May v. Hanson

5 Cal. 360 | Cal. | 1855

Murray, C. J., delivered the opinion of the Court.

Heydenweldt, J., concurred.

The law regards ferrymen as common carriers, and has imposed upon them the same duties and liabilities. Willis v. Jones, 1 McCord, 105. Cohen v. Hume, Ibid, 440. Rutherford v. McGowen, 1 Nott & McCord, 17. Fisher v. Crisbee, 12 Ill., 344, and the cases there cited.

The principle deduced from these authorities is, that as soon as the ferryman signifies his assent or readiness to receive the passenger, that he becomes liable for his safe transit and delivery, and is chargeable with any accident occurring, except by act of God or the public enemy.

In two of the cases just cited, the accident occurred in driving into the flat or boat, and in both cases it was held to be the duty of the ferryman to see that the teams were safely driven on board of the boat. If, says the Court, in those cases, the ferryman thinks proper, he may drive himself, or may unharness the team, or unload them, for the purpose of getting them safely on board. But if he permits the party to drive himself, he constitutes him, quoad hoc, his agent, and is responsible for all accidents.

There can be no reason why this rule should not apply to the delivery, as well as to the receipt of goods or passengers.

A ferryman undertakes to safely transport passengers or freight from and to certain points, and from the moment that he receives until lie has delivered Ills freight in a proper and safe manner, he will be liable. It is Ms duty to provide suitable boats and all the conveniences necessary for transportation.

By the sixteenth section of the Act regulating public ferries, it is made the duty of all ferry-keepers within this State to cause the banks of the river or creek to be dug sufficiently low, and kept in good passable order for the passage of man and horse, wagons, and other vehicles.

The duty aud liability of the defendant being thus stated, it only remains to ascertain whether the present case comes within the rule laid clown.

It appears from the evidence that the accident occurred by the breaking of the wagon, occasioned by a sudden pitch of the wheels from the apron of the boat, upon some rough logs, which were laid down as a track or road leading from the boat to the bank. Whether the accident was occasioned by the carelessness of the ferryman or driver, or on account of some latent defect in the wagon, was a question of fact, upon which there was conflicting testimony, which was submitted to the jury.

The law of the case was correctly stated in the instructions of the Court below, and the defendant’s instructions were properly refused. Much stress was laid in the argument upon the refusal of the Court to give the third instruction asked for by the defendant. The instruction does not embody the true rule of the law, but on the contrary it is held that it is not incumbent on the plaintiff to prove the exercise by him of ordinary care to avoid the injury, but that the proof of want of it on the part of the plaintiff, lies on the defendant; that he who avers a fact in excuse of his own misfeasance, must prove it. Beatty v. Gilmore, 16 Penn. St. Rep., 463.

There was no error in allowing the plaintiff to introduce the ferry license after motion of non-suit; this was a matter within the direction of the Court below, as we have often held before. There was no error in the Court in offering terms to the defendant. Such practice is frequent in every State, and often serves to quiet litigation.

The allegation that the defendant was taken by surprise, is not supported by the record. There is uo affidavit of the fact, and nothing to show that he had employed that diligence to obtain the testimony of his witnesses which the law requires.

We are satisfied that this case has been fairly tried; that the law has been correctly laid down; and although the verdict may seem large, we have no power to interfere with it.

Judgment affirmed, with costs.