
    
      Elizabeth Grigsby vs. John Chappell.
    
    The owner of a toll bridge is not a common carrier: his obligation is to keep the bridge in proper condition for the safe passage of passengers and goods, and only for negligence in so keeping it is he liable.
    
      Before O’Neall, J. at Newberry, Spring Term, 1852.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was an action on the case brought against the defendant for a negro drowned in attempting to cross his toll-bridge over Saluda river, in the time of a great freshet in March, 1850.
    “ The negro was employed m Edgefield by a Mr. Cromley ; his mistress, the plaintiff, lived in Newberry. On Saturday eve ning, 1 1-2 hours by sun, he left his employer to visit his home. His body was found, on the subsiding of the water, on Monday morning, 150 yards below the bridge, on the Newberry side.
    “ A portion of the bridge is over the land, which, in a flood, is covered by water. This part had been taken up for 40 or 45 feet, to prevent it from being washed off. It was here, as it was supposed, that the negro, in attempting to cross, perished.
    
      “ It was proved by one of the plaintiff’s witnesses, (Mr. Miller,) that he was detained south of Chappell’s bridge by its impassable condition. He proved that a negro, who said he belonged to the plaintiff, came to his camp about an hour after night; told him he was going tp try to cross. The' witness told him he could not, the river was high. The negro replied, there was a frolic in Newberry; he had swam the river before, and could do it again.
    
      “ It was a clear, moonlight night; the timbers, taken up from the land part of the bridge, were lying on the river part. Any one could see them; so said the witness.
    
      “ The negro was a carpenter, and very valuable.
    
      “ A motion was made for a nonsuit on the closing of the plaintiff’s case, on two grounds : 1st, That there was no proof that the slave was on the bridge ; 2d, That his death and loss to his owner arose from his own act, in undertaking to swim either the river, or from where the bridge was taken up to the land. The first ground I overruled, as matter to be passed upon by the jury; the second I sustained, and ordered a nonsuit.”
    The plaintiff appealed, and npw moved that the nonsuit be set aside, on the following grounds :
    1. Because his Honor erred in deciding-that the defendant, being the owner of a toll-bridge, was not liable for the loss of plaintiff’s slave, although it was in proof that the timbers between the bridge and banks of the river had been removed by the defendant, and for want of which the crossing was rendered dangerous, and that the negro was found immediately below that part of the bridge.
    
      2. Because the questions as to the degree of negligence, the defendant had been guilty of in removing the timbers from his bridge, and whether the negro was drowned in consequence thereof, were questions of fact for the jury, and should have been submitted to them.
    
      Fair, for the motion.
    
      Garlington, contra.
   The opinion of the Court was delivered by

Evans, J.

The law which is applicable to every species oí bailment, must depend upon the nature of the undertaking of the bailee. The general rule is, that he shall answer for negligence in the discharge of his trust. In the case of a common carrier, the law imputes negligence, unless the injury has been sustained by the act of God or the public enemy. In all other cases, some degree of negligence must be proved. The owner of a bridge is not a common carrier, for in general he has no possession or control over the goods. He is not like a stage owner or a Nail Road Company. In these cases, the passenger is passive, the government of the stage or the car is under the driver or the engineer. But in crossing a bridge, the acts and conduct of a passenger are regulated by his own will. A bridge over a stream is but a continuation of the public highway, which the owner, in consideration of certain tolls, undertakes to build and keep in repair. He is more like the owner of a turnpike road, and his liabilities are analagous. His obligation is to keep the bridge in proper condition for the safe passage of passengers. This is his duty, and if he omit it, he must answer for whatever loss others may sustain. If the defendant’s bridge had become ruinous, and had sunk down from decay, whilst the plaintiff’s negro was passing over, or if a plank had been deficient and the negro had fallen through and was hurt or drowned, then, I presume, the defendant would be liable, because the proximate cause of the loss would be his negligence in omitting the performance of the duty which the law imposes on him. But if the bridge had been substantially built, and every precaution had been used in its construction to render it safe and secure, and, notwithstanding, it had been borne off by the force of the current, in a great freshet, whilst the negro was crossing, or if he had leapt into the river to shew his dexterity in swimming, then, it seems to me, no negligence could be imputed to the owner. Or if the defendant had locked his toll-gate and the negro had come there at a late hour of the night, and instead of waiting until the gate was opened, had attempted to swim to the shore, and in doing so was drowned, I do not see that the defendant could, on any legal or moral principle, be made liable. The act from which the loss was sustained was voluntary, and the bridge owner, in none of the cases supposed, could exercise any control to prevent it.

I suppose there is no doubt the negro was drowned in attempting to swim from the abutment to the shore. The act was voluntary, and there is no ground to charge the defendant, except that he had taken off the planks from the land part of the bridge, in order to save it from destruction in the unprecedented freshet of March, 1850. This, I think, he had a right to do. It was no violation of his duty to the public to save his bridge by this precaution. If he had done so without giving any notice, and the negro had fallen into the river of a dark night, when he could not see what had been done, there would be ground to charge the defendant with negligence. But he had piled up the timbers on the bridge, so as to be seen by all who came. It was a bright night, and the negro had been expressly warned that he could not pass, but he declared his intention to go, saying he had swam the river before and could do it again. In his death, I can see no connection with any negligence of the defendant, and am therefore of opinion the action cannot be maintained. If the facts were at all doubtful, the case should have been submitted to the jury to decide on them; but where the facts are undisputed, it is the province of the Court to apply the law as in cases of special verdicts. The motion to set aside the nonsuit is therefore dismissed.

O’Neall, Wardlaw, Fe,ost, Withers and Whitner, JJ. concurred.

Motion dismissed.  