#### *James S. M'Call*v. *Jacob Brock.*

*JL*loss *by*fire, which, occurring in another boat, renders the carrier liable, will render him equally so if he carries in a steamboat, even though the loss be caused by an explosion of the boiler — and this without any regard to his diligence or negligence.

If improper testimony has been admitted, which could have had no effect on the verdict, but which was wholly immaterial, the Court will not, on that account, grant a new trial.

*Before*Frost, J., *at Marion, Spring Term,*1850.

This was an action on the case to recover the value of one hundred and sixty-nine bales of cotton, which the plaintiff *120shipped aboard the Steamer Richland, the defendant being' owner and master, and which- had been destroyed' by fire,

*1*The Richland left Cheraw for. Charleston, taking in Cotton at the landings along the river. The plaintiff’s cotton was taken from his landing. Sunday morning, January 12th, 1849, the steamer stopped, about two hours, at Wood-berry’s landing, to take in wood; seven or eight miles below that place, at or near a bend in the. river, while the boat was under way, the boiler burst. All the officers, and five or six of twelve deck hands, were killed or disabled. Some of the passengers were killed or blown overboard. No unusual noise or circumstance attracted attention- before the accident. Every thing appeared to be going on well. The anchor was dropped by some person, unknown-, and the steamer layabout thirty yards from the shore. The boat took fire, which spread so rapidly as to prevent the rescue of several passengers who were'not injured by the explosion. All the cotton, aboard was burnt or destroyed. All the witnesses concurred that, after the explosion, by no efforts of the'surviving crew could the cotton have been saved. There was evidence that the hull of the steamer was staunch and in good repair, and the crew competent. Whitehead, the principal engineer, was very capable and attentive. Brock had a' high reputation as a captain; was very energetic, and made *quicker*trips than any other steamer on the river. Lebby and Johnson, engine makers, testified that the machinery was put in complete repair during the previous summer. Lebby said he had put in new boilers in the summer of 1846. They should have lasted six years. He had been directed .by Brock to make them of thicker iron than was common. While the steamer , was laid up in the summer of 1848, Lebby had repaired the boilers. The rents or fissures were patched. Tenhet testified that he had gone from Charleston to Cheraw, on the first .trip of the steamer after- the repairs, in the fall of 1848. The passage was twenty-three days. The steamer set off very early in the- morning; soon after he got up, the steamer was at anchor near Fort Sumter. The boiler was leaking very badly. The steamer was detained all day. The captain and hands were employed in trying to stop the leak. On the passage, it was' necessary to put in Bull’s Bay to stop the leak. The captain returned to Charleston in the small boat, and brought lead, with which the leaks were stopped. The leak caused the steamer to stop again near Cape Romain. He would have been unwilling-to return in the steamer. Whitehead had married his sister. When he arrived at .Cheraw, he wrote *■to*the wife of Whitehead. Soon after, he received a letter from Whitehead. It had been destroyed. Evidence of -the contents of the letter' was objected to, but it was admitted, because the destruction of *121the letter prevented its production; and because the principal engineer is an officer, in charge of the engine, whose declarations respecting its condition were competent evidence against the owner. In Whitehead’s letter to Tenhet, adven-ing to Tenhel’s letter to his sister, he stated that if he had supposed Tenhet knew so much about boats as appeared from his letter, he would not have taken charge of the engine. He said it was not in a fit condition to run. On the passage from Cheraw, in which the boiler burst, Maxey, the second engineer, told two of the passengers, in the presence of Whitehead, that he had been all day stopping, or trying to stop, a leak in one of-the cocks, supposed to be one of the trial cocks. This evidence was received against an objection made fo its admissibility.

Lebby described the structure of the boiler, and the contrivances provided to.prevent accident. The engine of the Richland was high pressure. The thickness of the iron of the boiler is proportioned to the pressure of steam it is designated to bear. This, in a high pressure engine, is from one hundred to one hundred and twenty pounds to the square inch of the surface of the boiler. The Western steamers carry two hundred pounds, By a safety valve the density of the steam is regulated, and any excess permitted to escape. Three trial cocks are fixed in the head of the boiler. If, on turning the lowest, steam, instead of water, escapes, the water is dangerously low. Water, in such case, must be pumped in; and it may be necessary to put out the fire in the furnace. The escape of water from the cock above the lowest, shows the proper quantity; while, if the highest cock discharges water, that shows an excess, which must be blown off by means of a valve fixed low down in the boiler. A pump, worked by the engine, forces water through a pipe into the boiler. The flow of water may be shut out by a valve in this pipe. A pipe from the boiler, furnished also with a valve, supplies steam to work the engine. By inattention to these fixtures the boiler may be exploded. The pump may be choked, so as to supply no water, or the water may be negligently shut out by the valve. The safety valve may be overloaded. The water in the boiler may be evaporated while the steamer is stationary, and the engine not working the pump. If (he trial cocks are attended to, any derangement, by'which the water in the boiler is unduly reduced, may be discovered, and an explosion, which such derangement might produce, may be prevented. Inattention to these means of safety will probably produce an explosion. But, even with care, an explosion cannot be prevented if the boiler-, from any defect, is not capable of supporting the ordinary working pressure of the steam. This is generally kept to the of from the safety valve. The cause *122of explosions is excess of steam. This is generally produced p,y permitting the water to get so low that the surface of the boiler, exposed to the fire from the furnace, is uncovered. It t|ien -s heateci t0 a high degree. When the water is agitated by the motion of the boat and thrown upon this heated surface, it is expanded into steam too suddenly for escape by the safety valve, and an explosion is the consequence.

The jury were instructed that common carriers are liable for a loss occurring by fire — and that carriers by steam are not exempted from this liability, even though the fire be caused by an explosion of the boiler. The structure and fixtures of the boiler, as described by Mr. Lebby, were brought to their notice, and they were advised that, from his testimony, it appeared that an explosion could only occur through negligence or the insufficiency of the boiler. The opinion was expressed that the great majority of accidents proceeded from rashness or negligence. They were further instructed that, in a case of loss by fire or by any other un-excepted cause, the carrier is liable, though he may not have been guilty of negligence; and that, without inquiry respecting diligence or negligence, the carrier is liable for such losses, as an insurer. They were further advised, that the law is reasonable which subjects carriers by steam to liability for losses which occur in its employment, because the profits compensate the risk, and the carrier may insure himself; or he may except, from his contract to carry, the risks incident to steam, and let the freighter insure his goods.

The jury found a verdict for the plaintiff for tho value of his cotton.

The defendant moved in the Appeal Court for a new trial, on the following grounds :

1st. Because his Honor erred in admitting as evidence the declarations of the assistant engineer of the boat, although such declarations were not made in the presence of the captain of the boat, who was also the owner, but because they were made in the presence of the chief engineer, whom his Honor ruled to be the general agent of the owner, in all matters connected with the machinery,- they were *therefore*admissible.

2d. Because his Honor erred in permitting to be given in evidence a witness’ recollections of the contents of a letter (alleged to have been destroyed by witness,) from Whitehead, the engineer, to the witness, Tenhet, at least two trips of the boat preceding the accident, which letter was not in reply to any communication from the said witness, soliciting in/ormation respecting the condition of the boat; but was alleged to have been elicited by a letter which said witness had written to his sister, who was the wife of the engineer, although the *123contents of the last-mentioned letter was ruled by his Honor to be inadmissible.

' 3d. Because his Honor erred, in charging the jury that it was not a question of diligence or no diligence on the part of the carrier, but that he was liable for all accidents except the acts of God or the enemies of the country, and that the bursting of a steamboat boiler was always occasioned by an excess of steam, which was under the control of the engineer, and could not come within the exception.

4th. Because his Honor erred in charging the jury that the bursting of a steamboat boiler, under any circumstances, did not come within the rule which exempts carriers from liability.

*Memminger Sp Munro,*for the motion.

*Dargan,*contra. ^

*Curia, per*Frost, j.

The owners of steamboats engaged in the carrying trade are liable as common carriers. The defendant did not sign a bill of lading, nor by notice or special agreement limit or except any of the liabilities which, by common law were imposed on him, by his undertaking to carry the plaintiff’s cotton. A common carrier is bound to carry safely and deliver the goods entrusted to him ; and can only exempt himself from liability for any loss or damage by proof that it resulted from the act of God, or of public enemies. In all cases of loss, the *onus probandi*is on the carrier; for the law imposes the obligation of safety upon him. It is sufficient for the plaintiff’s recovery to prove that the goods were received by the carrier, and.that he has failed to deliver them, according to his undertaking. If the carrier cannot show that thé loss or destruction of the goods has occurred by one of, the excepted perils, he must pay the loss. Proof of negligence is unnecessary to charge him, and proof of diligence is insufficient to excuse him. He is held liable as ah insurer.

Responsibilities, seemingly so rigorous, are dictated by public policy. A common carrier is treated as one exercising a public employment; and duties, beyond his mere contract as a bailee, are imposed on him for the public security. The goods to be carried must be entrusted exclusively to his servants and agents, who, in the carrying, are beyond the reach of the owner’s vigilance and the observation of disinterested witnesses. It is scarcely possible for the owner to prove negligence, misconduct, or dishonesty. The only witnesses he can offer for this purpose must generally inculpate themselves, if they testify in his favor. Self-interest, the natural reluctance to acknowledge culpable negligence or misconduct, and still more the pecuniary loss, or penalties which may follow the confession, all conspire to secure for *124the carrier the exculpatory testimony of all who can know anything of the causes which produced the loss. The car-cannot complain that the law is severe, when, if he chooses, he may prevent its operation on him. He may except, by notice or stipulation, every risk that is incident to his undertaking to carry. If he makes no exceptions, he obtains a higher freight by assuming those risks against which the owner would, otherwise, pay the cost of insurance and abate it from the rate of freight. When a loss occurs, there is not much reason or justice in the carrier’s complaint that he is required to make the indemnity for which he has received the premium.

The plaintiff’s cotton was burnt, together with the boat. Fire is not an excepted peril. A loss by fire, which, occurring in another boat renders the carrier liable, will render him equally liable if he carries in a steamboat. But it is argued that though fire, originating from other causes, may not excuse the carrier, yet, if it proceeds from the bursting of the boiler, it should be referred to the act of God, or inevitable accident. The well-settled legal import of these phrases limits inevitable accidents to such as may be produced by physical causes which are irresistible, which human foresight and prudence cannot anticipate, nor human skill and diligence prevent; such as loss by lightning, storms, inundations and earthquakes, and the unknown dangers to navigation, which are suddenly produced by their violence. The bursting of a boiler cannot be classed with these convulsions of nature, nor be referred to that class of accidents which human foresight cannot anticipate, nor human skill and diligence avert. The boiler of a steam engine is an implement of mechanical power, in common use. The ingenuity which applied steam to the purposes of manufactures and navigation, provided also the means for its employment with safety. Terrific accidents are the inevitable and too frequent consequence of inattention to these means, or of wilful and rash counteraction of one or more of them. A boiler may be burst by the production of a pressure of steam greater than it was constructed to resist, or greater than, in its actual condition and state of repair, it may be capable of resisting. Certain fixtures are provided for the escape of any dangerous excess of steam, and other fixtures are provided to regulate its production, and to give warning of a deficiency of water in the boiler, which is the most frequent cause of disaster. Intelligent witnesses have testified that the safeguards are sufficient to prevent an explosion, if properly attended to. A loss, then, which results from an excess of steam must be attributed to misconduct or negligence. An explosion may also occur if the boiler be defective in its construction, or if its strength be impaired by use, so that it cannot resist the *125pressure of steam which, in its careful 'and prudent employment, may be necessary for the power it is required to exert. The carrier is bound to provide a safe boiler, and keep it in good repair, and supply its place by a new one whén its strength is impaired by use ; and he is also bound to employ servants and mechanics who shall possess the necessary vigilance and skill to observe the condition of the boiler, at all times, and form a correct opinion of its strength and safety. An explosion can only happen from excess of steam, or the insufficiency of the boiler, and therefore may be prevented by proper vigilance and skill. It does not weaken this conclusion that, frequent as such disasters are, they are always represented to be unaccountable; that is, they are not accounted for. But that is readily explained. The cause of the accident is left in obscurity, either by the destruction of the only witnesses who might explain it, or by testimony which negatives every possible cause for its occurrence. The persons who alone can know, and who are responsible for what caused it, cannot have the hardihood to confess negligence or misconduct, which must expose them to criminal liability and the more dreaded imprecations of bereaved relatives and friends, and of the whole community, shocked by the tragical consequences of an explosion.

But if it be admitted that, in any case, the'bursting of a boiler has proceeded from causes beyond human skill and vigilance, still the loss cannot be referred to the act of God. The steam engine is of human invention, construction and employment. Whoever uses this mechanical power must be responsible for its safety. If it be perilous, the more imperative must be such obligation. The carrier by steam power is, like any, other carrier, liable for a loss which may originate from spontaneous combustion, Or which may be extended to his vessel from the shore, when it may be impossible to remove the vessel from.danger. These are losses apparently beyond prevention, at least as much as any possible accident to a boiler. Yet for them the carrier is liable; because, though the peril, when encountered, could not be resisted, it may possibly have been foreseen and avoided. Fire is a risk incident to a carrier’s employment. No distinction can be made in regard to the causes from which the fire may originate. If such distinction were admitted, it could, with less reason, be applied in favor of the carrier for losses occurring by the propelling power of the boat, than for other losses by fire, more certainly beyond his power to prevent. It is not unjust nor harsh that he should be held liable for losses, incident to -the means of transportation he employs, on the •same principle and to the same extent as other carriers, using .a different motive power. If a vessel, founders at,sea, without stress of weather, the presumption is that it was not seaworthy ; and, if the causes of an explosion are left in obscu*126rity, the presumption must be, that the boiler was insufficient, or t^at it was exploded through misconduct or negligence.

The Court is of opinion that the testimony, the admission 0f whieh is excepted to, in the first and second grounds of appeal, should not have been received. If improper testimony be admitted, which could have any effect on the verdict, the Court will verv rarely refuse a new trial. But, in this case, the exceptionable testimony was wholly immaterial. It tended to prove a want of due diligence by the defendant. All the evidence, both- of plainiiff and defendant, on that subject, may be struck out; and it may be assumed that the defendant was guilty of no negligence, for the defendant is liable to pay for the destruction of the plaintiff’s cotton, with-°.ut any regard to his diligence or negligence; and that habi-hty rests on evidence which was not disputed.

The motion is dismissed.

Evans, Wardlaw and Withers, JJ., concurred.

*Motion refused.*