
    James Rutherford v. Henry M’Gowen.
    The owner of a chartered ferry is liable for all damages sustained at his ferry, 
    
    This was a special action on the case against the defendant, for damages sustained at his ferry, by the plaintiff, in consequence of the chain breaking, which fastened the flat to the shore.
    A special verdict was found in the following words: “We find that the defendant is the owner of the public ferry across Broad river, at Oompty’s old ferry, and that a white man attended to it; that the chain, with which the flat was fastened to the bank, was unusually large and apparently strong; that in attempting to drive the wagon of the plaintiff, heavily laden, into the flat, the chain broke, in consequence of which the horse of the plaintiff was so much injured as to be of no value; that several wagons, equally heavy laden, had before passed there ; that the chain had been for some time used thereat; that the blacksmith, who mended it, was of opinion that it was equal to any chain he was capable of making; that there was no negligence on the part of the defendant’s ferryman. If, under these circumstances, the Court should be of opinion that the plaintiff is entitled to recover, *we find for him one hundred dollars ; if not, for the defendant.”
    The Court below pronounced judgment in favor of the defendant.
    This motion was therefore to reverse the judgment in favor of plaintiff, because, in such cases, the defendant is bound to answer for all accidents not occasioned by the wagoner’s own fault.
    
      
       It was determined in the case of Qourdin ads. Coolc, [2 vol. 19,] in Charleston, that the owner of a ferry was liable as a common carrier. The Law of Carriers, p. 10, says, “An action lies against a common bargeman, as against a carrier on land, ’ ’ and ferrymen are there included under the same rule; and in the same work, “a ferryman, it seems, will only be excused where the case falls under the exception of loss by perils of the sea.” Rich. v. Kneeland, Hob. 18, Cro. Jac. 330, and Bancroft’s case, cited in Jones on Bail. 108. Sed vide Townsend v. Susquehanna Company, 6 John. 90. R.
      See 2 N. & McC. 19, 89 ; 1 McC. 157, 444; 2 McM. 368; Harp. 262; 5 Rich. 22; 5 Strob. 119. 1 McC. 159. 4 McC. 226.
    
   The opinion of the Court was delivered by

Grimke, J.

This case has been argued on two grounds : 1. Because a ferryman is accountable as an insurer; and, 2. Because he is in the nature of a common carrier. I am of opinion that a ferryman cannot be viewed in either of these lights, because insurers and common carriers are left at liberty to make their own bargain and to proportion the price they require, to the value of the goods, and to the risk they run. But I consider him, who undertakes to keep a ferry, to enter into a contract with the Legislature of this State, that he will, for a certain price, (and which he is not bound to accept,) set over safely, and without injury, all the different articles enumerated in the ferry Acts ; and that if he do not perform this duty, which he has undertaken, without detriment to the things mentioned in the Acts, then is he liable for such injury as any one may sustain at a ferry, through the deficiency of the boat, tackling, chains, &c. If this were not the ease there would be no tie, no obligation on a ferryman to attend punctually to his duty, and to have every thing in the best order for putting over persons, wagons, &c.

Stark, Solicitor, for the motion. Harper, contra.

It must be known to every ferryman, that the strain upon a chain, when the fore wheels of a loaded wagon first strike against a fiat, to enter it, is very great, and that therefore he ought to be provided with a chain of great strength to support such a blow, but particularly when the descent from the bank to the flat is steep and considerable Many flats, to avoid this severe blow of the wagon wheels, are provided with boards *which letdown and serve as a kind of bridge from the bank to the flat, and which eases off much of the violent concussion with which the fore wheels impinge on the flat. Other modes are also adopted by ferrymen, which go to show how sensible they are of the violent force with which a loaded wagon strikes against and enters a flat.

I think in cases of this kind that it would be difficult to draw a line between what was due diligence or what was not; but it is not difficult to prove, that, though an unlooked-for accident of this .sort might happen, without the ferryman’s being provided against it, he ought however to be accountable for the injury sustained. If he is not so, I am at a loss to discover what duty he is to be bound by his contract to perform, and in default of which he would be responsible.

I am, therefore, of opinion that judgment should be entered for the plaintiff.

Colcook and Gantt, JJ., concurred.

Johnson and Nott, JJ., dissented.

Cbeves, J.,

also dissenting, gave the following opinion:

Without giving any opinion, whether a ferryman is liable or not, as a common carrier, I dissent from this opinion, because I do not think the plaintiff’s property was in the defendant’s charge when the injury happened.  