
    STEAMBOAT LYNX vs. KING AND FISHER.
    I. A common carrier, upon our western waters, is not responsible for not drying merchandize which has been wet and damaged by inevitable accident.
    ERROR TO ST. LOUIS COURT OF COMMON PLEAS.
    STATEMENT OF THE CASE.
    King and Fisher brought their action against the S. B. Lynx, on a contract of affreightment. A parcel of wheat, (880 sacks) was sliiped on board the Lynx and her barges, from a place in Illinois, abovethe lower rapids, consigned to K. & F at, St. Louis. The barge that contained the wheat was brought down in tow by the Lynx, to the head of the rapids. The water was too low for the boat to descend the rapids with her barges in tow, and therefore the barge which contained the wheat, (and other wheat belonging to others) after being lightened by putting 200 sacks of wheat on board of the Lynx, was taken down to the foot of the rapids at Keokuk, in safety, and in the manner accustomed there, and was moored there in the accustomed place, and was staunch and well manned. In the after part of the same day, while the barge was waiting for the Lynx to descend the rapids, a violen t storm arose, and forced a great quantity of the water of the river over the gunwale and into the barge, by which a portion of the wheat was wet. Every elFort was made by the crew to protect the barge and its cargo from the storm and wetting. The hands worked all night, and part of the next day, to free the boat from water. The storm and wetting of the wheat occurred in the evening and night of Tuesday, and in the afternnon of Wednesday, the Lynx descended the rapids, and taking the barge in tow, ran down to St. Louis in thirty hours, arriving there on Thursday evening,. and delivered the freight on the levee next day, Friday.
    The time was the latter part of May, and the weather very warm and damp, with frequent rains.
    The defendant moved the court for the following instruction :
    “ If the jury believe from the evidence that the wheat in question was damaged by an unavoidable accident of the river, and not by the negligence of the officers and crew of the Lynx, they ought to find for the defendant, as to the wheat. ”
    Which instruction the court refused to give, but gave to the jury, at the instance of the plaintiifs, the following:
    
      
      “ It was the duty of the defendant to use all the means in his power to cause the wheat to be dried after it was wet by the storm ; and if the jury believe from the evidence that the wheat might have been dried by the defendant, and he did not do it, then the defendant is liable for all damage to the wheat by reason thereof,”
    Under this instruction, there was a verdict for the plaintiffs, and a motion for a new trial, w hich was overruled >• and the defendant biings the case here by writ of error.
    Gamble &, Bates, for plaintiff.
    The plaintiff in error, submits, that the court below was in error, both in refusing and in giving the instructions. The boat, it is conceded, was liable as a common carrier, for all damage done to the wheat, not occasioned* by the act of God, or the public enemy, and not embraced'in the exceptions in the contract of affreightment. 3 Mo. R. 189, Doggett et al vs. Shaw. But here there are two defensive answers.
    1st. The damage was evidently done by the act of God; a violent storm may surely be reckoned as such.
    2d. The storm, which caused the damage, was one of the damages of the river, expressly excepted in the bill of lading, which see in the record.
    It plainly appears by the state of the record, and by the instructions asked on both sides, that no blame was imputed to the boat, down to the time of the storm and the wetting of the wheat. The only blame imputed is, that the boat did not do all in its power in drv the wheat after it was wet by the storm.
    When goods are in the hands of a-carrier, and are damaged by a fact or accident, wnicir does not of itself charge the carrier, we deny the principle assumed by the plaintiffs below, and sanctioned by the court there, that the carrier is bound to do xohatever is possible to repair the damage done, oi prevent the effects of the accident. If it had been required to use reasonable care and diligence, such as a prudent man will use with his own property, it might be reasonable and just. But here he is required to use ail'the means in his power to cause the wheat to be dried after it was wet by the storm ; ” and that too notwithstanding the fact (admitted in íefusing the defendants instruction) that it was damaged by an unavoidable accident of the river, and not by the negligence of the officers and' crew of the JOynx.’’
    
    It .might have been in h:s power to land the wheat at Keokuk, spread it in a house and dry it by artificial heat. But that would'have been an unreasonable service, not contemplated by the general law of carriers, nor by either party to this contract, and would have broken up the voyage, and vacated' the policy upon boat and cargo.
    The instructions were refused and given, no doubt, in deference to the supposed authority of the case of Bird vs. Cromwell, 1 Mo. R. 58.
    In regard to that case,, we submit that it does not warrant the course pursued in this case, for the following reasons:
    1st. The course of trade and business at that time, was very different from what it is at present. Then navigation was carried an in barges and keels, slowly moved by human power, each cargo was small, and belonged to one or a few persons, and insurance was almost unknown on our river.
    2d. The circumstances of the case were widely different from the case at bar. It does not appear in the case, as printed, that Cromwell’s coffee was made wet by the accident to the barge. The barge was snagged in the bow ; the coffee was stowed in the stern.
    The barge was taken to land in a few minutes, and made only two or three inches of water ; not enough probably to touch the stowage of cargo. Bird, in order to repair the damage occasioned by the snag, raised the bow of his barge, and thus forced all ihe water aft, where the coffee was stowed. The case does not stats how or when the coffee was made wet, but leaves the inference irresistible that Bird made it wet himself; not in trying to avoid the danger of the snag or of the river, bnt in putting his boat in a position to be more easily repaired.
    3d. But if the case were exactly like this, then we have to say that it is a harsh and extreme case, that ought to be overruled. It requires the carrier, as a duty, to go to the extremes of possibility, “ to use all the means in his power, ” not only to prevent accidents, but when they are unavoidable to cure their defects, and repair their damages. If the goods be sunk in deep water, they might b,e fished up with the aid of a diving bell. If cotton goods be wet, the captain might open the cases, break bulk, and stretch out every piece to dry. If stained and soiled, he might have them washed and ironed ; and if his boat were not a good place to perform this part of his duty, he might go ashore, and hire a house and men to tend it, and buy the needfnl stores and implements.
    All this is possible for him to do, but not without a direct breach of duty to the owners of the boat, and the consignees of the rest of the cargo.
    The refusal of the instruction moved by the Lynx, goes this length, and further. It amounts to telling the jury that they should find a verdict against the boat, even though “ the wheat in question was damaged by an 1unavoidable accident of the river, and not by the negligence of the officers and crew of the Lynx. ’’
    It cannot be that this is law.
    Todd & Krum, for defendants, insists:
    1st. That the instruction given by the court in their behalf, was according to the law applicable to this case. 1 Mo. Rep. p. 58, new pub., Bird vs. Cromwell; Abbott on shipping, p 244.
    2d. That the court did not err in refusing the defendants instructions, because the unavoidable accident testified to was the storm, and the plaintiff claimed damages only such as happened to the wheat after the wetting by the storm, but which with proper care and diligence the officers of the boat might have prevented.
    This was all the plaintiffs below asked by their instruction ; hence there was no occasion for the instruction of the defendants below, and the jury in making up their verdict, evidently deducted a certain sum for the original wetting from the total damages proved.
    3d. That the evidence shows ft a case of gross negligence. The officers of the boat made no effort to protect the wheat after it was wet, although the weather was hot, and there was plenty of room on the Lynx, for this wheat in the barge was put into the barge from the Lynx. See protest, p. 14, made and sworn to by the two clerks on the day of the accident, and therefore more likely to be correct than their testimony at the trial six months afterwards.
    Witness Henderbury, p. 10, testifies that the barge had at least three inches of water in it when unloaded at St. Louis, and that the sacks of wheat were lying in it.
   Napton, judge,

delivered the opinion of the court.

The only question presented by this record, arises out of the refusal of the court to give an instruction asked on behalf of the boat, and the giving an instruction for the plaintiffs King and Fisher. The instruction given was this : “ It was the duty of the defendant to use all the means in his power to cause the wheat to be dried offer it was wet by the storm ; and if the jury believe from the evidence that the wheat

might have been dried by the defendant, and he did not do it, then the defendant is liable for all damages to the wheat by reason thereof.35 The instruction refused was as follows : “If the jury believe that the wheat in question was damaged by an unavoidable accident of the river, and not by the negligence of the officers and crew of the Lynx, they ought to find for the defendants.33

The doctrine that a common carrier is responsible for all losses, except those occasioned by the act of God, or the public enemy, or such others as are expressly excepted in the bill of lading, has been uniformly maintained in this State. Daggett vs. Price & Shaw, 3 Mo. R. 264. Experience has shown the general results of this principle to be highly beneficial in the main, although, perhaps, its application in particular cases may have been harsh, and we should regret to see any departure from it. But when the carrier is held responsible, not only for every damage not occasioned by inevitable accident, but also for the consequences of such accidents themselves, in eases where any possible skill or labor could restore the value of the property injured, either in whole or in part, the doctrine, it strikes us, is carried to an extent not warranted by the law, and not justified by reason or principle of public policy.

In order to view this matter in a proper light, we must recur to the original and well settled principle—a carrier is responsible for all losses brought about by his own acts, or want of action, for every loss which could have been prevented by human exertion, with the exceptions heretofore stated. If a tempest springs up, or damage from any other quarter threatens, he is certainly to use all proper exertions to prevent loss, and when an injury has been sustained by a cause beyond his power to prevent, to use every means to prevent further injury. A damage may result to the bailment after an injury received from inevitable accident, which, although it would not have happened had not the accident occurred, yet was not necessarily the result of that accident, but might have been avoided by proper efforts on the part of the carrier. For such damage he is undoubtedly responsible, and he cannot charge it to the inevitable accident. It is the result of his own negligence. In the case of Charleston and Col, S. B. vs. Bason, (1 Harper 262, a boat grounded on an inland passage to Charleston, from a reflux of the tide, and fell over, when the bilge water ran into the cabin and injured a box of books belonging to the plaintiff. Richardson, J., said :—“ Admitting the grounding to have been accidental and unavoidable, and the carrier in no fault, yet the moment the boat heeled, the bilge water was returned towards the stern; and this the carrier was bound to know, and remove the cargo there stored. The books in question, being in the cabin, could easily have been removed. The carrier is liable for bad storage and default in good keeping. The injury therefore was through negligence, and does not come within the exception of the bill of lading.”

The true question then, in such cases, must be—is the damage the result of the accident; or is it, or any portion of it, attributable to the negligence of the carrier. The defendant was certainly not responsible for the damage the wheat received by the storm; but if, after the storm j passed, the wheat, or any portion of it, was suffered to remain in the water, which could have been baled out, or when it could have been removed to another part of the boat, without interference with the rights of other shippers or passengers, a loss happening for want of such removal of the wheat or the water, is properly chargeable to the boat. 'The loss thus produced is not the effect of the accident, but is attributable to the negligence of the officers and crew of the boat. It is the duty of the carrier to take all possible care of the freight entrusted to him. His employment is to transport goods and passengers with speed and care. But to impose upon him the burthen of repairing the effects of accidents for which he is not responsible, is requiring of him a task he has never undertaken, and for which, we may presume, he has no special skill. The instruction given by the court of common pleas, imposed upon the carrier this additional task. The officers of the Lynx were required to dry the wheat which had been wet by a storm, and to use all possible means to effect this object. It will be seen at once that the task of drying several thousand bushels of wheat is not a light one, and if all the means which skill and science, and labor can bestow, are to be used in this process ; the business of the common carrier is lost sight of.

Is the master of the boat to withdraw his crew from their ordinary employments in the prosecution of the voyage, and employ them in this onerous and tedious business, totally foreign to his general duty, and utterly destructive it may be of the interests of the owners, insurers and other shippers. Would it not be most benefical to all parties concerned, that he should proceed to his port of destination with all possible despatch, where the owners or consignees of the wheat could take the necessary measures for restoring it to a sound condition ? In the case we have cited from South Carolina, it was not hinted in the opinion that it was any part of the duty of the master of the steamboat to dry the books, after they had been wet by the bilge water; but he was held responsible for not removing them before the water reached them. Suppose the case of a large assortment of dry goods shipped on one of our western boats. The boat is snagged and the goods are damaged by the water. Shall the master and crew be obliged to open the boxes, unfold the packages and pieces, and by means of artificial or natural heat undertake the tedious process of drying the goods?

The case of Bird vs. Cromwell, (1 Mo. R. 81) certainly goes very far to sustain the instruction given in this case. That case was decided in 1821, and the accident which gave rise to the suit occurred on a barge ^navigating .the Mississippi between New Orleans and St. Louis. A ’quantity of coffee, how much is not stated, was shipped on this barge at New Orleans, and became wet and damaged by an inevitable accident. The court held that it was the duty of the master of the barge to use all possible exertions to dry the coffee. It is impossible to conjecture, from the opinion, what character and degree of exertions the court had in view in giving this instruction. The facts of the case may have authorized a verdict against the boat or her owners, but the instruction approved by the court in its unqualified sense, was certainly imposing an extraordinary duty upon common carriers. Much consideration is no doubt due to the character of the navigation in which the carrier is engaged. . Whilst the general principles which govern the conduct of common carriers in ocean navigation, have been applied to the navigation of our western waters, there are cases and circumstances in which the duties of these respective classes of carriers obviously vary. So, also, the navigation of the Mississippi by keels and barges in 1820, may have been attended with different duties from those devolving on the owners and officers of steamboats at the present day. When it required from six weeks to two months to make the voyage from New Orleans to St. Louis, the officers and crew of the barge thus slowly impelled by human power, and having no intermediate points of trade, may have been subjected by the custom of the trade to a greater variety of duties than would now be held to devolve upon the class of navigators which has -succeeded them. The abstract principle, however, avowed in this opinion of Bird vs. Cromwell, we cannot consider as applicable to the circumstances of the present case.

The other judges concurring, the judgment is reversed, and the cause remanded.

Scott judge.-

There is no doubt that the master of a boat is bound to take all possible care of the cargo, and he is responsible for every injury which might have been prevented by human foresight and prudence and competent naval skill. He is chargeable with the most exact diligence. 3 Kent 213. If, in a voyage on our rivers, a cargo sustains an injury by an inevitable accident, it is the duty of the master to use the most exact diligence to countervail the effects of it. The occurrence of the accident does not relieve him from the responsibilities of a common carrier with respect to the injured cargo. He is still bound to the strictest] diligence for the preservation of it, and to Use all reasonable exertions] to retrieve it from the consequences of the accident. But this is to bel understood that such exertions are consistent with the usages of our inland navigation. If a portion of a cargo, consisting of a variety of articles, and belonging to various owners, is injured, will the voyage be suspended to the prejudice of all others, that the injury of the one may be re-repaired ? It is obvious that, in such cases, the conduct of the master1 must be governed by the circumstances under which he is acting. The instruction of the court would require the master to delay his voyage, go ashore, and take measures for the drying of the wheat. Could the' wheat have been dryed on board the boat, proper exertions should have been used for that purpose. The instruction of the court, in my opin* ion, was too broad and indefinite.  