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NOTE. The following is the opinion of Tayler, District Judge, in the court below:

TAYLER, District Judge. This is a case of collision between libelant's steamer Sir Henry Bessemer and respondent's steamer Sylvania. The respondent has also filed a cross-libel against the Bessemer. The collision occurred about 1 o'clock on the morning of June 13, 1903, on Lake Superior, a short distance south of Whitefish Point. For some time before and some time after the accident the weather was thick and foggy, but at the time immediately related to the accident itself it had somewhat cleared up. While I do not doubt that there was some fog interfering with perfect vision, yet all of the witnesses agree that the lights of the vessels could be distinguished at least a mile away. Both are large vessels, the Bessemer being 413 feet. on her keel, with a beam of 48 feet, and the Sylvania 504 feet on her keel, with a beam of 54 feet. The Bessemer was going north, light, and the Sylvania was coming south with a cargo of over 9,000 tons of ore. The whaleback steamer, J. B. Trevor, also belonging to the libelant, was about three-quarters of a mile north of the Bessemer, and consequently passed the Sylvania a very few moments before the collision. It thus appears that those of the Trevor's crew who were on deck had an opportunity to see the movements of the vessels up to the time of the collision.

It seems that practically everybody, on all three of the vessels, who saw the collision and had knowledge of the conditions just preceding the collision, testified. The master and crew of the Trevor, being in the employ of the libelant, may be said to be interested, or at least not wholly disinterested, witnesses, and of course that circumstance must have some weight in determining their credibility. They are more likely to testify in favor of the side which employs them than in favor of the side which does not employ them; but they are less likely, it seems to me, to be interested, and hence to be untruthful or mistaken, than those employed on board a vessel the propriety of whose movements is challenged. In the latter case there is not only the same employer, but a question of propriety of conduct on the part of the very persons who are testifying, or of their immediate associates on board the vessel. So far, therefore, as the mere matter of interest or prejudice is concerned, it seems to me that the testimony of the witnesses on the Trevor is entitled to more weight than that of the officers and crews of the Sylvania and of the Bessemer.

The testimony is irreconcilably conflicting, both as to the signals which passed between the Sylvania and the Bessemer and as to their relative locations as affecting the natural movement which each one was likely to expect the other to make. The Bessemer claims that she and the Sylvania four times exchanged one-blast signals for the vessels to pass port to port, the last exchange occurring immediately before the collision. The Sylvania, on the other hand, claims that she twice gave the signal of two blasts for the vessels to pass starboard to starboard; that the Bessemer did not answer either; that she then gave another signal of two blasts, to which the Bessemer responded with one blast, to which the Sylvania replied with one; and then in endeavoring to make what the captain said was impossible to do, but was the best he could do, the effort to pass port to port, the collision occurred. The Bessemer claims that when the Sylvania was passing the Trevor on the Trevor's port side, and some 600 feet away, she showed her red light to the Bessemer, which would mean that the course of the Bessemer was on the port side of the Sylvania.

The crew of the Bessemer claim that she was on her course in a northerly direction a little on the port side (from a quarter to half a point) of the Trevor's course, and gradually crowding in toward the Trevor's course, so that when she should reach Whitefish Point she would be about in the Trevor's wake. The crew of the Trevor who saw the Bessemer say that she was so near to the Trevor's course that she showed both her red and green lights and her range lights were about closed; that if the Sylvania had continued on her course as she was going when passing the Trevor, and the Bessemer had continued on her course as she was going at that moment, the two vessels would have passed each other a considerable distance apart port to port. The crew

of the Sylvania claim that as she passed the Trevor she picked up the Bessemer's green light, which would imply that the natural course of passage, if she and the Bessemer did not change their course, would be starboard to starboard.

It seems to me that the weight of the testimony is overwhelmingly in favor of the claim that the relative positions of the vessels prior to the movement when a dangerous situation arose were as claimed by the crew of the Bessemer and of the Trevor. The wheelman of the Sylvania, while passing, or just after having passed, the Trevor, according to his own testimony and that of his master and mate, starboarded his helm and thus gave his heavy vessel a swing to port. I am inclined to the opinion that this movement was not carefully watched in relation to the movement of the Bessemer; that her speed was not checked to less than seven or eight miles an hour; that, while not foggy, it was yet somewhat murky, and a careful watch was not kept of the situation of the lights of the Bessemer; that he swung too much to port, more than he intended, and he continued to swing too long; and that, before it was discovered that a situation of danger had come about, an effort was made by both vessels to avoid a collision without success. It is possible that neither the Sylvania nor the Bessemer acted with the best judgment at the moment when serious danger of collision was apparent; but I think that both parties were then in extremis, and that neither ought to be held responsible for that which occurred in the way of seamanship after the Sylvania gave the last single blast.

The master of the Sylvania testifies that when the Sylvania blew her twoblast signal the third time, and the Bessemer responded with one blast, the two vessels were from 1,200 to 1,500 feet apart, and the latter vessel was 2 points to the starboard of the Sylvania's course; that if neither had changed her course the vessels would have passed each other starboard to starboard about 1,100 feet apart. Then it was, so this witness says, that the Bessemer changed her course and the Sylvania gave her one-blast signal. I would not pretend to say that, if these relative positions of the two boats when the Bessemer blew this one-blast signal are given by the master of the Sylvania with substantial accuracy, the results which followed could not occur. If they are, then the movements of the Bessemer must have been so erratic as to challenge the sanity of her wheelman or suggest a purpose on her part to ram the Sylvania; and it of course follows that if, at the time the Sylvania was passing the Trevor, the Bessemer was 21⁄2 points to the starboard of the Sylvania's course, the witnesses from the Trevor are manifestly fabricating their testimony. Nor do I see how it is possible, under all the other apparent circumstances in the case, that the Bessemer could have been in the position which the Sylvania placed her in, at the time when the Sylvania was passing the Trevor, and a collision occur practically exactly astern of the Trevor.

If I were not as well satisfied as I am with the general truthfulness of the account given by the crew of the Bessemer and of the Trevor as to the signals and as to the relative positions of the boats, I would still have to resolve the questions in this case against the Sylvania, because of the failure of her master to act with due care, under the circumstances, when, if it be true, as claimed by the Sylvania's crew, the Sylvania, having twice blown for a starboard to starboard passing without any response from the Bessemer, still continued on her way; her master claiming that he did not apprehend any danger and that he had no doubt that the Bessemer understood the movement of the Sylvania. In a word, I conclude that the Sylvania proceeded on her course under such circumstances as imperatively demanded that she should wholly check her headway, or give the danger signal, or both. I cannot see how the conduct of the master of the Sylvania can be excused, in view of the fact that her signals were not responded to and that the collision occurred. The only excuse given for the failure of the Sylvania to apprehend that the situation was dangerous is that vessels often fail to respond to passing signals. That may be admitted. It proves nothing more than that carelessness does not always result disastrously.

As to what this situation was as respects the point that I have just made, the following reference to the testimony of the chief mate of the Sylvania will show us how that vessel was at fault, in view of the Bessemer's failure to

respond, and in view of the crossed signals. This witness says that he thinks they were about a mile and a half from the Bessemer when he saw her green light and then her open range lights. Quoting from his testimony, we find this: "When we saw her green light and her range light, and the way they headed, we blew her two blasts of our whistle, didn't get any answer and blew two more, waited a short time and didn't get any answer and blew two more. At that time she answered us with one." He then goes on to say that when the Bessemer, with one blast, answered the Sylvania's third signal of two blasts, she was about three-quarters of a mile away. It seems to me that the failure twice to answer the Sylvania's two-blast signal, and then the answer of one blast to her third two-blast signal, imposed a duty of care which the Sylvania conspicuously failed to regard.

Nor can we accept, apart from the considerations which I have already presented, the theory of the Sylvania's crew as to the general conduct of the Bessemer, except upon the theory that the Bessemer deliberately ran out of her course, upon discovering the location of the Sylvania, and ran into her. Certainly the conduct of the Bessemer, under the circumstances of the case as claimed by the libelant, can be otherwise reconciled with no consistent theory of human conduct.

I therefore am clearly of the opinion that the libelant has made out its case and that the cross-libel should be dismissed.

PRESSED STEEL CAR CO. v. WEISSER.

(Circuit Court of Appeals, Third Circuit. July 12, 1910.)

No. 1,339.

1. JUDGMENT (§ 199*)-TRIAL (§ 139*)—-TAKING Case from Jury-SUFFICIENCY OF EVIDENCE.

If the evidence in a case is such that a verdict for the plaintiff reasonably could be found by the jury in the honest discharge of their duty, the court cannot properly give a binding instruction for defendant, nor render judgment for him non obstante veredicto.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 367; Dec. Dig. § 199; Trial, Cent. Dig. § 338; Dec. Dig. § 139.*]

2. MASTER And Servant (§ 286*)—ACTION FOR INJURY TO SERVANT-QUESTIONS FOR JURY.

Evidence considered in an action by an employé in a steel car manufacturing plant to recover for an injury, and held sufficient to warrant the submission to the jury of the questions of defendant's negligence in permitting an electric crane to become and remain out of repair, and whether the injury was due to such defective condition of the crane.

[Ed. Note. For other cases, see Master and Servant, Dec. Dig. § 286.*] In Error to the Circuit Court of the United States for the Western District of Pennsylvania.

Action by Charles Weisser against the Pressed Steel Car Company. Judgment for plaintiff, and defendant brings error. Affirmed. W. S. Dalzell, for plaintiff in error.

Rody P. Marshall, for defendant in error.

Before LANNING, Circuit Judge, and BRADFORD and ARCHBALD, District Judges.

BRADFORD, District Judge. The Pressed Steel Car Company, a corporation of New Jersey, has taken this writ of error to reverse a For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

judgment recovered against it for $1,000 in the Circuit Court of the United States for the Western District of Pennsylvania in an action of trespass brought by Charles Weisser, a citizen and resident of Pennsylvania.

There are three assignments, of which the third has been abandoned. The other two are to the effect that the court below erred, first, in denying a motion for a judgment non obstante veredicto; and, second, in refusing to give an instruction to the jury that under all the evidence in the case the verdict must be for the defendant. These two assignments present the question whether there was evidence in the case from which the jury in the due exercise of its proper function could find a verdict for the plaintiff. The general rule that in civil causes before a jury a verdict should be rendered in accordance with the preponderance of the evidence cannot by reason of the infirmities of human judgment always be enforced. Reasonable and honest men often widely differ in the conclusion to be drawn from a given state of evidence. If the evidence was such that a verdict for the plaintiff reasonably could be found by the jury in the honest discharge of their duty, the court below properly refused to give a binding instruction for the defendant, and properly denied the motion for judgment non obstante veredicto.

The action was brought to recover damages for personal injuries sustained by the plaintiff while in the employ of the company at its steel car works in Allegheny county, Pa., February 1, 1907. The plaintiff had been so employed for a period of about six months prior to the occurrence of the accident. On entering the service of the company, his employment was checking materials brought into the works for manufacture. He served in that capacity for a month, and then became assistant foreman of the shearing department of the forge plant. In carrying on the operations of the company an electric overhead traveling crane from 20 to 30 feet above the floor was used to unload from cars steel in pieces or slabs from 12 to 18 feet long, 3 to 4 inches wide, and 1 inch thick. The crane load consisted of about 20 such pieces, and was raised by means of chains looped around each end of the load and attached to a hook suspended from the crane. Having been raised to a proper height, the crane carried the load until it was over the desired place of deposit, and then lowered it to the ground or floor. Where it was intended to place one crane load of steel upon another, it was customary to lay two pieces of scantling on the top of the load first lowered in order that the second load when placed on it might be supported without causing any spreading, and also to permit the ready removal of the chains from under the second load. On the day of the accident, and shortly before its occurrence, the plaintiff was directed by the general foreman of the forge plant, owing to the absence of the regular checker, to unload, place, and check a car load of such steel pieces which had just arrived. Before the accident one crane load had been taken from the car, carried to the proper point and lowered to the floor, and the plaintiff had placed scantling on the top of the load. By reason of the proximity of some buggies or tram cars containing steel only a very narrow space was

left to be occupied by the plaintiff in the discharge of his duty, and, when the second crane load came in contact with the first, the steel pieces "kicked out," striking the plaintiff, and causing the injuries for which the jury awarded damages. The operation of the crane at the time of the accident was in charge of one Morrison. In his statement of claim the plaintiff alleges, among other things, that his injuries were sustained through the negligence of the company in failing to have a crane and its appliances in a proper and safe condition, and in failing to make proper inspection of the same. The plaintiff testified:

"I had to get between these two buggies of iron that I had cut during the day-between these buggies of iron and this pile that was hanging in the chains and also the pile on the ground. When pulled in, the crane commenced to slip, and, before I could get out, the weight had gone to the bottom of the pile of iron, and it spread and fell on both my legs.

*

"Q. Had you ever worked at that crane before? A. When I 'first started to work there. Only worked a week.

"Q. How long before? A. Over five months.

"Q. When you worked on that crane five months before, was it in good condition? A. Yes, sir.

*

"Q. Would it slip when it was in good condition? A. No, sir.

"Q. Do you know what would cause it to slip? A. I would imagine that the brake was out of order. * *

"Q. Did you know that this crane would slip before it hurt you? A. No, sir."

The witness Clark, who was the regular checker and had been working at the crane for some weeks next before the accident, testified:

"Q. Did you work at that crane before the day that he was hurt? A. Yes, sir.

Q. For how long? A. Well, I don't just recall how long. It was for a couple of months before that, may be more. * *

"Q. For the couple of months that you were at the crane, what did you have to do with the crane? A. When the cars would come in, I had to check the material and take the crane, and lift it where I thought it ought to be placed.

"Q. What did you do with reference to placing it? A. Directed the hookons whereabouts to put it.

"Q. What was the condition of that crane on the day that Mr. Weisser was hurt? A. Well, before and after Charlie got hurt the crane was in no condition to work. The crane would slip when we would have a heavy load.

"Q. For how long before Charlie was hurt would the crane slip? A. That I couldn't say positive.

*

"Q. Could you tell from the way the crane slipped what was the matter with it? A. Yes, sir.

"Q. What was the matter with it? A. Well, the brake band was loose, and, when we would have a heavy load, they would have to use the power to hold it, and, if you were to shove the lever back into center, the load would go down.

"Q. If the crane was in good working order and you would shove the lever to the center would the load go down? A. It oughtn't to. I don't think it should.

"Q. When this crane was in good order, would it? A. No, sir."

The witness W. G. Weisser, a brother of the plaintiff, who had beer employed at the works of the company for a year and a half before the accident, testified:

"Q. Did you know this crane that he was injured at? A. Yes, sir.

"Q. Do you know the condition that crane was in before your brother was injured? A. Yes, sir.

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