#### William Fisher, Appellant, *v.*Levi F. Clisbee, Appellee.

APPEAL FROM MARSHALL.

Ferrymen, are common carriers, and subject to the same liabilities.

The rights and liabilities of ferrymen considered.

This action was tried at March term, 1851, before T. L. Dickey, Judge, and a jury, when a verdict was found and a judgment rendered for the plaintiff". The declaration contains two counts, charging that the defendant was the owner and occupant of a ferry across the Illinois river, at Lacón, that the plaintiff, by his servant, went upon the ferry boat to cross the river, that the boat was so managed and conducted, that plaintiff’s horse, buggy, and harness were precipitated into the river, when the horse was drowned, and the buggy and harness became injured.

Defendant pleaded the general issue. By the bill of exceptions it app'ears, that the plaintiff proved the licensing of the defendant to keep tke°ferry, &c., and that one Kuhn came upon the boat in February, 1850, with the horse, &c., and while crossing the river the horse became restive, backed off the boat into the river, went under the ice and was drowned, and that the buggy and harness were injured.

The defendant proved, on his part, that his boat was strong, well built, and decked over, that when Kuhn came on the boat with others, he requested them to take their horses from their carriages. That the owner of the forward team did so. One of the others said his horse was kind, &c., and he did not remove him from the vehicle. That Kuhn did not unloose his horse, nor make any remark. That Kuhn’s horse backed once, but was brought forward again; that defendant told Kuhn, he had better unloose his horse from the buggy, which he did not do. That when the horse backed, Kuhn stood by his horse’s head and took hold of one of the bridle reins, the same being hitched bade on the hook in the saddle, and pulled forward, and thereby the horse’s head was pulled round, and back, that the horse continued to back, Kuhn holding on and pulling on the check rein till the horse went off the boat into the river. That witness would not say positively that Kuhn heard defendant, the wind was blowing hard, &c.

Defendant also offered to prove, that had Kuhn unloosed the *347horse, there would not have been any hazard, that it was not customary to have chains or bars across the ends of ferry boats on the Illinois river; and that it is usual and customary for passengers to take charge of their own horses, &c. This testimony was objected to, and the objection sustained by the Court. The Circuit Court permitted the evidence in relation to the conversation connected with unloosing the horse, to go to the jury subject to objections.

The sixth instruction, as asked by defendant, was, “ If the jury believe, from the evidence, that Kuhn so held the horse, or pulled the reins of the horse, as to cause him to go back and run off the ferry boat, they will find a verdict for the defendant,” which the court modified, and gave in the following language: "If the jury believe from the evidence, that Kuhn so held the horse, or pulled the reins of the horse as to cause him to go back and run off the ferry boat, and that the horse would not have backed off, if Kuhn had not touched him, then they should find for the defendant.”

0. Peteks for Appellant.

Ferrymen are not common carriers so as to be responsible for the loss of animals or vehicles placed on their ferries for transportation, at all events, unless caused by the act of God, the public enemy, or the act of the party suffering the loss.

That such is the rule in relation to common carriers of *goods and merchandise*is not now disputed. Ferrymen are rather carriers of *the public travel*for toll, on a certain passage, with no duty of delivery at the end of it, and not carriers of goods and merchandise, to be by them transported and delivered, *unless specially delivered to, and accepted by them for carriage on freight*They are, Or are like, carriers of passengers, and only liable for some negligence or fault in transporting passengers with their Vehicles and teams ; they may be holden to *strict*or *extraordinary*care and diligence, but are not responsible for injuries to passengers or their vehicles or teams, without *some*neglect or fault on their part. Some of the distinctions between ordinary common carriers and ferrymen are quite apparent:—

Common carriers transport *property*for hire, as a public employment, and not *persons;*or if they carry persons, they are *348not subject to the rigid rules applicable to common carriers. Ferrymen carry *passengers and such vehicles as passengers use for*traveling, and their business is not, principally, to carry merchandise. Common carriers of merchandise are not *obliged*to take passengers to transport. Ferrymen are. Common carriers of merchandise, receive the property to be transported into their possession, and have the sole and exclusive control over it during the transit. Ferrymen do not have the sole and exclusive control over the persons, animals and vehicles that they receive upon their boats, and from the nature of the case, cannot have. Common carriers, are obliged by their calling, to deliver the property to the consignee, or at the place of consignment. Ferrymen are under no obligation to deliver at all, and it is no part of their duty to deliver, unless a usage to that effect is shown, and then they may be charged as common carriers of goods for hire; though this is the result of the usage or implied undertaking, and not *ipso facto*resulting from their character or employment as ferrymen. Walker *v.*Jackson, 10 Mees, and Wus. R., 166-7. Passenger carriers even, may be liable as *common*carriers, by usage or contract, or by implication, but not merely *as passenger carriers.*

Dwight *v.*Brewster, 1 Pick. R. 50; Citizens’ Bank, *v.*Nant. S. Boat Nav. Co; 2 Story’s R. 16.

Our statute fixes the duties of ferrymen, R. S., 251. Ferrymen, proprietors of toll gates and turnpike roads, are placed on the same footing, and derive their powers from the same source. Before either can exercise any exclusive privilege, there must be an adjudication, that the convenience of the public requires it; they must be licensed; they must pay a tax in advance ; they must pay an annual tax. R. S. 251, § 1, 2, 3, 14; Lombard *v.*Cheever *et al.,*3 Gil., 469.

Passenger carriers, by land or water, are not subject to the rigid rules applicable to *common*carriers. They are, at most, held to *strict*diligence, and are not liable, unless guilty of some negligence or fault. Story on Bailment, § 608, 609, 590, 607, 602, 376-7; Stokes *v.*Saltonstall, 13 Peters, 190.

Passenger carriers are not liable for loss of slaves. Buyer *v.*Anderson, 2 Peters. R. 154; for they cannot be packed away like merchandise, or inanimate objects, and the same rule is measurably applicable to cattle taken on board of carrier ships and *349other conveyances, and for the same reason. Lawrence *v.*Anderson, 7 Eng. C. L. R., 88; Galwy *v.*Sloyd, 10 Eng. C. L. R., 359; Luxford *v.*Large, 24 Eng. C. L. R. 393; Miles *v.*Cottle, 9 Eng. C. L. R., 221. Passenger carriers, by land and water, are now held liable for the *baggage*of passengers. Vehicles and teams of passengers are not in any sense baggage; nor is money, or things not usual for one’s personal use and accommodation in traveling. Orange Co. Bank, *v.*Brown, 9 Wend. R., 85; Hawkins, *v.*Hoffman, 6 Hill’s R., 586; Porter *v.*Drew, 25 Wend. R., 459.

And to make a passenger carrier liable, there must be a complete delivery to the carrier, and he must have exclusive control of the baggage or article of property. Loven *v.*U. & S. R. Road Co., 7 Hill’s R., 47; Miles *v.*Cottle, *ut supra.*

If ferrymen are common carriers, in any sense, they may limit their duties and liabilities, either by special contract, or by a general notice, or by a well established usage or custom, which recognizes such a limitation. So that, whether ferrymen are common carriers or not, their liability is, or may be, limited by well established exceptions. 1 Ex. Animals having sense and will sufficient to occasion losses by their own act. And this must necessarily, on principle, extend to loss of carriages and their contents attached to horses, as well as to the horses themselves. 2 Ex. Articles of personal property, not delivered specifically into the exclusive charge and custody of the carrier, but retained by the owner or his servant, wholly or partially, under his own personal care and government. Tower *v.*U. & S. R. R. Co., 7 Hill’s R. 47; Rogers *v.*Prink, Eng. C. L. R. 3 Ex. Personal property lost or damaged through the negligence, carelessness or fault of the owner himself, or his servant or agent. Pardee *v.*Drew, 25 Wend. R., 459; 2 Greenl. Ev., § 215-220; White *v.*Winnimissett Ferry Co., Law Reporter, May No. 1851, p. 32. The Supreme Court of Massachusetts held, in this case, 1. That ferrymen are not liable like common carriers, unless they take the property under their exclusive control. 2. That they are not liable, even if in fault, unless the plaintiff exercises ordinary care. 3. That their liability is like that of a toll bridge owner, rather than that of a common carrier; or like those passing the highway, and must be without fault, or not entitled to recover. See also Churchill *v.*Rosebuck, 15 Conn. R., 329; *350Monroe v. Leech, 7 Met., 275; Smith *v.*Smith, 2 Pick. R., 621. 1 Moo. & Malk., 21; 4 Carr. & Pay., 106; Butterfield *v.*Forrester, 11 East, R., 6; Rathbun *v.*Payne, 19 Wend. R., 400.

The Circuit Court should have given the first, second and third instructions, asked by the defendant; they contained the correct rule of law as applicable to passenger carriers by land and by water.

The second instruction given for the plaintiff was erroneous. The conversation between the plaintiff and the ferryman should have been considered by the jury. Kuhn was directed to unloose his horse. Those who travel with passenger carriers by water are subject to the orders and control of the master of the boat or vessel, and must obey him. 3 Kent's Com., 183; 1 Camp. B., 38. It was a question for the jury to determine, whether the plaintiff was in fault, and to what extent.

The evidence offered by defendant and excluded, should have been admitted. This evidence proved that the loss would not have happened if Kuhn had taken the horse from the buggy, as directed by the ferryman. That the defendant’s boat was one of the best and safest on the Illinois river. That it was not customary to have chains or bars across the ends of ferry boats. That it was customary for passengers crossing with teams to take care of their own horses and prevent their going off. All this was competent evidence to prove an implied contract with every passenger, as well as to show want of proper care on the part of Kuhn. The parties themselves could have made a contract that would have removed any liability of defendant; these facts would have authorized the jury to infer such a contract. F. & M. Bank *v.*Champlain Trans. Co., 18 Verm. R., 13; Van Santwood *v.*St. John, 6 Hill's R., 158. Opinion of Walworth and the Senators concurring. Kelsey *v.*Brown, 3 Day’s R., 346; Renner *v.*Bank of Columbia, 9 Wheat. R., 582, 90, 91, and note at the end of that case; 17 Wend. R., 305; 10 Verm. R., 161; 4 Pick. 371; Cowen & Hill's notes, part 2, pp. 1410-11-12, *et seq.*

The sixth instruction asked by defendant, was intended to present to the consideration of the jury, the naked question whether Kuhn caused the loss by his mismanagement of the horse. Defendant was entitled to this instruction without qualification. It was sufficient if it affirmatively appeared to the satisfaction of the jury, that he caused the loss; this was a complete *351defence; and it was unnecessary and improper for the Court to encumber them with the belief of a negative. The true question was, did Kuhn cause the loss ? and the defendant was entitled to have this question submitted to the jury, disencumbered of any other matter; but the *rider*which was stuck on by the Circuit judge, put them to *guessing*what would have happened, if another and suppositious state of facts had existed.

N. H. Purple, for Appellee,

cited Stokes *v.*Saltonstall, 13 Peters, 191; Story on Bailments, 323; Jones on Bailments, 106, 107, 108; 2 Kent’s. Com. 464-5 ; Mors *v.*Slue, 1 Mod. R., 85; Allen *v.*Small, 2 Wend., 327, 340.

Caton, J.

The main question in this case, requires us to determine the character and extent of the liabilities of ferrymen. We find the law too well settled to admit of doubt or dispute, that they arc common carriers, as to all property which they transport in tlicir boats, whether accompanied with passengers or not. This is the law as laid down by all of the elementary writers, whom we find treating on the subject, as well as the adjudged cases, and to this rule, we have not met with a single exception. We may refer to Jones on Bailment, 10G; Story on Bailment, 828 ; 2 Kent’s Com., 589, and we find it stated, in 2 U. S. Dig., 424, §25, that it was held in Cohen *v.*Hume, 1 McCord, 439, that “ as soon as a carriage is fairly on the drop or slip of a flat, though it be driven by the owner’s servant, it is in the ferryman’s possession, and he is liable for any subsequent damage that happens to it or the horses.” We regret that we have not access in this Division, to the report of this case, but at any rate, we have enough to show that the law, as applicable to common carriers, is applied to ferrymen in North Carolina. As such seems to be the well settled doctrine in England, and as we know of no State where a different rule has prevailed, we feel bound to consider the principle not now open to controversy; and certainly there is as much reason in holding the carrier, who transports travelers and their property across responsible, as him who conveys them up and down the river. Indeed, if there is any difference, there is more propriety in applying the strict rule to the former, than to the latter, for he enjoys a franchise,'—a special privilege, which is granted *352to him. in consequence of his superior qualifications to fill a public trust, of great responsibility, while the latter enjoys no special privilege, but is engaged in a business open to all. A distinction was attempted to be drawn upon the argument, between ferrymen and other common carriers, because it was said they are not ordinary carriers of merchandise, but of the pfiblie travel, where the owner is usually along with his property. Upon the same principle, all packet boats, whose chief business it is to carry passengers and their baggage, should be exempted from the strict responsibility of common carriers. But no such distinction is any where recognized in the books, that we are aware of, and pr’obably because there is no reason for it. We are clearly of opinion then, that the defendant’s liability was properly held by the Circuit Court to be that of a common carrier. This liability is very strict. They are held liable for all damage to goods intrusted to their care, unless the loss is occasioned by inevitable accident, not brought about by human agency, the public enemy, or the owner of the goods. It makes no difference whether the carrier has done all in his power to prevent the loss or not; his responsibility is still the same. He is the absolute insurer of the property against all losses, except those occasioned by the causes above specified. Forward *v.*Pillard, 1 T. R., 33; Hyde *v.*Navigation Co., 5 T. R., 389. As he is supposed to be better qualified, than even the owner himself, to take care of the property while *in*transitu, he has the absolute control over it, and can make such disposition of it as he sees proper, and he must see to it that he carries it safely. Such is the authority and such the *liability*of a ferryman as to property which he transports. He may determine when it is safe and proper to go,—the number of teams which he can safely carry, and may assign to each its order and proper position, and when once received on board his boat, all are in his possession and under his control, and he has the right to make such disposition of them as prudence may dictate, and their safety require. His dominion over them is as complete as over Ms own property. He may even have the right, in case of peril, to command the services of his passengers. It is true, he may be liable for a wrongful exercise, or an abuse of his powers, as if he should refuse to go when he could safely do so, or should refuse to take a traveler when he could with propriety. It is true, that travelers usually have *353a care, and to a certain extent take charge of their own teams and property while on the ferry boat, but this is in subordination to the ferryman himself. If they do not manage or dispose of them as he thinks best, he may take them entirely out of their hands and arrange them according to the dictates of his own judgment, for he is responsible for their safety. It is true, if the owner, by his wilful and perverse conduct, occasions a loss which would not otherwise have happened, then he cannot charge the ferryman with a loss, for which he alone is responsible. But while acting in good faith, and not in violation of the ferryman’s commands, the owner may be considered as his servant so far as he does manage the property, after it has once got into the boat, and thus come into the possession of the boatman.

A distinction has been drawn between the transportation of slaves, and that of other property, but this was on account of their intelligence as human beings.

We were asked to extend the same rule to other animals when transported. But the same reasons do not apply. The former partake of the character of passengers, while the latter are purely freight. There may be a reason, in one respect, for drawing a distinction between animals and inanimate freight, and that is where the animal is of such a disposition, that he cannot be safely transported in a boat, and where no prudent man would intrust him in such a conveyance. In such a case, should the animal ■be lost on consequence of such disposition, when every precaution had been taken in the construction and management of the boat, and in the arrangement of the freight, I should be inclined to held, that the loss might be attributed to the misconduct of the owner, in improperly putting such an animal on board a beat. But there is no pretence that this horse was of such a disposition. There were no guard chains or bars across the ends of the boat, and the testimony shows, what every man’s own judgment would dictate, that the boat would have been much safer, had it been thus provided. Had this reasonable precaution been taken, in all human probability, this accident would never have happened. Indeed, it is matter of surprise, that all ferry boats are not provided with such safeguards, and it is equally surprising, that more accidents do not occur for the want of them. If ferrymen were more generally aware of the nature and extent of their liabilities, it is most likely that ferry boats *354would more commonly be provided with bars or chains, at the ends, to protect teams from getting into the river.

The instructions given to the jury, held the defendant liable as a common carrier, and without reviewing them particularly, we are satisfied that the law was properly laid down by the Court.

During the trial, evidence was given by the defendant, tending to show, that Kuhn, who was driving the plaintiff’s horse at the time, and who at the request of one of the ferrymen, was holding the horse by the head, was requested by those having charge of the boat, to unhitch the horse from the carriage, to which he made no reply, and did not do so. Kuhn swears he has no recollection of having heard any such direction, and one of the ferrymen says he thinks he must have heard it, although he says there was a strong wind blowing at the.time, and that Kuhn was to the windward of the person giving the direction. This testimony, the jury were instructed to disregard, and in this we think there was no error. Even if Ku.hu had heard the direction, he was not bound to obey it. The horse and carriage were in the possession and control of the ferrymen, and Kuhn was under no more legal obligation to unhitch the horse, than he was to assist in propelling the boat. It was strictly the business of the ferrymen, to do all that was needful for the safe transportation of the property intrusted to their care. This evidence did not tend to show that Kuhn did anything improper, which contributed in any degree to bring about the accident, but only that he omitted to do that which he 'was not bound to do¡. .even if he had heard the direction.

We think the defendant cannot complain of the qualification to the sixth instruction. Kuhn was holding the horse at the request of the ferrymen, and in doing this, he was acting as his agent, and while he acted in good faith and to the best of his abilities, the latter was responsible for the ultimate consequences. The sixth instruction, as qualified and given, laid down a rule even more favorable for the defendant than this, for the Court held, that if Kuhn so held the horse or pulled the reins, as to cause the horse to get off of the boat, and ff he would not have backed off, if Kuhn had not touched him, they should find for the defendant. This at the very most, was all that the defendant could ask. Certainly he ought not to claim any advan*355tage, because Kuhn, obeyed in good faith the directions given him to hold the horse, more than he would have done, had the man disobeyed him, especially when the result, as the qualification supposes, was not changed by what he did. In the first place, the defendant seeks to avoid responsibility, because Kuhn did not obey orders, which most likely he never heard, to unhitch the horse, and next because he did obey orders, to hold-, the horse. It is more than likely, that if Kuhn had heard and obeyed the order to disengage the horse from the carriage, the same accident would have happened, while he was thus engaged, and then with the same propriety the defendant might have urged, that Kuhn did not proceed with sufficient presence of' mind or dispatch; or if he had not left the horse’s head, he w-'ould not have backed off the boat. We are well satisfied, that, if either party failed to do that which it was his duty to do, if: was the ferrymen, and not Kuhn, but if the former did all they could and were guilty of no negligence whatever, still as a common carrier, the defendant is just as liable in point of law, as if “ there had been negligence.

The judgment of the Circuit Court must be affirmed.

*Judgment affirmed.*

Trumbull, J., dissented.