Brockway v. Lascala

1 Edm. Sel. Cas. 135

• Court: New York Circuit Court
• Decided: July 15, 1845
• Status: Published

Opinion

The Circuit Judge charged that if the injury which the plaintiff had sustained was the result of inevitable accident, or was in any manner'caused by or contributed to by his own negligence, he could not recover.

But if neither of these things were made out, then the inquiry was, what was the duty of the defendants, and had they performed it %

A common carrier undertakes to carry safely, and deliver properly all goods received by him for carriage, and it is the act of God or the common enemy that can alone excuse him. It would be enough to obtain a recovery in such ease, to prove the reception of the goods by the carrier, and their non-delivery as contracted for.

But the obligation of a passenger carrier is different. He only warrants that he will carry safely as far as human foresight or the utmost care and diligence of a cautious person will permit. Hence, in such ease, something more must be proved than the mere reception of the passenger and his nondelivery in safety. It must also be shown that there has been wanting some of that required foresight and care, and that from that the injury has resulted.

Berry boats may and do occupy both positions. As to goods, they are liable to the obligation of a common carrier. As to passengers, to the obligation of the passenger carrier.

This action was founded on the obligation of the passenger carrier, and therefore the inquiry was, had any want of due care and diligence on the part of the defendants been shown ?

As to the deficiency of light on the bridge, that was purely a question of fact, in respect to which, the jury could require no instruction.

But the other question—whether the defendants were bound to take any measures to guard against the danger of landing—was quite a grave one, and on that he would give them his views.

The danger of 'falling into the chasm between the bridges and the boats, when landing, was quite apparent and not uncommon, so that both passengers and carriers were aware that it was imminent on every trip.

Did the ferry company owe any duty toward their passengers to guard them against it ?

They thought not—they therefore took no precautions, but left their passengers to draw their own inferences from the ringing of the engine bell, from the striking of the boat against the slip or bridge, from the dropping of the carriage barrier chain, from the turning of the windlass, and from the passengers moving to go ashore. But that they ought to do more was to be determined by the question, whether human foresight and the utmost care and diligence of a cautious person could suggest any thing more ? Because, if they could, then it was the duty of the defendants to adopt that something more.

It was not for the court or jury to declare what those precautions ought to be; it would be enough to know that any had been omitted that might have been adopted, to the protection of the passengers. Suppose the barrier chain had been extended across the passenger ways as well as the carriage ways, with such precautions that it could not be let down until the boats were fastened to the bridges ? Or suppose that men were stationed on the bridge to warn in a loud voice against the danger ?

It might well be impracticable, and even increase the dangers of travel, to erect and maintain barriers whereby passengers might be forcibly detained on board until the proper time. In such case a proper warning of the danger would be sufficient; and, if such warning could contribute to the safety of the passengers it would be a breach of duty to omit it, and would render the carrier liable for any injury that might have been prevented by it. If the passenger disregarded the warning he would take the risk of injury on himself. The carrier, in that case, would have done his duty, and the question in this case was simply whether it had been done here, and if it had been, whether plaintiff’s safety would have been consulted % Where an absolute barrier cannot be maintained, the next duty was a warning against danger, and that the carrier has no right to omit.