The plaintiff’s horses, with carriage attached, were led by one of the plaintiffs, who was acting as the driver of the team, on board of the defendant’s ferry boat, at the foot of Twenty-third street and the East river. There was no light upon the ferry gate or upon the boat. It was about half-past five in the morning, and very dark. The deck of the boat was slippery, although the driver who led the horses as stated did not notice that fact when he so led them on board. There were some persons in the coach,' one óf whom called to the driver, who went to the door of the coach to see what he wanted. While talking to him the whistle of the boat blew, and the horses started. The driver told them to stop, and they did so—they were not frightened. The whistle blew again, and the boat moving, caused the horses to start again. The driver hurried to them to stop them, and did all that he could do, but could not stop them, because the deck was slippery. When they started they turned round and went overboard, and one of them was drowned. There was a chain at the end of the boat, which sagged at the centre, and was not more than twelve inches high at that point, which was not sufficiently, elevated to stop the horses, but did stop the carriage. The driver at the time the horses started, was talking to his passengers, having one foot on the step of the carriage, and one foot inside, and was apparently guilty of negligence in thus leaving his horses ; but he testified that in consequence of the movement made by the horses, and the slippery condition of the deck of the ferry-boat, it would have been impossible for him to have stopped the horses whether he had been at their head or on his box; a fact to which others accustomed to manage horses also testified to, and corroborated his evidence on that subject. Several witnesses also testified in reference . to the chain, its arrangement, sagging in the centre, and its in*247sufficiency for the purpose for which it was intended. The evidence given in behalf of the defendant, made a conflict upon the various elements of the plaintiffs’ case ; as to the elevation of the chain, the ability of a person to stop the horses if standing at their heads, the position of the driver when the horse started, and the condition of the deck. Under the circumstances disclosed, the plaintiffs’ right to recover depended upon the absence of any negligence on their part which contributed to the injury sustained. The jury were so instructed. If the driver had been upon his box or standing at the head o-f his horses there could be no doubt about the right of the plaintiffs to recover, inasmuch as the horses were shown to be gentle and reliable, obedient to command, and not inclined to run away and there was proof establishing the facts that the guards use d by the defendant on his boat were not sufficient for the purpose intended—that there was no place to tie the horses and ho proof that any person was employed on board of the boat who was charged with the care or custody of these or any other horses. Assuming this conclusion to be correct in principle, it follows that if the driver being on his box or at the heads of the horses could not have arrested them, his absence from both the places designated was not per se evidence of negligence contributing to the injury suffered.
The facts and circumstances were considered and passed upon, and if the jury thought the plaintiffs guilty of negligence, they could not recover. For these reasons the justice did not err in refusing to dismiss the complaint.
It does not follow because the plaintiffs may have been guilty of negligence that they cannot recover. The negligence must in some degree contribute to the injury, and unless it does, it cannot affect the right to indemnity. (Haley v. Earle, 30 N. Y., 208). Although the liability of a common carrier of animals is not in all respects the same as that of a carrier of inanimate property, and although he is not an insurer against injuries arising from the nature and propensities of animals, yet if diligence and care can prevent them he is bound to the exercise of such diligence and care (Clarke v. The Roch. & Syr. R. Co., 14 N. Y. [4 Kern.] 570. “ It is the duty of a ferry company to have all suitable and requisite accommoda*248tions for the entering upon the safe transportation while on board, and the departure from the boat of all horses and vehicles passing over such ferry. They are also required “ to be provided with all proper and suitable guards and barriers on the boat for the security of the'property thus carried, 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 (per Dewey, J. in White v. The Winnissimmet Co., 7 Cush., 157). Accepting this statement of the duties devolving upon ferry companies as a concise and ample exposition of them in reference to the subject under consideration, and more particularly since the case from which it is extracted was cited by the defendants’ counsel, it is established by the verdict of the jury that the defendants’ boat had not suitable guards and barriers to prevent damages from such casualties as the plaintiffs’ property would naturally be exposed to. It is true that the plaintiff did not recover in the case just referred to, but it was for the reason that he had contributed to his injuries by his owu negligence. The opposite finding on conflicting evidence sustains the judgment in this case, the jury having been instructed by the justice not only in relation to the plaintiffs’ negligence but also that the defendants were not liable unless the damages sustained by the plaintiffs were occasioned by the defendants’ negligence; upon an examination of the case in reference to the propriety of the verdict we cannot say that it was not just. It appears clearly that the plaintiffs’ horses were frightened by the act of the defendants’ servant who blew the whistle, and that defendant was .therefore in fact the original impelling cause of the accident; whether the use of the whistle did not impose additional caution on behalf of the defendants, is a question upon which we are not called upon to express an opinion; but if such use of it is necessary in conducting the business of the ferry in the navigation of its boats, it would seem from the events which this case has proven, to call upon the defendant to employ ampler means for the security of passengers and animals than those- adopted.
We cannot interfere with this judgment. The evidence admitted under the defendant’s objection bore directly upon the question of negligence, and was pertinent and proper, and *249the jury were properly instructed upon the legal rules by which their deliberations were to be governed.
The judgment should be affirmed.
Daly, F. J.I agree with Judge Beady that this judgment should be affirmed. It was a question of fact, under the evidence, whether the driver did or did not enter and seat himself in the coach. Even if he had done so, it is doubtful whether that act contributed to or co-operated in producing the accident, as several experienced witnesses testified that if he had been on the box, or at the horses’ heads, it would have been impossible for him' to have prevented it. The judge, therefore, could not, under this evidence, instruct the jury that such an act constituted in law, an act which contributed to the “jury.