This action was brought against the defendants, as ferrymen, for the loss of property from their ferry boat. The evidence shows that the defendants had a license to run a ferry at Morris, and under that license they established a ferry, and for a time run the boat from which the team was lost. That they subsequently leased this boat to other parties who were running a rival ferry near by, and that while the boat was in the possession of, and being run as a ferry by those other parties, the team was received on the boat by the parties who had thus rented the boat, and while it was being ferried over the river was lost. It may be inferred that the defendants had ceased to run a ferry under their license. Under this state of facts the court instructed the jury that the defendants were liable for the loss to the plaintiffs.
In this case it is unnecessary to say whether the ferry license of the defendants could be assigned or not. Slyter did not profess to run the ferry under the defendants’ license. The only connection the defendants had with this ferry was that they had leased one of the boats, which was used for that ferry. This created no greater obligation against them for losses which might occur from its bad management or the carelessness of the ferryman, than as if they had sold the boat absolutely. They sold its use for one year, and were to receive a compensation at the rate of ten dollars per month for such use. As well might the owner of the rope used, who had leased it to Slyter, be held responsible fob its improper or negligent use. Indeed, there would be as much propriety in holding the man who built the boat to the same responsibility.
Nor could the defendants be held responsible for this loss because they neglected to keep up their ferry, as they were bound to do under their license. Whatever liability they incurred for such neglect was in another form of action. As well might the railroad company which neglects, or refuses to .furnish passage for a man, be held responsible for his death, when, being thus compelled to start on foot, he falls down and breaks Ms neck. No such liability attaches to such violation of legal duty.
There is one other instruction which we deem it proper to notice. It is this: “ That all persons had a right to be received upon the ferry boat and conveyed across the river in question, according to their arrival, or first coming to the ferry, and if the team in question arrived first at the said ferry, the driver thereof had the legal right to go upon the said boat on its first passage over the river.” The evidence showed that the ferryman directed the plaintiffs’ driver to take a different position on the boat, and allow another team to go on first, and that the driver refused to obey his orders. A witness also swore that if the plaintiffs’ team had taken the position assigned it by the ferryman, the accident, most probably, would not have happened. As was held by this court, in the case of Fisher v. Clisbee, 12 Ill. R. 344, the ferryman must be the captain of the ferry boat, and must have the absolute right to assign to each one his position on the boat. He best knows the capacity of his boat, and is supposed to be most skilled in its management. At any rate, there must be a head,—a controlling power to a ferry, as well as anything else that is safely and successfully conducted. If the ferryman abuses his powers, and refuses to to take a passenger or a load on the first trip, when he could safely do so, he would be liable to an action for damages ; but still, the safety of all requires that he must be permitted to determine when and how he can safely take a passenger, a team, or a load. But of all others, the claim here set up by the driver, was the most groundless. What difference, in point of right, whether he wag put in the middle of the boat instead of the end ? The instruction was improperly given.
The judgment must be reversed and the cause remanded.
Judgment reversed.