Action to recover Damages for Loss of Team while crossing on aFerry.
1. Liability of owners of ferry as common carrier. — "Where a passenger on a ferry boat continues in immediate charge and custody of his wagon and team during the passage on a ferry boat and assumes to control the team during the passage across the river, the ferry owners are not liable as common carriers in *Page 233 respect of the loss of his property, resulting from the team backing off into the river, but only for their negligence causing that disaster.
2. Liability of owners of ferry; contributory negligence. — In an action against ferry boat owners to recover damages for the loss of team backing into the river, where the issue of contributory negligence was involved, with evidence tending to support same, a charge to the jury that "If from the evidence you are reasonably satisfied that the defendant was guilty of negligence and that such negligence was the direct cause of the injuries complained of, your verdict should be for plaintiff" is improper.
3. Same; liability to passenger transported free. — Where no charge or compensation is made or to be made, and no compensation is to be exacted, directly or indirectly, for the transport of plaintiff's property, and this is so understood by him at the time, the ferry owners are liable to him only for the consequences of gross negligence.
4 Same; where transportation without fee is part of contract forwork. — If the plaintiff, in action for recovery of damages for loss of team while crossing river on ferry boat, has a contract for work with the owners of the ferry boat and the customary money fee for transportation is not exacted from him in consequence of the fact that the transport was being made in carrying out a contract for work which he had with that company and the pretermission of the usual charge was in any sense a part of that contract, the attempted transport is not gratuitous and the rights of the plaintiff are the same as if regular toll had been exacted.
5. Safe-guards of a ferry; credibility of testimony. — Where it is shown that a ferry boat did not have a rear guard, evidence to the effect that subsequent to the accident, the ferry owners did install a rear-guard is not admissible to prove such installation as an independent abstract fact, but is competent on the cross-examination of defendants themselves after they had testified that there was no occasion for such safeguard in a properly constructed boat and that it was not customary to have such rails on other properly equipped and operated ferryboats, as going to the credibility of such testimony. The evidence showed beyond controversy that Frazier, the plaintiff, continued in immediate charge and custody of his wagon and team on the ferry boat and assumed to control the team during the passage across the river. The ferry owners were not therefore liable to him as common carriers in respect to the loss of his property resulting from the team backing off into the river, but only for their negligence causing that disaster.
There was evidence adduced showing that the boat was not provided with a guard rail across the rear end to prevent just such occurrences as. that which transpired in this instance and that such provision would have prevented this occurrence, and there was evidence tending to show that the omission of that safeguard was negligence on the part of the defendants. Upon this without more charge 2 requested and given for plaintiff could have been properly given. But there was more. The issue of contributory negligence was in the case. The evidence afforded ground for a conclusion by the jury that the plaintiff was himself guilty of negligence in failing to unhitch the team from the wagon upon entering on the passage in compliance with the warning and request of the boatman, and that this negligence proximately contributed to the loss he sustained. So finding it was not only the jury's right but their duty to return a verdict for the defendants notwithstanding their negligence in not having a rear guard rail in place and the causal connection of that negligence with the result complained. This charge 2 took that right from the jury and prevented their performing this duty, and required them to find for plaintiff upon proof of causal negligence on the part of defendants even though they should also find that plaintiff was negligent and that his want of due care contributed to their injury. The charge was therefore affirmative error. It remained in the case and was before the jury as a declaration of law by the court throughout their deliberations. It was not merely misleading, *Page 237 but, when referred to the evidence, as all charges must be, was positively erroneous, and was not corrected by the charge given at defendant's request which was inconsistent with it. We cannot affirm that the giving of this inconsistent instruction rendered the error of the original charge innocuous.
If no charge was made or to be made and no compensation was to be exacted directly or indirectly for the transport of plaintiff's property, and this was so understood by him at the time, the defendants were liable to him only for the consequences of gross negligence — not liable at all unless the jury found that the provision of a guard rail at the rear end of the boat was so plainly a duty imposed on the ferryman that no man of ordinary care and prudence would have pretermitted its performance. But if the defendants, the owners of the ferry, also constituted the Horse Shoe Lumber Company, and the customary money fee for ferriage was not exacted from the plaintiff in consequence of the fact that the transport was being made in carrying out a contract for work which he had with that company, and the pretermission of the usual charge was in any sense a part of that contract, the attempted transport cannot be said to have been gratuitous; but the rights of the plaintiff would be the same as if regular toll had been taken of him.
We are of opinion that evidence to the effect that subsequently to the loss of plaintiff's property defendants did install a rear end guard rail on this boat was inadmissible to prove that as an independent, abstract fact; but that such evidence was competent on the cross-examination of the defendants themselves after they had testified that there was no occasion for such safeguard in a properly constructed boat, and that it was not customary to have such rails on other properly equipped and operated ferry boats, as going to the credibility of such testimony.
*Page 208