Keys v. Steamboat Ambassador.

also says that the collision took piace two hundred and fifty or three hundred yards from the Indiana shore. Litterell, the pilot of the Ambassador, in his statement, not sworn to, but, by agreement of counsel, received as the ex parte deposition of the witness, says that after rounding out from Hawesville, he "shaped out the channel, and proceeded down about two hundred yards from the Indiana shore." He discovered the lights of a boat coming up on the Kentucky side, which proved to be the Landis. The Landis turned, and steered across from the Kentucky shore, pointing directly toward the Ambassador. The witness then tapped for the Indiana side, and this signal was immediately answered by one tap from the Landis, and the witness then. gave his wheel a turn, to throw the boat more to the starboard. The Landis continued to approach, and fearing a collision, the Ambassador was stopped, and had no headway when the boats came together.

Without specially noticing their evidence, it may be remarked that other witnesses connected officially with the Ambassador concur in the statement that the Landis was crossing from the Kentucky shore, at the time of the collision; and, also, that the collision took place from two hundred to three hundred and fifty yards from the Indiana shore. It is also insisted, by the respondents, that this view is strongly sustained by persons on shore at the time, who noticed the course and navigation of the boats. The witness, George W. Hutchinson, swears, that, from Judge Huntington's house, and nearly opposite to it, he saw a boat with two barges, going up some fifty or eighty yards from the Kentucky shore, and another boat coming down same distance above, about two hundred yards from the Indiana shore. Shortly afterward there was a collision between the boats, as the witness supposes, nearly opposite Judge Huntington's house. He also states that the Ambassador landed about one hundred yards below, and the Landis some four hundred yards above the place of collision. The witness Brazee states, that he was in his house, near the bank of

Keys v. Steamboat Ambassador.

the river, and hearing a crash, looked out through a window, and saw the boats near together, more than two hundred yards from the Indiana shore, at a point something less than five hundred yards below. Mrs. Shoulders also saw the boats from her house when near together, two hundred or two hundred and fifty yards out from shore. She thinks the collision occurred some four hundred yards below Mr. Brazee's house.

Such are the more general aspects of the material facts in controversy, as presented respectively by the evidence for the libellants and for the respondents. It must be admitted, that as to the course and position of the boats immediately prior to, and at the time of the collision, as well as the subsequent occurrences, the testimony of the opposing parties is widely variant. That of the libellants, if reliable and credible, proves conclusively that the Landis crossed the river a short distance above Troy, and continued up the Indiana shore-from fifty to seventy-five yards from it-to the place of collision, and that as a necessary result the collision occurred near that shore.

On the other hand, if the respondents' witnesses are correct in their estimate of distances, and other matters whereof they testify, the Ambassador's line of navigation was from two hundred to three hundred and fifty yards from the Indiana shore. And again—if the evidence for the libellants is accredited, the collision occurred not exceeding two hundred yards above Judge Huntington's house; whereas, the testimony of respondents' witnesses would locate it nearly a half mile above that point. Under other circumstances, it would perhaps be necessary critically to analyze and compare this conflicting testimony with a view to ascertain in what way the scale of truth would predominate. In such an investigation, the weight of the evidence would not be determined so much by the number of witnesses testifying to any fact in controversy, as by the means and facilities they possessed for a correct observation and knowledge of the fact. And, however conflicting the facts stated by the witnesses may appear, my experience in the

Keys v. Steamboat Ambassador.

trial of cases of collision admonishes me not to be hasty in concluding that witnesses have willfully and corruptly falsified the truth. Under the influence of the excitement produced by a collision, the mind of a spectator, especially if inexperienced in navigation, is not in a state favorable for calm observation of the transaction in question. Witnesses state their impression of the facts as viewed by them from their own stand-point, and often without due knowledge of, or regard to the order of time in which events occurred. And as to distances, so often constituting an important element in these cases, very little consideration is due to the estimate of one not well versed in navigation. At night, and upon the water, nothing can be more deceptive than the distance of one object from another. Even pilots and others, after half a lifetime occupied in practical navigation, know by experience that impressions and opinions on this subject are often wide of the truth.

But, in the present case, I am relieved from the necessity of passing on the material issue presented, from an estimate of the probabilities of truth, based on evidence that is conflicting and uncertain. There is a fact in the case which appeals to the mind almost with the force of demonstration. I refer, of course, to the evidence of the place in the river at which the railroad iron, thrown from the deck of the barge when it capsized, was found. The fact is not disputed, that at a low-water stage of the Ohio river, in the month of September following the date of the collision, this iron was discovered, and the most of it reclaimed from the water at a point very nearly opposite Judge Huntington's house. In the language of a witness who saw it, the iron lay "pretty much in a pile, quartering out into and up the river some eighty or ninety feet, the lower part being within a few feet of the low-water shore."

It is, then, a fact, not depending on the speculations or uncertain memories of witnesses, that the barge of the Landis having the railroad iron on its deck was upset at the precise point where the iron was found in the river. It is also certain that at the stage of water at the time of the col

Keys v. Steamboat Ambassador.

lision, the distance of that point from the shore did not exceed seventy-five yards. If, therefore, the barge, as proved by the witnesses for the libellants, capsized immediately after the collision, it follows that the boats came together within that distance of the Indiana shore. And assuming this to be the fact, the merits of this controversy depend wholly on the decision of the question whether the pilot of the Ambassador erred in running his boat so near to that shore. If the Landis was in its proper place, it was a great fault in the other boat to be there also. And if the collision was the result of this fault, there can be no difficulty in deciding where the responsibility rests.

This

On the part of the libellants, it is insisted that the proof is conclusive that after the larboard barge of the Landis was struck by the respondents' boat, and the lines were parted as already noticed, the barge swung round toward the Indiana shore, and upset, while swinging round. is the statement of Washington, the master, McFall, the pilot, Dobson and Burns, first and second mates, McGroarty, the assistant engineer, and one of the deck-hands. These persons were all on watch when the collision happened and had the best means of knowing what occurred. One of these witnesses says that the time between the collision and the upsetting of the barge did not exceed two and a half minutes, while the others leave it to be inferred that it was less. They all concur in saying the boat was then very near the Indiana shore. Capt. Washington says that when the barge swung round, he was near the stern of his boat; and that the boat was so near the shore, he thought the barge would strike it in swinging round, and to prevent such a result ordered the pilot to go ahead, and put the boat further out from shore. Dobson, one of the mates, says he was on the barge when swinging round, and jumped from it to the boat, from the apprehension of danger in remaining longer on it. When the barge got nearly round, probably from the effect of the blow, aided by the tension of the stern-line, and the pressure of the water on its side, with

Keys v. Steamboat Ambassador.

the heavy weight of iron on deck, it suddenly turned over, and went under the water, but soon rose in a reversed position. The Landis then, for the purpose of effecting a landing, went ahead some distance, with the barge still in tow, when, by the captain's order, the line was cut, and the barge floated away, This is, in substance, the testimony of the libellants' witnesses as to the time and place of the capsizing of the barge. The facts, as stated by them, bear the impress of truth, and strongly negative any presumption that the Occurrences, as sworn to, did not happen.

The witness Buckner, an intelligent lawyer from the South, who was a passenger on the Ambassador, and whose testimony has been taken by the respondents, corroborates the witnesses above referred to. After giving his impression

of the position of the boats just after the collision, he says that when they were separated the bow of the Landis was turned across the river, and he then observed the barge float off from the side of the boat; the lines being tightened and raised out of the water-and the barge, when apparently some ten or twelve paces from the Landis, capsized and went down instantly.

The witness, Hutchinson, states that when he went out after hearing the crash of the collision, the barge was disconnected from the boat, and lying bottom up, very near the shore. It seems clear, that if the barge capsized at any considerable distance from the shore, and was there sent adrift by cutting the line by which it was attached to the boat, it is impossible to account for its being at or very near the shore, as stated by Hutchinson.

There is another fact of great significance, with reference to the upsetting of the barge, and leading to the conclusion that it occurred immediately after the collision. The fact referred to, is the position in which the railroad iron was found in the river. As before remarked, the evidence leaves no room for doubt that it lay quartering up and into the river. This strongly confirms the evidence of the libellants as to the capsizing of the barge. If, as they state, it turned