Sparkman v. Graham , 79 Miss. 376 ( 1901 )

Terral, J.,

delivered the opinion of the court.

The board of supervisors of Noxubee county established a free ferry across Noxubee river, at a point known as <£ Giles’ Ferry,” near Cooksville. The keeping of said free ferry was let by the board, at a stated price per month, to J. E. Spark-man, who employed one Tony Barnes as ferryman. Mrs. Graham, with her nephew, Hunnicutt, and three children, traveling in the surrey of the plaintiff below, and drawn by two horses belonging, also, to him, applied to be ferried across said river, and, in the endeavor, the two horses were drowned and some slight injury inflicted upon the surrey a.nd harness, for which injuries this suit is brought. The rope by which the flat was drawn across the stream had parted at a point between the banks, and had been tied together, and from the knot there depended about four feet of the rope, which dangled in the water and had become frayed. In crossing the river, it was necessary for the boat to pass under the rope, and, when the boat came to the point on the stream where it was necessary to raise the rope to permit the boat to pass under it, it so happened that this frayed piece of rope, depending some four feet from the knot where tied together, came near the heads of the horses, and the use of the rope in moving the flat caused the frayed piece to strike the horses on their heads, which so frightened them that they jumped out of the flat into the river and were drowned. Appellee recovered a verdict and judgment, and Sparkman appeals.

Code 1892, § 3947, expressly provides that the owner or keeper of every ferry shall be subject to a penalty of $10 for the omission of any duty therein prescribed, ‘ ‘ besides being liable to the parties for any damages sustained.” It is perfectly clear, from the record, that the injury occurred from fright to the horses from being hit on the head by this frayed and wetted rope, which was negligently left dangling by the ferryman. Mrs. Graham testified that it was this frayed piece of rope striking the horses on the head that caused them to jump out of the flat. Iiunnicutt, her nephew, testified to the same as being the cause of the .injury, while Tony Barnes himself testified that, as the rope was lifted for the boat and surrey to pass under it, the rope came close to the horse’s head, when he jumped back, made a lunge, and threw the other horse off. There was some conflict in the testimony of plaintiff and defendant as to whether the one side or the other was responsible for leaving the horses hitched to the surrey; but that was unimportant, as it is perfectly manifest that their loss would have happened if they had been unhitched.

The instructions of the court ruled the defendent to be responsible only for ordinary negligence, and in this respect it was probably too favorable to his side of the question, but of that he cannot complain.

A firmed.