34. Wyckoff v. The Ferry Co., 52 N. Y. 32; White v. The Winnissimmett Co., 7 Cush. 155.

The opinion of the court in this case, not only as it respects the liability of ferry-men, but of carriers generally, is so appropriate and instructive that we append so much of it as relates to this subject.

Dewey, J.: "To a certain extent, persons keeping and maintaining a ferry are common carriers. It would be so if a bale of goods or an article of merchandise was delivered by the owner to the agent of a ferry company to be carried from one place to another for hire. Upon receiving such goods for transportation the ferry company stipulate to carry them safely, and subject themselves to a strict liability for the safe carriage and delivery of such goods, being only exempted for losses occasioned by those acts which are denominated 'acts of God or of a public enemy.' The principle above stated would embrace the case of a horse and wagon received by a ferry-man to be transported by him on a ferry-boat, the ferry-man accepting the exclusive custody of the same for such purpose, and the owner having, for the time

being, surrendered the possession to the ferry-man.

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"But if the traveler uses ferry boat as he would а bridge, personally driving his horse upon the boat, selecting his position on the same, and himself remaining on the boat, neither putting his horse into the care and custody of the ferry-man, nor signifying to him or his servants any wish or purpose to do so; and the only possession and custody by the ferry-man of the horse and vehicle to which he is attached, is that which necessarily results from the traveler's driving his horse and wagon or other vehicle on board the boat and paying the ordinary toll for a passage; in such case the ferry corpany would not be chargeable with the full liabilities of common carriers of merchandise. The liability in this case would be one of a different character; and if the proprietors of the ferry were chargeable for loss or damage to the property, it would be upon different principles. In reference to persons thus using the ferry, the company have responsible duties to perform, the neglect of which may charge them for the loss of goods and property placed on board their boat, when the

loss has been occasioned by their default. It is the duty of a ferry company to provide a good and safe boat, suitable for the business in which they are engaged, and they are required to have all suitable and requisite accommodations for the entry upon, the safe transportation while on board, and the departure from, the boat, of all horses and vehicles passing over such ferry. They are required to be provided with all proper and necessary servants and agents requisite for the safe and proper conducting of the business of the ferry, and with all proper and suitable guards and barriers on the boat, and to prevent damage from such casualties as it would naturally be exposed to, though there was ordinary care on the part of the traveler. neglect of duty in these respects they may be charged, but the liability is different from that of common carriers. The case of such a traveler, though not entirely similar, much more resembles that of a traveler upon a toll-bridge or turnpike road, who, while he uses the easement of another, yet retains the possession and custody of his horse and wagon. The party thus driving his own horse upon the boat, and retaining the custody of him, is bound, like the traveler on the toll-bridge or turnpike road, to use ordinary care and oversight in respect to his horse while on the boat, and if he does not use such ordinary care

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and oversight in respect to him, and for the want thereof the horse leaps overboard, or receives on the boat some injury, all of which might and would have been avoided if the party had used proper care and diligence, such party would himself bear the loss which has thus been occasioned by his own neglect.

"In deciding upon the nature and extent of the liability of ferry-men, and how far they are to be charged as common carriers, regard is to be had to the nature of the employment, and especially to the thing to be transported. This principle is practically applied in the well-known distinction relating to the liability of the proprietors of stage-coaches and other vehicles, as to the carriage of persons. No person thus carried in a public vehicle can recover damages for an injury to his person if his want of ordinary care contributed to the injury. Such carriers are not common carriers, with all the liabilities as such. One reason for the distinction is, that the persons thus carried are not, and cannot be placed, under the same custody and control as bales of goods. Being intelligent beings, and having the power of locomotion, and having the opportunity on the one hand, by their own voluntary acts, of exposing themselves to greater hazard, and on the other of guarding, to some extent, against perils, the law properly requires a person

thus carried to exercise the ordinary care and vigilance to avoid exposure to danger, and if this is not exercised, and an injury is sustained, the carrier is not liable therefor.

"The same principle is further illustrated in the various deci sions of the courts in cases of actions instituted for the purpose of charging the carriers of slaves as common carriers of merchandise. It was successfully and certainly most properly contended as to the carriage of slaves, that in those states where slavery is allowed by law, and where slaves are to some purposes treated as chattels, yet as they are human beings and cannot and ought not to be stowed away and confined like bales of goods, and placed under the absolute control of the carrier, the principle of the common law applicable to common carriers of merchandise could not be applied to the carriers of slaves. This was so held in Boyce v. Anderson, 2 Pet. 150; Clark v. McDonald, 4 McCord, 223.

"As having some bearing also on this question, we may allude to the modification of the principle of general liability as common carriers, in those cases where the owner of the goods accompanies them in their transit, retaining a certain control over them, as in Brind v. Dale, 8 Car. & P. 207, where it was held that if the owner of the goods accompanies them, to take care of them, and

is himself guilty of negligence, he is not entitled to recover. This case also affirms as a rule of law a principle often found elsewhere, and which bears directly, as we think, upon the case before us, that a party cannot recover if his own negligence was as much the cause of the loss as that of the defendant.'

"Thus we perceive that a modification of the liability attached to common carriers occurs, as the nature of the thing to be carried, and the extent of the custody and control over it by the carrier, varies. We think that the propriety of such modification of what is certainly a very stringent rule of liability, in reference to cases where the entire custody and control of the property is not with the carrier, is quite obvious.

"The case of a traveler conveyed by means of a ferry boat, where the traveler enters upon the boat driving his horse, attached to a wagon or other vehicle, selecting his own place upon the boat, and continuing to retain under his own custody his horse and wagon, neither committing it to the care of the ferryman or his servants, nor signifying any wish or purpose so to do, presents another instance where the liability of the carrier must be considered as of a restricted character; and as in the case of the carrier of persons, duties devolve upon the traveler, and he is bound to use ordinary care and