Babcock v. Herbert , 3 Ala. 392 ( 1842 )

ORMOND, J.

Objections have been taken to the third and fourth counts of the declaration, but although not very formal, we think they are substantially correct. It is supposed that the third count does not show that the plaintiffs in error had any. agency in the loss of the sulky, but that from the count it appears to have been the unauthorised act of their, servants, for which they are not responsible, and the case. has been assimu-lated to the doctrine established by this Court in Cawthorne v. Deas, 2 Porter, 276, where it was held, that “the master was not liable for injuries caused by the negligent conduct- of his slave whilst not acting in his master’s employment, or under his authority.”

The language employed in this count is, “ that the ferry-flat of the defendants was then and there under the Care, government and direction of three servants of the said defendants, &e.” We do not consider that it follows from the language used, that the agents of th'e .defendants in the management of the boat, were slaves; but if that was the necessary inference, we think it sufficiently appears from the reference in this count to the previous counts (for the sake of brevity) by the use of the terms, “for the purposes aforesaid,” that the servants of the defendants were in their employ, navigating the boat across the stream as a common ferry boat.

The fourth' count charges the loss to have occurred from an obstruction thrown across the Alabama river, below the ferry on the Cahawba river, by the defendants. It is supposed that, as the defendants were the owners of the lower ferry, also, and as it was a usual and common, if not necessary means of crossing the river, to stretch a rope from one side to the other, to pull the boat over by, that therefore, the plaintiffs in error are not responsible for an injury arising from that cause. -

We cannot agree that a license to keep a ferry on any of our navigable streams, authorizes the grantee of-the ferry to place, any obstruction across the stream, even if such were conven-* rent or proper to the passage of the ferry boat. The license merely amounts to a monopoly of the right of transporting pas* sengers and property across the stream at that point, and this right must be exercised in subordination to other rights vested in the people at large; among which is the right to navigate the rivers of the State, declared by law navigable, of which the Alabama river is one. As, therefore, this obstruction placed across the Alabama river, was unlawful, it subjects those placing it there, to an action at the suit of any one injured by it, and the count was properly sustained. '

The question upon the merits is, whether the keeper of a public ferry is liable, as a common carrier? , On the part of the plaintiffs in error, it is insisted that he is not, because the whole matter is regulated by the statute, .pointing out his rights and duties, and requiring him to enter into bond with surety, for their performance.

The act, Aik. Dig. 363, § 26, authorises the County Court to establish ferries and fix the rate of toll or ferriage, on persons or property carried across the same, and requires the Court to take a bond, .with surety, from the person so applying, in the sum of one thousand dollars, conditioned “that he will keep a good and sufficient boat or boats, and keep the banks on each side of the water course in good repair, and that the ferry shall be well attended for travellers or other persons to carry or pass their horses, carriages or effects, over such water course.”— The law also provides, § 29, that any one detained at any public ferry by reason of the ferryman not having good and sufficient boats, or other proper craft, and hands, or by neglecting to do his duty, may, by action befqre any justice of the peace, recover the sum of ten dollars; and that such recovery shall not be a bar to any action for damages sustained by reason of the insufficiency of the ferry.

A common carrier, is one who undertakes for hire or reward, to transport the goods of such as choose to employ him from place to place ; this is the definition adopted by Mr Justice Story, in his work oii bailments, and is doubtless correct. This definition corresponds to the duties of a common ferryman, with one exception, which certainly cannot affect the question. It is that those who employ him have no choice ; his right to transport the property of the traveller, is a monopoly granted by the State, and from that in part, results the right on the part of the State, to regulate his price, and to exact from him a bond, with surety, that he will provide, and always have in rea-dinéss, the means for transporting across the stream, the persons and effects of travellers. It by no means follows, that because the State has for the security of the traveller, and as the price of the monopoly granted, exacted from the ferryman a bond, with surety, and stipulated for the rates of ferriage, that the common law liability which attaches to the carriage of goods for hire, does not arise. The bond and surety is an additional security afforded by the State, because of the public nature of the ferrymen’s employment. Nor does the fact that the-State regulates the rate or toll, at all affect the question. In England, a great many statutes have been passed, regulating the prices of the carriage of goods by common carriers, which may be seen enumerated in 1 Bacon’s Ab. 557; and it never has been supposed that the passage of these acts varied their liability as common carriers, which arises from the public nature of their employment.

An argument has been urged on the Court, that, the reason of the rule of the common law in regard to common carriers, does not apply to common ferrymen, and that they should be held only answerable for injuries arising from neglect. The answer to this is, that such has always been the law. See Rich v. Kneeland, Cro. James, 330, and the cases ancient and modern, cited in the notes by Mr Justice Story-, in his work on Bailments, 323. It does not become a Court, when the law is clear and settled beyond a doubt, to speculate ■ upon consequences. Arguments of that description are more properly addressed to another forum. In conclusion, we are satisfied, that' ¿ccofding to the ancient as well as modern authorities, ferrymen have always been considered as common carriers, and the circumstance, that in this State they are required to give-bond, with surety, and that the price they receive is regulated by law, does not' affect their liability at common law. ■ ,

The last charge of the Court, that the defendants were not; bound to cross the river if in an impassable state, we need not consider; as the defendants did-cross,' the question did not arise, and being'purely- abstract, could not by possibility, if decided wrong (which we do not intend to intimate) prejudice the defendants.-

. The judgment of the Court below is, therefore, affirmed.