By the Court,
Sutherland, J.The judge misdirected the jury, and the verdict also, even under the charge, appears to me to be against the weight of evidence. The law of common carriers is not applicable to the undertaking of the defendants in this case. They were not insurers of the plaintiff’s vessel. The judge charged the jury that the defendants were bound to exert more than ordinary care and skill in the management of their steam boat. If the judge meant that they were bound to more care and skill than was ordinarily necessary in calm weather and smooth water, there can be no objection to it. But it is not probable that that was his meaning, or that he was so understood by the jury. He meant that the undertaking of the defendants legally imposed upon them the duty of exerting extraordinary care and skill in conducting the plaintiff’s boat to Geneva. That this was the meaning of the judge, appears also from another part of the charge, in which he says, it was the defendants’ duty to tow the plaintiff’s boat in safety to the harbor(of Geneva) if it was possible. The jury had a right to infer, from thesestrong expressions of the judge, that if in their opinion it was possible for human care and skill to have towed the plaintiff’s boat in safety, then they must give a verdict for the plaintiff. The defendants certainly are not liable in the character of common carriers ; and if not, then they were bound to the exercise of only ordinary care and skill. But I think the weight of evi*390deuce shows that the boat sunk in consequence of her being rotten and overloaded; that from those causes her seams opened with the heaving of the waves, and that she filled from leaking, and not in consequence of being carried by the defendants into the trough of the waves. As the evidence appears upon .paper, I think no man can resist this conclusion.
New trial granted.