
    Murphy, Brown & Co., v. Staton.
    Tuesday, April 7th, 1812.
    1. Common Carriers — Liability.—A common carrier is liable for all accidents to goods entrusted to him for transportation, except such as arise from the act of God. the act of the enemies of the commonwealth, or the act of the owner of the goods.
    Same — Same—Onus Probandi. — In such case, if a loss happens, the onus probandi lies on the carrier, to exempt him from the liability. And it is not enough for him to prove, (where the goods are carried by water) that the navigation is attended with so much danger, that a loss may happen notwithstanding the utmost endeavours of the waterman and crew to prevent it, that the person conducting the boat possesses competent skill; has used due diligence, and provided hands of sufficient strength and experience to assist him.
    In an action on the case against the ap-pellee as a common carrier, employed to bring ten hogsheads of tobacco by water from Tye River warehouse in Amherst county to the city of Richmond, for negligently ducking and thereby damaging sundry of said hogsheads; on the trial of the cause, the plaintiff’s counsel moved the Court to instruct the jury, “that a common carrier is liable for all accidents to goods, entrusted to him for transportation except such as arise from the act of God, the act of the common enemy, or the act of the owner of goods;” but the Court refused to give such instruction; to which opinion of the Court the plaintiffs filed a bill of exceptions. But the Court was of opinion, and so instructed the jury, “that as the upper navigation of James River is proved to be attended with so much danger as that a loss may happen, notwithstanding the utmost endeavours of the waterman and the crew to prevent it, therefore, when a loss happens in such a case, the defendant ought to be excused; but this indulgence ought not to be allowed, ^unless it appears that the person conducting the boat possesses competent skill; that he has used due diligence, and has provided hands of sufficient strength and experience to assist him in the conduct of the boat.”
    Verdict and judgment for the defendants, from which the plaintiffs appealed.
    Wirt, for the appellants,
    insisted that the instruction prayed for by their counsel was not on a mere abstract question of law ; the point being necessarily presented by the declaration. And, as to the liability of a common carrier he quoted 1 Bac. Abr. 555, to show that “inevitable accident, happening by any human means, or irresistible force, if not occasioned by the King’s enemies, will not excuse him: (for the carrier is in the nature of an insurer;) and 1 Term Rep. 27, Forward v. Pittard, being a case in which the carrier was holden liable through actual negligence, was expressly negatived by the jury.”
    In the case before us, the judge has decided in favour of the boatman, on the ground that the upper navigation of James river is dangerous 1 What is to become of the navigation of this river, if such a principle should be established? The standing danger of the navigation through which a man undertakes to convey goods can surely be no reason for exempting him from responsibility; especially as such standing and paramount danger is always considered in estimating the extent of his compensation.
    Call, for the appellee.
    The similitude between this case and that of Shelton v. Cocke, Crawford, & Co., decided the 28th of last month, is so striking, it is impossible to point out a difference. The point in that case necessarily arose; yet this Court decided that it was an abstract question.
      The point was equally predicated upon the declaration in that case as in this. The rule is, *that a party wishing to get the opinion of the appellate Court on a point, in relation to which he prays the Court to instruct the jury, must give a brief statement of the evidence, and show how the point was presented in the cause. Here the plaintiffs did not state the evidence. The point on which they requested the Court’s instruction was a general, abstract, question; and, in the terms stated, was not law. For the term “common enemy,” did not necessarily mean “enemy of the commonwealth.” A man of Mr. Wirt’s discriminating mind could draw a distinction between them.
    2. As to the 2d . point, I do not contend that a common carrier is not responsible to the extent contended for by Mr. Wirt. But the opinion, as given, is just as refer-rible to the act of God as to the act of man. Can the Court infer that the loss was. not from an accident similar to that by which the carrier was excused in Amies v. Stevens, 1 Str. 128? For any thing that appears to the contrary, X have a right to say, it arose from an accident that could not be controlled. In 2 Bulst. 280, cited 1 Bac. Abr. 555, it was decided, that where a ferryman was carrying over passengers and goods, and a wind arose, and they, being frightened, flung the goods overboard, the ferryman was not responsible.
    Besides, in this case, the bill of exceptions does not show that Staton carried the tobacco for hire. In the case of Coggs v. Bernard, (2 Bd. Ray. 909,) it was settled, that a bailee, undertaking gratuitously, is liable only for gross negligence, or wilful injury.
    Wirt, in reply.
    No answer has been given to the distinction which I drew between this case and that of Shelton v. Cocke, Crawford & Co. There, the question might not have arisen under the declaration; here, it must. The question of the extent of a common carrier’s liability was inevitably presented. If this be considered an instruction upon an abstract question, I will venture to affirm, that not one bill of exceptions in five thousand *can be sustained. Parties and counsel do not think it necessary to state that the point did arise, when, from the construction of the declaration, and nature of the action, it appears that it must have arisen.
    The instruction given was clearly erroneous. The presumption is always against the carrier. To exempt himself, he must prove that the loss was occasioned by a public enemy, or by the act of God. Such was the case of Amies v. Stevens,  The doctrine laid down in this instruction is in direct opposition to that of Gord Mansfield in 1 Term. Rep. 33, according to whom the burthen of proof lies on the carrier: but, according to this instruction, he is not liable, unless it be proved that the loss was not by the act of God.
    The case reported in 2 Bulst. 280, (cited 1 Bac. Abr. 555,) is contradicted by the authorities in the note; if, in fact, it related to a ferryman who carried goods for hire. The distinction is between a ferryman who carries goods for hire, and one who does not. The former is liable though compelled by storm to throw the goods overboard; for he is considered an insurer against this danger.
    Now it sufficiently appears that Staton was a carrier for hire; for the bill of exceptions calls him “a common carrier;” which is á technical phrase implying a carrier for hire.
    Call.
    The case in Bulstrode plainly supposes the ferryman was one who carried goods for hire. The note in Bac. Abr., contra to that case, is not law; for the loss arose from the act of God: the danger being occasioned by tempest, and the goods thrown overboard to save the lives of the passengers, the ferryman was not to answer for it.
    
      
       Common Carriers — Liability.—By the common law, a carrier is treated as an insurer against all damages to. or loss of, goods entrusted to him for transportation, except such as may arise from the act of God, the act of the enemies of the country, or the act of the owner of the goods: and the liabilities of common carriers upon navigable streams, areiixed by this common-law rule, and losses arising irom the ordinary dangers of the navigation, however great and however carefully guarded against, do not fall within the exception. As so holding, the principal case is cited with approval in Friend v. Woods. 6 Gratt. 192. See further, monographic note on “Common Carriers” appended to Farish v. Reigle, 11 Gratt. 697.
    
    
      
       Note. The opinion delivered in Shelton v. Cocke, Crawford, & Co., March 28th, 1812, was set aside April 8th. See Ante, p. 191. — Note in Original Edition.
    
    
      
       Str. 128.
    
    
      
       Allen, 93, Law of Bailments, 108.
    
   Monday, February lSth, 1813, the president delivered the Court’s opinion, that the judgment was erroneous, “in this, that the judge of the Court below refused to *give the instruction to the jury, required by the counsel for the plaintiffs, in the bill of exceptions mentioned,” and also erred in the instruction he actually, gave.

Judgment reversed; verdict set aside, and a new trial directed; “on which trial no such instruction as the latter is to be given to the jury.” _  