5 N.C. 173 | N.C. | 1808
From New Bern District. The jury under charge of the court found a verdict in favor of the plaintiff for the value of the corn, and it is submitted to the Court upon this statement whether a new trial should not be awarded. Whatever doubts formerly prevailed as to the extent of a carrier's responsibility, the law seems now to be well settled that he is liable for all losses except such as happen by the act of God or the enemies of the State. All accidents which can occur by the intervention of human means, however irresistible they may be, he is considered as insuring against. And this was held to be law, although the charge of negligence stated in the declaration was expressly negatived. Forward v. Pittard, 1 Term, 27. The principle of this liability seems to be the public employment which carriers exercise, so that persons induced to confide in them in the course of business may receive all possible security. Coggs v. Bernard, 2 Ld. Ray., 117.
A stronger case cannot well be put than of Dale v. Hale, 1 Wills, 281, in which it was holden to be no excuse that the ship was tight when the goods were placed on board, but that a rat by gnawing out the oakum had made a small hole, through which the water had gushed. Sir William Jones, in discussing (175) this subject in his Law of Bailments, seems to consider that the exception as to the act of God and public violence is in truth part of the rule, and that the responsibility for a loss by robbers is only an exception to it, founded on a maxim of policy and good government to prevent confederacies between carriers and robbers. He holds that a carrier is regularly liable for neglect, and that such is the true principle of the decision in Dale v. Hale, although it is not mentioned by the reporter. Lord Mansfield, in Forward v. Pittard, concurs in the opinion of Sir William Jones as far as it extends, but in addition to the negligence for which he is liable and may be sued on his contract, he holds that a carrier is in the nature of an insurer by the custom of the realm, that is, by the common law, so that his contract binds him to due care and diligence; and even with the best care and diligence, the common law, applied to the nature of his employment, renders him responsible for inevitable accidents, if not occasioned by the act of God.
Admitting, however, that a carrier was liable only to the extent of his contract, and that ordinary negligence must be *137 proved against him in order to recover for a loss, it may be asked whether, if such negligence may be imputed in Dale v. Hale, the charge is not at least as well grounded in the present case. It certainly was as easy to guard against the defectiveness of the rudder by a proper examination as to prevent a hole being made in the bottom of the vessel in the other case, where the hold was charged with goods and the vessel pursuing her voyage. The declaration, however, in the case cited was founded on the contract and not on the custom, and the Chief Justice says that everything is negligence that the law does not excuse.
Judgment for the plaintiff.
Cited: Parker v. Gilliam,
(176)
