Richards v. Fuqua's Adm'rs

Mr. Justice Handy delivered the opinion of the, court. The first ground of error taken is, that there is no evidence in the record showing that the plaintiff in error received any compensation for transporting passengers or the property in question across the Yazoo Eiver in the ferry-boat kept by him, and, therefore, that he was only held to ordinary diligence, which, it is insisted, is proved to have been exercised by him. The evidence shows that the ferry was kept by the plaintiff in error as a public ferry, under the authority of an act of the legislature. It is not to be presumed that persons and property were transported free of charge, at such a ferry; and as no question appears to have been raised in the court below upon this point, it must be taken as conceded, and the jury were justified in presuming from the character of the business, that it was carried on for compensation. The second objection insisted upon is, that there was no such delivery of the wagon and team and driver upon the ferry-boat of the plaintiff’ in error as will render him liable as a common carrier. The evidence tended to prove, and the jury seem to have found, that a negro boy of the defendant in error drove his wagon and two mules, with a load of fodder, to the ferry, the ferry-boat being chained to the landing, and there being a steep hill to descend in getting into the boat; that the boy drove the wagon down the hill, and there being no apron to the boat, or other thing to break the force .of the descent, it struck with such force against the gunwale of the boat as to pull out the pin or screw to which the chain was fastened, in consequence of which the boat was forced from the shore, the mules and fore-wheels of the wagon being in the boat and the hind wheels [800] remaining out, and as the boat left the shore, the weight of the hind part of the wagon drew the wagon and mules into the river, the driver being on the fodder in the wagon, and the driver and one of the mules were drowned. It appears that the ferryman called to the driver to jump into the boat, or into a flatboat which was near, and which he could easily have done, but being alarmed, he jumped into the river; and that he would not have been drowned if he had remained in the wagon on the fodder. The evidence tended to show that the pin by which the boat was held to the landing was loose and unsafe, and that that was the cause of the accident, the fastening of the boat being insufficient to resist the force of the descent of a loaded wagon down the steep hill which led to the ferry-boat, and there being nothing to show that the accident was caused by improper or unskilful driving the wagon. It is manifest from this view of the purport of the evidence, that the plaintiff in error was sought to be made liable for the injury done to the defendant by the plaintiff's negligence in keeping his ferry-boat in such a condition as not to be safe for the transportation of such property as is usually conveyed in ferry-boats. The evidence in the case was fairly submitted to the jury, and their verdict has established that it was by the unfitness of the boat that the injury was occasioned. The only question for our determination is, whether he is liable in law for the damage. Being the keeper of a ferry authorized by law, it was his duty to keep a good and secure boat, suitable and safe in all respects both to receive and to transport all such property and vehicles as are usually required- to be conveyed across public ferries. He was bound to make all provisions which, under the circumstances and situation of the ferry, were necessary for the safe delivery and passage of such property as was offered at the ferry for transportation; and if, without fault by the other party, a loss was sustained in such property, either in receiving or transporting it safely, by reason of the insufficiency of the boat or other means which it was his duty to provide for that purpose, he is responsible for the injury. It was as much a part of his duty to make provision for the safe reception of property, [801] as for its safe transportation when received; and if the boat was unsafe and insufficient in that respect, he is liable for losses occasioned to passengers in consequence of it. He is held to strict diligence and skill in the performance of his duty; and the fact that the boat was forced from the landing by the descent of the wagon, primá facie showed carelessness and negligence on the part of the plaintiff in error, and throws upon him the burden of proving that the accident was not occasioned by his fault. Stokes v. Saltonstall, 13 Pet. 181; Story on Bail. § 601, 602. Another objection taken to the judgment is, that the plaintiff in error was not liable for the loss of the slave, because slaves, being intelligent beings, capable of volition and locomotion, cannot be brought under the rule applicable to mere inanimate property; and, consequently, that the strict law in relation to common carriers does not apply in relation to them. This doctrine is held in the cases of Boyce v. Anderson, 2 Pet. 150, and Clark v. McDonald, 4 McCord, 223. These were cases where the slaves were placed upon steamboats for transportation, and the courts hold that in such cases they are to be regarded rather as passengers than as coming under the strict rules applicable to mere chattels, in the absence of a special contract. But although it is held that the strict rule in relation to common carriers does not apply to such cases, still it is held that the party is responsible for a loss caused by his negligence or unskilfulness, and that that question is to be submitted to the jury; and this would justify the verdict in this case. But we do not think that the principle upon which these cases turn is applicable to the circumstances of this case. The question there was, whether the carrier used proper diligence in taking care of the slaves committed to his charge, not whether the boat was unsafe and insufficient for the transportation of the slaves, in consequence of which, without fault on their part, they were lost. That is the question here; and we think it clear, that where the loss has been occasioned by the apparent negligence of the party in providing safe and sufficient means, to perform what he has undertaken to the public, he comes within the rules applicable to common carriers, whatever may [802] be the kind of property lost by his default, provided it be such property as it was his duty to transport. The last ground of error to be noticed is, that there was no proof that the mule lost was the property of the defendant in error. It was in the possession of his slave driving his wagon, and that was sufficient presumptive evidence that it was his property. But it does not appear that the jury took the mule into consideration in their verdict, for the damages assessed were not more than the value of the slaves, as proved, with interest. We are of opinion that the judgment is correct, and it is affirmed.