106 F. 742 | 4th Cir. | 1901
This case comes up on appeal .from the:decree of the district court of the United States for the Eastern district of North Carolina, sitting in admiralty. The libel was filed by Alexander McCollum against the British steamship Anaces, then lying.in-the:port of Wilmington, N. C. McCollum-was a member of
When conflicting evidence has been submitted to a court charged with finding the facts of a case, its conclusions thereon are taken as presumptively correct. Kimberly v. Arms, 129 U. S. 512, 9 Sup. Ct. 355, 32 L. Ed. 764; Furrer v. Ferris, 145 U. S. 132, 12 Sup. Ct. 821, 36 L. Ed. 649. Mr. Justice Brown, in Davis v. Schwartz, 155 U. S. 631, 15 Sup. Ct. 237, 39 L. Ed. 289, states the rule with its limitations. After stating that the conclusions of fact are presumptively correct in the finding by the referee, the special verdict of a jury; the findings of a circuit court in a case tried by the court without a jury, under Rev. St. § 649, or in an admiralty cause appealed t.o the supreme court, he adds:
"In neither oí these cases is the finding absolutely conclusive,- -as, for instance, if there be no testimony to support it. But so far as it depends upon conflicting testimony or upon the credibility of witnesses, or so far as there is any testimony consistent with the finding, it must be treated as unassailable.”
The game rule has been applied in admiralty in some of the courts. The Parthian (C. C.) 48 Fed. 564; The Albany, Id. 565, — in Massa
The testimony has been carefully reviewed, and this court has reached the same conclusion with the court below. The master of the ship, a stranger in the port of loading, consulted the firm, which was largely engaged in the export trade, and under their advice employed Brown to superintend the winches and to employ his assistants. Brown engaged Curtis Croom, with whose competency he was acquainted, and whom he had employed on previous occasions. In this respect the master showed no negligence. Some of the witnesses for libelant say that complaint was made to the captain of the incompetency of Croom. The testimony they gave did not impress the trial judge, nor does it impress this court.
Great stress is laid in the testimony, and has .been insisted on in argument, upon the inexperience and unskillfulness of Curtis Croom, the winchman. The question in the case is, was the accident caused by any improper or unskillful act of Curtis Croom? The testimony shows that Croom was, at the winch, an automaton, acting solely upon the signal of the stevedore, Isler, on deck. The duty of this man was to tell him when to put on the winch and when to release the cotton. Croom swears that Isler gave him the signal to lower awTay as he got the cotton over the hold. All, agree that the bales were lowered regularly, and that they did not fall into the hold. To this point Croom and Isler are the only witnesses. The complaint is that Croom, without orders, lowered the cotton. Isler, in his testimony, says that he did not give the signal, — any signal. But, if he was attending to his duty, he could not have avoided seeing the cotton when it came over the side of the ship and rose to the point over the hold, and nothing could have been easier than to give the winch-man directions to hold. But he says that he said nothing at all to him. The burden of his testimony is the general incompetency of Croom. The crucial fact seemed to escape his attention. Yet on cross-examination the admission is wrung from, him that Croom continued at the winch for days after the accident, and that the same gang of stevedores continued to work in the same hold. It was incumbent on libelant to prove his case. This he has failed to do. The decree of the district court is affirmed.