Jones v. Mann

FIMGATON, Circuit Judge (after stating the facts). The testimony in this case is conflicting. The trial judge examined the witnesses in open court, saw and heard them. His conclusion, in this conflict of evidence, is entitled to great respect. The Alejandro, 6 C. C. A. 54 , 86 Fed. 621 . Besides this, assuming that, the Lucy, after she had concluded to go down on the east side of the channel, then took every precaution, by getting close to the shore, even ‘‘putting her nose in the bank,” yet the fact of the collision shows that in coming to this conclusion she blundered. The collision was certain to result from the adoption of this course. The small tug and her heavy tow were in the channel, unable to control their action. The barges behind the tug were all swinging towards *574 the east side of the channel, — some of the witnesses say, were touching the bank. The manifest duty of the Lucy, an unincumbered steamer, in full control of her master and pilot, was to keep out of the way of the approaching tug and her heavy tow (The Syracuse, 9 Wall. 672 ), and to avoid the risk of collision. Master of the situation, she had the choice between the east and west sides of the channel. She chose the east side. The burden is on her to show that this was the only safe side. Compare Steamship Co. v. Rumball, 21 How. 372 . The collision having occurred, she must show that she had taken every precaution for ávoiding the risk of collision. This she did not do to the satisfaction of the court below, and has not done to the satisfaction of this court. The decree of the district court is affirmed.