107 Mass. 334 | Mass. | 1871
This is an action for breach of a contract of the defendant, who was a licensed ferryman, to transport a pair of mules across the Connecticut River on his boat. The case is reported upon three questions that were raised at the trial.
1. The judge excluded evidence, offered by the defendant, that for thirty years previously to the accident in question such a boat as this had been in use at this ferry, transporting some twenty teams a day, and no accident had ever before happened; and it was excluded as immaterial. It is apparent that the question in issue in this case was whether the defendant had on this occasion performed his contract, it being admitted that he made it and received the mules on board for transportation. The evidence offered was plainly not pertinent to the issue, but related to collateral matters. Collins v. Dorchester, 6 Cush. 396. Aldrich v. Pelham, 1 Gray, 510. Kidder v. Dunstable, 11 Gray, 342.
2. The ruling that, in an action of contract for not performing the undertaking of a common carrier, the burden of proof is upon the defendant to show that the non-performance was for a cause which relieved him from liability, is sustained by the authorities. Hastings v. Pepper, 11 Pick. 41. Ware v. Gay, Ib. 106. 1 Greenl. Ev. § 222. Story on Bailments, § 529. Angell on Carriers, § 472, and cases cited.
3. The defendant requested the judge to instruct the jury that the defendant was not liable if the loss was occasioned wholly by the fault of the mules. This was refused, because the judge thought it liable to misunderstanding, and not applicable to the facts proved. The report tends to show that the view of the judge was correct, for it appeared that the mules were drowned by backing off the end of the boat, and there was no chain or other barrier across the end.
Judgment on the verdict.
