This is an action against the defendant, a ferryman, to recover the value of a pair of mules, harness, and wagon, lost from the defendant’s ferry-boat, while crossing the Sacramento River. The plaintiff recovered judgment, from which the defendant appeals.
The appellant contends that he refused to receive the teams at the time they drove on the ferry-boat, on account of the steamer being about to pass, but the evidence upon this point is conflicting. It shows, however, that both teams drove on the boat, and had proceeded, under the direction of the ferryman, a portion of the distance across the river, when the accident occurred. This was sufficient to establish the fact that the defendant had accepted and received the property, and his liability as common carrier had fully attached when the loss accrued. (May v. Hanson, 5 Cal. 360.)
The Court instructed the jury as follows: “ If Griffith drove on the boat against the express order of the ferryman, it was the duty of the ferryman to refuse to take charge of the mules, or if he did take charge of them it was his duty to provide against loss in consequence of the swell of the water against the boat. If it was, in his judgment, unsafe to cross and unsafe to leave them there, if he took charge of them, and did not like to leave them in the hands
The charge of the Court as given was certainly as favorable to the defendant as the law would justify. There was no error in refusing the instruction as asked by the defendant, because it predicated the exemption from liability upon the single fact that the plaintiff drove on the boat in violation of the express order of the ferryman, when that might be true, and still the ferryman may have accepted and received them afterwards, by which his liability would attach.
It is clearly the duty of a ferryman to provide suitable boats, and all the conveniences necessary to insure the safe transportation of persons and property. In the present case the defendant’s boat was unprovided with any small boat or with any gates, ropes, or chains, to confine teams thereon, and prevent them from running or backing off the boat when in the stream; and the testimony renders it quite evident that the loss occurred for want of these necessary means of safety. It was clearly negligence on the part of the defendant in not providing such conveniences.
On the trial a witness was asked by the defendant, whether he knew of any regular established rule or practice at the ferry in reference to steamers passing, to which the plaintiff objected, unless the rule was posted up, or the plaintiff had special knowledge of it, and the Court sustained the objection; and, also, as to proof of rules prevailing at other ferries upon the Sacramento River upon
Judgment affirmed.