106 F. 428 | D. Or. | 1901
The material testimony in the case is brief. Jacobsen, in his own behalf, gives the following account of the accident: He says, after leaving Mosier Beach, on the Oregon side, "I tacked over, and I was standing over on the Washington side; and my boy says, ‘There is a steamer coming'.’ I says, ‘We go over on ike Washington side.’ That is what I told the hoy. I says: ‘Hhe can either go behind us or in front of us. If she want to go in front of us, maybe she will blow the whistle. I don’t think there is any danger. We will keep our course, and go right over the river. Hhe can go right behind ns.’ ” He continues: “Ho I saw the boat coming to us right up the river, right just against us all the time in looking at ihe boat, holding the tiller in one hand and the sheet in one hand, and pulled the tiller and sheet, and pulled it up and down. And I saw them coming about 100 feet or so down below me. “I saw them coming so close to me. I saw there was no show to get out. Ho I took my hat, and threw three times to him, and I hallooed to go behind me. Just when 1 took the hat, and turned to look at the steamboat, and there wasn’t a soul to be seen on that boat. The doors was closed. As soon as I done that, I saw she come so quick on me, I told this hoy and the other gentleman to jump. But, coming up, it hit me right alongside of the centerboard, right square in the middle, and capsized me rigid over.’’ Jacobsen testifies that he did not change his course prior to ihe' collision. Forde, who was with Jacobsen in the boat, testifies substantially to the same effect. Jack Coo ver was in a sailboat, one-half mile distant, and saw the accident. He corroborates Jacob-sen as to the course of the two boats. He testifies that the steamboat came “and turned for Jacobsen; turned right towards him. Q. Turned to the left, towards the Washington shore? A. Yes.” This is all the testimony there is on the libelants’ behalf as to the course of the two boats up to the time of the collision. Nelson, who was at the wheel of the steamer when the accident occurred, testifies that he first saw the sailboat on Mosier Beach; that from there she started down and across Ihe river, tacking down; that, if the sailboat had kept its course, it would have passed behind the steamer, but that, when about, 500 or 600 feet distant, she changed her course, and ran pretty much upstream, — the same direction the steamer was going, — bul: a little towards the Washington shore; and . when about 100 or 150 feet distant the sailboat again changed its course across the steamer’s bow, whereupon Nelson ported the steamer’s wheel, and stopped and hacked her. Nelson further says that when the sailboat turned upstream she ran about 75 feet before she turned across the steamer’s bow. This distance is approximated by the witness on cross-examination. “Q. Then, how many feet did
It is material to determine which of these conflicting accounts as to the course of the sailboat immediately prior to the accident is true. If it is a fact that the- sailboat, shortly prior to the accident, changed her course so as to run in the same general direction with the course the steamer was on, then the contention of libelants, based upon the laws of navigation, has no application; nor, indeed, (tan such argument have application if the state of the testimony is such that the court cannot say which of these accounts is the true one, nor determine whether the sailboat did change its course or not, as claimed. It is argued for the libelants, from the testimony of Nelson, the pilot in charge of the steamer, that the relative position of the two vessels could not have been as claimed by respondent; that the relative speed of the two vessels and their courses and distances, as testified to by Nelson, would have made the collision impossible; and that the like facts as testified to by the engineer of the steamer, although his testimony differed from that ■of Nelson as to estimated distances and the time during which the sailboat kept the steamer’s course, would make the collision equally
I have had some hesitation in the decision of this case because I have been impressed with the belief that the steamer might have avoided this injury by the exercise of the greatest care. I have hesitated to adopt a rale that may warrant other steamers in like circumstances in depending upon the responsibility of smaller craft to keep out of the way. While it is the duty of such craft, being more easily handled, and traveling upon less fixed courses than larger ones, to avoid the risk of collision, yet it is also the duty , of the larger vessels to be equally diligent for the safety of those navigating in their vicinity. But, looking at this transaction in a light, as favorable to the libelants as the testimony can possibly warrant, it is very clear that the fault of the steamer, if fault there was, was slight compared with that of Jacobsen. The rule in admiralty does not admit of such an apportionment of damages that have resulted between two crafts as would correspond to the negligence of the two respectively. At most the court could only divide the damages between the two; in other words, make such an apportionment of damages as assumes that the steámboat was equally responsible with the sailboat for what occurred.