13 F. Cas. 640 | S.D.N.Y. | 1872
It was proved on the trial, that the dock at Fort Montgomery is about 300 feet long in the line, of the river, and runs out about 70 feet into the river; that, at low water, there is, at the dock, seven or eight feet depth of water; that, at its north end, the dock is out even with -the edge- of the flats, thus leaving 70 feet of flats between the outer edge of the flats and the land; and that, at the south end of the dock, the flats are sometimes bare. From this evidence, taken in connection with the other evidence given at the trial, it is quite apparent, that the bestowment by the propeller on the canal-boat of proper attention, when the latter was cast off, would have enabled the boat and her cargo to be put on the flats, so as to have prevented her sinking, as she did, out in deep water. The sinking of the cargo in déep water, and its consequent total loss, occasioned, therefore, such damages as there were to the cargo beyond the damage it had sustained, when the fault of the propeller was committed in casting the boat off, and leaving her without care or attention.
As to the damage which the cargo had sustained at that time, the commissioner reports all of it as undamaged, except 800 bushels of wheat, and that he reports as damaged to the extent of $1 37 per bushel, its undamaged value having been $1 62 per bushel. As to the quantity of wheat damaged at the time, the only testimony on either side, which specifies any number of bushels as damaged, is that of Atkins, master and part owner of the canal-boat, and who was on her at the time of the disaster. He gives the data from which he makes out that 800 bushels only were -damaged, and no witness testifies that, from his data, his calculation was incorrect No error in his data is pointed out, to my satisfaction, and his calculation therefrom is not so manifestly incorrect that the court can, without evidence, set it aside. I do not mean, by saying this, to suggest that it appears to be incorrect at all. I am' not satisfied, however, that the 800 bushels of wheat are shown to have been worth anything at the time the boat was cast off. The weight of the evidence is that they were worth nothing. The sum of $200 must, therefore, be deducted from the report, and the damages must stand at $12,867 01, and the exceptions on both sides must, in all other respects, be overruled.
