FOURNIER J.-I am in favor of dismissing the appeal. I think this case very like the case of G. T. R. Co. v. Boulanger decided a short time ago from the Bench. (1) C. S.
J.-I concur. I have no doubt that the evidence fully sustains the verdict in this case, and O that negligence was sufficiently proved to enable the plaintiff to recover.
J.-The declaration in this case is abundantly sufficient to sustain the present action whether it be regarded as framed in tort for injuries caused to the plaintiff by the negligence of the defendants in breach of a duty arising out of their having a grant of the exclusive right of ferriage and carriage by water of cattle, goods and passengers from one part of the City of St. John, across the river and harbor of St. John, to other parts thereof, or in tort for breach of duty arising out of a contract to carry the plaintiff for hire and reward. The evidence that the plaintiff was only admitted as a passenger upon the defendants' ferry boat upon his producing a through ticket for passage by rail and ferry from Boston to St. John, for which the plaintiff had paid at Boston, and from which the defendants' servants detached a coupon, justified the inference that the defendants had been paid or secured in payment of plaintiff's fare and that they accepted the coupon from the plaintiff in payment of his fare. But the declaration alleges that the plaintiff was lawfully on board the ferry boat as a passenger and that it was the duty of the defendants, as grantees of the ferry and carriers by water of cattle, goods and passengers across the ferry, so to manage their ferry boats, and to fasten them to the landing stage in such a manner, that it would not be dangerous for passengers to pass from the ferry boats to the landing stage, and that it was by breach of this duty that the plaintiff suffered the injury of which he complained, so that the declaration would be good without the allegation of the plaintiff being a passenger, " for certain hire and " reward paid to the defendant," and these words might be expunged from the declaration and the plain- .
tiff's cause of action be sufficiently stated (1).
Then as to the merits the learned counsel for the J. defendants admitted that the case was presented to the jury with a charge both upon the question whether the defendants were guilty of any negligence and whether the plaintiff was guilty of contributory negligence, to which no objection was or could have been taken, and that the jury found for the plaintiff. But the contention is that besides submitting the case to the jury with such a charge the learned judge who tried the case submitted certain questions to the jury and that some of their answers are inconsistent with their verdict and others are against the evidence. As to the former-to a question:
the jury answer that:
What the jury meant by this answer appears, from the other answers, to have been that in the construction and in the absence of proper appliances to fasten the boat safely there was negligence.
They found that the guard chain was let down before the boat was fastened to the landing stage, and that although it was so let down for the purpose of getting hold of the mooring chain it was not necessary to be let down for that purpose and that the letting it down might reasonably have been taken by the passengers as an invitation'for them to land and that it was an intimation to them that they might land safely-They found also that the landing floats were so constructed that the end of the ferry boat on which the plaintiff was did not fit close in to the landing stage and that a space was left between them which was dangerous to passengersMACDONALD. They found also that the gang plank which was put Gwynne J. down before the boat was fastened was an intimation that the boat was secured.
Now all these findings were expressly upon the points of negligence charged in the declaration, which in substance were that the defendants did not run ,the ferry boat, on the occasion under consideration, close up to the landing stage, and did not so secure and fasten the said ferry boat and keep the same so secured and fastened to the said landing stage, as not to be dangerous for the plaintiff to step from the boat on the landing stage, and that the landing stage and the end of the ferry boat were so negligently constructed that they would not closely and properly fit the one with the other. And by reason of a space having been left between the boat and landing stage, the plaintiff while carefully going on to the landing stage fell between it and the boat and was very seriously injured. It is impossible, in my opinion, to say that the jury's findings are not supported by the evidence, or that they are at all inconsistent with their verdict for the plaintiff.
The appeal, therefore, must be dismissed with costs.
Appeal dismissed with costs.