HpOD tI. THE LEHIGH.
597
for the death of the person injured. In those cases, in England or America, cited for the claimants, which most resemble the case at bar, the negligence which caused the injury waS not shown to be that of the master. But it was either, as in The Bmtina, 12 Prob. Div. 58, and L. R. 13 App. Cas. 1, and in The Queen, 40 Fed. Rep. 694, left in doubt by whose individual fault the accident happened; or else the negligence proved was, as in Halver80n v. NiBen, 3 Sawy. 562, and in The Egyptian llJonarch,36 Fed. Rep. 773, of a mate, or, as in The City of Alexandria, '17 Fed. Rep. 390, of a steward, neither of whom was dominus navi8, but each was employed under the master ina common service with the libelant,. and therefore rightly held to be a fellow·servant. SteamShip.Co. v.Merchant, 133 U. S. 375, 10 Sup. Ct. Rep. 397; Ben80n v. Goodwin,147 Mass. 237,17 N. E. Rep. 517; Searle v.' Lindaay, 11 C. B. {N.S.)429. Considering the extent of the petitioner's injuries, $1,500 is not too large a sum to be awarded to him as damages. Decree of the district court reversed,and the sum remaining in the registry ordered to be paid to the petitioner in satisfaction of his: damages and costs.
HOOD fl. THE LEHIGH. (ctrClif.t CdWr-', N. D.llUn0f.8. October 6,.1890.)
1.
COI,LISIONS IN FOGs-SPEED
op' VESSELS. Respondent, a propeller:laden with grain, while running iIi a fog at night at the rate of about ninemUes an hour, nearly her full speed, collided with and sunl!: libelant, a coal-laden schooner; 'whose speed was four or five miles an hour. Tile regulation lights on respondent were burning brightly, the lookouts properly stationed, the captain and mate on watch, alld her fog-whistle was being sounded once a minute. ·Held, that respondent was at fault in maintaining a dangerous and unreasonablerateot speed in the f o g . , Libelant, the schooner, failed to show a torch on. first hearing respondent's fogwhistle,and made no attempt to do.BO, as required by Rev. St. U. B. 5 4284, in sucb, cases, and it was ilJ evidence that a torch could havll been seen fut-ther thantbe scbooner's lights, and that the display of a tot-ch would pt-obably have' kept tho vessels apart. Held, that libelant was guilty ofcontributol'1 negligence in not displaying a torch and that the damages should be divided. "
2.
BA.ME-TOROHES-CONTRIBUTOBY NEGLIGENCE.
·
In Admiralty. Appeal from district court. W. H. Condon and T. H. Hood, for libelants. Schuyler &; Kremer, for respondent. GRESHAM, J. The propeller Lehigh ran into and sunk the schooner Van Valkenburgh in Lake Huron, off Thunder Bay island, between 12 and 1 o'clock on the night of May 31, 1887. The schooner wason a. voyage from Ashtabula to Manitowoc, laden with coal. Her course was N>:N.W., ::tnd four or five miles an hour; The pro,l)el1er was on a voyage froni Chicago to Buffalo, and at the time of the col-
5'98
FEDERAL REPOR,XER,
vol. 43.
or ten miles an hour, which, with a carg-o of grain,' was little, if ,any"less than her, Jful1 speed. Both vessels had been rUnlningin fog fot' some time before the collision, and when the lights of were-;sighted from the other tliey were only 400 or'500 :feet apart, and theschoonet was apparently emergillg from' a dense bank of fog, , The schooner's lookout testified that for two, or three hours he had peen on the top-gallant forecastle, blowing a fog-horn at intervals of a minute; that,although he had been vigilant in watching for vessels, the first knowledge he had of the approach' of the propeller was the sound' of :her .steam-whistle over the sc:hooner'll lee bow; forward of the cathead; that he immediately reported, a steam-llOat to leeward, and the captainaod mate on deck replied that they heard the whistle; that he heard, the, ,propeller whistle four or five times before the collision; that when she was about 400 feet away he saw her starboard light come out of the fog, then her mast-head light, and then her port-light, and that , after sighting her she blew one or two whistles. The schqoner's tnatetestified th8the and the captain were on watch when the collision occurred; that for two hours the lookout hndsteadily blown the fog-horn at intervals of about one minute; that he reported a steamer blowing her whistle on the'lee bow, and he (the mate) replied "All riKht; keep your horn blowing regularly;" that he was then between the fore main rigging and the cabin, and the captain wa!'! aft, walking; that when he heard the blast:he ordered the lookout to blow his horn a little oftener, which' 'he did; that the fog was so thick he could not see mQre f,Q9 or 300 fElet, at he first saw the propeller's tnree lights at that sanie time, anrl she was then bearing straight for the schooner's forlH'igging"ou the, side, where she struck, ' cuttingiato,the'schoonereightolten feet,and sinking her in two or thlltM:'h$ard tl;1e propeller's whistle abotit ten minutes before he saw her lights; , " , ,'. ,,' The for half an houf before the collision he was forward of the cabin on the port side; that when the vesselS came ",as had 'been all night; that .he not hear together DT$t,wlhlltll'l reported by the lookout, but heard a whlstle..duectly, or .within' a ,liHn\}te ,or, two, later, when he rapidly walked forward to the maitidggiilg, ao.<1 saw the propeller's three lights not over 300 feet distant; that he immediately 'ordered the lookout to blow his' horn constantly, and the wheelsman to port his wheel; that these orders were obeyed, and the schoonercaihe tip about twd. points; that it was not more than a minute and ahaH atter 'he heard the first whi8tle until the ... collision; that the propeller was first heading for the schooner's mid_ ships, but struck her forward of the forecastle; that before the collision he heard<thelJigmlls on the to back; that he 'had' a torch forward by,the side of the cabin, and by his side, but he had no time to lightamf;;showitafter he heard the whistle, her speed being such was 'inevitable; that, 'heard the' propeller's, whistle about a minute after the lookout's first report, and saw her lights ailer hearing her whistle. .J;. ' , , " about, half
he
HOOD>tI.THE LEHIGH. ,
599
Seveifal other witnesses testified on behalf of the .libelants that the 'night was foggy, and that when the propeller was first sighted the vessels were about:400 ;feet apart. The schooner's captain was the only witness whowasexramirl.ed by tl;le::libelants'on the subject of the· torch. . The propeller's engineer testified that when' the collision occurred the <engine was backing strong; and the wheels had made about 120 or 130 backward revolutions; that she could be stopped whel1running at her usual speed (ten miles an hour) in about two minutes, and he thought oShe had beenbackillgtbreeminutes; tQat he could see stars overhead, but there was a fog-bank on the land side; that her fog·whistle had been ':8oundedall·night at intel'l'als ofaniinute; and that when he received the order to back he was writing up his log, and his assistant was ten feet below oiling The propeller's second mate testified that when the, collision occurred he was on watch at the mast-head, and the captain was'o11 the, bridge, :and they first saw the schooner's red light apparently flash up out of a ,fog.bank over the propeller's starboard bow, about 500 feet away; that the captain immediatelygave theorder"Hard a-port, was, promptly 'obeyed; that the propeller,wasbackiIlg ,atthe·timeof; the collision; that he 'heard Thunder Bay whistle sever.almiles, distant.j,ust before'the; 001Hsion,and saw Thunder Bay light, he rheard; 110 isignal from the, schooner; that a torch could ,have been: :seen, three times ,8IHaa' asared light, and hAhadino doubt the eol1isionwould have been avoided if the schooner Md,sbown atorcp:; that the was' nine' miles an hour whensheflttucktheschQonerj ithat ·the Jog,'was ,not densej,tbattheprdpeller :had, :beenflunnillg' in. fogallnightj and that' he saw :from! which; ,the. schOoner" apparently; emerged when he observed her light. One ;of 'the i propeller's watchnJen for' some :time,before the collision-,he pad[ beeu on, duty: on the. starboardl i b9W; tha.t 'the, ' fog seemed to be in'banks;thaLMtiimes,he c.ould';see ,ulider it, and,·again he could nott that he· saw the schooner's bright red :,light immediately after the second mate reported'it;, ;thathe', beard; ino fog.signal from' the schooner; that if she had shown a torch it: could: have been seen far 'to avoid her; thaHorsome time previous to the collision the propeller's, fog.whistle had been sounded every minute. and that the vessels came tQgetherabout two minutesaiter the schooner's red light was observed. The propeller's other watchman testified tpat. about the time of the collision he heard Thunder. Bay whistle, three miles off, and just afterwards he saw Thunder Bay light; that he heard no fog-signal from the schooner, and that it Was less foggy immediately after the collision. ' The propeller's wheelsman testified that he was on duty at the time oftheaccident, and hefirsts8w the schooner's red light when thevessels were 500 or, 600 feet apart;. that the, captain at the SRme time ordered the wheel hard a-port, and directed the engine to stop and back, both of 'which orders were obeyed; that;hefore strjking. the propeller swung about .two ,points arid, a, balf on ,the port wheeLand· the.:engine