
    Johnson vs. Friar.
    words “dangers of the river only excepted,” used in a bill of embrace such dangers as could not be guarded against by human foresight only. The lading, skill or
    sther a carrier by water has been guilty of negligence after his is been wrecked, is a question for the jury to determine, on a view the circumstances of the case. Wb boat hi of all
    This was an action of trespass on the case, brought by Johnson, the plaintiff in error, in the circuit court of Hardeman county, against the defendant, Friar, as a common carrier. The declaration alleges that the defendant, on the 25th of January, 1830, being a common carrier, and owner of a flat bottomed boat, agreed with the plaintiff as such, to convey and carry on board of said boat certain bales of cotton from the port of B olivar} in Tennessee, to the port of New-Orleans; that as such carrier, the plaintiff delivered to the defendant 48 bales of cotton, in good order, to be conveyed by said defendant to New-Orleans, for which the defendant executed his bill of lading, and thereby promised for the freight agreed to be paid by the plaintiff, that he would deliver said cotton to Maunsel White, at the port of New-Orleans, dangers of the river being excepted: that by the negligence and unskilfulness of the defendant, the said 48 bales of cotton were lost to the plaintiff, and not delivered to said White, at New-Orleans. "To this declaration the defendant pleaded not guilty, upon which issue was taken. Upon the trial, it 'appeared that the defendant had executed a bill of lading to the plaintiff,, in which he acknowledged that he had received of Lit-tleton Johnson, the plaintiff, in good order and well conditioned, on board the good flat bottomed boat, called the “Western District,” then lying at the port of Bolivar, and bound for New-Orleans, forty eight bales of cotton, marked and numbered L. J. No. 34 to 81, inclusive: and promised to deliver the said 48 bales of . r , in . . , cotton m like good order and well conditioned, at the port of New-Orleans, “the dangers of the river only excepted,” unto Maunsel White, he paying the freight at two dollars per bale, dated the 25th of January, 1830. That, in the month of February, 1830, about twenty seven miles by water, above Randolph, the defendant’s boat was stove, in the Hatchie river, by running upon a snag; that the boat of defendant was following a short distance behind another boat, which had passed over the same place without injury; that the fir^fc boat’s captain and manager, did not and could not see any thing of the snag; that the snag left no ripple upon the water, and that no observation could have discovered the snag; that defendant’s boat drew some more water than the first boat; that defendant was looking out when the boat struck; that it was known a boat had struck some where near where defendant’s boat did, but where exactly, could not be told; that the boat ahead stopped and landed her crew as soon as the defendant’s boat was known to have struck, and brought her hands to the assistance of defendant’s in getting out the cotton; that all the cotton was taken out that day, except the bottom tier and one or two bales which were used as a raft to bring out other cotton; that the defendant used every exertion to save the cotton from injury, whilst he remained and could get the hands to work; that after the boat was partly unloaded, the defendant offered the hands extra to get out the balance of the cotton, but the hands said they were exhausted and could do no more, the weather was so cold. That night, the defendant fearing from the appearance that rain would fall soon and damage the cotton upon the banks of the river, proceeded to Randolph for lighters to take the cotton to Randolph, leaving the crew in part to get out the balance of the cotton; he was gone two days and a half, when he returned, having procured a lighter, upon which he stored all of the cotton on the bank, and the remaining cotton m the flat boat; that the : . , . , , °' , „• , , , cotton which was ih the boat, when defendant left the boat for Randolph, remained until his return; that the last tier of cotton could - have been taken out in half a day, by the hands of both boats if they had staid, instead of going for the lighter; that the cotton was delivered to John T. Brown & Co. commission merchants at Randolph, very wet and much damaged; that it was shipped to N. 0. upon the steam boat “Kentuckian,” from Randolph; and of that marked L. J. 26 bales were so badly damaged that they sold for $ 13 per bale, and four others,' after being packed, sold two at 8 1-4 cents per pound, one at 020 per bale, and the other at 015. The other cotton marked L. J. brought 9 cents per pound, in New-Orleans; and the part that was injured by the striking of defendant’s boat, if uninjured, was worth as much per pound as 9 cents. That the 32 bales of cotton were part of the 48 delivered to the defendant, and shipped on his boat, and are part of the 4S included in the bill of lading aboye mentioned; Upon which the court charged the jury, that the signing the bill of lading by the defendant, and the reception of the property on board his boat, in the absence of other proof, would be sufficient to constitute him a public carrier as to the transaction in controversy. That public carriers are responsible for all losses of property intrusted to their care, except those caused hy the act of God or the public enemies of the country; hut that by special contract they might protect themselves from all liabilities, except those arising from gross negligence. That in this case the defendant had . guarded himself from all liability for loss resulting from the dangers of the river; but that the legal construction of this exception was, that they should be such. dangers only as human prudence and foresight could not guard against, and therefore if the jury believed the boat was lost by a want of knowledge of the dangers of the river, which experience would have given, or a want of skill in the management of1 the boat) defendant would he liable. But if, on the contrary, they found that the loss was inevitable and unavoidable, such as no human prudence or skill could have avoided, he must not be responsible. The court further charged the jury, that after the boat was lost, the defendant was bound to use reasonable diligence, such as a prudent man capable of governing a family would use about his own affairs, in saving the cotton; and that if he did not do so, he would be liable for the loss arising thereby. Upon which the jury found a verdict for the defendant, and plaintiff moved the court for a new trial. This motion the court overruled; to which opinion of the court the plaintiff excepted, and set forth in his bill of exceptions, the above facts, and prayed an appeal in the nature of a writ of error to this court.'
    «3. L. Martin, for plaintiff in error.
    
      V. D. Barry and «3. Miller, for defendant in error.
   Green, J.

delivered the opinion of the court.

The court below, in the charge to the jury, we think expounded the law correctly. He stated that the legal construction of the exception was, that the dangers of the. river must be such as that no human skill or foresight could have guarded against. This surely is stating this principle of law in strong language for the plaintiff. It was for the jury to determine whether the defendant had produced such evidence as to bring himself within the exception, as it was construed and explained by the court. Two witnesses proved that they saw no sign of the snag on which the boat struck; that it caused no ripple on the surface of the water, by which its existence would have been indicated, and that they knew nothing of it. One of these witnesses assisted in navigating the defendant’s boat, and the other was navigating another boat, in company with his. Now if these men were skillful, and experienced navigators of this river, the fact that . , r , °, . , . , , they did not see or know of this snag, proves that it had been placed there so recently, that human skill and foresight could not have guarded against it. They were boatmen; no question was asked by the plaintiff, bringing into doubt their knowledge of the river, or skill in navigating it. The jury might therefore fairly infer from their testimony, that the loss was “inevitable and unavoidable!’,! As to the question of negligence, the jury were the proper judges of this disputed fact. The defendant left the boat before all the cotton was taken from the wreck. But he was apprehensive that it would rain, and raise the river, and thereby destroy the cotton on the bank; he therefore went to Randolph, leaving the hands to finish unloading. It was for the jury to say whether under all circumstances he was guilty of gross negligence. Upon the whole, the testimony tending to exculpate the defendant, though not of the most conclusive character, was nevertheless such as fairly to have authorized the infeV-§nce the jury made from it,

Judgment affirmed,  