
    Solomon Cohen vs. John Hume.
    A ferry-man is liable as a common carrier ; and as soon as a carriage is fairly on the slip or drop of a flat, though driven b v the servant of the owner of the carriage, it is in the ferryman’s possession; and he will be liable for anv damage which may afterwards occur to it or the-horses.- The carriage and horses, injured, of a person so passing a ferry, are not mere appendages of the person.
    Tried at Georgetown, November Term, 1820, before his honour Judge Colcock.
    
    JL HIS was a special action on the case by the plaintiff, the owner of a carriage and horses, against the defendant, the owner of the North Santee ferry, to recover damages for injury done to a carriage and for the loss of a pair of horses that were drowned in crossing the ferry.
    On the part of the plaintiff, several witnesses were examined. The first, Mr. Cohen, the son of the plaintiff, stated that he was present when the carriage with ladies in it. was driven to the south side of the ferry; that the driver, a negro man, was a careful person ; that in driving, into the flat, he took a central direction, and got his horses and the two front wheels in, that they were as much in the center of the flat as they conkl be ; that the left hind wheel dipt from the drop which was improperly placed on the flat, ns it did not extend entirely across it; that the hind, wheels slipping, the horse on the left side stumbled and got over-board. He drew the other horse after him and the carriage. The driver held by the reins, until they broke, when he caught by the wheel, having left his seat. During this time, the ferrymen were alarmed and offered no as-distance ; that if they had assisted, the horses might have been cut loose and saved. The horses were drowned and one of the ladies in the carriage. The ferrymen did not request the ladies to get out before the carriage was driven in, though the witness did, but they declined. The ferrymen did not take the carriage from the driver. The witness said nothing to the driver about the drop, though he saw that it was old and in bad order. The flat was old. ■ There were two ferrymen, and one was lame. The horses cost six hundred dollars ; they were gentle. The harness, which was plated and worth sixty dollars, was destroyed. The carriage was much injured. Two of the pamieis were sprung and the stuffing was rotted. The width of the wheels was five feet eight inches and a half. The witness was standing near the weather house on the cause-way and behind the carriage when it entered the flat. He observed before the carriage went in, that the drop Was not as wide as the flat, but he did not say any thing about it. The edges of the drop were worn away. The drop was not injured or broken by the carriage, which was a small one. The current was very strong and run up. The ferrymen must have assisted in getting up the carriage. The ferrymen did not, he believed, direct the driver of the carriage to drive into the flat. The drop had hinges.
    Dr. Pawley, the next witness, was in company with Mr. Cohen, when the carriage arrived at the ferry. The driver drove well. .There was no fault, except that the left end of the fiat was not drawn up as high as it should have been. The water was low. The horses and front wheels were in the flat, when the carriage went over-board. When the wheels of the carriage struck the gunnel oí the fiat, the fiat wheeled round a little. 'The driver was a careful servant. The horses were gentle. One of the ferrymen walked lame. He believed the fiat was properly chained, but not drawn up high enough ; though he observed this before the accident, he said nothing to the ferrymen about it. He did not speak of it to Mr. Cohen. He told Mr. Cohen the ladies had best get out. He thought if the fiat had been drawn up properly, it would not have happened. 'The road obliqued as you approach the ferry. The carriage went over first. The ferrymen at the time of the accident were at the extreme end of the flat with their poles fixed.
    Mr. Trapicr, the next witness, passed the North Santee ferry in May preceding ; the drop was then out of order, and also the flat. He told the ferrymen that if a better flat was not provided, he would have their master presented. The drop was too narrow, and out of order. The ferry was generally well kept. The witness thought the lame man and the other ferryman were enough for the ferry. The drop was too narrow', and it was broken in some, parts. It was ricketty and shakled. He saw hut one drop.' Since the time he passed an excellent' fiat had been provided.
    Mr. Cotton, the next witness, saw the flat in the spring of 1819, also the drop; it was as Mr. Trapier had described it. 'The boards were thin, and it was battened with thin boards. He did not know that he ever saw the fiat out of order; but had often seen the drop so. It was often changed, as it soon wore out. The tide sometimes ran up. It ebbed and flowed at the ferry from 8 to 4 feet.
    On the part of the defendant, the witnesses were Mr. Campbell, who got to the ferry 10 or 15 minutes after the accident. The ferrymen assisted in getting up the car-riag-e and rendered every assistance they could. The witness was coming down the river in a boat, and was asked to assist. Collins, who kept the ferry worked hard.
    Mr. Britt, the witness was also in the boat. The current was very strong. The negroes assisted and did all they could. They stripped and dived after the carriage. The carriage floated down the river and sunk below the slip. Tire current ran down the river. It aided witness’s boat in bringing assistance. There was no counter current.
    Mr. Hume, the son of the defendant, had measured the flat and drop. It was forty five feet long, and was nine feet eight inches wide. It was one foot ten and a half inches deep. The drop was eight feet nine and a half inches wide. It was three feet six inches long. It was only eleven inches narrower than the flat. The November after the accident, the witness saw the flat. It was no longer used at the ferry, though it was still used at the plantation. It had not been repaired. He saw it harvesting the last week. The drop was made of hard pine. The boards were one inch and a quarter thick. There were four boards and four battens. There was a drop at each end. The drop with the hinges was much worn, but it had no holes. The flat was used, by the stage, twice every other night. The stage had four horses. The last time before the accident, that the witness crossed the ferry, was in April. One drop slided, and the other had hinges.
    On the part of the plaintiff, it was contended that a ferryman is a common carrier, who is liable for every loss, but v/hat, arises from inevitable accident. That in this case, it could not be pretended, that there was any inevitable accident; that therefore the defendant was liable, without going into the question, whether the flat and drop were in good order, and the ferry well kept or not.
    On the .part of the defendant, it was urged,
    First, that there was no delivery in this case at the time of the loss ; that until the carriage was driven into the flat, it was in the custody of the driver, and the responsibility ,.jf the carrier only commenced 1'rom the time when the carriage being fairly within the flat, the flat was tobe carried across ; that the ferrymen in this case did not undertake to carry the carriage and horses into the flat. The driver undertook to drive in, and the ferrymen after securing the flat awaited with their poles at their posts the coming in of the carriage. The loss arose while the driver was driving in.
    Secondly, That this was properly the case of the transportation of passengers. The carriage and horses being but incidents to the persons in the carriage; and that the settled rule of law is, that a carrier does not undertake for •the-safety of a passenger in every case, except inevitable accident. That if the ferrymen would not be liable for the loss of the lady within the carriage, except in case ofneg-ligence, he could not be liable for the horses and carriage, which were as much in the custody of the passengers as their own persons, and were only transported, because the passengers were in the carriage. That in this case, the driver with the persons travelling in the carriage, without leaving their seats, passed from the road to the flat.
    The judge charged the jury, (after overruling in the course of the argument of the defendant’s counsel, the second ground,) that it had been settled ever since the case of Cook vs. Gourdin, (2 Nott and McCord, 19,) that a ferryman is a common carrier, and liable for every thing but inevitable accident; that the law was by no means rigorous, as our lives and property were in his hands ; that it is difficult to prove whether there has been negligence or not; and therefore the law presumes it in all cases but one ; .that it had been made a question, whether there was a delivery; this the jury must decide ; that iftheslipor drop, was a part of the flat, there was a delivery ; that he should think there was a delivery from the time the horses were on the drop; that the carriage being driven in by the driver, would not alter the case ; that the ferryman could regulate the traveller: where the traveller drove himself, he might be considered the agent of the ferryman»
    
      The jury found a verdiyt for the plaintiff of S-
    A motion ivas made before the Constitutional Court far a new trial on the grounds :
    First, That there was no delivery in this case.
    Secondly, That this was the case of passengers in which ihe carrier was not liable at all events.
    Thirdly, That it was not proved, that the loss arose from negligence on the part of the owner of the ferry or the ferrymen,
   Mr. Justice Colcock

delivered the opinion of the court.

The verdict in this case must remain, It is not now to be made a question, whether a ferryman is a common carrier ; that has been adjudged in the case of Cook and Gourdin and has been recognized as the law in a subsequent case of Miles vs. James and Johnson, (Ante 157,) decided at our last sitting at Columbia. The question then was as to the delivery. If that be sufficiently established, the liability follows as a matter of course. Three of the court (my brothers, Huger, Gantt and myself) are of opinion as soon as the ferryman signifies his assent to receive the horses and carriage of a traveller, they are to be considered as delivered. If he say, drive on, or, I am ready, having fixed his fiat, he is from that moment to be considered as-in possession, and the driver is to be considered as his agent for the purpose of getting the horses and carriage into the fiat. All carriers are permitted to regulate the manner in which the goods are to be delivered, and in many instances this is alone determined by the custom of of the place. It cannot be thought too rigorious to estab-iish this rule in regard to feryymen. Jf they prefer it, and think it conduces to greater safety, they may take the horses out, and lead them in, anq lift the carriages (at least such as may be lifted) and as to others they may drive them in, or cause them to be driven in. It is said, it would be an imposition on the traveller, to subject'him to this control, but it seems necessarily incident to the great res.v pousibiiity which is imposed on the ferryman as a common carrier.

It is further objected that it would be subjecting the traveller not only to great inconvenience, but also to' great risk ; for it is not to be expected that ferrymen keep persons qualified to drive carriages, and in fact that no one would be willing, even with the responsibility of the ferryman, to trust his horses and carriage in the hands of an un-experienced driver ; but all this may, and no doubt, has been said with respect to the delivery of goods to the infinite number of bailees who are in the daily habits of receiving them ; for nothing is more common than formen to think themselves wiser than their neighbours and more qualified to do any act whatever. But when the law taking into consideration the nature of the bailments and that of the articles to be delivered, has determined what shall constitute a delivery, the parties áre left free to act for themselves.

If the ferryman insists on his right to drive the horses and carriage into the flat, and the traveller does not choose to trust him, he may not cross at the ferry; but there is in fact no ground for difficulty on this point. If a flat be in proper order and the bank in good repair, (as it is the duty of the ferryman to keep them) it is more easy to drive into a flat than through a bad road, and the necessity which would induce the travellers to get an experienced driver, would ensure the ferryman a qualified agent.

But the question of delivery must be for the jury. ' In Selway vs. Holloway, (1 Lord Raymond 46,) a case of a common carrier, three verdicts were given on the question of delivery alone, depencling'on a simple fact. The inquiry therefore is whether there was sufficient evidence to induce the jury to believe that there was a delivery in this case. The testimony is that the carriage was in the flat and óu the drop. Now if the drop be considered as a part of the flat, the delivery was as complete as placing a bale of goods on the deck ox a vessel. The drop is a iiecessary part of the flat, particularly-where the bank is so steep as this is at low water. Butlet.it be supposed that it wao only an appendage to the flat, a necessary instrument to effect the deliver»?', then by analogy the delivery ought to be considered as complete. It was contended that the delivery can never be complete so long as the thing is in transitu to the place or point of ultimate deposit. Bus this idea is refuted by the caces of a delivery, by placing on the deck or (according to the custom of some places,) on the wharf, for the ultimate place of desposit in the hold of the vessel; and so by the case from 4 Espinasse 261, (Thomas et al. vs. Day,) where the hook is applied to the hale of goods which' had not yet reached the warehouse. There was still something to be done in all these cases. Suppose the ferryman had undertaken to lift this carriage into the fiat, and had placed it on the gunwale to rest and from that it had slipped into the river, here it was obvious something more was to be done, yet it would not Le doubted in such case they would be liable. The question then does not depend on the fact, that the thing was not yet completely disposed of by the carrier, but upon the assent of his mind, (evidenced either by his acts or language,) to take possession. What said Lord Ellmbo-rough in the case of Thomas et al. vs. Day! The moment the hook was applied, the possession was in the warehouse-map,, although applied by the carman. As soon as the carriage was fairly on the slip or drop though driven by the servant of plaintiff, it was in the defendants possession. Et is contended, however, that so far as relates to the transportation of carriages and horses, the ferryman ought not to be liable; for the carriages and horses are only the appendages of the persons; and the carriers of persons are not liable for their appendages ; to support which it is shown that if a passenger in a stage coach loose his watch or a lady her ring or shawl, the stage coachman-, is not liable. There is as much analogy in law between the cases sis there is in art between the things ; and it is clear that a ring is net jibe a carriage, and still more clear that where 'heve is no undertaking to carry and consequently no com-pecsation for carriage, there can be no responsibility fox loss. The carriers oi’ persons are not to inquire what jewels they wear, nor do they receive a greater price íor a lady'with a ring than for one without, lint in the carriage of persons, although the stage owner is not liable at all events lor an injury done to the person,yet if it be the re-, suit of negligence he is liable. (Aston vs. Heane et al. 2 Espinasse's Cases, 533. 2 Campbell 79.) And upon that ground the defendant in this case would be liable for the loss of the property. There is no doubt that the loss was the result of direct and palpable negligence ; for the: carriage would not have taken a wrong direction if the flat had been properly drawn, up; and when it did take a wrong direction.from the wheeling of the flat, it would not have fallen off, if the drop had been wider and perfectly sound. If it had been as wide as the Sat, the jolt would not have been received.

justices Huger and Richardson, concurred.

Mr.-Justice Gantt

concurring, delivered the following opinion :

I concur in the opinion which fixes the responsibility of the defendant in this case ; because I think there was evidence sufficient to shew neglect at the time the loss hap- ■ pened ; and further, that it was most probably occasioned by the insufficiency and bad structure of the drop of the boat, which constitutes an essential part of it, and for which th^re can be no excuse, as the high trust confided by the public in the grant of a ferry, and the exclusive privileges derived therefrom, oblige the keeper to be in no default. He is liable whenever the loss can be traced to the 1 slightest neglect or failure of duty on his part. Hence if ! he neglect to have the landing in a complete state of repair for the reception of travellers, if proper and safe easements are not furnished for entering the boat, if from the ! narrowness or shortness of the boat, the want of necessa- ', ry railing or any other like deficiency, a loss he occasioned, j 5 am decidedly of opinion that no excuse should screen ¡ . ... him from his liability. bo, ii there be wanting fastenings to keep the boat in a firm and steady position for the recep* tion of passengers, cattle, carriages, ike. as was the case in the instance before us, he is liable. As the commander of his vessel, and the keeper of the ferry by public authority, as well as from the liability which attaches for losses, he is to have the sole and enure direction and management of the boat ; he may or may not at his election and pleasure constitute passengers his agents. They arc to be so considered in every instance where they act discreetly and in subservience to his orders, but when; wilful and in violation of his authority and directions should a loss happen fiotn such cause, he is not liable. Decisions of our courts have identified him with common carriers, and in a general point of view correctly. But regard must still be paid to the nature of the employment, and I deem it altogether impossible in any one or more cases to establish a principle so correct in itself, as to suit every other case which may arise from different causes, and of endless variety.. Every general rule must have its exceptions, and the case of a ferryman who has to contend with wind and water, the caprice and obstinate perverseness of some passengers, and the unruly and altogether unmanageable dispositions of some animals, to which I will add, the casualties incident to every station and situation in life, will necessarily furnish many, which can only be correctly adjudicated when such cases shall occur.

Mr. Justice Nolt

dissenting, delivered his opinion.

I concur in the view which has been taken of this case by rny brother Canít; and if the case had been submitted to the jury as involving only a question of due diligence or neglect on the part of the ferryman, I should have been satisfied with the verdict. But I do not think he can be liable in the capacity of a common carrier, until the goods are actually on board of his boat ; and as I am of opinion the law was not correctly stated to the jury in that respect.. I think a new trial ought to be granted.  