
    
      Ross & Bellinger vs. James English.
    
    
      1. In an action against the owner of a sloop, to recover from him as a common carrier, for goods shipped and lost, the charge of the presiding judge was that, from the contract with a common carrier, where loss is shewn, the burden is upon the defendant to shew such act of God, or public enemies, as will excuse him; that it is not a question of fault, as the liability of a carrier may attach when he is wholly faultless; a fortiori, if he were in fault by mismanagement or imprudence of himself or agents — that it was for the jury to decide from the testimony whether the loss was from a natural cause which no human prudence could avert; and in illustrating these principles, said to the jury, that if a waggoner should fall by a stroke pf apoplexy, loss thus ensuing, which the presence of a companion could have prevented, the waggoner in neglect of common prudence being alone, when the load was such as ordinarily required two persons, the liability of a carrier would attach.
    2. The court were of opinion, that the illustration used, qualified as it was, was correct, And that in connexion with the matter to which it referred, and instructions to the jury, it could not be properly understood as laying down that two experienced navigators were necessary on a vessel of the kind in question.
    
      Before Wardlaw, J. Charleston, May Term, 1842.
    This was an action against the owner of a sloop, trading between Ashepoo and Charleston, to recover from him, as a common ^carrier, the value of goods shipped and lost.
    The plaintiffs proved the bills of lading, signed by Samuel Hough, master of the sloop Hope, bound for Ashe-poo, of which defendant, was owner ; that the sloop sailed from Charleston; that she and the cargo were libelled for salvage, and the goods shipped sold under a decree of the Court of Admiralty, in whose proceedings no master of the sloop is mentioned; and that after satisfaction of the salvors, the plaintiffs have received of the proceeds of sale a certain sum, which being deducted from the value of the goods, they claimed the balance.
    The defence, as stated, was, that the sloop was staunch and well found, and that in attempting to make Edisto Inlet, as was proper, the master, in heaving the lead, accidentally fell overboard and was drowned; the seamen were unable to navigate the vessel, and so, by the act of God, she got upon the breakers, was deserted by the seamen, and seized by the salvors. It appeared, however, that besides the master, the crew consisted of three white seamen, not one of whom was at the trial; Colclayre being dead, Laurens out of the State, and Thomson not to be found; and the defendant’s testimony gave no explanation of the loss. Only one of his witnesses (Capí. Bee,) saw the vessel after she left Charleston harbor, and he merely passed in signal of her next day, when she was at anchor in the inlet, with her mainsail set. Besides this, five witnesses for the defendant testified, that by rumor the master is dead, and was lost on that voyage; that he was steady and skilful; never known to be drunk, although he would occasionally drink a little; that the sloop was in all respects seaworthy and the crew sufficient; that it is not usual, in such small coasters, to have any skilful navigator besides the master, and not at all requisite to have any one besides him, acquainted with the coast; that the draft of the sloop was four to five feet, according to her load; that according to wind and weather, the voyage from Charleston to Ashe-poo usually occupies a time varying from five hours to two days ; that with coasters in this trade, it is usual, when the run cannot be made in one day, to find snug harbor in North Edisto ; that the bar there is the best on the coast, and it is common, and sometimes necessary, to cross the breakers in flood tide, if the wind is adverse to keeping the channel, and that a vessel drawing four feet could safely go over the breakers at half tide. There was considerable diversity of opinion as to the depth of water on the breakers, which, perhaps, is explained by the fact, that the breakers are several miles long, of various depth, in general shallow, as you approach the shore, and that the witnesses spoke of different places. One of these witnesses saw Hough, the master, in the morning, on board his sloop, about to sail, and thought him sober.
    The plaintiffs in reply, produced the testimony of Prince, the master, and Campbell, the mate of a fishing smack, who saw the sloop.
    Prince, to whose depositions reference tflay be had for greater particularity, said in effect, that he was in sight of the sloop several hours, and from her management, thought the people on board drunk, or fools; there was no difficulty in wind or weather; the smack came to anchor, and the sloop crossed the north breaker, crossed the channel, and ran upon the south breaker; with ordinary management she could been got in without difficulty; the smack reached her after dark; she had been abandoned by her crew, and was brought in as a wreck; she went ashore next day, whilst in this witness’s charge, on account of wind and tide; her crew was sufficient.
    Campbell — Saw Hough about day-light the morning the sloop sailed, he had just shipped Thompson, and seemed intoxicated, saw him make sail, wind fair and fresh, his boat was not hooked, and he backed about the harbor an hour or two ; the smack started about an hour and a half after the sloop, and passed her at Fort Sumter, smack through North channel, sloop through Lamford’s channel; smack passed her again between bar and Stono; we observed her, and thought and said her captain must be drunk or crazy, he had so many courses, and ran so far from the buoy and marks ; we went on, fair wind, to Edisto, and reached there a little after three, P. M., saw her in inlet between three and four; for some time we kept backing and filling, expecting that something would happen to her; there was no difficulty in our getting into the channel, but she ran across north breaker, across channel, and upon the south breaker; her crew came to the smack, having left the sloop, in a boat, with provisions ; after lowering mainsail and leaving topsail, we went near to her and with boats saved the cargo, with the assistance of her crew, whom we hired, who were of sufficient force, but did not know how to help themselves ; I went on board, never saw master, found a jug with some spirits in it, no papers ; sloop went ashore at what is called the dry breaker, south breaker of north Edisto, where at. three quarters ebb, it is dry all round, four miles from where vessels cross the breakers ; we hove her off next morning at high tide, and there was then scarce water to float her; she would have been a total wreck, if not saved; her crew w'ere sober; Thomson left here for New York, a fortnight ago; the sloop went ashore after we took her, Prince in her; I have several times seen Hough so drunk he could not walk straight; he was not so bad that morning ; when I went to see the defendant about the sloop, he said he thought Hough had been a reformed man.
    The presiding Judge instructed the jury, that the contract with a common carrier- and loss having been shewn, the burden was upon the defendant, to shew such act of God, or public enemies, as would excuse him ; that by the act of God was meant a natural and necessary cause, — a cause operating by inevitable necessity, without the intervention of human agency; that it was not a question of fault, for often the liability of a carrier attached where he was wholly faultless; but a fortiori, if he were in fault by mismanagement, or imprudence, of himself or agents, and thence the loss, he would not be excused; and that it was for the jury to decide whether the testimony here shewed a loss from a natural cause, which no human prudence could have averted.
    In reference to the third ground of appeal, in illustrating the general principles above laid down, by instances of wagoners, ferrymen, and others, the court observed that a wragoner would not be excused from his liability as a common carrier, if he should inadvertently drop his reins, and his team should run off and destroy the goods he was carrying; and that even if a wagoner should fall by a stroke of apoplexy, the liability of a carrier would attach to any loss occasioned thereby, if such loss could have been prevented by the presence of a companion, and the team and load were such as ordinarily required two persons, and the wagoner, in neglect of common prudence, had been alone.
    The verdict was for the plaintiffs.
    Defendant appealed, and moved for a new trial, on the following grounds.
    1. Because the loss was proved to have been occasioned by one of those inevitable accidents which could not have been guarded against, and for which the carrier was not answerable.
    
      2. Because the vessel was proved to be seaworthy, and that she had a sufficient number of hands on board to manage a vessel of her tonage.
    3. Because, it most respectfully submitted, his Honor charging the jury, if a common carrier on land should be struck down by apoplexy, and a loss should thereby occur, it would not be such an act of God as would excuse the carrier, was calculated to mislead the jury, and induce them to find against the defendant.
    4. Because, from the case made by the plaintiffs, they were not entitled to recover, and the verdict was against law and evidence.
    
      R. W. Seymour, for the motion.
    
      Bailey, contra.
    Cited Storey on Bailment, 512; 520 — 4.
   Curia, per

Wardlaw, J.

This court understands that of course only so much of the charge of the presiding Judge has been reported, as meets the grounds of appeal. The only complaint made of the charge is that made in the third ground, which supposes that an illustration used was erroneous ; but qualified as it was, the illustration was correct, and taken in connection with the matter to which it referred, and other instructions given to the jury, could not properly have been understood as laying down, that two experienced navigators were necessary on board of a schooner such as that in question, which is the inference that it has been supposed the jury drew. The case was one of fact, and manifestly was so understood by the defendant’s attorney; the jury have decided that the testimony did not shew a loss by the act of God, and this court is satisfied with the verdict.

Richardson, O’Neall, Evans, Butler, and Frost, JJ. concurred.  