Miller v. Pendleton

74 Mass. 547

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1857
• Status: Published

Opinion

By the Court.

1. The evidence of custom was rightly rejected, for several reasons. It did not tend to prove a general usage, or to prove that the defendant’s custom was right in this particular case. The usage sought to be proved would not be a good usage if it prevailed; it would make the safety of the passenger depend upon his own conduct, and not on the care and vigilance of the ferryman. If the putting up of the chain was a reasonable and proper precaution, it ought to be put up by the ferryman, without a request; if it. was not, a request would not make it so.

2. No doubt this action will lie. Although a ferryman is licensed, and assumes certain duties, under our statutes, he still holds himself out as a common carrier for hire, and as such is liable for any want of care.

Exceptions overruled.