Griffith v. Cave

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring. This is an action against the defendant, a ferryman, to recover the value of a pair of mules, harness, and wagon, lost from the defendant’s ferry-boat, while crossing the Sacramento River. The plaintiff recovered judgment, from which the defendant appeals.

The appellant contends that he refused to receive the teams at the time they drove on the ferry-boat, on account of the steamer being about to pass, but the evidence upon this point is conflicting. It shows, however, that both teams drove on the boat, and had proceeded, under the direction of the ferryman, a portion of the distance across the river, when the accident occurred. This was sufficient to establish the fact that the defendant had accepted and received the property, and his liability as common carrier had fully attached when the loss accrued. (May v. Hanson, 5 Cal. 360.)

The Court instructed the jury as follows: “ If Griffith drove on the boat against the express order of the ferryman, it was the duty of the ferryman to refuse to take charge of the mules, or if he did take charge of them it was his duty to provide against loss in consequence of the swell of the water against the boat. If it was, in his judgment, unsafe to cross and unsafe to leave them there, if he took charge of them, and did not like to leave them in the hands [536]of Griffith, he should have directed Griffith, or himself unhitched the mules and placed them in a position so there would be no danger. He might elect to leave Griffith to take the consequence of his refusal to obey the order, but if the ferryman took charge of them, and there was carelessness or negligence thereafter on his part, he would be responsible.” The defendant then asked the Court to give the following, which was refused, and which is alleged as error: “ If the plaintiff drove on the boat in violation of the express order of the ferryman, and there is a loss, the ferryman is not responsible. He is not compeled to leave his boat near the shore to be destroyed.” To which the Court replied as follows: “ If he took charge of the boat, pushed it in the stream and was crossing, I think he took charge of the boat and the load upon it, and if there was carelessness or negligence thereafter, he is liable.”

The charge of the Court as given was certainly as favorable to the defendant as the law would justify. There was no error in refusing the instruction as asked by the defendant, because it predicated the exemption from liability upon the single fact that the plaintiff drove on the boat in violation of the express order of the ferryman, when that might be true, and still the ferryman may have accepted and received them afterwards, by which his liability would attach.