EMILY DEANS, as Administratrix of the Estate of ROYCE E. DEANS, Deceased, Appellant,
COUNTY OF COCONINO, STATE OF ARIZONA, Appellee
APPEAL from a judgment of the Superior Court of the County of Coconino. Richard Lamson, Judge. Affirmed.
Mr. C. B. Wilson and Mr. O. C. Compton, for Appellant.
Mr. K. Berry Peterson, Attorney General, Mr. H. L. Russell, County Attorney, and Mr. F. M. Gold, Deputy County Attorney, for Appellee.
ROSS, Acting C.J.
This is an action for damages for the death of Royce E. Deans, who was drowned as a result of the sinking of a ferry-boat owned by [41 Ariz. 254] the defendant county and at the time being operated by it across the Colorado River at or near Lees Ferry in said county. It is alleged in the complaint:
"That defendant, on and prior to the 7th day of June, 1928, was the owner of a certain ferry-boat and was engaged in the business of operating the same by and through its employees over, on, and across the Colorado River, at or near that certain place known as Lees Ferry in said County of Coconino, charging and collecting tolls and fare for the conveyance and transportation of passengers and vehicles back and forth on same, the said ferry-boat on and prior to said 7th day of June, 1928 having been operated by defendant as a common carrier for hire under authority of the constitution and laws of the State of Arizona, authorizing the maintenance and operation of same."
It is further alleged that defendant, for a consideration of $3, undertook to transport the decedent and his automobile truck, loaded with merchandise, from the north side of said river to the south side thereof, but, because of the defective condition of the boat, and the carelessness and negligence of defendant's servants and agents in operating it, the boat sunk and decedent was drowned.
A general demurrer to the complaint was sustained, and, the plaintiff electing to stand thereon, judgment was entered for defendant. The demurrer was sustained on the ground that the defendant, in the maintenance and operation of said ferry, was engaged in the performance of a governmental function, and hence not liable for the torts of its agents and servants.
The plaintiff contends (1) that the county was acting in a proprietary capacity, and is subject to the rules of liability of a common carrier for hire, and (2) that its liability for the negligence and carelessness of its agents and servants is statutory, regardless of the capacity in which it was acting.
[41 Ariz. 255] Ferries, like bridges, generally are links of highways, one being a means to convey persons and freight across a body of water on its surface and the other a passageway above the surface, both serving the same purpose -- an unbroken highway for the public. It is said in 25 Corpus Juris 1049, section 1:
"Ferries are frequently referred to or regarded as public highways, being continuations of the highways with which they connect and serving the purpose of a bridge. . . ."
The right or liberty to operate a public ferry is a franchise, and cannot be exercised without the consent of the state, and is subject to the supervision and control of the state or some of its mandatories. Like highways, public ferries are for the benefit and convenience of the general public, and their maintenance and operation is a governmental function. We held in Larsen v. County of Yuma, 26 Ariz. 367, 225 P. 1115, an action for personal injuries sustained by a motorist through the defective construction of a bridge on the public highway, that a county and its agents and servants were not liable, as the duty imposed on them in constructing and maintaining the highway was governmental in its nature, following the common-law rule. The same law is applicable to ferries.
But it is contended by plaintiff that, because the county was collecting tolls for ferrying persons and freight across the Colorado River, it assumed the duties and the ...