5 Cal. 360, May v. Hanson

Citation:5 Cal. 360
Opinion Judge:MURRAY, Judge
Party Name:George May, Respondent, v. George M. Hanson, Appellant
Attorney:G. N. Swezey & Z. Montgomery and L. Sanders, for Appellant. Charles Lindley, for Respondent.
Judge Panel:JUDGES: Murray, C. J., delivered the opinion of the Court. Heydenfeldt, J., concurred.
Case Date:July 01, 1855
Court:Supreme Court of California
 
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Page 360

5 Cal. 360

George May, Respondent,

v.

George M. Hanson, Appellant

Supreme Court of California

July, 1855

Page 361

[Syllabus Material]

Page 362

[Syllabus Material]

Page 363

Appeal from the District Court of the Sixth Judicial District, Sacramento County.

Action for damages for injuries sustained by plaintiff in crossing defendant's ferry.

Defendant's counsel requested the Court to charge the jury, First, " That the plaintiff in passing over the ferry, and the landing and road therefrom, was bound to use prudence and caution and ordinary care, and if the jury believe from the testimony that at the time of the accident the plaintiff's wagon was defective, or that he drove or rode on the same carelessly, whereby the accident occurred, or either of these causes aided in producing it, then they must find for the defendant."

Second, " That the default of the defendant in not keeping the road in good repair at his landing, will not excuse the plaintiff from using ordinary skill and caution in passing thereover."

Third, " That the plaintiff must show to the satisfaction of the jury, that the action and injury of which he complains were caused by the negligence, fault or default of the defendant, in which he, the plaintiff, had no agency, and did not in any manner contribute, and if he has failed by proof so to have shown, then they must find for the defendant."

The Court refused the instructions and defendant's counsel excepted.

The Court charged the jury as follows: First, " A ferry-man engaged in the transportation of passengers and goods for hire, is in law a common carrier, and as such, it is his duty to take care of them during their passage on the boat, and to have and provide good and safe landings for their ingress and egress."

Second, " That a distinction exists in the responsibility of the carrier of goods and the carrier of persons or passengers. The carrier of goods at common law stands in the situation of an insurer, and is responsible for every damage that may occur to the goods while they are in his custody, save and except such as are occasioned by the act of God or the public enemy. His entire faultlessness will not excuse him; thus he is liable for damages done by accidental fire or by robbery. It is a hard, inflexible rule of law, but resting, as the authorities say, upon principles of public policy and necessity, which it would be unsafe and unwise to disturb. The hardship of the rule, although in many cases it has apparently operated with very unjust severity, has never induced the Court to relax its vigor."

Third, " The carrier of persons undertakes to exercise all human care and foresight, and is responsible for all accidents and injuries which might have been avoided and prevented by human care and foresight."

Fourth, " The defendant has urged that the injuries happened by the breaking down of the wagon; that, at the time, the plaintiff himself was driving, and had control of...

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