GRAY V.STEAM-TUG JESSIE RUSSELL.
639 ,
,
GRA.Y
V.
THE STEAM-TuGS JESSIE RUSSELL and' :ATALANTA.. (District Court, E. D.Ne'llJ York. --,1881.,
1.
COLLISION-STOPPING-NoTICE.
Stopping by a tow is not necessarily equivalent to notice to an approachmg tow tQcome on. 2. SAME-NARROW HAWSER. It is not negligence in a tug having in tow, in a narrow channel, a
long, to use a length of hawser lighter with a bowsprit some 14 which brought such bowsprit within 40 feet of the stem of the tug. 3. CUEEK.
Easy and cautious movements are the rule in the navigation of Newtown creek, and those who adop.t a method do so at their own risk.-[En.
W. W. Goodrich, for libellant. Ludlow cJ: Carter, for claimant of the Jessie Russell. Davies, Work, McNamee, and Hilton, for claimant of the Atalanta. BENEDICT, D. J. This action is brought to recover of the tugs Jessie Russell and Atalanta the damages oaused to the canalboat Herrick by a collision that occurred in Newtown creek on the thirteenth of February, 1879. At the time of the collision the canal-boat was being towed astern of the Russell down Newtown creek. The tug Atalanta was proceeding upthe creek, having the lighter Mickle in tow astern, when the canal-boat was just clearing the fourth bridge. She was struck by the lighter in tow of the Atalanta, and sustained the injuries complained of. I have little hesitation in concluding that this collision is to be attributed to fault on the part of the Russell, in that, knowing of the bend in the river below, she pushed on through the bridge instead of stopping. This she did in hope of reaching a bight in the river below the bridge, where the tows could pass in safety, and with the knowledge that if she failed to reach the bight in time escape from collision would depend upon the ability of the lighter in that time and dis. tance to keep herself out of the way. The prudent course, under the circumstances, was to wait above the bridge. The
640
FEDERAL REPORTER·.
course involving risk was to push ahead, and strive to reach the bight in time. The Russell attempted the dangerous maneuver, and, having failed, must suffer the consequences. Easy and cautious movements are the rule of this locality, . and those who adopt a different method do so at their own risk. No fault can be attributed to the lighter·. She did all that it was possible for her to do under the circumstances. Towed as she was, it was inevitable that she should be off the course of the Atalanta in turning the bend; and the fact that when she struck the canal-boat she was not in the wake of the Atalanta does not 'convict her of negligence. Neither can any fault be attributed to the Atalanta. Two faults have been <lharged upon her-one, that she stopped and thereby rendered it more difficult for the lighter to regain her position in the Atalanta's wake after passing the bend. But, as I view the vidence, the prudent course for the Atalanta, under the circumstances, was to stop, as she did. Nor was this stopping, in view of the then position of the lighter, equivalent to notice to the Russell to come on through the bridge. The other fault charged upon the Atalanta is that she was towing the lighter with too long a hawser. This point was much pressed, and certainly is worthy of consideration. But, after full examination, I conclude that the evidence will not justify a finding that it was negligence on the part of the Atalanta, having to tow such a lighter with a bowsprit i:3ome 14 feet long in such a channel as Newtown creek, to use a length of hawser which brought the bowsprit within 40 feet of the stem of the tug. Decree for libellant against the Jessie Russell, and libel against the Atalanta dismissed, with oosts.
TILLE'll: V. SAVANNAH, FLORIDA &; WESTERN R. CO..
641
TILLEY
v.
SAVANNAH, FLORIDA
&
WESTERN
Ii. CO. and
(Oirctdt Oourl, S. D. Georgia. February 9, 1881.) I.. RAn.ROADS-F1mIGHT AlIlD TARIFB'-DISCRDfiNATION-LEGISLATIVlll CONTROL-CoMMISSlON'TO FIx RATES-CONSTITUTIOJ.lt 01' GBORGIAACT 011' GEORGIA, OCTOBER 14, 1879. An act of the legislature ,of the state of Georgia, approved October 14, 1879, entitled "An act. to provide for the regulation of railroad freight and passenger tariffs," ete., ete., forbade the railroad corporations of the state from charging unfair and unreasonable rates 'of freight and fare, or making unjust discrimj.nations for the tation of passengers and freights; and provided for the appointment of a commiBBioIl.tO prescribe reasonable and just of freight and passenger tariffs, to be observed by all the companies doing busmeBB in the state on the railroads thereof. Held, tbatsuch act was not in violation of either the constitution of the United States or of the State of Georgia; and that the question whether the rates prescribed by the legislature, either'directly or indirectly, were just and reasonable, was one which, under the constitution of the state, the legisla: ture might determine for itself.-{ED.
In Equity. Motion for Injunction pendente lite. The constitution of the state of Georgia, paragraph 22, § 7, art. 3, reads as follows: "The general assembly shall have power to make all laws and ordina,nces consistent with this constitution, and not repugnant to the constitution of the United States, which they shall deem necessary and proper to the welfare of the state." Paragraph 1, § 2, art. 4, declares that "the power and authorityof regulating railroad freights an4 passenger tariffs, preventing unjust discriminations, and requiring reasonable and just rates of freight and passenger tariffs, are hereby conferred upon the general assembly, whose duty it shall beta pass laws from time to time to regulate freight and passenger tariffs, to prohibit unjust discriminations on the various railroads of the state, and to prohibit said roads from charg. ing other than just and reasonable rates, and enforce the same by adequate penalties." Paragraph 2. "The exercise of the right of eminent do. main shall never be abridged nor so construed as to prevent the general assembly from taking the property and franv.5,no.8-41