#### HENRY T. WILSON v. MARTIN SHULKIN.

"Where a ferryman received an unusual number of horses and mules, which were mostly unconfined, and which he believed to be skittish, upon his ferry boat, which was not provided with guards, and which had a spike five inches long sticking perpendicular in the gunwale, with which a horse was killed, it was Held to be gross negligence, and that he was liable for the loss, notwithstanding an agreement with the owner of the beasts, that he would risk the danger from the excess of numbers.

Whether a common carrier can make a valid agreement with a customer, by which his common law liability be diminished — Quere?

Aotioit on the case against the defendant as a common carrier, tried before Person, J., at a special Term of New Hanover Superior Court, (January, 1858.)

The defendant was the owner of a public ferry, near "Wilmington, across the Cape Fear and Brunswick rivers, (Eagle’s Island being between them) and took tolls for transporting men, horses, &c. The plaintiff had certain horses and mules carried over the ferry, and in the passage, one of the horses *376was thrown partly out of the flat, and falling npon an iron spike or pin several inches long, which was fixed in the side of ihe flat (at the place where an oar-pin usually is,) was penetrated by it in the lower part of the belly, so that it died of the wound shortly afterwards.

One Souse swore that when the plaintiff came to the Brunswick ferry, having a considerable number of mules and horses, the ferryman said lie should have to take a part of them at a time, that they looked skittish, and if all of them were taken at once, some of them would likely be injured. The plaintiff insisted on taking all of them at, once, and said, “if the flat will hold them I will take the risk.” The ferryman said, “I will risk the flat if you will risk the horses and mules.” Two horses were first led in by a servant of the plaintiff, and held in the forward part of the flat; the mules, being loose, were driven in after them, and two other horses were held by another servant of the plaintiff in the after part of the flat. The flat was open and had no guards, or other barriers, to keep the animals on it. Ho oars were used,- but the flat was pulled over the river by means of a hawser, stretched from bank to bank. The iron spike or bolt mentioned, was about five inches long, and stood perpendicularly in the gunwale of the boat, about opposite to where the first horses were placed, one of which was that killed. There were two persons acting as ferrymen. After getting within twenty or thirty yards of the shore, the mules became frightened, made a rush forward and crowded the two horses in front, so that one of them fell with a hind leg out of the boat, across the gunwale and upon the iron spike or pin. The ferrymen both became alarmed and jumped over-board, one from the bow, and the other from the stern of the boat. Before this, the mules had made a start, and the front ferryman, with a piece of plank which he used for pulling the boat, had, with the assistance of the plaintiff’s servant, kept them back. Neither of the plaintiff’s servants jumped over-board or left the flat until it reached the shore.

The plaintiff’s counsel contended—

1st. That a common carrier could not limit his liability by *377reason of what was said by the plaintiff, abont taking the risk.

2ndly. That even if he could, yet the ferryman was guilty of gross negligence, and on that account liable.

The defendant contended that the plaintiff’s agreeing to take the risk, so limited the ferryman’s liability, in law, as to make him responsible for gross negligence only, and that the evidence did not make out such a case.

Upon the first point the Court charged as the defendant contended.

Upon the second point, his Honor told the jury, if they should find that the ferryman took all the mules into an open fiat without guards, or other barriers, when he thought it likely that some of them would be injured, they being skittish, and most of them not confined in any way, and that an iron spike or bolt, was sticking upright in the gunwale as described by the witnesses, and that both of the ferrymen jumped over-board when it was not necessary for their safety to do so, (for the law did not require they should run the risk of their lives or great bodily harm by staying) instead of-standing their ground, and endeavoring to prevent accidents, in law, it constituted a case of gross negligence, and they should find for the plaintiff. Defendant’s counsel excepted.

"Verdict for the plaintiff. Judgment and appeal by the defendant.

London and Strange., for the plaintiff.

Baker ¡ for the defendant.

Battle, J.

Upon the first question which was presented at'the trial, and which his Honor decided in favor of the defendant, it is unnecessary for us to express any opinion. The inquiry, (if the case required that we should go into it) whether any circumstances would authorise the owner of a ferry to stipulate for a restriction of his liability, as a common carrier, with any person who might come to be transported, would be not less interesting than important. It is easy to see that the *378allowance of such an authority might, and probably would be made the means of great imposition upon travellers. On the other hand, there might be many cases, of which the one before us is a striking instance, in which it would seem to be hard not to permit a relaxation of the stern rule of the common law. The elaborate arguments of the counsel have presented in a strong light the difficulties which surround the subject, and prudence, as well as duty, requires that we shall not venture upon a decision until a case shall come before us which imperatively demands it.

From our declining to express any opinion upon the first question, it will be seen that we concur with his Honor upon the second, which is decisive of the case.

Supposing, that under the circumstances in which he was placed, the defendant had a right to enter into an agreement with the plaintiff for restricting his common law liability, it is conceded that he still remained responsible for gross negligence, and the question remains, was he guilty of that? After much reflection, we are of opinion that he was. We cannot well conceive of any good reason why a ferry-boat, used for the transportation of live stock, which is carried across the stream by means of a hawser, should have an iron spike, pin, or bolt, five inches long, standing perpendicularly on the gunwale. It is said that it was an oar-pin, but the case states, expressly, that no oars were used, and as there were no guards to the boat, and nothing else to prevent the horses or mules from being inj ured by the pin, it ought either to have been taken away, or so covered, as to destroy its dangerousness. We do not lay much stress upon the fact that the ferrymen jumped overboard, as it does not distinctly appear whether that was before or after the horse was killed. Our decision is put distinctly upon the ground that it was gross negligence in the defendant to have a boat, in which horses and mules were to be transported, with an iron spike five inches long, so located that there was a reasonable probability of one or more of the animals being injured by it.

Pee CuRiAM, Judgment affirmed.