15 F. 635 | E.D.N.Y | 1883
This is a proceeding in rem to récover of the canal-boat Fred. M. Laurence the damages sustained by the canal-boat Idlewild in a collision that occurred at Little Falls, on the Brie canal, on the night of the twenty-sixth of August, 1879. The defense is an alibi.
Two persons on the deck of the libelant’s boat are able to prove the occurrence of the collision, but are not able to identify the Fred. M. Laurence as the other colliding boat. Two persons on the deck of the Fred. M. Laurence at the time of the collision swear that their boat was not then at Little Falls, but some miles to the eastward, and they also testify that the Laurence was not in collision with any boat on the night in question. These two witnesses for the Laureneb are confirmed to some extent by the captain’s wife, who was in the cabin of the Fred. M. Laurence, and swears that she felt no collision and heard of .-no collision on the night in question. This testimony for the Laurence is claimed by the libelant to be overcome by the testimony of two other witnesses who were on board the Laurence on the night in question. . A steersman on the Laurence, called by the libelant, testifies that on the night in question, being asleep in bed, he was awakened by a jar, and looking out of the window saw that the boat was at Little Falls. This testimony is in direct conflict with that of the captain’s wife, who, being up and awake, could not fail to have observed a jar sufficient to awaken one abed and asleep.
Leaving out, then, the testimony of the wife and the steersman as balancing each other, there remains in opposition to the testimony of the captain and the steersman of the Laurence that of the driver of .the Laurence, also called by the libelant, who swears positively that at the time and place stated in the libel the Laurence collided, with the Idlewild. The credibility of this witness is seriously impaired by the fact that he testifies after an arrangement made with the libelant for his future employment on the libelant’s boat; and he is contradicted, not only as to the fact of a collision, but in several important points of detail, by both the captain and the steersman of the Laurence. These contradictions are of such a character that the advocates agree that perjury has been committed on one side or the other. ■
There is, however, one fact not disputed, and sufficient to control the present decree. It is proved that one of the hands employed on board the Idlewild at the time of the collision knows whether the-Laurence was the boat that did the damage, having ascertained the name of the colliding boat by inspection a very short time after the
The libel is accordingly dismissed, and with costs.