source: Caselaw Access Project

author: Ranney, J.

license: Public Domain

text:
    James and William Wilson v. William Hamilton.
    A ferryman, occupying a position in a line of public travel, and bolding himself out for general employment, is a common carrier.
    His responsibility for the safe delivery of living animals transported by bim, is the same as that in relation to the carriage of other property.
    It is the duty of the owner delivering property to a carrier which he knows requires peculiar care in its safe transportation, to make known the necessity, in order that the proper precaution may be used.
    If the owner takes upon himself the care of his property while in transit, and it is lost by his carelessness, the carrier is not responsible.
    But this rule only requires the owner to exercise care and diligence. That everything was not done that skill or prudence could have suggested, is no bar to a recovery.
    Reserved in Columbiana county.
    This was an action on the case, brought in tbe common pleas of Columbiana county, October, 1852, to recover from defendant, as a common carrier, tbe value of a wagon and four horses and harness, lost in crossing tbe Ohio river on defendant’s ferry-boat. The verdict in the common pleas was for defendant, whereupon the plaintiffs appealed to the district court, which reserved the case for decision here.
    *The plaintiffs introduced the admission of defendant, as follows:
    The defendant admits that he was a ferryman, when the horses and wagon and harness were lost; that he then ran a ferry-boat, and still runs one, between Wellsville, Ohio, and Hamilton, Virginia, ferrying with it across the Ohio river ; that he is still a ferryman at said place, across said river, and was for a long time previous to the above occurrence.
    Defendant also admits, that said four horses and wagon and harness were, when lost, the property of plaintiffs ; that said horses, wagon, and harness went upon his said ferry-boat, at the time alleged in this declaration, to be convoyed across the Ohio river, from Wellsville, Ohio, to Hamilton, Virginia, directly opposite Wells-ville, on the Virginia sido of said river; that while crossing said river, on his said ferry-boat, said horses, with harness and wagon, got off said boat into said river, and said horses were drowned, and said wagon and harness lost.

      Defendant also admits, that I. B. Oowen, a witness on former trial, did swear, and if now present would swear, that said horses, when drowned, were worth $450; that said harness was then worth $16, and said wagon was worth $30 ; that he has lived near plaintiffs, in Pennsylvania, for several years, and knew the above property ; that said horses were quiet and gentle, and that defendant told him-~a few days after the loss of said team, and when he came over with one of plaintiffs to Hamilton, where defendant lives — to take some action about said loss ; that said team was drowned; that he had taken the same over to the Ohio side, on his ferry-boat, the day before said occurrence; that defendant then said, when he saw said team come down, on the day of the occurrence, to cross said river on his said boat — which was a steam ferry-boat — be (defendant) had waited until said team came down, and took the leader by the head and led them onto his said boat; that he (defendant) had seen said team go off the boat, while he was standing on the wharf-boat, at the Ohio side of said river.
    ^Defendant admits, that Samuel McConnell, a witness on the former trial, did swear, and if here would swear, to same value of said property; that he had known said team for years, and lived iiear plaintiffs, and that said team was quiet and gentle.
    They also gave in evidence the deposition of Thomas Hughes, who testified that he saw the team go off the boat into the river, and they were drowned. Saw Mr. Wilson have hold of the saddle-horse, and a man named William 3?ickering had hold of the horses at the end of the tongue, about the time the boat started. The horses appeared restless, and when the saddle-horse started forward, the engineer, who was watching the horses closely, stojDped tlie engine. That he (witness) then saw the forward horses looking down into the water, standing on the apron. They wore forced into the water by the saddle-horse, and witness’ impression was, that the apron broke when the forward horses went down into the water. Thinks it was the jerk of the forward horses going into the water that caused the apron to break. Thinks that the horses could not have been saved if the apron had not broken. That- the boat was a few rods from the Ohio shore when the horses went overboard; that Samuel Williamson! was steersman of the boat, and a boy named Tommy was in charge as engineer; they were at their posts and appeared to be doing their duty; that he has been used to cross the Ohio river at various and saw nothing on the ferry-boats different to what he saw on the boat in question. That defendant owns the ferry-boat; that no gates or bars were on the boat when the horses were lost, and that defendant has put them on since. That Pickering was a passenger, and that neither the steersman nor engineer were called to give assistance to plaintiff after the boat started.
    The defendant having further admitted that he was a regularly licensed ferryman, the jfiaintiffs then rested their case, and defendant offered in evidence certain depositions, which were in substance as follows: Wm. Moore testified that he was on the wharf-boat, on the Ohio side, and saw Wm. Pickering trying to *pull the two fore-horses round with their heads to the boat; the horses were unmanageable, the wheel-horses forcing the others overboard. That Williamson is a good ferryman, and that it is the custom for persons crossing with teams to take charge of their own horses. The engineer was a small boy. He is about sixteen years of age, and witness thinks he understands his business very well.
    George Johnson testified, that he has been in the habit of crossing the ferries on the Ohio river. The custom in relation to defendant’ ferry, as far as witness knew, was for men crossing to take care of their own teams.
    Martha Myers deposed, that Mr. Wilson came into her house immediately after the horses were lost. Mrs. Hamilton asked him if he blamed the ferryman. He replied that he blamed no one but himself. He said he should have taken the horses out; that they got scared, in the first place, at the depot in Wellsville, and when they came on the boat they had not got over the fright. He said when the boat started, the horses ran over into the river. He said he ought to have taken them out, for when the horses got frightened, forty men could not have held them. That (she) witness has lived in the house of defendant a number of years. The conversation between Wilson and Mrs. Hamilton was shortly after the team was drowned.
    Matilda Hamilton, daughter of defendant, gave evidence corroborating that of Martha Myers.
    Robert Sproll deposed, that he was on the wharf-boat at Wells-ville, and saw Wilson with his team on the ferry-boat. He had hold of the saddle-horse. When the boat shoved out from the landing, and the wheels had made one or two revolutions, the horses commenced running, and ran to the end of the apron of the boat. The wheel-horses shoved the lead-horses into the river. The weight of the horses in the river and of the wheel-horses in 'the act of plunging in, broke the levers of the apron. Hoes not think that the horses could have been saved if the apron *had not broken. The boat was a good one; the ferryman and engineer were attending to their duties; the accident was the fault of the horses ; heard Wilson say, that evening, that it was his own fault, and that he did not blame the ferryman, or any one on the boat. He said the horses were frightened at the depot at Wellsville, and that no one man could hold the saddle-hoi se when he was frightened. He blamed himself for not unhitching them.
    Thomas Henry, engineer on the ferry-boat, deposed, that the engine had made but one or two revolutions when he shut off the steam and stopped the boat. The horses were uneasy and had commenced running; Wilson had hold of the saddle-horse, Wm. Pickering of the lead-horses. He had partially succeeded in turning the lead-horses inward on the apron, when the wheel-horses crowded them into the river. The horses could not have been saved if the levers of the apron had not broke; the levers were good. Ferryman and himself were in the performance of their respective duties. Wilson had the management of the horses. He did not request Williamson or witness to take charge of them. The custom on the river is for teamsters to take charge of their own teams in crossing.
    Wm. Englebright deposed, that he owns the Steubenville ferry, and • has been in the occupation of a ferryman eighteen years. It is customary for teamsters to take care of their own horses on the ferryboats. It is not customary to have fastenings on the boat to prevent teams from going overboard. The aprons are not intended for teams to stand on, and are not strong enough for that purpose.
    Nathaniel Wells deposed, that he has been engaged in the ferry business for seventeen years, at Steubenville. It is the duty of the teamster to drive on board the boat and take care of his team. Knows of no custom requiring the steersman and engineer to pay attention to teams while crossing. Knows of no fastenings on ferry-boats but the firm grips of the teamsters at the heads of their horses. The aprons are for dropping on the landings to *enable the teams to drive on and off. Teams are not allowed to stand on them.

      George Hamilton deposed, that he is the son of defendant. The evening after the loss of the horses, he heard Wilson say to his mother that he blamed no one but himself for the loss of his horses. They had been frightened at the depot, and had not got over it when they reached the ferry-boat. He said he should have unhitched them. The plaintiffs got, qf the property lost, the wagon-bed, the harness, and the fore-carriage of the wagon. Mr. Wilson came to father’s, and took.them away.
    Barnard Wintringer deposed, that it is customary for teamsters to take care of their own horses on ferry-boats. It is not customary to have fastenings for teams.
    The plaintiff objected to all the depositions offered for the defense. The defendant then called Charles Hamilton, who testified that he was down at the river on the day the horses were drowned; that he did not see the horses go off the boat, and did not see the boat till it had drifted back and struck the Ohio shore; that he then saw defendant running up along the beach, and thinks ho was not on the boat when the horses went off. Whether he was on before the boat started or not, he does not know. Wilson came off the boat with his whip in his hand, and said to witness: “My horses are lost I don’t blame the ferryman. It is my fault. They got scared at the railroad depot, and like to have run away with me, and 1 had hard work to stop them. I ought to have unhitched them when I drove onto the boat. They Were not over their fright when I drove them on the boat.” I am a cousin of defendant. I have run this same ferry-boat since the horses were lost. We never use bars or gates on it — none except for stock; it is a good ferry-boat.
    Also, ídamuel B. McLean testified, I am a brother-in-law of defendant, and have been running on river, upon steamboats, for twenty years. I know the ferry-boat at Wellsville. It isa very good boat. My experience is, that bars or gates are not used ^except to ferry stock across the river. I have run on the river for twenty years, and am acquainted with the rivers from Pittsburg to New Orleans, and have crossed at many of the principal ferries. The ferry-boat run by defendant is about seventy-five feet long and sixteen wide. I have seen three or lour teams cross on it at once.
    Also, Thomas Johnson testified, that he crossed the Ohio river at several ferries; that he knew the ferry-boat run by defendant to be a good one, and never had seen bars or gates used upon ferryboats except for stock in crossing.
    Also, A. S. Brewer, who testified that he had crossed the Ohio river at Wellsville, and at Cincinnati; that he had crossed on foot at Cincinnati; never crossed with a horse; had seen teams crossing upon them, but did not see bars or gates used.
    Also, Simeon Jennings testified, that he had crossed the Ohio river, and other’ferries, at different places, but never saw bars or gates used except for stock.
    The defendant here rested his case, and the plaintiff then called to the stand Thomas Grafton, who testified that he resided in Wells-ville, and kept a lively stable; that his stable was near the hotel of Benjamin Way, about forty rods from the railroad depot, and between the depot and the landing-place of the ferry-boat; that he was always much in the habit of noticing and observing horses ; that on the day the horses of the plaintiff were lost, he noticed them passing his stable, as they were on their way to the ferry-boat landing; that the horses arrested his attention at once, as they were fine-looking and high-spirited; one of the wheel-horses was pulling hard and looking back. The team stopped in front of Way’s hotel, and stood there for about half an hour before it Was driven onto the ferry-boat. He went up and examined the horses while standing there; no one was holding them, and Mr. Wilson, who drove them, was in and out of the hotel occasionally. They stood quiet, and did not appear as if frightened. They were in good order, high-spirited, and held their heads up, ^noticing things about them, as horses in that condition usually do. The team went from there down to the ferry-landing, and onto the boat, a few minutes after which he heard it was drowned. That he had crossed on defendant’s ferry-boat often, and that there wore usually no gates or bars put up when ferrying over teams, but after this accident they were put up; that he had crossed at Smith’s ferry, and at Steubenville, a good many years ago, and did not recollect of there being any gates or bars put up.
    Plaintiffs then called Joseph G. Reith, who testified that he had been engaged for several years in driving horses and cattle, and crossed a good many ferries; among them, he had crossed the Shenandoah river several times, and had crossed the Ohio river at Smith’s ferry a few years ago, and believes, in 1852, had seen teams and horses ferried across the river at Cincinnati; he had always seen bars or gates used upon the ferry-boats at each end, and had never seen horses or teams ferried across a river without them. He had crossed the Shenandoah river with horses, and had crossed at Smith’s ferry with one horse and carriage; that Smith’s ferry was a ferry across the Ohio river, nine miles above 'Wellsville; that he considered gates and bars necessary for the safe transportation of a team of four horses across the Ohio river on a steam ferryboat.
    Joseph Hi Quinn being called, testified that he had been engaged for several years past in driving horses, cattle, and sheep, and had crossed many ferries, among which he had crossed at Smith’s ferry-on the Ohio river, nine miles above Wellsville; that he had also-crossed ferries on rivers in Pennsylvania, and that he had crossed the Missouri river at St. Louis; he had crossed the rivers in Pennsylvania with horses, and once with three or four horses; that he-had crossed at Smith’s ferry with one horse in a carriage, and one loose, which he had led; that he had always seen gates or bars used, whether he crossed rivers on ferry-boats with one horse or more, and that he considered bars or gates necessary to be used upon a ferry-boat to transport a team of four horses across the Ohio river safely.
    *James Martin being called, testified that he had for some years past been engaged in driving horses and cattle, during which time he had crossed various rivers in Ohio and Pennsylvania; that he had always seen bars or gates used on all ferry-boats where he had crossed; that he had crossed at Smith’s ferry, and they were-used there, and that he considered bars or gates were necessary upon a ferry-boat, whether there was one horse or more upon it; and that, in his opinion, bars or gates were necessary upon a ferryboat, in order to enable it to transport a team of four horses safely across the Ohio river.
    J. H. Wallace being called, did testify that he had frequently crossed the Ohio river at Smith’s ferry, and at other places, among-which was at Wellsville; that bars or gates were not used at Wells-ville, but were used at Smith’s ferry and other places; that he crossed at Smith’s ferry several years ago, and the first time he crossed, his horse was restive, and it was difficult to get him onto-the boat. They used bars there then, when he crossed with this-one horse, and always afterward used bars or gates when he crossed with the same horse, and when he crossed it with other single horses; that he believed the custom was to put up bars or gates upon the ferry-boat whenever one horse or more was ferried across, unless they knew the team, and that it was accustomed to crossing on the boat, and that he believed bars or gates were necessary to be put up, to convey a team of four horses safely across the Ohio river upon a ferry-boat.
    J. W. Castlebury being called, testified that he had been accustomed to traveling, and had, within the years last past, probably crossed two hundred ferries in Ohio and elsewhere; that he had always seen bars or gates used upon a ferry-boat wherever he had crossed rivers, whether he had one horse or more; that he had never seen a team of horses ferried across a. river without them; that he had always required them to be put up, if not done by the ferryman of his own accord, and that he considered bars or gates necessary to be used upon a ferry-boat in order to transport a team of four horses safely across the Ohio river.
    *And the'plaintiff having rested his case, the court made an order reserving the same for decision in the Supreme Court of Ohio.

      Lee & Gilman, and J. W. Meily, made the following points:
    Defendant is á common carrier, and is liable as such. All the elementary authors declare a ferryman is a common carrier. See Story on Bailments, sec. 496; 2 Kent, 767; Ang. on Carriers, sec. 130; Babcock v. Herbert, 3 Ala. 392; Smith v. Seward, 3 Barr, 342; Pomeroy v. Donaldson, 5 Miss. 36. If defendant is a. common carrier, he is clearly liable; for this loss did not occur by the act of God, inevitable accident, or from the act of the enemies ■of the country, the only events which release the common carrier from liability. See Angell on Carriers, sec. 67; Story on Bailm., sec. 510; 2 Kent, 772; and all other elementary authors on the •subject.
    But it will be claimed that a difference exists between the liability of a carrier of live animals and a carrier of inanimate matter. We hold the rule is the same, let the carrier convey what he will. He is liable to the full extent of the rule “for the safety of animals of the brute creation, delivered to him for transportation.” Angell on Carriers, sec. 214; Story on Bailments, secs. 576, 577.
    The rule reaches to human beings, or slaves, and there termi-. nates. Its tension has never been relaxed in favor of animals — ■ brutes. See Boyce v. Anderson, 2 Pef. 150 — where the carrier is held to be responsible in the transportation of slaves only, “ for negligence or want of skill,” because slaves are held to be “ intelligent beings,” and are placed on the same footing as other passengers. But the above rule is in this case affirmed by the court, and the carrier’s liability is declared to exist in its full extent, for everything which he transports except “ human beings.” The •only cases where ferrymen have escaped liability for property lost, have been where the loss was occasioned by the ^negligence of the owners of property themselves. We do not think the case of Willoughby v. Horridge, 16 Eng. Law & Eq. 437, reaches.this point; but of this kind is the case of White v. The Winnisimmet Co., 7 Cush. 155. In this case, the plaintiff had driven onto the ferry-boat and chosen his own location for his horse, and neither committed his horse to the custody of the ferryman, or expressed any wish to do so. By plaintiff’s own negligence, the horse being left unattended, was frightened at the ringing of the bell, and jumping overboard, was drowned. Here the court held, that •“ when such horse or other animal is not surrendered into the custody of the ferryman, the driver is bound to do all that can be effected by reasonable diligence and supervision to prevent a loss of his property, occasioned by the horse becoming restless or affrighted. If the traveler wholly neglects his duty in this respect, leaving his horse without any oversight, and the horse, without the fault of the ferryman, becomes affrighted and throws himself, and vehicle to which he is attached, overboard, when by proper care and attention of the driver this casualty would in all reasonable probability .have been avoided, the loss must fall upon the traveler.” Now, this is the strongest case tending to exempt ferrymen from liability which can probably be found, and is in direct contradiction to the doctrine of Cohen v. Hume, 1 McCord, 139, where the court hold, “ as soon as a carriage is on the drop of a flat, though driven by the owner’s servant, it is in the ferryman’s possession, and he is liable for any subsequent damage that happens to it or to the horses.” This seems to us reasonable doctrine. The traveler and his driver are, for the time being, under the control of the ferryman, and become “ de facto ” his servants, when they drive onto his boat. Such also is substantially held in Miles v. James, 1 McCord, 457, and in Rutherford v. McGowan, 1 Nott & McCord, 17. But even granting to defendant the full force of this case in Cushing, it does not affect the case at bar; for the court in that very case hold, by necessary implication, if the plaintiff *had either delivered his horse to the ferryman,, or had exercised a reasonable supervision over him himself, then the ferryman would have been liable.

      W. K. Upham, for defendant, made the following points :
    I. That the law, applicable to common carriers of goods and merchandise, which, makes them responsible for every loss which is not produced by inevitable accident, does not now apply to carriers of animals; that a sound distinction can be, and is, taken between an animal with power of locomotion, and of volition, and a package of goods which can be “ stowed away,” subject only to the will and convenience of the carrier.
    II. That the responsibility of the carrier of animals should be, and is, measured,by the degree of care which he exercises in his business and employment; that he is bound to take great care in their transportation — that slight negligence will charge him.
    III. . That where an injury is produced, or a loss sustained, by negligence, the injured party has no remedy against the other, if his own negligence concurred in producing the result.
    IY. That in case of animals sent or taken by a carrier, that the carrier is not liable for an accident, or loss, arising from the “ animal’s own viciousness or want of temper.” Angell on the Law of Carriers, 222, sec. 214 a.

    Y. That the loss in this case occurred from the negligence of the plaintiff — that the carrier was in no fault, and performed all the obligations under the law.
    Chief J. Marshall, in Boyce v. Anderson, 2 Pet. 156, says: “ The law applicable to common carriers is one of great rigor. Though to the extent to which it has been carried, and in the cases to which it has been applied, we admit its necessity and its policy, we do not think it ought to be caried further, or applied to new cases.”
    *The rigorous rule of law, as applicable to. carriers, had its origin and foundation in considerations of public policy and public protection, and in the early cases it was only applied where the entire and exclusive custody and control of the thing or article carried was in the carrier,, and the owner or consignee of the thing or article carried was not present. The policy of the law was to impose upon the public carrier the highest degree of care and diligence in the safe carriage and delivery of property intrusted to him. The rule itself making the carrier responsible for every loss which is not produced by inevitable accident, ex vi termini, imports exclusive custody and control in the carrier — that “ absolute control ” which is ,not to be qualified by any considerations of humanity to the object carried, or in any manner limited by the volition, animation, or power of locomotion, of the subject of the contract.
    As commerce has advanced, and means of communication have been opened up, the carriage of animals upon public conveyances, and by public carriers, has become common, and an important and valuable part of internal commerce.
    It is true that we have had ferries in existence and in operation in this country, and in England, for a long period of time — it is also true that the elementary works of the law, and some adjudged cases, have laid down the rule that a ferryman is a common carrier; and Chief Justice Gibson, in Smith v. Seward, 3 Penn St. 342, says “ a ferryman is undoubtedly liable as a common carrier, and with no greater restriction of his responsibility;” yet these writers, and cas es, must not be understood to hold, that in the conveyance of live animals, the public carrier is an insurer of the property.
    The case of Smith v. Seward, above cited, was a case in which “ there was no fall-board at the end of the flat used as a ferry-boat, and it being insecurely fastened to the shore, the wheels of the wagon striking the side of the boat as it was being driven on board by the ferryman, the flat was shoved from the shore and *the horses fell into the river and were drowned.” Miles v. James, 1 McCord, 457, is also very similar; and in all the recent cases upon this subject, in which the responsibility of ferrymen has been discussed, it will be found that, where the ferryman has been charged, it has been on account of his negligence in the management and conduct of his boat, or in consequence of insufficiency or defect of the boat itself.
    The language and reasoning of the court, in the case of Boyce v. Anderson, applies, in all its force, to the carriage of live animals. A horse “ can not be stowed away as a common package ; not only does humanity forbid this proceeding, but it might endanger its life or health.” A horse could not be disposed of as a “ bale of goods ” no more than a slave. “ The carrier has not and can not have the same absolute control over it that he has over inanimate matter.” It would seem reasonable, therefore, that the responsibility of the carrier of live animals should be mitigated, and that the great “rigor ” of the old law should be made to yield to thef wants and conveniences of trade and commerce. The carriage of live animals by public carriers is of comparatively rec.ent date; and recent decisions in this country and in England have molded the old law to meet the present exigencies.
    The cases of Willoughby et al. v. Horridge, 16 Eng. L. & Eq. 437 (23 Haw I. 90), in England, and White v. The Winnisimmet Company, 7 Cushing, 155, in this country, have placed the law, as we claim, upon its proper and just foundation — establishing “ a modification of the liability attached to common carriers, as the nature of the thing to be carried and the extent of the custody and control over it by the carrier varies.” We then plant ourselves upon the principles established by these cases, and proceed to the examination of the other questions involved in the case.
    The case shows, and it is admitted, that the ferry-boat was new, strong, and well built, and the only complaint which is made *by counsel in relation to the boat is, that it was not provided with bars or drops at each end. 1 will here refer to the-testimony upon the part of the defendant, given by steamboat men and others familiar with the ferries on the Ohio and other rivers. They say that the bars and drops are only used in the ferriage of stock in droves or numbers. Now, I claim that the bars are of no sort of use ; that they would present no obstruction to a, frightened horse; that the universal absence of them, as testified by witnesses,, is evidence that they are not necessary for the protection and safety of the horse. There is no dividing line; the law is satisfied if the ferryman provides a strong, safe, and well-built boat, and manages and conducts it with care and with all prudence, or the law imposes upon him the obligation of providing against the possibility of injury or loss.
    Undoubtedly, an inclosure or pen could be built in a manner and' of materials that would effectually restrain and contain a frightened horse despite all his attempts to eseape, but is not the whole duty of the ferryman performed when he furnishes a boat well built and well manned ? If the plaintiff was guilty of negligence,, and that negligence contributed to the loss of the property, then he can not recover. This is a familiar principle, and upon its application the case in 7 Cushing, before cited, turned.
    The cases of Cohen & Hume, 1 McCord, 139; Rutherford v. McGowan, 1 Nott & McCord, 17, and the case cited in 12 Ill. 344, are all cases in which the attempt is made to hold the ferryman to all the rigor of the old law; to make him an insurer of the property placed upon his ferry-boat; to hold him responsible for all loss not occasioned by the “ act of God or the king’s enemies.” In order to do this, they are compelled to resort to the fiction, that at the moment the team and the owner are upon the ferry-boat the owner in charge of his own team becomes the servant of the ferryman. No matter with how little care or with what degree of negligence the owner conducts himself, being pro tempore the servant of the ferryman — notwithstanding his acts *of omission and commission, the ferryman is liable at all events. To carry-out the fiction, the ferryman would be responsible if the owner of the team himself caused the loss. These cases are directly opposed, in principle, to the cases cited above (7 Cushing and 16 png. L. & Eq.)r and must yield to them in point of reason and authority.
   Ranney, J.

It is with much difficulty that this cause can be retained for decision in this court. The district court, to which it was submitted — a jury being waived — instead of finding the facts,, and then sending the questions of law arising here for determination, after hearing the evidence ordered it to be set out in the record, and the facts, as well as the law of the case, to be reserved.

It is not, however, open to the objection which availed to remand the case of Hubble v. Renick, 1 Ohio St. 171. In that case the reservation was ordered upon -the motion of one of the parties; and we held that the court could not, in that manner, compel the other party to submit the finding of the facts to the judges of this court. In this case the reservation is made upon the motion* of both parties; and, of course, both have waived that objection. But it is still open to the serious difficulty, that it requires us to settle facts before we can arrive at the questions of law involved; and is, so far, opposed to the spirit and policy of the act organizing this court, and to the objects and purposes for which it was created. We shall not, therefore, as a general rule, entertain jurisdiction of cases at law, upon reservation, even at the instance of both the parties, until the facts have been settled in the district court, either by an agreed statement, or a finding of the court or jury. We onlv depart from the rule in this instance because it has not hitherto been well understood, and because the facts in this case are of easy solution.

We have been wholly unsuccessful, after very careful research, in finding where it was even doubted that a ferryman, occupying *a position in a line of public travel, and holding himself out for general employment, was not a common carrier, and, as such, subject to all the liabilities incident to that position. That he is such is unqualifiedly asserted by the best text-writers, and enforced in a large number of decided cases. Angell on Carriers, secs. 82, 130; Story on Bailm., sec. 496; 2 Kent’s Com. 599; 3 Barr, 342; 5 Missouri, 30; 1 McCord, 444; 1 Nott & McCord, 19; 8 Ala. 96; 11 Leigh, 521; 12 Ill. 344; 10 M. & W. 161.

But if we were without direct authority, and compelled to rely upon the spirit of the law relating to common carriers, we should find ourselves unable to assign any sufficient reason for imposing a higher responsibility upon one carrying persons and property along a river, than were exacted of those engaged in carrying them across it. The employment of the latter is no less emphatically of a public character than that of the former; while every consideration of public policy is equally as applicable in the one case as in the other. Indeed, in one point of view, the argument is generally strongest against the ferryman. Most other channels of transportation by water are open to free competition, and those who employ the carriers upon them have an opportunity to choose who they will trust; but the ferryman is generally secured in the exclusive privilege of using the particular locality, and under terms to coerce employment from all those whose business or convenience requires them to cross at the particular place.

W e have been no more fortunate in finding any sufficient support for the position that the responsibilities of a common carrier, in respect to other pi’operty, do not attach to the carriage of living animals. No such distinction has anywhere been recognized. The contrary is expressly laid down by the elementary authors to which I have referred, as well as in several of the cases cited; to which may be added others. Angelí on Carriers, sec. 214; Story on Bailments, sec. 576; Stewart v. Crawley, 2 Stark. 323; Porterfield v. Brooks, 8 Humph. 497; Palmer v. Grand Junction Railway, 4 M. & Welsh. 749.

*The nearest approach to anything sustaining his position, which the learned counsel for the defendant has been able to pro•duce, is Boyce v. Anderson, 2 Pet. 150; in which it was held, that the carriage of negro slaves did not impose upon the carrier the same responsibility as the transportation of inanimate matter. There can be no doubt of the correctness of this decision. The chief justice very conclusively shows that the carrier can not, consistent with humanity and regard to the life and health of the slave, have the same absolute control over an intelligent being endowed with feelings and volition, that he has over property placed in his custody ; and that such an undertaking was not to be distinguished from the ordinary one for the carriage of passengers. But these reasons can certainly have very little application to the transportation of brute animals, without judgment or intelligence to provide for their own safety, and which may, with suitable accommodations, be effectually secured and confined. This question has, within a few years, from the great numbers of domestic animals now carried from the west to the east, by land and water, assumed a very decided importance; but we can feel no hesitation in declaring that those who undertake their transportation, take upon themselves the obli.gation to deliver them safely, against all contingencies, except such •as would excuse for the non-delivery of other property. Neither of the late cases, of Willoughby v. Horridge, 16 Eng. L. & Eq. 437, and White v. Winnisimmet Company, 7 Cush. 155, are opposed to either of the propositions, which we have regarded as settled. In the last, and much the strongest for the defendant, the court, after .stating that the delivery of a bale of goods to a ferryman, to be transported, would impose upon him the strict liability to carry it ■safely, against all contingencies except .the act of God or the public enemies, proceed to say : “ The principle above stated, would embrace the case of a horse and wagon, received by a ferryman, to- be transported by him on a ferry-boat; the ferryman accepting the exclusive custody of the same for *such purpose, and the owner having, for the time being, surrendered the possession to the ferryman.” But it appeared, in that case, tliat the owner selected hia own place upon the boat, retained the exclusive custody of the horse and wagon, neither committing them to the custody of the ferryman, nor signifying a wish to do so, and that they were lost by his own carelessness. Without indorsing everything said in the opinion, we can not doubt that judgment was correctly given for the defendants. The rule which fixes the liability of common carriers, is, it is true, one of great rigor; and while it is equally true that tba reasons upon which it was originally founded, have in a measure-ceased to be applicable, still others of greater cogency, growing out of the exigencies of modern commerce, have taken their place, and have made the continuance of the rule indispensable to the safety of the public, and every relaxation of it the subject of regret with the most enlightened judges. In my opinion, this court has gone quite far enough, in allowing the carrier, by special contract, to exempt himself from responsibility as an insurer for losses occasioned without fault on his part. Davidson v. Graham, 2 Ohio St. 131; Graham v. Davis, ante.

But while this strict liability of the carrier is necessary to the-public security, and, in our opinion, not to be relaxed, we are never to forget that he also has' rights which deserve to be scrupulously guarded. While the law holds him to the strictest accountability, it requires those who deal with him to act with the utmost good faith ; and if the loss can be traced to their fault, it is plain there can be no recovery. It is but the dictate of common honesty, that ho who delivers property to a carrier, knowing that it requires peculiar care and attention to its safe transportation, should make known to him the necessity, in order that the proper precaution may be used — Orange County Bank v. Brown, 9 Wend. 85 ; Pardee v. Drew, 25 Wend. 85 ; Miles v. Cattle, 6 Bing. 743 — although the principle has not been extended so far as to require a disclosure of the peculiar *value of the property, unless inquiry is made by the carrier. Sewall v. Allen, 6 Wend. 349; Hollister v. Nowlan, 19 Wend. 234; Phillips v. Earl, 8 Pick. 182 ; Sleat v. Flagg, 5 B. & Ald. 342.

It is upon a similar principle, of requiring good faith and reasonable diligence from the owner, in his dealings with the carrier, that it has been held, that if the owner of goods accompanies them to take care of them, and is himself guilty of negligence resulting in loss or injury, he is not entitled to recover. Brind v. Dale, 8 Car. & P. 207. Nor are we disposed to adopt the artificial reasoning of some of the cases, which makes the owner or his servant, in such case the servant of the carrier, and the latter responsible, notwithstanding the negligence of the former. It is 1he right of the owner to commit his property to the exclusive custody of the carrier, and the latter has no right to decline to receive it; but if the owner sees fit to take upon himself any duty connected with the carriage, he does not lose his position as an independent party to the contract, and is bound to discharge it with, fidelity. But this rule, in its application to the undertakings of a ferryman, is not to be received in too broad a sense. The'very nature of his employment requires him to transport all sorts of persons, many of whom would be wholly incapable of furnishing: assistance, and most of -whom must be very imperfectly acquainted, with the precautions necessary to the safety of the horses they drive. He would have no right to place any reliance upon an infirm man, a woman, or a child, to manage a frightened horse, which it would require a strong man, with presence of mind, to> do; and, in any case, all that he could require would be that the party should have attempted to perform, in good faith, what he had voluntarily assumed. That everything was not done that skill or prudence could have suggested, can never be made an objection to a recovery.

To bring himself within the purview of these limitations upon the carrier’s liability, the defendant insists that one of the horses-*lost was particularly vicious, and had been frightened, shortly before coming upon the boat, by a train of cars ; that these-facts should, in good faith, have been communicated to the defendant; and that the plaintiff did not, in all respects, conduct himself properly at the time the accident happened. In our opinion, no-part of this claim is sustained by the evidence. There is nothing' to show that the horse was vicious. The greatest sin proved upon him is, that he was spirited ; and while it is true that he had been somewhat frightened in the manner stated, some time before going upon the boat, the fact that he had stood in the street, alone, and without being hitched, for half an hour afterward, effectually -removes all imputation of bad faith from the plaintiff, for not mentioning a circumstance which he must have considered of no importance. We are at a loss to know what more the plaintiff could have done, at the time of the accident, than he did do. The defendant placed the team upon the boat, and then went on shore,, leaving only the oarsman, and a boy to act as engineer, to manage it. They did not, and probably could not, leave their positions; and the plaintiff, having no assistance but another passenger, seems to have.exerted all his power to prevent the team from going-off the boat. We see nothing in his conduct, or the law of the-case, to bar a recovery.

2. But if we had taken a different view of the legal questions-¡fixing the defendant’s liability, we should still be brought to the .same judgment. It is conceded that he must have furnished a .strong, safe, well-built boat, and have managed it with care and prudence, and that even slight neglect would charge him. And it is further admitted, that this boat was wholly unprovided with either bars, gates, or chains at the ends, to prevent the escapo of horses from it. As to the necessity for these precautions, there is a conflict in the evidence — the greatest number of witnesses, perhaps, expressing the opinion that they are not necessary. But this •does not relieve us from the obligation of scrutinizing the grounds upon which these opinions are based. Now, as a matter *of •common sense and every-day experience, we do know that a large proportion of the horses transported are unaccustomed to the noise ■of a steam-engine; and equally well, that more or less of them will become restive when they hear it, and that the difficulty of restraining them will be greatly increased when, as in this instance, .a number aro hitched together. Under such circumstances, to place a team on board, with no assistance provided in case of fright — the ends of the boat being entirely .open, and with a projecting “ apron,” just sufficient to allure the horses upon it, but in•sufficient to hold them — we can not regard as an exercise of that scrupulous care which it is conceded the defendant was bound to ■exercise. It is not enough that this and other ferries may, for a considerable time, have carried horses safely without these precautions. If, for the want of them, losses should occur but seldom, they are still such as might be readily anticipated, and easily provided against.

There must be judgment for the plaintiffs.