new trial is ordered. In this opinion the other judges concurred.