
    SHORT against KNAPP
    
      New York Common Pleas, General Term,
    January, 1867.
    Cause of Action foe Negligence.—Charge to the Jury.
    The rule that ene injured by the negligence of another cannot recover, if his own negligence contributed to the result, discussed, and its application determined in reference to injuries sustained by-insufficient guards for horses on a ferry boat.
    The proper terms of a charge to the jury in such a case.
    Appeal from a judgment of the judicial court of the 7th District of New York.
    The facts are stated in the opinion of Beady, J.
    
      Spring & Wetmore for the appellants.
    I. The defendant is not liable as common carrier. (1) The responsibility of a common carrier, commences only from the time the goods are delivered into his custody in such a manner that he may exercise control over them. An acceptance of the goods, in some way, is indispensable to the liability of the carrier, and when no intention to commit the custody of the goods to the carrier appears, he will not be held liable. There must be such a delivery as vests in the carrier a special property in the goods, by" virtue of which he might maintain an action against any one who disturbs his possession (Angell on Car., secs. 140, 348, 465; Cohen v. Frost, 2 Duer, 335; Blanchard v. Isaacs, 3 Barb., 388; Tower v. Utica and Sch. R. Co., 7 Hill, 47; Ad. on Con., 498). So held in case of a traveller who drives his horse and wagon on board a ferry-boat, pays the usual toll, selects a place for himself, and retains custody of his horse without committing it to the care of the ferry man, or expressing any - wish or purpose to do so (White v.Winnisinmet Co., 7 Cush. [Mass. R.] 154). [This case is directly in point, and precisely analogous to the present one.] The plaintiff retained his team in his own custody—selected his own position on the boat—did not call any of the deck hands or servants of the defendant, and commit his horses to their charge. The case presents the simple instance of a passenger retaining possession and control of his goods and so relieving the carrier from his responsibility as an insurer. (2) The responsibility of a carrier of animals is different from that of a carrier of inanimate property. The carrier is not responsible for injuries arising from the nature and propensities of the animal. (Clarke v. R. & Syr. R. Co., 14 N. Y. [4 Kern.] 579). The defendant had a right to suppose that the owner of the horses would not drive them upon his boat if they were liable to become frightened at the noise of the machinery or the motion of the vessel. The plaintiff knew the disposition of his horses, or was bound to know it; the defendant did not, and had a right to assume that they were gentle. At all events, if restive horses are placed upon the ferry-boat, the ferry man is entitled to due warning, in order that he may place the animals in particular custody of one of his servants.
    II. ¡No negligence was proved on the part of the defendant. The only imputed grounds of negligence were, that the deck of the ferry-boat was slippery, and the chain in the rear too low. (1) That the uncovered portion of the deck was slippery from falling fog and mist on a winter morning, is nothing. There is a portion of the deck of our city ferry-boats usually and necessarily unprotected from the weather. The covered portion of the defendant’s boat, which included almost the' whole deck, was dry. There were no other vehicles on the boat, and nothing to prevent the driver from selecting the dry part of the deck. If he had, according to-his own story, the accident would not have happened. The defendant was under no obligation to keep all his deck dry. The structure of ferry-boats renders this impossible, and a property owner might as reasonably be held responsible for allowing rain to fall upon his sidewalk. (2) There was no proof that the defendant’s chain was weak,, defective or unsuitable for the purpose such chains are designed to fulfil. There was no proof that it was different from the chain hung across all our ferry boats. There is no 'statute or ordinance making it imperative upon ferry men to provide any chain, and in the country such chains are unusual. The horses jumped the chain where it was at least two feet high—close to one of the posts where it was fastened. If higher it would allow children and smaller animals to go under it.
    The ferry transit occupies but a few minutes—and the convenience of passengers requires that the chains should be arranged so as to allow a speedy exit from the boat. It is a universal custom upon, our ferries that horses and carriages during the pa'ssage are looked after by some person in charge of them—and ferry men have a right to rely upon this fact, and are not bound to and could not provide a portable stable for them.
    III. Even if any negligence could have been imputed to' the defendant, the evidence discloses the grossest negligence on the part of the plaintiff. (1) It is an elementary principle of law that in an action for negligence the plaintiff must fail in • his action unless it appears that he was free from any negligence contributing to the injury. “-The greatest negligence ori the part of the defendant will not cure the defect of the least negligence contributing to the injury on the part of the plaintiff.” (Wilds v. Hudson Riv. R. Co., 24 N. Y. 430; Ernst v. Hudson Riv. R. Co., 24 How., 97; Button v. Hudson Riv. R. Co., 18 N. Y., 248; Wilkinson v. Farrie, Am. Law R., Feb., 1863.) “In an action for negligence the burden is upon the plaintiff to prove affirmatively that he is guiltless of any negligence proximately contributing to the injury.” (Button v. Hudson Riv. R. Co., ubi supra.) It would be difficult to state, a clearer instance of what the law defines as “gross negligence’’ than the undisputed facts of this case present on the part of the plaintiff, driving the cari-iage. It is unnecessary to discuss the question whether he was bound to use more than “ ordinary” care. What would be ordinary care in handling sand bags would be gross negligence in handling bags of gunpowder, and what would have been ordinary care had the plaintiff’s horses been standing iu their stable was gross negligence when they were on the deck of a ferry boat. “Gross negligence” is the omission of such care as even an imprudent person would have taken under the circumstances; the .plaintiff Short did not take the ptecautions that would have been taken by a boy of ten years of age. It is not disputed .that he left his box, left the reins hanging over the dashboard, left his horses unattended, and either wholly entered the carriage or stood half in. and h.;lf out in the doorway—it is unimportant which position he occupied —and then, as if his negligence were not then complete when his restive and unruly horses started the first time, and he had received full warning of the danger of leaving them longer, made no attempt to regain possession of the reins, but waited until their second flight, and they were in full career, and he had lost all power of regaining his control of them. Providentially, the lives of the passengers entrusted to his care were saved. Had they been lost can they be any doubt that the plaintiff would have been liable to their personal representatives ? (2) The evidence of the plaintiff and others as to how high a runaway horse can jump and as to the probability of the plaintiff’s having been able ro stop the horses if he had been at .their heads or had the reins in his possession, was purely a matter of opinion and idle conjecture, not a subject for testimony of experts, and should have been excluded. The exceptions to the general rule that the opinions of witnesses are inadmissible “ are confined to questions of science, trade, and a few others of the same nature.” (Morehouse v. Mathews, 2 N. Y. [2 Comst.], 514), The opinions of witnesses will not be received where “ the inquiry is into a subject matter the nature of which is not such as to require any peculiar habits or study in order to qualify a man to understand it” (1 Smith Lead. Cas., 286; 1 Phil, on Evid., 780; 1 Greenl. on Evid. § 440; Dewitt v. Barley, 5 Seld., 371; Harris v. Panama R. Co., 3 Duer, 7; Paige v. Hazard, 5 Sill [5 N. Y.], 603; Duff v. Lyon, 1 E. D. Smith, 536).
    IV. The question what constitutes negligence is one of law for the court. Wilds v. Hudson R. R. Co., 24 N. Y., 430; (see p. 433) [reversing, S. C., 33 Barb., 533]; Morris v. Phelps, 2 
      Hilt., 33; Keller v. N. Y. Central R. Co., 24 How., 172; Barmen v. Balt. & Ohio R. Co.; Am. Law Reg., N. S., Vol. 5. No. VIII [June 166], 470; see p. 475. (1) This rule is stated and discussed at length in the leading case of Wilds v. Hudson R. R. Co., (24 N. Y., at page 433) in the court of appeals, and it is there held it is the duty of the court to take the case from the jury when questions of negligence are involved as in all others, not only when there is no evidence to sustain the allegation, but when there is not enough evidence to carry the case to the jury, and that “ the applicability of the rule” is “ not varied by saying that the evidence may consist of circumstances, from which inferences are to be drawn as to negligence; and that as different minds may draw different inferences from the same circumstances the jury must always be- judges of negligence when the evidence is circumstantial.”
    It is unnecessary in the present instance to discuss the difficult question of precisely what amount of evidence is necessary to carry a case to the jury, or whether the facts lead to inferences for the ■ jury to decide; it is universally admitted that-when the facts are undisputed the court decides the legal inference from such facts, and the appellant claims in this case upon the undisputed facts. The only material conflict of testimony was as to whether the driver was wholly or partly in the carriage, which was simply as to whether he was guilty of one or another degree of folly and negligence.
    The case was a proper one for a non-suit, which should have been granted. (2) The justice erred in refusing to charge as defendant’s counsel requested. The jury in justices’ courts may be left' to decide both law and fact, but their decision as to'the law is subjected -to reversal; or if the justice attempts to charge them and charges erroneously, it is cause for reversal. In either case the present judgment should be reversed : if it included the question what constitutes negligénce it was erroneous—if it was simply on the facts, the jury .should have been differently instucted as to the law, and it is equally erroneous. (Cower's Justice, 2d vol., p. 357; 3 Johns., 436).
    
      Alexander H. Reavey for the respondent;
    
      Cited Wedgw. Gov. & L., 275; Dygert v. Bradley, 8 Wend., 469; Keller 
      v. N. Y. Central R. Co., 24 How. Pr., 172; Harring v. N. Y. and Erie R., 13 Barb., 9; Labar v Koplin, 4 N. Y., 547; Redf. on Railw., 833; Clark v. Kirwan, 4 E. D. Smith, 21; Eakin v. Brown, 1 E. D. Smith, 36; Center v. Finney, 17 Barb., 94; 22 N. Y., 209; 33 Barb., 503; and 12 Abb. Pr., 44; Mudgett v. Bay State Steamboat Co., 1 Daly, 155).
   By the Court.—Brady, J.

The plaintiff’s horses, with carriage attached, were led by one of the plaintiffs, who was acting as the driver of the team, on board of the defendant’s ferry boat, at the foot of Twenty-third street and the East river. There was no light upon the ferry gate or upon the boat. It was about half-past five in the morning, and very dark. The deck of the boat was slippery, although the driver who led the horses as stated did not notice that fact when he so led them on board. There were some persons in the coach,' one óf whom called to the driver, who went to the door of the coach to see what he wanted. While talking to him the whistle of the boat blew, and the horses started. The driver told them to stop, and they did so—they were not frightened. The whistle blew again, and the boat moving, caused the horses to start again. The driver hurried to them to stop them, and did all that he could do, but could not stop them, because the deck was slippery. When they started they turned round and went overboard, and one of them was drowned. There was a chain at the end of the boat, which sagged at the centre, and was not more than twelve inches high at that point, which was not sufficiently, elevated to stop the horses, but did stop the carriage. The driver at the time the horses started, was talking to his passengers, having one foot on the step of the carriage, and one foot inside, and was apparently guilty of negligence in thus leaving his horses ; but he testified that in consequence of the movement made by the horses, and the slippery condition of the deck of the ferry-boat, it would have been impossible for him to have stopped the horses whether he had been at their head or on his box; a fact to which others accustomed to manage horses also testified to, and corroborated his evidence on that subject. Several witnesses also testified in reference . to the chain, its arrangement, sagging in the centre, and its insufficiency for the purpose for which it was intended. The evidence given in behalf of the defendant, made a conflict upon the various elements of the plaintiffs’ case ; as to the elevation of the chain, the ability of a person to stop the horses if standing at their heads, the position of the driver when the horse started, and the condition of the deck. Under the circumstances disclosed, the plaintiffs’ right to recover depended upon the absence of any negligence on their part which contributed to the injury sustained. The jury were so instructed. If the driver had been upon his box or standing at the head o-f his horses there could be no doubt about the right of the plaintiffs to recover, inasmuch as the horses were shown to be gentle and reliable, obedient to command, and not inclined to run away and there was proof establishing the facts that the guards use d by the defendant on his boat were not sufficient for the purpose intended—that there was no place to tie the horses and ho proof that any person was employed on board of the boat who was charged with the care or custody of these or any other horses. Assuming this conclusion to be correct in principle, it follows that if the driver being on his box or at the heads of the horses could not have arrested them, his absence from both the places designated was not per se evidence of negligence contributing to the injury suffered.

The facts and circumstances were considered and passed upon, and if the jury thought the plaintiffs guilty of negligence, they could not recover. For these reasons the justice did not err in refusing to dismiss the complaint.

It does not follow because the plaintiffs may have been guilty of negligence that they cannot recover. The negligence must in some degree contribute to the injury, and unless it does, it cannot affect the right to indemnity. (Haley v. Earle, 30 N. Y., 208). Although the liability of a common carrier of animals is not in all respects the same as that of a carrier of inanimate property, and although he is not an insurer against injuries arising from the nature and propensities of animals, yet if diligence and care can prevent them he is bound to the exercise of such diligence and care (Clarke v. The Roch. & Syr. R. Co., 14 N. Y. [4 Kern.] 570. “ It is the duty of a ferry company to have all suitable and requisite accommodations for the entering upon the safe transportation while on board, and the departure from the boat of all horses and vehicles passing over such ferry. They are also required “ to be provided with all proper and suitable guards and barriers on the boat for the security of the'property thus carried, and to prevent 'damage from such casualties as it would naturally be exposed to though there was ordinary care on the part of the traveler (per Dewey, J. in White v. The Winnissimmet Co., 7 Cush., 157). Accepting this statement of the duties devolving upon ferry companies as a concise and ample exposition of them in reference to the subject under consideration, and more particularly since the case from which it is extracted was cited by the defendants’ counsel, it is established by the verdict of the jury that the defendants’ boat had not suitable guards and barriers to prevent damages from such casualties as the plaintiffs’ property would naturally be exposed to. It is true that the plaintiff did not recover in the case just referred to, but it was for the reason that he had contributed to his injuries by his owu negligence. The opposite finding on conflicting evidence sustains the judgment in this case, the jury having been instructed by the justice not only in relation to the plaintiffs’ negligence but also that the defendants were not liable unless the damages sustained by the plaintiffs were occasioned by the defendants’ negligence; upon an examination of the case in reference to the propriety of the verdict we cannot say that it was not just. It appears clearly that the plaintiffs’ horses were frightened by the act of the defendants’ servant who blew the whistle, and that defendant was .therefore in fact the original impelling cause of the accident; whether the use of the whistle did not impose additional caution on behalf of the defendants, is a question upon which we are not called upon to express an opinion; but if such use of it is necessary in conducting the business of the ferry in the navigation of its boats, it would seem from the events which this case has proven, to call upon the defendant to employ ampler means for the security of passengers and animals than those- adopted.

We cannot interfere with this judgment. The evidence admitted under the defendant’s objection bore directly upon the question of negligence, and was pertinent and proper, and the jury were properly instructed upon the legal rules by which their deliberations were to be governed.

The judgment should be affirmed.

Daly, F. J.

I agree with Judge Beady that this judgment should be affirmed. It was a question of fact, under the evidence, whether the driver did or did not enter and seat himself in the coach. Even if he had done so, it is doubtful whether that act contributed to or co-operated in producing the accident, as several experienced witnesses testified that if he had been on the box, or at the horses’ heads, it would have been impossible for him' to have prevented it. The judge, therefore, could not, under this evidence, instruct the jury that such an act constituted in law, an act which contributed to the “jury.  