Pennewill v. Cullen

5 Del. 238

• Court: Superior Court of Delaware
• Decided: July 5, 1849
• Status: Published

Opinion

By the Court.

1. The defendant’s liability as a common carrier. What constitutes a common carrier is a question of law; whether the defendant comes within that definition, is a question of fact for the jury. A correct definition of common carrier is given in the case of McHenry vs. The Railroad Company, 4 Harr. Rep., 448.

The jiiry will decide upon the proof, whether the defendant held himself out to the public as engaged in the business of a common carrier. It is not necessary that his trips should be regular between the same points or places. If engaged in the business of carrying grain for others generally to and from any point, he is liable as a common carrier. But if the defendant kept his vessel for his own use, he would not be liable as a common carrier, even if he chartered or hired his vessel to another by special agreement.

The liability of a common carrier is that of an insurer against every thing except inevitable accident, usually called the act of God; public enemies, and the plaintiff’s own default. By the act of God, is meant lightning, tempest, other natural causes, beyond human control. The question in such case, is not one of diligence or negligence, but of human ability. If a vessel strike on a rock or shoal not hitherto known, the master is excused; but if it was known or laid down on any chart, it is an accident that might have been avoided, and the defendant is liable.

The default of the plaintiff. If the injury or loss arose from defective or damaged cpm when shipped, the defendant though a common carrier, is excused.

Bates and Bates, jr., for plaintiff. Smithers and Layton, for defendant.

■ 2. The defendant’s liability as a private carrier. A private carrier is one who, without being engaged in such business as a public employment, undertakes to deliver goods in a particular case, for hire or reward. As such, the defendant was bound to furnish a tight good vessel, suitable to that navigation, and to provide a competent ipaster. This results from his obligation to to use ordinary care and diligence to prevent accident; such care as a prudent naan would ordinarily take of his own goods.

It is alledged that on the arrival of this cargo at New York, it was very wet, the vessel having taken much water. If this be so, it will be for the jury to decide where or how this water was taken in. If taken in by reason of running on a hidden post, at the bridge, not known to persons navigating there, the defendant, as a private carrier, would not be liable, if he afterwards used due care and precaution to save the corn from the effects of such accident.

If the water was hot taken in by reason of this accident, but was a consequence of the leaky vessel, or the master allowed an improper collection of bilge water by any neglect, or from defectiveness of pumps, the defendant would be liable.

The measure of damages would be the depreciation in price of the corn, by reason of the injury.

Verdict for plaintiff, $63 41.