Kenah v. The Tug John Markee, Jr.

3 F. 45 | E.D. Pa. | 1880

Upon the motion to amend the answer the court delivered the following opinion:

Butler, D. J.

As originally drawn, and until the testimony had been closed and the argument commenced, the answer raised no question respecting the contract. The statements of the libel, in this particular, were admitted, and the respondent averred performance by placing the barge “in the mouth of the canal.” The motion to amend, so as to permit the question whether the contract required the barge to be placed in the mouth of the canal, to be raised, is allowed. This will not, however, relieve the respondent from the effect of his admission and statement, as evidence, in passing upon the new issue raised. They must be considered in the light of all the circumstances, and accorded such iüfluenee as may seem just.

.Upon the merits of the case disclosed by the pleadings and proofs the court delivered the following opinion:

Butler, D. J.

I will not enter upon a discussion of the evidence. It is conflicting; but I believe it shows, with reasonable certainty, that the contract was to run the barge into the month of the canal; that it was not so run in; and that the loss of the barge was the direct consequence of this failure.

The allegation that the libellant requested to he taken out, after being run in, and be left below, in the river, is improbable on its faee, and is not sustained by the evidence.

The respondent cannot complain of the smallness of the crew. It would have been sufficient for the barge’s management if she had been placed in the canal. That it was not sufficient to extricate her from the position in which she was improperly left, is not important. The circumstance that it was so small, of itself tends, forcibly, to prove that the libellant did not contract to be left out in the river, where his crew would be inadequate to the management of his boat. I do not find anything in the case which should relieve the respondent from liability for the loss. That the libellant should have made an effort to get into the canal, under the circumstances existing, after he was left, seems clear. lie certainly is not blamable for doing so.

It is proper to say that the alleged declarations of the master of the barge, made after quitting the command and the libellant’s service, have not been considered. I have regarded them as inadmissible as evidence.