Le Barron v. East Boston Ferry Co. , 93 Mass. 312 ( 1865 )

Colt, J.

The claim of the plaintiff that the failure of the defendants to adopt the new supplemental or adjusted drop which had been adopted and used by another ferry company with the knowledge of the defendants, constituted negligence. and made them liable for the plaintiff’s injury, cannot be sustained, although it was proved that such new drop obviated all liability to the accident which caused his injury. The question of negligence was a question upon all the evidence for the jury, and we think it was submitted to them under full and accurate instructious.

A common carrier of passengers contracts in law that the kind of conveyance which he adopts shall be a reasonably safe and convenient mode of transportation, for its kind. The modes of conveyance in use by passenger carriers, both by land and water, vary as the exigencies of the traffic and its remunerative character require and justify. To require all carriers to adopt alike expensive provisions for the safety of passengers, without reference to the nature of their employment or the amount of their business, would be impracticable and absurd. It would be like requiring all the public highways in the Commonwealth to be kept in a like state of repair, without reference to the nature of the country through which they pass, or the amount of travel they accommodate. The different kinds of ferries in use vary from the rudest form of boat, drawn from shore to shore by ropes, propelled by oars or horse-power or the current of the stream, with landing-places on the banks, to those expensive steamboats which ply between populous districts, provided with every convenience of access from docks and ferry-houses. It cannot be necessary, in order to protect themselves from liability, that all these different ferrymen should adopt those appliances which can be shown to be the safest, and which others in the same occupation use. And yet the rule contended for by the plaintiff would require every ferryman, without regard to the nature or amount of his business, to use the most improved mode of securing the safety of passengers, regardless of expense, if thereby a liability to injury peculiar to the mode adopted by him could be avoided, either in the transportation or in the means provided for entrance upon or exit from his boat.

This whole matter of negligence is for the jury, and is and should be affected by the nature of the transportation which the carr'er has undertaken to afford, and the amount and character of his business. If the means of transportation are adapted to the reasonably safe carriage of passengers upon that particular kind of conveyance, and he exercises the utmost skill in the use of such means, he has discharged his legal obligations.

The case of Hegeman v. Western Railroad, 3 Kernan, 9, cited by the plaintiff, was an action for an injury sustained by a passenger and caused by the breaking of an axle. There was evidence that a safety-beam, then in use on many other railroads, would secure safety in case of such an accident; and although this means of safety was adopted by carriers engaged in precisely the same kind of transportation with the defendants, yet the judge charged the jury that if they should be of opinion that a safety-beam was designed and calculated to prevent an injury to passengers in case of the breaking of an axle, it did not ne cessarily follow that the defendants were liable because they had not adopted it, but it would be for the jury to say whether the defendants were or were not negligent in informing themselves of the necessity and utility of the invention, and availing themselves of it.

The plaintiff further asked the court to rule that, having proved due care on his part, and the occurrence of the accident, the law would imply negligence on the part of the defendants, and cast upon them the burden of proving that the accident happened without their fault. We think such instruction would have been erroneous, as applied to the case as presented upon the pleadings and evidence. The declaration alleges that the negligence of the defendants consisted in not providing safe exit for the plaintiff with his loaded wagon from their ferry-boat, so that in attempting to pass off the boat the wheels of the wagon struck violently against the drop of the ferry, and threw the load, upon the plaintiff, causing the injury complained of.

The general rule, that the plaintiff, in actions of this description, is bound to prove negligence on the part of the defendants as the cause of the injury, has been apparently modified in a class of cases in which it is said that proof of due care on the part of the plaintiff, with proof of the accident, is prima facie evidence of negligence on the part of the defendants. Jin examination of these cases, we think, will show that there is in them no real invasion of the general rule as to the burden of proof. It will be found, we believe, in all of them that the nature of the accident was such, or the attending circumstances such, that proof of the accilent alone raised a presumption of negligence, and that the same evidence which proved the injury done also proved the defendants’ negligence, or developed circumstances from which it must be presumed. Thus in Carpue v. London & Brighton Railway, 5 Q. B. 747, where the injury was caused by a train running off the track and overturning the carriage in which the plaintiff was a passenger, Denman, C. J. told the jury that, “ it having been shown that the exclusive management of the machinery and the railway was in the hands of the defendants, it was presumable that the accident arose from their want of care, unless they gave some explanation of the cause.” So in Stokes v. Saltonstall, 13 Pet. 181, the injury was occasioned by the overturning of a stage coach; and in Ware v. Gay, 11 Pick. 106. the accident was of a similar nature, occasioned by the running off of the wheel of the coach in which the plaintiff was a passenger. In these cases clearly the nature of the accident afforded proof of the defendants’ negligence.

The plaintiff, in proving his injury, must ordinarily prove the nature of the accident and the circumstances; and when such proof has any tendency to prove negligence, and especially when the defendant has exclusively the means of knowledge within his control, as to what caused the injury, it is said the burden is cast upon the defendant to explain the cause, and exculpate himself. ■

Upon recurring to the facts in this case, it appears that this accident might have happened without negligence on the part of the defendants, and that the means of knowledge as to the cause of the injury were equally within the reach of both parties. The court therefore rightly declined to give the instructions asked for upon this point, and for the reasons stated the instructions which were given were sufficiently favorable to the plaintiff.

Exceptions overruled.