Robt. Marsh and Jas. C. Howren ads. Joseph Blythe.
Speeial action on the ease against the defendants, as carriers of a cargo of rice, from Georgetown to Charleston. Defence, that the schooner was run down by another vessel. Whether the loss happened by the perils of the sea, (or river,) or negligence of the carriers, is a question for the jury,
This was a special action on the case, brought by the plaintiff against defendants, the owners of a schooner called the Nonsuch, to recover the amount of a cargo of rough rice, shipped on board of said vessel, and chiefly lost by the sinking of the Nonsuch in the river, while prosecuting the voyage from Georgetown to Charleston.
It appeared that the loss was occasioned by the Nonsuch having been run down by another coaster beating in the same direction. The only question in this case, was the legal liability of the defendants, under the circumstances of the case. The presiding Judge charged the jury, that the carrier in this case was legally responsible; and distinctly stated, that this was not'a peril of the sea that could legally exempt the carrier from responsibility. That whether the carrier had been negligent or otherwise, he was liable to the plaintiff for this loss. Yerdict was given for the plaintiff. And a motion was now made for a new trial, on the ground of misdirection.
*The opinion of the Court was delivered by
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Bichardson, Attorney-General, for the motion. Holmes and Gadsden, contra.
*Gantt, J.
The Court are of opinion, that the question was one of fact, which ought to have been left to the jury, to be declared by their verdict; and that as they were restricted by the charge of the Court, and confined within limits too prescribed, the verdict must be set aside, and a new trial granted. See Abbot on Shipping, Story’s Ed. from 252 to 260,
Coloook, Cheves, Nott and Johnson, JJ., concurred.