149 F. 734 | 2d Cir. | 1906
The issues herein raised by questions of fact were presented by testimony in open court, and were disposed of in favor of the railroad company.
The findings and decisions are chiefly challenged on the ground that the railroad was negligent:
“(t) In failing to inspect the vessel and measure the water in her hold before she was toggled fast to the bridge.
“(A) In toggling the boat to the railroad bridge with the bow nearly two feet above its normal position in the water, and attempting to unload her while in this position.”
And that the evidence was insufficient to establish that the float was unseaworthy.
The libel alleged, and the trial of libelant’s case against the railroad company proceeded upon, the theory that the negligence complained of consisted in the fact that:
“AA'lnle tho respondent’s said locomotive and drill car were employed to haul said cars from oil said car float, they were so negligently, carelessly, unskillfuily. and improperly handled, that the said drill car was brought violently into collision with the forward car upon said float, and the force of said blow drove said three cars to the extreme outboard end of said car float, where they remained for upward of half an hour, greatly straining said car float by the uneven and improper balancing of the weight of her load. That said automatic brakes were out of order, and were negligently suffered to remain so, and did not work, and the brakes upon said locomotive and the locomotive itself were not employed to lessen the force of the blow when the cars collided as aforesaid, and to stop said drill car before said collision took place.”
This theory was disproved by the great preponderance of testimony, and the claims of negligence now advanced were introduced by amendment at the close of the hearing.
The finding of the court that the railroad was not negligent in failing to inspect the vessel and measure the water in the hold is supported by the admission of the man in charge of the car float, Independent Stores No. 3, that the yardmaster asked him if he had any water in the float, and how much he had, and by the failure of the Bush Company to introduce any evidence to show that it gave any notice or information as to the presence of water in her hold. The utmost that can be claimed in favor of the Bush Company as to evidence
The decree upon the libel of the Central Railroad Company is affirmed, with interest and costs. The decree dismissing the libel of the Bush Company is affirmed, with costs.