Loftus v. Union Ferry Co.

dissenting :

It was part of the defendant’s duty as a common carrier of passengers to provide a safe landing-place for them. In the case under consideration the defendant provided a bridge which rose and fell with the tide. Between the bridge and the stationary dock was a space sufficiently large to permit a child to get through, and the opening between the bridge and stationary dock was sufficiently large to permit a child to fall in the river. The protection along the Bridge was insufficient. It was simply an outline. The plaintiff’s ¡son, a small boy of six and a half years of age, coming off from the Boat, is jostled or shoved or escaped through the openings and was •drowned. The bridge was not built to protect children of that age. .In view of the crowd of passengers traveling by defendant’s boats, .including children of all ages, and of the rush from the boat, it ¡should have been -anticipated that an opening, in the sides of the Bridge was dangerous. The motion for a nonsuit was properly denied. There is nothing in the evidence calling for a decision that as matter of law the deceased boy was guilty of contributory negligence. It was a question for the jury. The age of the boy was proven, and his attendants and companions; how the accident occurred, and where, in reference to the bridge, and what was its cause. I do not see any omission of duty, either upon the part of' the boy <or his mother, in whose charge he was.

The judgment should be affirmed, with costs.

Judgment and order denying new trial reversed, and new trial granted, costs to abide event.

We are of opinion that no proof of negligence on the part of the defendant was given. Ferry conqaanies are not insurers of the absolute safety of passengers, either while coming on board the ferryboats, or while going ashore therefrom, nor are they bound to guard against possible accidents which could not reasonably be foreseen. Their duty is to furnish accommodations, for the receiving and landing of passengers which are reasonably sufficient for that pur*37pose, and for the protection of persons using the means provided, in a reasonable way. (Blackman v. London, &c., R. Co., 17 W. B., 769; Rigg v. Manchester, &c., R. Co., 12 Jur. N. S., 525; Cornman v. Eastern Counties R. Co., 4 H. & N., 781; Crafter v. Metropolitan R. Co., L. R., 1 C. P., 300; Dougan v. Champlain Tr. C., 56 N. Y., 1; Crocheron v. North Shore, &c. Ferry Co., Id., 656, reversing 1 N. Y. Sup’m Ct. [T. & C.] 446; Cleveland v. New Jersey Steamboat Co., 68 N. Y., 306.) It is not enough, to make out a case of negligence, to suggest that additional precautions would have prevented the accident. It is always quite easy to do that after an accident lias happened. But the question is, whether a prudent person, under all the circumstances involved, might reasonably be expected to foresee that the accident, which happened might occur. We have no hesitation in giving a negative answer to that question in this case. Such an accident as-that by which the deceased lost his life was quite beyond the scope-of probability.

The deceased, a boy seven years old, in some way which is not' satisfactorily explained, got through a space of from twenty to twenty-two inches wide in the railing of the landing float or bridge, fell into the water and was drowned. There was nothing ruiusual in the construction of the bridge or float. Such a bridge or float had been used for the purpose of landing passengers for a very long period, and had hitherto proved adequate and safe. No> accident like that which happened to the deceased had ever occurred, although the number of passengers landed from the defendant’s boats in some years exceeded forty millions. Surely the mere occurrence of an accident, such as had not before been known to the defendant, and which happened in such an extraordinary manner, is not evidence of negligence. As the cases cited show, the defendant was not bound to foresee and provide against such a¡ casualty. We have examined the authorities to which we hav& been referred by the learned counsel for the plaintiff, but none-of them conflict with the principles above stated.

Without considering the question of contributory negligence, we think the judgment and order denying a new trial should be rerversed, and a new trial granted, with costs to abide the event.