#### *John Littlejohn vs. L. D. Jones.*

The owner of a private ferry may so use it (although on a road not opened by public authority, or repaired by public labor,) as to subject himself to the liability of a common carrier, if he undertakes for hire, to convey across the river all persons indifferently, with their carriages and goods. But tins is a question of fact, to be determined by a jury, and when once passed on by a jury, will not be disturbed, unless for misdirection in the Judge who heard the cause.

*Before*Earle, J., Laurens, *Spring*Term,, 1842.

This was an action of trespass on the case, arising out of the following state of facts:

The defendant, living on the Enoree, has mills on the river, and owns the land on both sides. He has a ferry there for his own convenience, used as an appendage to the mills and plantation. Such a ferry has been kept there by those who have owned the property for thirty years. A road leads to the ferry and mills from the main market road, on both sides of the river, which was not established by public authority, and has never been considered a public road, nor worked on as such.

On the 1st of June, 1840, the plaintiff’s wagon, with others in company, returning from Charleston, laden with goods, turned off the market road, on which the ferry was broken up by the freshet, to cross at the defendant’s.— "Whilst the plaintiff’s wagon was in the act of being driven into the flat, the chain which confined it to the bank was broken, and the flat forced out into the stream. The team and fore wheels had passed into the flat, and the chain broke as the hind wheels struck upon the end of the flat, and thus prevented them from entering, and left the hinder part of the wagon suspended in the water. The team were cut loose and two of the mules were drowned, and the plaintiff’s goods were damaged in the wagon, to the amount of $650.

It was sought to make the defendant liable, on the ground of his being a common carrier. There was no proof that the plaintiff paid, or had agreed to pay, or was told he would have to pay. He relied on what was alleged to be the common use of the ferry for all who travelled that way, and the habit of the defendant to receive pay from those *366who passed. It was proved that three carriages and five .wagons were put over the river at this ferry the day before the plaintiff’s wagon, and that for each of them the defendant received pay, saying to one person “ the charge was fifty cents,” and to another, “ all ferries were allowed double price in high water.” Another witness proved that he had often crossed there, and always paid ferriage to some one, whoever put him over, once to the^ defendant himself, .and once to his son. On the other hand, it was proved that the ferry was a private ferry, used only for the convenience of the mills and plantation, that no ferry-man was kept there, that the miller, a negro with a wooden leg, put over such as desired, and accepted what was offered, which he kept; that lads who came to the mill frequently did the same thing, that no charge was made, but that strangers usually offered to pay, and it was usually accepted. Several persons testified that they were in the habit of crossing there, and were never charged, and never paid. It was proved that the plaintiff’s party, before they left the main road, were told that it was a private ferry, and not a public one. Several of the party did pay the defendant after crossing, to whom he said he made no charge, but who insisted on paying him for his trouble.

The jury were instructed that the defendant was liable for the damage sustained by the plaintiff, if he undertook, for hire, to convey the wagon across the stream, although at his private ferry. There seems to be no exception to the charge, and it need not.be here fully stated.

Another ground of action was, that the defendant was guilty of gross negligence. It was alleged that the chain was insufficient, and that even slight diligence was not used in preparing.the bank for the admission of wagons. To this it was replied, that many loaded wagons and carriages had passed the day before; and on that occasion, thát the first wagon that crossed was a much larger and heavier wagon than the plaintiff’s. And the charge was retorted, that the loss was owing to the want of skill and diligence on the part of the driver of the plaintiff’s wagon. It was a question of fact, and submitted to the jury, with such remarks as do not appear to be found fault with, and without' the intimation of any opinion on the part of the court.

-Yerdict for the defendant.

*367The plaintiff appeals for a new trial, on the grounds :

1. Because the defendant’s ferry was a public one, established by more than thirty years’ use.

2. Because all the witnesses on both sides, proved that strangers had always been charged at the defendant’s ferry, consequently he was liable as a common carrier.

3. Because the defendant was guilty of gross negligence, and therefore the verdict should have been for the plaintiff.

4. Because the verdict was against law and evidence.

Bobo, for the motion,

contended that the keeper of a ferry, unless he advertises that he does not intend to charge, is *prima facie*understood to be responsible for losses. Either the keeper of a public or private ferry is responsible if the party crosses with the belief that he has to pay, and that the owner is responsible. He contended that inasmuch as persons had crossed this ferry the day before the plaintiff did, and the defendant received pay from them, it was reasonable that they would be charged also, and this was sufficient evidence to charge the defendant. If the defendant ever charged before this crossing, he became a common carrier, and was, therefore, liable to the plaintiff. Cited 1 N. *&*McC., 17 ; 2 ib., 19. If a party takes persons or goods to carry, he is presumed to charge, unless he advertises to the contrary. Cited Law of Carriers, 10.

Burt, contra,

said it was a jury case, and this court would not disturb their finding, unless for misdirection, which was not complained of.

Young, same side.

Is the defendant a common carrier *1*Cited Story on Bail., 322. Do the acts of defendant show that this was a public employment 1 Referred to 2 N. & McC., 21. Thirty years’ use of a ferry does not constitute it a public ferry. The plaintiff' was bound to enquire before he entered the flat whether this was a public ferry and the defendant responsible. The plaintiff did make the enquiry, and was informed that it was not a public ferry. Plaintiff was advertised; and he showed, by his own acts, that he did not expect to be charged. It was a private road leading to a private ferry. It was not chartered, and only kept for private use.

*368*Curia, per*

Earle, J.

It is said by the court in *Cohen vs.*Hume, “ that it is not now to be made a question whether a ferryman is a common carrier. That has been adjudged in *Cook vs. Gourdine,*and recognized in *Miles vs. Johnson,*1 McC., 439.” When we look to the definition of a common carrier, one who undertakes for hire or reward to transport the goods of such as choose to employ him, from place to place, it seems strange that it should have ever been doubted here, that the owner of a public or chartered ferry-is to be regarded as a common carrier. For notwithstanding what is said by Mr. Justice Nott in *Cook vs.*Gourdine, I can see no real difference between the transportation of goods in a boat across a stream from bank to bank, and along a stream from one point to another. Nor does there seem to be any reason why this liability should be confined to persons who keep chartered ferries on public roads. A man may certainly so use his private ferry, • on a road not opened by public authority, nor repaired by publiclabor, as to subject himself to the liability of acommon carrier; if he undertakes for hire to convey across the river •all persons indifferently, with their carriages and goods.— Whether the defendant had made himself so liable, was a question which depended upon the habitual employment of the ferry heretofore, inasmuch as there was no proof that the plaintiff paid ferriage or had agreed to pay. An express contract for payment of a specific sum was not necessary to charge the defendant, nor indeed an express contract that he should be paid anything. It is equally clear that he was not liable as a carrier, if the undertaking was gratuitous, and so regarded by the parties. This question was submitted to the jury, upon the proof of the previous usage there — whether he had so used the ferry as to induce the common belief that he conveyed passengers and their goods for compensation 'l Whether he had held himself out to the world as ready at all times to convey across the stream such as travelled that road for the customary rates of ferriage *1*or the contrary. The ferry was an appendage to the plantation and mills; there was no appointed 'ferryman, habitually employed; travellers from distant places usually offered pay, and it was usually *accepted;*but this was not considered a charge so much as a meregratu*369ity, and was retained by the person who actually officiated as ferryman, instead of being claimed by the defendant or paid to him. Under such circumstances it could hardly be said that he incurred the obligation to convey across the stream all who applied and offered to pay; or that when he did undertake, he subjected himself to the liabilities of a common carrier, as a person performing the work for a reward. The court perceives no sufficient reason to disturb the verdict of the jury, which has been found on the belief that the undertaking of the defendant was without reward. That there has been a ferry there, used by those who have heretofore owned the property, for thirty years or more, cannot help the plaintiff, if the use has been strictly private, as the jury suppose. The defendant has not set up any right by prescription, and until he does, we need not consider what he may claim. The question of gross negligence was also disposed of by the.jury.

Motion refused.

Richardson, O’Neall, Evans and Butler, JJ., concurred.