Gilchrist v. Eustrom

CALDWELL, Circuit Judge, after stating the case as above, delivered the opinion of the court. Before considering the case on its merits, it is proper to notice a motion filed by the appellee to dismiss the appeal. It is said that this court erred in allowing, on proper petition for that purpose, Alexander McDougall and A. R. McFarlane as sureties on the bond given for the release of the vessel, to be made parties appellant in the cause; that the appeal was not taken in time; and that the assignments of error are not sufficiently specific. The order mentioned was made after argument and due consideration on the authority of Coasting Co. v. Tolson, 136 U. S. 572, 10 Sup. Ct. 1063, and we see no reason to change our views on the question. Hardee v. Wilson, 13 Sup. Ct. 39; Insurance Co. v. Pendleton, 115 U. S. 339, 6 Sup. Ct. 74; The appeal was taken within six months, and is in time. Ben. Adm. (3d Ed.) § 622; Act Cong. March 3, 3891 (26 Stat. 829), § 11. If there is anything inconsistent with this holding in admiralty rule 45 [796] (adopted in 1842), it must give way to section 11 of the act of congress above cited. The assignments of error, while not as specific as they might have been, are, we think, sufficient. The libelant was rightfully and properly on the vessel in the discharge of his official duty as an inspector of vessels about to receive cargoes of grain. The master of the vessel knew that the libelant had come on board to discharge his official duty as inspector, and he knew what was necessary to enable him to discharge that duty efficiently and properly. A guide with a light, or well-lighted hatches and hold, were indispensable to a safe and intelligent discharge of this duty. No guide was tendered, and the libelant testifies that the lower deck and hatchway were not lighted. We do not find that the libelant knew the exact location of hatch No. 1, through which he fell,nordowe think he knew the location of this hatch with reference to the door through which he entered to the lower deck. He had never gone down this stairway before. It would serve no useful purpose to set out and discuss the evidence in detail. It is voluminous and conflicting. We have read it all very carefully, and, applying the well-settled rule in this class of cases, we are not able to say the learned district judge erred in his conclusions on the facts of the case. He saw and heard the witnesses testify, and was, therefore, in a much better position to judge of their intelligence and credibility than this court. The weight of evidence is not determined by the number of witnesses, but by their intelligence and credibility. Hence it is an established rule that when an appeal in admiralty involves only questions of fact dependent upon conflicting testimony, the decree of the district judge, who has had the opportunity of seeing the witnesses and judging of their intelligence and veracity from their appearance and demeanor on the stand, will not be reversed unless the appellate court can clearly see that the decree was against the weight of evidence. The preponderance of the evidence must be such as would justify the granting of a new trial, in a court of common law on the ground that the verdict was against the weight of evidence. The Grafton, 1 Blatchf. 173, Fed. Cas. No. 5,655; Post v. Steamship Co., 48 Fed. 565; The Jersey City, 1 U. S. App. 244, 2 C. C. A. 365, 51 Fed. 527; Levy v. The Thomas Melville, 37 Fed. 272; The Saratoga, 40 Fed. 509; Anderson v. The Ashbrooke, 44 Fed. 124. It is insisted with great earnestness that the libelant’s injuries were the result of his own negligence in stepping into a hatchway which was well lighted, and which he must have seen; but the libel-ant denies that the hatchway was lighted, or that he saw it, or that he could have seen it by the exercise of the utmost diligence. This positive testimony of the libelant is. strengthened and corroborated by the presumption of fact that the libelant, in the full possession of his senses, would not have deliberately walked into an open hatch which was well lighted and plainly visible. He knew the vessel had open hatchways, and knew that he would be seriously injured, if not killed, by stepping into one of them. Knowing these facts, the natural instinct of self-preservation would prompt him to avoid the danger by the exercise of due care. If the libelant had been killed by [797] the fall, the presumption arising from this natural instinct of self-preservation would have stood in the place of positive evidence, and would have been sufficient to warrant a recovery in the absence of countervailing testimony. Johnson v. Railroad Co., 20 N. Y. 65, 69. The probative force of this presumption in suits for personal injuries where the defense is contributory negligence lias been recognized and enforced in many cases. We cite and quote from some of them. “The natural instinct,” says Agnew, J., in Allen v. Willard, 57 Pa. St. 374, 380, “which loads men in their sober senses to avoid injury and preserve life, is an element of evidence. In all questions touching the conduct of men. motives, feelings, and natural instincts are allowed to have their weight, and to constitute evidence for the consideration of courts and juries.” In the case of Railway Co. v. Price, 29 Md. 420, 438, the court said: "•These facts and the circumstances of the ease were proper to be considered by the jury, and in connection with these facts and circumstances it was competent to tlie jury to infer the absence of fault on the part of the deceased from the general and known disposition of men to take care of themselves, and to keep out of the way of difficulty and danger.” In the case of Railroad Co. v. Nowicki, 46 Ill. App. 566, the court said: “While it is true that in an action for personal injuries, based upon the negligence of the defendant, it is an essential element of the plaintiff’s case that tlie injured party must have been in the exorcise of ordinary care, yet it Is not indispensable that such fact should be directly shown by affirmative evidence. There is in all men a natural instinct of self-preservation, and such instinct is an element of evidence of which the jury may take notice, and, in the absence of all testimony upon the subject, find that a deceased party, in obedience to the ordinary instincts of mankind, exercised that care for his safety which a prudent man 'would, under the same conditions, have made use of.” In the case of McGhee v. White, 66 Fed. 502, 13 C. C. A. 608, a witness testified that the deceased saw the train, and attempted to get over before it, and whipped up Ms horses to do so. The circuit court of appeals conceded that “if this were true it would have been tlie duty of the court below to charge the jury to return a verdict for the receivers.” But the court said: “It is very Improbable that, if Kennedy had seen tlie train coming, he would have attempted to cross when so far from the ¡rack that lie could not reach it with his wagon wheels before the coming of the train. The presumption of fact, and ct law, too, would be against the existence of such wanton and reckless negligence, and tlie plaintiff was entitled to have the jury weigh the credibility of Miss Caldwell’s evidence in the light of the circumstances.” The libelant was not on the vessel as a mere licensee. He was there in the discharge of an official duty in which the vessel itself had an interest, for it could not receive its cargo until it had been inspected. Tlie right and duty of the libelant to inspect the vessel did not authorize him to take command of her, or to give orders to her crew to prepare lier for inspection, or to light up the vessel for that purpose. It was the master’s duty to prepare the vessel for inspection, and furnish what was necessary and proper for that purpose, and to exercise reasonable precaution for tlie safety of the libelant while [798] in the discharge of his official duties. In the assessment of damages the district judge found “the libelant was not free from fault,” and “that the riile in admiralty for the apportionment of damages must prevail in this case,” and, applying that rule, assessed the libelant’s damages at $2,000. If the libelant is entitled to recover damages at all, the sum awarded by the district court is reasonable. The decree of the district court is affirmed.