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the declaration. The defendant appealed to the Supreme Court of the State, and that court affirmed the judgment.
After what we have said in Sevier v. Haskell, 14 Wall. 12, just decided, it is sufficient to remark that the record discloses no question cognizable by this court.
The writ of error is therefore dismissed.
Mr. A. H. Garland and Mr. P. Phillips for plaintiffs in error. No appearance for defendant in error.
PLANT v. STOVALL.
ERROR TO THE SUPREME COURT OF THE STATE OF GEORGIA.
No. 82. Submitted January 22, 1872.- Decided February 5, 1872.
There being no error the judgment is affirmed.
MR. CHIEF JUSTICE CHASE delivered the opinion of the court. We find no error in the record.
The judgment of the Supreme Court of Georgia is, therefore,
Mr. S. W. Johnston and Mr. Joseph P. Carr for plaintiff in
No appearance for defendant in error.
THE DES MOINES.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MISSOURI.
No. 108. Argued February 29 and March 1, 1872. - Decided March 25, 1872. The District Court in a libel in Admiralty for collision, having adjudged both vessels to be in fault, and only one having appealed, the only question here is as to the fault of the appealing vessel; and on the evidence the court holds it to have been in fault.
THE case is stated in the opinion.
MR. JUSTICE DAVIS delivered the opinion of the court.
This is a case of collision between the steamers Katie and Des Moines while navigating the Ohio River on the night of the 22d of November, 1864. The Katie was descending and the Des Moines ascending the river, when, near the head of Diamond Island, they came in contact, and the Katie immediately sank and became a total loss. The District Court adjudged both vessels to be in fault, and the Circuit Court, on appeal, affirmed this judgment.
As the owners of the Katie did not appeal from this decision, the only question for investigation here is, whether the Des Moines was in fault. As is usual in cases of this character, there is a conflict of testimony between the officers and crew of the two boats on important points, but the physical facts of the case establish the proposition that on the disputed point of most significance the Des Moines was blamable. The Des Moines, following the course of the channel, had crossed over from the foot of Diamond Island toward the Indiana shore, and being an ascending boat, according to the well-settled rules of navigation, had the choice of position in the river. This choice was taken by blowing two whistles, which told the officers of the Katie that she intended to keep along the Indiana shore which was to her larboard, while the Kentucky or Diamond Island shore was to the larboard of the Katie. The Des Moines, instead of keeping to the larboard, as her signal indicated, was at the time of the collision turned to the starboard. This is proved by the nature of the injuries received by both boats, the injury to the Katie being on her starboard side, while the Des Moines was struck on her larboard bow. If, as is claimed for the Des Moines, she had gone to the larboard until she got close to the Indiana shore, and then, as her pilot says he kept her "straight in the river," and while in that position the Katie came down on to her, this could not have happened; for if the Katie struck her on the larboard, the larboard side of both boats would have been injured, and if on her starboard, then the starboard side of both boats would have been injured; but if both boats were heading toward the Kentucky shore, the one coming down and the other going up, and a collision ensued, it would have brought the starboard of the one in contact with the larboard of the other. This was what occurred in this case, and shows clearly that the Des Moines did not obey her own signals, and was, therefore, chargeable with negligence.
It is unnecessary to consider whether the Des Moines is not blamable in other particulars, for this change of course, being the proximate cause of the collision, is enough to condemn her.
It is insisted on the part of the appellant that there was not sufficient effort to raise the Katie after the accident, and that the Des Moines should not be visited with the consequences of this neglect. But there is no proof that the Katie could have been raised if an earlier effort had been made. If full effect be given to the evidence on this subject, it may tend to create a suspicion that the owners of the Katie did not engage the wrecker soon enough, but
it does nothing more.
Leezer, the wrecker, who had to stop work on account of the rise in the river, is unable to tell the condition of the river for the two previous weeks, nor can he say whether his business would have been interrupted had he commenced proceedings ten days before. It would seem as if an intelligent river man ought to have known these things, but in the absence of proof on these points, there is no data on which to base a conclusion that an earlier effort would have been successful, and there is no pretence after the work was begun that it was not continued long enough. The decree of the Circuit Court is affirmed.
Mr. John A. Wills, Mr. J. H. Rankin and Messrs. Lander & Merriman for appellant.
Mr. F. A. Dick and Mr. James O. Broadhead for appellees.
THE ST. JOHN.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.
No. 131. Argued March 6, 1872. - Decided April 1, 1872.
On a question purely of fact the court finds the St. John in fault, and decrees accordingly.
THE case is stated in the opinion.
MR. JUSTICE BRADLEY delivered the opinion of the court.
Abraham E. Hasbrouck, the libellant in this case, was the owner of a barge called the Ulster County, which was sunk in the Hudson River near West Point, on the 20th November, 1864, by collision with the steamer St. John, whilst said barge was in tow of the steam propeller Pluto. The libel was filed against the steamer to recover damages for the injury sustained. The St. John was a large passenger steamer, on her downward trip from Albany to New York; the Pluto was moving up the river with the barge Ulster County lashed to her larboard side, and another barge to her starboard side, and a canal boat astern of the latter. The collision took place about three o'clock in the morning in a clear moonlight night. At West Point there is an abrupt bend in the Hudson River, making nearly a right angle. Below this bend its course is southerly; above it, proceeding up the river, it is westerly for nearly a mile, and then northerly. The Pluto with her tows was still below the point, proceeding slowly up the river, nearer to the eastern than to the western shore, when the St. John was discovered up the western reach of the river. The St. John blew two whistles, signifying that she would go to the
left or eastward of the Pluto. The men on the Pluto say that the signal was answered by two whistles on their part, and that the helm was put to starboard accordingly, turning the head of the Pluto more to the west. The collision took place directly off West Point, at the abrupt bend of the river, about the middle of the channel. The St. John struck the larboard bow of the barge Ulster County, and cut into her about ten feet. The witnesses for the libellant, the pilot and others, say that when the St. John approached them, she seemed to sheer to the west, and thus ran into the tow. This is denied on the other side.
On the part of the St. John it is testified by the pilot and wheelman that they discovered the light of the Pluto below West Point, over the land, as they, the St. John, rounded Magazine Point, where the river turns to the east; and that they kept the helm of the St. John hard astarboard until the collision occurred, thus keeping up all the time a sheer to the eastward. This could not have been so, for it would have carried the St. John to the east side of the channel; whereas it is conceded that the collision occurred in about mid-channel. The St. John selected her own course; instead of going to the right of the Pluto, as is usual, she concluded to go to the left, miscalculating the precise position of the Pluto, and supposing her to be nearer to the western shore than she was. Having selected her course, the St. John ought to have kept far enough to the eastward, or left, to be sure of avoiding a collision. Instead of this, she kept in the middle of the channel, evidently expecting the propeller to keep out of her way. In rounding the point she hugged too near, and did not give the Pluto a chance to get inside of her.
The case is purely one of fact, and it can serve no instructive purpose to review the evidence in detail. We have carefully examined it, and are satisfied that the result reached by the District and Circuit Courts was correct.
The decree of the Circuit Court is affirmed, with interest on the
Mr. Charles Jones for appellant.
Mr. C. Donohue and Mr. C. Swan for appellee.
GERMAIN v. MASON.
ERROR TO THE SUPREME COURT OF THE TERRITORY OF MONTANA. No. 290. Argued April 6, 1872. - Decided April 22, 1872.
Writs of error from this court must bear the test of the Chief Justice.
MOTION TO DISMISS. The case is stated in the opinion.
MR. CHIEF JUSTICE CHASE delivered the opinion of the court. The writ of error in this case, as in the case of Wells v. McGregor, 13 Wall. 188, decided at this term, bears the test of the clerk of the Supreme Court of the Territory of Montana and not the test of the Chief Justice of this court.
It must therefore be dismissed.
Mr. A. M. Woodfolk, Mr. F. A. Dick and Mr. George G. Wright for plaintiffs in error.
Mr. J. Hubley Ashton and Mr. Nathaniel Wilson for defendant in error.
NORTHWESTERN UNION PACKET CO. v. HOME INSURANCE CO.
ERROR TO THE SUPREME COURT OF THE STATE OF IOWA.
No. 467. Submitted January 19, 1872.- Decided January 29, 1872.
A writ of error to the highest court of a State must be allowed, either by a justice of this court, or a judge of that court.
THE case is stated in the opinion.
MR. CHIEF JUSTICE CHASE delivered the opinion of the court. On looking at the record we find no allowance of a writ of error, either by a justice of this court or by a judge of the state court. We have repeatedly decided that such an allowance was necessary, upon a writ of error addressed to the highest court of the State, by which the judgment or decree could be rendered. Callan v. May, 2 Black, 541, 543; Twitchell v. The Commonwealth, 7 Wall. 321; Gleason v. Florida, 9 Wall. 779. The case of Davidson v. Lanier, 4 Wall. 447, 453, referred to by counsel for the plaintiff in error, was a writ of error addressed to an inferior court of the United States, and is therefore inapplicable.
The writ before us must be
Mr. L. Allis for plaintiff in error.
Mr. George W. McCrary for defendant in error.
The above was rescinded May 6, 1872, and writ of certiorari granted. The case The case was afterwards decided at December term, 1872, as No. 228. Argued and submitted and affirmed April 18,