
    John Cook v. Theodore Gourdin.
    A ferryman is liable as a common carrier: 
       and it seems the law gives him the right of judging when it is safe and proper for him to cross or not.
    This was a special action on the case against the defendant, as a common carrier.
    Mr. Gourdin was the owner of a ferry on Santee river, commonly called and known by the name of Murray’s Ferry. And Oook, the plaintiff in this action, was a citizen of North Carolina, who lost two wagon horses by the unskilful management of the! boatmen, who had the charge or direction of the boat' or flat, in which the plaintiff, with Ms wagon and horses, was crossing the river. It was, therefore, for the value of these two horses, that the present action was brought.
    *201 ^ was ™ brief, and not denied, that the *wind was high and J the current of the river strong, when the boat was passing. It further appeared in evidence, that just as the flat was entering the strength of the current, the man who steered the flat, instead of keeping the head to the current, negligently turned it down ; and that the man who had the care and management of the same, instead of exerting himself in order to bring the head of the flat up, to stem the current again, left his pole and went to the stern of the flat, to chastise the helmsman ; and did beat him for his inattention and carelessness. In the meantime the current took the broadside of the flat, and swept her down three quarters of a mile; and when the current took the broadside of the flat, the -hands threw down their oars and poles, and refused to make any further exertions, by means whereof the flat was swept down the current near a mile, and being brought up against some trees on-the opposite shore, they caused three of the plaintiff’s wagon horses to be thrown overboard ; and two of them were drowned.
    The defendant, on his part, called several witnesses, to prove that the ferry -was as well kept and as well attended as any ferry on Santee ; and that he had provided as good and skilful boatmen as any on the river.
    Whereupon it was contended that this was one of those unforeseen accidents for which the defendant ought not, in law, to be responsible.
    The presiding judge, (Oheves,) in charging the jury, told them that a ferryman was, in law, considered as a common carrier, and liable for all contingencies, except by the. act of God, or the enemies of the State. • The latter was not pretended in. this case. He therefore said he considered the defendant liable, and that the plaintiff was entitled to a verdict.
    But the jury thought otherwise, and found a verdict for the defendant. The present was, therefore, a motion for a new trial:
    
      1. On the ground that a ferryman was liable, as a common carrier, at all events, except as laid down by *the judge ; and, moreover, that he had ris~, various exemptions which other common carriers had not. L.
    2. That he contracts with all the world to convey in safety all the articles committed to his care.
    3. That the verdict was contrary to law, and the charge of the judge ; inasmuch as there was none of the causes of exemption, in this case, which will excuse him ; and that due care and diligence were not used..
    
      
      
        Vide Rutherford v. Mc Gowen, 1 Nott & McCord, 17. R.
      1 McC. 157, 444 ; 4 McC. 226; 2 McM. 368; 5 Strob. 119 ; 5 Rich. 22, 444.
    
   The opinion of the Court was delivered by

Bay, J.

The two first grounds may be considered together, as they are very nearly "allied to each other. And, as to them, I am clearly of opinion, with the presiding judge, who tried the cause, that every ferryman should be considered, in law, as a common carrier, and liable at all events, for the safe carriage of goods and passengers ; except in cases occasioned by the act of Grocl, or public enemies, which cannot be pretended in this case.

A common carrier is defined, in law, to be one who carries goods for hire ; and he is made liable for them in consequence of this hire or reward. Jones on Bailment, 16. But a ferryman has another quality attached to his character. He is a man of high public trust and confidence ; and the lives of passengers, as well as goods, are entrusted to his good conduct and management; and, therefore, he is at all times to be ready to transport both in safety, and with all convenient despatch, across all water courses where ferries are established by law. He exercises a high public trust, and therefore has many immunities attached to him.' He is exempted from militia duty, even in time of war. He cannot be compelled to serve on juries, or to work on the high roads in the country. These exemptions, in addition to his hire, impose a high obligation on him, at all times, to be in readiness at the call of travellers, and to have all his boats and hands in good and proper order, for the conducting of *goods and passengers across the river, or water course, over which his ferry is established. ' ^

From the foregoing principles, then, I take it to be well established, by law, that a ferryman is liable as a common carrier.

Let us next see if there were any circumstances in this case to excuse Mm.

It is said, and admitted, that the wind was high and the current rapid. To each of these allegations in justification of defendant, an easy answer is to be given :

First — If the general bent of the weather, or state of the atmosphere, be stormy, or tempestuous, the ferryman is perfectly excusable for not venturing over, if he apprehend danger ; and has a right to postpone any attempt to cross till the storm or danger be over.
Second' — If there be freshets in the river, which render it highly dangerous or impracticable for him to cross, he may, in like manner, refuse to go, till the water fall, and danger subside. In fact, the law gives him the right of judging when it is safe and proper for him to cross, or not. And if he will venture out, at an improper season, he is most unquestionably liable. But if a sudden gust of wind, or storm, arise, and an injury be sustained, after he is under way, then it is clear that the law will not charge him ; because man cannot foresee sudden storms and tempests, and guard against them. But if he venture at perilous times, then he shall become chargeable.

The next inquiry is, whether due diligence was used by the ferrymen, after they had got into the river, or not ?

From the best view I have been able to take of the case, there was not; for it appears, that when the force of the current came against the boat, instead of keeping her head to the current, which might easily have been done, the .helmsman, or the man who steered the boat, turned her head down : and although the patroon of the boat chastised him for his inatten-„9„1 tion, yet the whole of the hands laid down their oars and poles, *and left the flat or boat at the mercy of the current, until she had drifted down the river near a mile, where the horses were lost. It appears to me, therefore, that there was great want of diligence on the part of the boatmen, on this occasion; and that it was principally owing to that circumstance, that the accident or loss of the horses happened.

Upon the whole of this case, therefore, in whatever point of view it can be considered, I am clearly of opinion that the verdict of the jury was wrong, and that there should be a new trial.

Colcock and Gantt, JJ., concurred.

Nott, J.,

dissented, as follows:

I am not dissatisfied with the event of the motion in this case. After the case of Rutherford & M’G-owen,' taken in connection with the opinion of our late brother Ci-ieves, who, it appears, concurred in opinion with those of the Court in that case, who looked' upon a ferryman as a common carrier, we ought, perhaps, to consider the question as settled : for although a majority of the Court, there, did not consider a ferrymhn in that character, yet they put his liability on a ground equally imperative. And if he must be liable, at all events, it is immaterial upon what principle that liability is fixed, the result is the same to him. Nevertheless, as the question has still been considered open for discussion, I will, in a few words, give the reasons on which I have, in both instances, differed in opinion from some of my brethren.

The general rule of law, with regard to bailees, is, that they are not liable for losses, except where they have been guilty of some neglect. With regard to common carriers, the rule is different. They are held liable, at all events, except for losses occasionéd by the act of God, or a public enemy. No force, however great, no accident, however inevitable no fraud, however beyond their control, will excuse them. But it is not pretended, that this is a rule of justice. It is a rigid, inflexible, rule of general policy or necessity, *founded on the supposed facility with which carriers may combine with robbers, or other dishonest persons to defraud their employers, who have not the means of detecting them. Jones on Bailment, 104-5. 1 D. & E. Forward v. Pittard. But the principle does not apply to ferrymen. The owner of the property is usually present, which precludes all danger of fraud. It is not alone from any assistance which it is supposed he may derive from the owner's presence, or from any control that the owner may exercise over the property, but from the impossibility of his depriving him of it by any fraudulent means, that the ferryman is exempt from liability, The reason of the rule, therefore, ceasing to exist, the rule itself ought not to be applied. And such have been the decisions of our Courts in other cases of carriers. Boats injured by hidden snags in our rivers, against which no human foresight could guard, have been made an exception. The nature of the undertaking of a ferryman should, it would seem, entitle him to the same exceptions in cases obviously beyond his control. He is obliged to transport droves of horses, cattle, hogs, &c. Shall he be liable, if one leaps overboard and is drowned, or injures another by kicking or otherwise ? I can see no rule of justice or policy that requires it. Yet that will be the consequence of placing him upon the footing of a common carrier. I am, therefore, constrained to differ in opinion from a majority of the Court on that point.

Dunkin, for the motion. Hayne, Attorney-General, contra.

I think, however, there was pretty strong evidence of neglect, and am, satisfied that a new trial should be granted on that ground.

Johnson, J., concurred with Nott, J. 
      
       1799, 8 Stat. 492, <S 22; 1841, 11 Stat. 203, § 135.
     
      
       1 vol. 17.
     
      
       2 Bail. 421; 5 Rich. 25.
     