Dissenting Opinion by
Mr. Justice Schaffer,April 9, 1923:
Plaintiff’s decedent was one of a party of sightseers or information seekers bound on a visit to defendant’s *133plant. In order to reach it, they had to cross the Jnniata River. The customary way of making the crossing, owing to the fact that there was no bridge in the vicinity, was by means of a ferry which defendant had constructed to transport its employees. The ferry consisted of a flat-bottom boat, testified by its builder to be sixteen feet long and seven feet wide, attached by means of pulleys and a rope to a wire strung over the river; the motive power was the current which quartered the boat. On arrival at the stream, thirteen of- the party got into the boat and were transported to the other side, while crossing they were subjected to some splashing of the water. The boat returned and on the second trip, plaintiff’s decedent and eleven others, one of them defendant’s manager, made up the passengers. There were no seats in the boat, all stood. When the craft had proceeded about a third of the way across the stream, water began to splash into it, just why is not entirely clear, in all probability due to the swiftness and roughness of the water, as the river was in flood owing to a rain storm. As a consequence of the water entering the boat, some of its occupants moved toward the stern, the boat sank and seven were drowned.
The negligence alleged is the overloading of the boat and the testimony from which this conclusion must be drawn, is that of a witness, Ballentine, a boatman and fisherman on the river, who said from his experience with boats that the number of persons in the one in question was greater than should have been carried. He did not qualify himself in any scientific way to speak on this subject, and the evidence showed that not only on the trip immediately before that on which the accident took place, more persons were carried in safety, but on repeated occasions, during the months the boat had been operating, many more persons had been carried safely, in instances, more than twice as many. It would seem to me the witness was not competent to speak on the safe carrying capacity of the boat, particularly as its ability in this *134respect had been demonstrated. Furthermore, in my view, his evidence, upon which the verdict must rest, was not trustworthy under the rule laid down in Chapman v. Clothier, 274 Pa. 394. He arrived at his conclusion by a comparison between the craft in question and one of his own, testifying that in his opinion (without accurate measurement) they were of similar kind and size. The man who built the boat and another who measured it said it was much larger than the one belonging to the witness. It seems obvious to me that the size of the boat was not the determining factor as to its carrying capacity, but the manner of its construction and its buoyancy. It should be borne in mind that water conditions suddenly arising — a swirl in the current — may create a peril which could not be foreseen. Water is a dangerous element and those who venture on it assume a certain risk. When the decedent and the others entered the boat, they did so voluntarily; if they overloaded it, the fault was not that of the defendant. While it is true, defendant’s manager was on the boat, he was there, not in his capacity as superintendent, but just as the other passengers on the boat were; for what he then did or failed to do appellant was not responsible.
Weaver v. Carnegie Steel Co., 223 Pa. 238, was a much stronger case for the plaintiff than is the case at bar. There a party of two hundred men visited a steel plant for their own pleasure and benefit, the steel company furnishing them with a guide. One of them fell through an aperture in the floor and was injured. We held he was a mere licensee or guest, that he assumed the ordinary risks of a visit to such a place and could not recover. If authority were needed to rule the pending case in favor of the defendant, the one just referred to would seem to me to be controlling. But, aside from precedent, on the facts as they appear and as stated in the majority opinion, I am unable to apprehend the duty owing by defendant to the decedent which it failed to perform.
*135In my opinion, judgment should be entered for defendant on the ground that no negligence was shown.
Justice Frazer and Justice Kephart join this dissent.