172

FEDERAL

vol. 63.

.the must be made for the confUSIOp incident to .such qj\ngerousproximity,and the master of the be absolved the :clIarge of obvious imprudence in faIlmg .to keepa. sale' margin between himself and the sloop.. that the close line which the was making upon the sloop's course was ,not a reasonable and subwith her maritime obligation to keep out of the stantial way, she must also be held in fault. Let the damages and costs, therefore, be divided.

KILLIEN v. HYDE Court, S. D. New York.

et

aL 25, 1894.)

1. COLLISION-FERRYBOAT Al!fD' TUa-CONndnUToRY NEGLTGEl'lCE. A ftremanof a tug which,because of a' collision, had so careened as to be inapparent danger Of capsizing, wbo j-ulilps into the water under the beUef that thebQat is about to upset, is not gUilty of negligence. 2. S.UtE-OVJllRTAKING VESSEL-Mm STATUTES. A ferryboat and tug were going down the East river. The tid,e was lltrong 11000. The ferryboat. was to ·port.of the tug, and aoout 200 feet astern, 'wben bQth stopped' to allow a erosaing steamer to pass. When they. went ahead the ferryboat sheered ,out towards the middle of thE' river, Put .soonplaced her wheel to port, to ,turn her head down the river, whi<:hi)rought her course.to starboard. When the tug reached Oorlea1"s Hook, she felt the force of the ftood tide, and was turned to port, towards the ferryboat, which was then about 100 feat to port of her, and shortly after the collision occunell" about 300 feet from the New York shore. Beld. that 1lQthvessels were at tault,-the tug,fol' not sutficlently porting- he' Wheel. when approaching tb,e hook 80 as to. counteract the cross-tidal CUI'rent; and the ferryboat, because she did nc>t keep as much away from tllP tug as reasonable prudence demanded, she being the overtaking boat, and Inothing preventing her goin&, in midstream, as required by statute. 8. SHIPPINQ'-INJURY ·TO SEAMAN-NEGLIGENOE-FELLow-SERvANTs. Where the owner of a tug, who is alBo atld pilot, and in thereof, temporarily places at the wheel, when the ooat is in a dLffic1l11 .situation, an unlicensed person, not of experience required, and h.o reason ot his want of skill &rolllslon' occurs, causing the death of a fireman of the tug, the owner isUable. .
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Libel by ,::Mary Killien, administratrix of Martin Killien, against the owners of two vessels, alleging negligent collision by which intestate lost lJislife. E. N. &T. for libelant. AlexaIider'& .Ash, for respondent Hyde. Wm. J. Kelly, for Long Island R. CO Judge. The above Jibel was filed by Mary ofLMartin Killien, her·husband, to recover the statute of this state, for the death of the de:tq;ema,n on the tugboat William H. Walker, on the aftern<mlof ;J,une 13, 1893, thr@gh an alleged negligent collision bethe Walker, owned by the: respondent Hyde, and the ferryKillien,

.

:BROWN,.

KILLIEN tI. HYDE'·

173

• boat Garden City, owned by the respondent, the Long Island Railroad Company. The collision occurred on the East river, from 200 to 300 feet off the New York docks, about opposite the marble yard, just below the turn of Corlear's Hook. The weather was clear and pleasant, the tide, strong flood. Both boats were going down river; the Garden (,1ty, on one of her regular trips from Hunter's Point to James' slip; the Walker, going down under one bell, near the docks, looking for a job. About 200 feet in front of them was the transfer tug No. 5, also going down. All three boats had come to a stop just above the Grand street ferry for two ferryboats of that line on the New York side, one coming out of that ferry, and another going in. At that time the Garden City was a little outside of the Walker, and about 200 feet astern of her. , 'As soon as the inward-bound ferryboat at the Grand street ferry would permit them to pass, the three boats started ahead, the Garden City sheering at first somewhat outwards into the river. Soon afterwards she put her wheel to port, to turn her head down river. This brought her course more to starboard while rounding the hook, and gave the appearance of a sheer towards the Walker, as in a certain sense it was. The Walker at the same time on passing from the eddy, as I find, and striking the force of the true flood tide, which there sets strongly across towards the Brooklyn shore, was turned by the tide to port towards the Garden City, which, going faster, was overtaking and passing her on the Walker's port side. The Garden City was in fact passing so near, viz. from 40 to 100 feet, that after their approach to each other sideways was observed, before either could do anything effectual to prevent it, they came in collision, the port bow of the Walker striking the Garden City about 40 feet forward of her paddle box, and running under her guard, where she stuck fast. The blow itself was not violent, the Garden City having reversed, and the Walker having stopped her engines just before collision; but as the Walker swung round witIr the tide against and under the other's guard, she took and kept such a strong list to starboard, that observers thought she was going to roll over. Just at that time the engineer, who had been at supper in the kitchen, and heard the bell to stop a moment before collision, in trying to run around the house from port to starboard, so as to reach the engine room and attend to the engine himself, was unable to keep his footing, through the strong list to starboard, as above fltated, so that he could not help running off the deck into the water. A few moments afterwards, the deceased, who during the engineer's absence at supper, had been temporarily doing the en· gineer's duties at the engine, was also seen to run off the deck on the starboard side, a little forward of the engineer. The engineer after 130me ten or fifteen minutes was rescued; but the fireman was drowned. He was a fair swimmer, but seemed to have incurred some disability. He was 30 or 40 feet away from the engineer in the water, and they exchanged a few words; the last heard from the fireman being, that he could not hold out much longer. Soon after he sank.
  

FEDERAL.

vol. 63.

judgment. He had doubtless l\lgal, fault. tllQ\Wh",:tj:lil;l1¥!#e and one or both, .of,pi.$ shlplf!ates jump just before.. Coming SUddenly from the engine room 'hrlptMiatell uPon the' crash of the collision, when a considerable part ofth'e 'Bide of!.tIle steanter had been carried away, and in the alarmattendiJig;Suc:he a night ;time, there was no time uor of and his act shonld, I th\nk. be txea.tW as el:'!Yrs in extremis are treated, viz.. as a mistake made under the l!Uniediate danger, forwhichihose who w,rongfully broughtaoout' the 'sltuatioll,andilot'himself, should, be held: to blame." Affirined 01lthispoint,9 C. O. A. 1>2461 l!'ed. 36t. '

to . ' .with certainty whether the fireman jumped off the boat voluntarily, or whether, like the engineeJ,!j'in comipg sUiO,denly and upon the sloping hold.pis and!·was forced overboard. That hiOl,"wento1!jfl,fter the Walker careened greatly, is clear from tha-q',his in the water was to the southward of theengine;er, Bo,.that he'l;liI,nst h;:tvegone over after the engineer. to small ,probability that he went overboard j!tnd if he di<\:Jt ,must have been donepresumQfthe Walker when he ably from 'fright ,at the ,position ·and reachedtb.eQpWJ. deck,i,and fmm apprehension qf immediate capj thlJ,t: hypothesis, I could llot hold bim legally fIl(egligence, 91' legal. 'ault,.:for *'luch an act done when apparently in extremis. The City()fNorwalk, 55 Fed. 102, where the QOTmt says: "'rheatiemptl'ot1th.e deceased to jump to the float should not be treated as a

as, tQ the C9\lisiot;l lWth, vessels. ".

confI,ict in'cer:t,ain

I am satisfied that the

0.£ the testimony

which of ey!ldence shQ\Vs that the collISIOn was

of her, swung,two,orthree to port, towards the line of the f!'l.,.ll'f. lbo.a.t 's co. 1'$(;1,..··.w.hi.le'th.e.l.!;J..t.ter..",.·a.s sw.in.ging to. s.tarboard un.d.er ,· . wheel. ,J'he to ,port, because she did not sN1llc¥:JltIy port,;1}erw}1eeJ In to the effects the whu:b she Inet In ronndmg the hook. She was g()i4g slowly, 0Ile bellillnd this made a stronger port wheel than w'4en going at ordinary The deck hand was at: wheel, temporarily taldng .the place of the master who was but wh9 was then :itsu,pper in the kitchen, and did not le;:J.ve,the kitcllenuntil a few mOII).ents before collision when he saw the; Garden Oity to the engineer, "She is going t() into us." The 41'1<;k. hand :wasa y01,1ng maJ;l, not licensed .as a,pilot, and he left plone in thorough skill, in orqer tQavoid accident.in the three qIoat aR(mt NeW"York ,harbor. .. . , .ldonotthink"t4e fr:mD,. tJ1e,Ga,rdenCHyare correct in that' ,deck iitarboarded his wheel instead of necessity of a port wheel tp cpu:o,tel't,let perfcec;tIJ: kn()w!l'" the precise amount of porting needful was a questIon of skIlled Judgment, depeI;1ding
'YJ.

u.

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1\.S

ltIX,LIEN 'V. lIYDE.

175

it did upon the various circumstances, of the distance of the Walker from the shore, the speed and the draft of the tug, the time of tide, and correct observation of the line where the true tide was reaclled. The near presence of the Garden City on the port side made speCial care as to all these points necessary, in order to avoid the natural set 'of the tide towards her. The evidence leaves no doubt in my mind that the Walker swung, as I have said, from two to three points to port, through lack of efficient and timely means to prevent it, and thus contributed to the collision. The deck hand, who had the wheel, testified that even at collision the Walker was in the eddy tide; and if he was acting on that supposition at the time, inasmuch as that supposition was clearly wrong, his 'swing to port was the result of faulty observation of his position. If the master, who was also both owner and pilot, had been at his proper post, at a place of such danger, I think his better observa-' tion, experience and skill would have prevented mistake, and the ,collision would have been avoided. 1'here Was no other pilot aboard; and the master is himself ehargeable with negligence for, absence from his post at so dangerous a point, and for substituting in his place a person neither legally certified as qualified therefor, nor sufficiently proved. to possess the reqUisite experience and skill to be able to act alone as sole pilot in so difficult and complicated a position. Much of the master's testimony I' am unable to accept as correct, both from his strong interest, and from its inconsistency with the testimony of others,'and with his. own testimony before the inspectors. He came on deck forward just before collision; but too late, as I find, to' be ·of any service. 3. The evidence is equally conclusive that the Garden City did not keep away from the Walker as much as reasonable prudence ,demanded, in that peculiar locality. The Garden City was the overtaking vessel; she was bound to keep out of the way of the Walker; she had the port side of the river open to her; the state statute required her to go as near the middle of the river as possible, and there was nothing to prevent her going in mid-river. On g'Oing astern of the Grand street ferryboat, she sheered out somewhat towards mid-river; but instead of continuing on into the middle of the river, as she should have done, she ported her wheel when not a quarter of the ,vay across from the New York shore, and thereby hauled up again towards the Walker, so as to overtake and attempt to pass within from 40 to 100 feet of her, and just at a time and place when the Walker would strike the cross current of the flood tide, and be likely to be deflected, as often happens, from her proper course, and where in case of any miscalculation, such as happened in this instance, the vessels were sure to be carried dangerously towq,rds each other. This was not a reasonable performance of the duty of an overtaking steamer "to keep out of the way" of the vessel she is overtaking; and the violation of the state statute also is by the result shown to have been material. She was not allowing a reaMnable margin for the contingencies of navigation in that peculiar ilituation, and its well-known peculiar dan-

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1'[6

REPORTlilR"

vol. 63.

gel'S. The Ogemawi 32,·F,e4.919; The Britannia, 153 U. S. 130, 14 Sup. Ct. 795; The Ocea,niCJ 61 Fed. 338, 362. ,Besides this, there is , so much evidence tending: to show that under her port wheel, the City more thanbrpke her sheer to port so as to head the tide, a,nd actually caml'l·again to starboard towards the that I think it that this also, contributed to the collisio,Il;though the Garden City again ported when it was too late to avoid collision; but this element was probably much less than itapp'eared to be to the Walker, in consequence of the latter's change, to port. 4. Ris urged that the (Jeceased fireman was a fellow servant of the deck,hand by ,the Walker's fault was caused; and that there can, there£ore, be no recovery against the owner of the Walkar. Had the J»l1ster and. owner riot been in any personal . fault, I think that resy.It would hllve followed. The decision of the court of appeals iJ;l¥cCullough ,v. Steamship Co., 9 C. C. A. 521, 61 Fed. 364, 368, I think, is not applicable here. It is the nature of the duty or servicej ,in the couri:!e of wbich the negligence OCCUI'S, and not the person Who happens to be performing it, that, as I understand, deterJDip.es whether the case is to be treated as one offeUoW servants, or not;., Quinnv. Lighterage Co., 23 Fed. 363; The Queen, 40 Fed. 694, 697; The City of Alexandria, 17 Fed. 392; The City of Non;alk, Fed. 98; The Victoria, 13 Fed. 43; ,The Harold, 21 Fed. the owner, who was also master, was himself negligent,tt$J:have above said, for absence from his ,post in a d,Wcult situation, and for practically substituting in his place as pilot, temporarRYc, an unlicensed person, not of the proved experience and skill required in such a situation. That was a fault, not merely of one of the details of navigation; but in the general Which makestheow,J;ler liable. Railway .,Go: v. Ross" 112 U. S. 394, 5 S'!1p. Ct. 184; Railroad Co. v. Baugh, 149 ;\1.8. 368, Ct 914. TlJ,estatutoJ;Y Hmit of" $5,000 is not in excess, I think, of the pecunJary 10S/;l s'!1stained by the family of the deceased; and a decree for thatlilvm and, costs may, therefore, be taken against both defendants 'intlJ,e usual form.

FERGASON". CHICAGO, M. & ST. P. RY. CO.

177

FERGASON v. CHICAGO, M. & ST. P. RY. CO. et al.

(Circuit Court, N. D. Iowa, W. D.

October 11, 1894.)

REMOVAL OF CAUSES-SEPAlUBLE CONTROVERSY-WHAT CONSTITUTES.

In an action by a switchman against a railroad company, S., and P. for personal injuries sustained by being run over by the company's switch engine, the petition alleged that the engine was improperly constructed; that after plaintiff fell on the track, having been thrown down in an effort to step on the defective footboard, he was pushed along the track; and that such company, together with the engineer, S., and yard master, P., were negligent in that they did not keep a proper lookout, and did not heed plaintiff's signals to stop. Held, that such petition contained two distinct, separable causes of action.

This, was an action by George W. Fergason against the Chicago, ;Milwaukee & SL Paul Railway Company, John Smith, and D. W. 'Pollard for personal injuries. Plaintiff moved to the case to the state court, where it originated. M'Otion overruled. Argo, McDuffie & Argo, for plaintiff. Taylor, Shull & Farnsworth, for defendants. SHIRAS, District Judge. The questions arising upon the motion to remand this case to the state court, where it originated, grow out of the following facts: The plaintiff, George W. Fergason, on the 21st day of December, 1892, was in the employ of the Chicago, Milwaukee & St. Paul Railway Company, engaged in the business of switching in the yards of the company at Sioux Oity, Iowa. On the day named he was run over by a switch engine in the yard of the company, resulting in the loss of his leg. To reoover dam· ages for this injury he brought suit in the district court of Wood· bury county, Iowa, against the railway company, which action was removed into this court by the railway company, and on the 1st day of June, 1894, the case came on for trial before the oourt and jury. At the conclusion of the plaintiff's testimony the oourt intimated that his evidence showed that he himself was responsible for the accident, and thereupon the plaintiff dismissed the action without prejudice, and then instituted the present suit in the district court of Woodbury county, naming as defendants therein the railway company, John Smith, the engineer in charge of the en· gine, and D. W. Pollard, the yard master. The railway company thereupon filed a petition for the removal of the case into this court, upon the ground that it was a corporation created under the laws of the state of Wisconsin; that the plaintiff was a citizen of Iowa; that the suit was for $20,000; and that it involved a separable controversy existing between the plaintiff and the railway company, and hence was removable, even though the defendants Smith and Pollard were citizens of Iowa, and therefore cocitizens with plain· tifl'. The state court granted the order of removal, and, the transcript having been filed in this court, the plaintiff moves to remand on the gI'lound that this court is without jurisdiction. 'fhe question to be determined is whether the petition sets forth a cause of action existing solely between the plaintiff and the rail· v.63F.no.2-12