Opinion · Court of Appeals for the Second Circuit

Bushey v. Huron Stevedoring Co.

56 F.2d 604

Type: Opinion
Court: Court of Appeals for the Second Circuit
Jurisdiction: Federal
Date: 1932-03-07
Topic: general

PER CURIAM. The appeal presents no question but of the credibility of witnesses, as to which we have often declared ourselves. The libelant’s ease depended, it is true, upon the testimony of a single bargee, but he made fresh complaint, and, though he was contradicted by several others, we cannot decide cases by counting heads. Indeed, when analyzed, the actual contradiction comes from fewer witnesses than the appellant believes. That the draught of copper may not have fallen four feet we can well believe, but that the winch got somewhat out of hand the judge has found, and we cannot gainsay him.

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Cited by: 5 opinions

THE P.R.R. NO. 216.,56 F.2d 604(2nd Cir. 1932)

THE P.R.R. NO. 216. CHRISTIE SCOW CORPORATION v. PENNSYLVANIA R. CO.

No. 211.

Circuit Court of Appeals, Second Circuit.

March 7, 1932.

Appeal from the District Court of the United States for the Eastern District of New York.

Libel by the Christie Scow Corporation against the derrick lighter P.R.R. No. 216, claimed by the Pennsylvania Railroad Company, for damage to libelant's scow in a collision with the lighter. From a decree in favor of the libelant, the claimant appeals.

Affirmed.

Burlingham, Veeder, Fearey, Clark Hupper, of New York City (Chauncey I. Clark and Paul Tison, both of New York City, of counsel), for appellant.

Foley Martin, of New York City (James A. Martin, of New York City, of counsel), for appellee.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

PER CURIAM.

The claimant's lighter was prima facie liable for the collision with the libelant's scow, which was moored at the time. We think that the District Judge was right in holding that the prima facie case so established was not met. The bargee of the lighter left her moored to a tanker on Saturday afternoon, and did not come back until Monday, when, although well made fast, she had got adrift and fouled the scow. It appeared from a statement of the claimant's counsel that the tanker sailed some time on Saturday, but the time makes no difference, for at any rate she had left her berth. The claimant did not prove that the bargee made any inquiry when the tanker was to leave, though he was chargeable with notice that she must cast the lighter off if she did. The possibility that, when cast off, she might not be properly made fast, was within those consequences which he should have apprehended. At least he is not shown to have been free from negligence in leaving his charge under such circumstances, and this negligence was a contributing cause of the collision.

The decree is affirmed.