has been heated will freeze a great deal more quickly than cold water which has not been subjected to heat; that the connecting pipes, over 70 feet in length, were not covered or protected; that they were from 22 to 3 inches in diameter, and that defendant's expert testified that he would not expect stoppage by rust scales or sediment in pipes of that size; that other witnesses testified that obstruction through accumulation of foreign matter would be likely to come about gradually and to give indications of its approach by such a reduction of water supply as would challenge attention; that the crack through which the steam and water was oozing is not shown to have been located at any line of rivets, and that there was nothing to indicate any latent defect in the material of which the heater was composed. There was no substantial conflict in the testimony as to the evidential facts, and the inferences drawn from them by the jury, as indicated by the verdict, seem to us reasonable and legitimate. Plaintiff was under no obligation to show the physical presence of ice in the pipes. No doubt it disappeared quickly after the catastrophe. It is suggested that the proximate cause of the accident was the relighting of the fire, which was the act of Thomas, a fellow servant, for whose negligence defendant would not be responsible, and it was assigned as error that the court declined to submit the question of his negligence to the jury. The evidence, however, does not sustain a finding that Thomas was negligent in lighting the fire. It was his duty to do so generally when he found it out. On this occasion the heater was cold to the touch, but, for aught he knew, the fire might not have been extinguished more than two or three hours. He had no means of knowing that it had been out all night with the water in pipes and heater exposed to a very low temperature. He might fairly assume that whoever had been in charge prior to his coming would have looked after it, or left word for him if there were any risk of its being frozen. The real negligence in the case is to be found in the conduct of the person in charge before Thomas arrived. The testimony showed that Ringleb, an extra foreman, was in charge of the shift from 8 a. m. to 4 p. m. of the day before. When he left at 4 p. m., the heater was operating with a fire in it. He returned at midnight to take the shift till 8 a. m., and found the fire out and the heater cold. Evidently the fire went out during the tour of duty of foreman Erway (4 p. m. to 12 midnight), and so long a time before Ringleb returned that the heater had grown cold. Ringleb did not have the fire relighted during the eight hours of his tour of night duty. The court left it to the jury with instructions that the important question in the case was whether it was negligent in the foreman to fail to keep the fire going, considering the state of the weather, and that in the ordinary course of business the fire would be relighted the next day. They found that the foreman was negligent, and we think their conclusion was correct. Ringleb knew the weather was bitterly cold. When he arrived at midnight, it was two degrees below zero. He knew that the fire had been out so long that the heater was already cold. The jury might fairly find that a man of ordinary prudence would either have. had the fire rekindled so as to take the apparatus safely through the long cold night, or else would have passed the word on to the next shift to be cautious about relighting it in view of its abnormally long exposure to cold. The action was brought under the New York employer's liability act (chapter 600, p. 1748, Laws 1902), which has modified the law of master and servant so as to make the employer liable for the negligence of any person in his service "intrusted with and exercising superintendence whose sole or principal duty is that of superintendence." That Ringleb was within this provision is manifest from his own description of his duties. He testified that: "As foreman he had charge of the shift of six men working under him. His duties were to look after all that cellroom department. He simply looked after the process work and the men. He had charge of the pump room. one man in there, and the cellroom and the cell mounting room. He simply told the men what to do, and made out reports, and they were required to do what he told them. He had the right to decide whether the * * heater should be run or not, and it was part of his duties." The statute above cited requires "notice" to be given within 120 days after the accident, and that said notice shall state the "time, place and cause of the injury." The notice in this case states that on January 25, 1904, Earl W. Davies was killed in one of defendant's buildings at Niagara Falls by reason of the explosion of a hot-water tank maintained in said building at said time, and that the explosion aforesaid was due to defendant's negligence. Such notice complied fuily with the requirements of the statute, and is much more specific than the one which was held to be insufficient in Miller v. Solway Process Co., 109 App. Div. 135, 95 N. Y. Supp. 1020, upon which defendant relies. Exceptions to the admission of testimony have been presented. Several witnesses, some of them experts in heating and steam apparatus and others not, were allowed to answer questions which asked them what in their opinion was the cause of the explosion. The question was improper. It was competent for the experts to enumerate the various causes which might produce such a result, and, their attention being called to any facts in proof (such as diameter of pipe, condition of water, etc.), to state what bearing the existence of those facts would have upon the probability or improbability of one or more of those causes being operative at that time and place. But the final inference from all the facts in proof as to what was the cause which produced the explosion was one for the jury to draw upon consideration of those facts, illuminated by the experience of the experts. We are not satisfied, however, that the admission of the testimony objected to was harmful error. There was no dispute as to any material fact, and the opinions expressed were accompanied by such a statement of the reasoning which led to the witnesses' "opinions" that the answers were but arguments only, of the weight of which the jury was quite well able to judge. The judgment is affirmed. THE PACIFIC (Circuit Court of Appeals, Third Circuit. June 10, 1907.) No. 15. 1. COLLISION-MOVING AND ANCHORED VESSELS-CONTRIBUTORY FAULT. Where a moving vessel was clearly in fault for a collision with one at anchor, the latter will not be held in fault because at the last moment she did something that contributed to the collision, or omitted to do some thing which might have avoided it. [Ed. Note. For cases in point, see Cent. Dig. vol. 10, Collision, § 227.] 2. SAME-ACTS DONE IN EXTREMIS. A dredge which had been engaged for some months in dredging the channel of the Delaware river below Philadelphia, 90 feet to the westward and 175 feet to the eastward of the line of the Edgemoor range lights, at night moved to the eastward 350 feet from the range line and 175 feet outside of the dredged channel, where she anchored for the night, carrying proper anchor lights and with her bow down stream. On her west side lay a tug with the bow up stream. The anchor lines of the dredge extending to the westward were weighted and sunk, while two extending eastward were not. While in such position the large steamship Maling, coming down from Philadelphia and drawing more than 20 feet aft, after rounding the buoy 11⁄2 miles above the dredge, took a course which would have carried her slightly to the eastward of the dredge. Seeing her approaching nearly head on, the watchman on the dredge seized a lantern, and waved it from east to west. The tug, also, as contended by the steamship, gave a signal of a single blast on which the steamship, when about five lengths distant, ported and attempted to go to the westward, but came into collision with the stern of the dredge. The Maling was clearly in fault for being not only on the wrong side of the channel, but entirely outside of and heading away from it. Held, that the dredge was not chargeable with contributory fault because of the position in which she was anchored, nor because her port lines were not weighted, since she was not in the fairway of the Maling, and owed her no duty with respect to the lines to the eastward, and neither act, therefore, was a contributory cause of the collision, nor was she in fault for the signal given by her watchman, which, if improper, was an act done in extremis when the dredge was in imminent danger of collision, or of having her lines cut by a vessel out of her proper course. Held, also, that the tug was not chargeable with fault because, as alleged, she was carrying sailing lights, nor because she gave alarm signals, neither of which contributed to the collision, but both of which were calculated to warn the Maling of her improper course, nor because of her passing signal, which, if given, was in extremis and in aid of the signals from the dredge. Appeal from the District Court of the United States for the District of Delaware. See 116 Fed. 107. John F. Lewis and Francis C. Adler, for appellant. J. Parker Kirlin, James J. Macklin, and Henry R. Edmunds, for appellee. Before DALLAS and BUFFINGTON, Circuit Judges, and LANNING, District Judge. LANNING, District Judge. This is a collision case. Three vessels are concerned in it-the dredge Pacific, the tug S. A. McCauley, and the steamship Maling. The collision resulted in damage to the dredge amounting, with interest and costs, to the sum of $19,754.70. By the final decree of the District Court all three of the vessels were adjudged to have been in fault, and one-third of the damages was apportioned to each of them. The steamship abides by the decree, and has paid the one-third assessed against it. The tug and the dredge (with her insurers) have appealed, and by the errors assigned have presented questions concerning the negligence and contributory negligence of the several vessels. The collision occurred in the Delaware river, below Philadelphia, on the night of November 16, 1897. The night was dark, but clear. The dredge was anchored in the easterly side of the river, bow down. The tug was tied to the westerly side of the dredge, bow up, her stern projecting some feet below the dredge's bow, and the dredge's stern projecting some feet above the tug's bow. The steamship, in passing down the river, struck the dredge and did the damage complained of. The dredge for some months had been engaged under employment of the United States government in dredging out the navigable channel of the river 90 feet on the westerly side and 175 feet on the easterly side of the line of the Edgemoor range lights. For some days previous to the collision the dredge had been working on the easterly side of this line. About 5 o'clock in the afternoon, just preceding the collision, she was removed to a point about 350 feet easterly of the line of the range lights, and there anchored for the night. Her anchor lines, extending to the west, toward and across the dredged channel, were weighted and submerged. Those extending to the east, away from the dredged channel, were not submerged. The dredge's lights indicated that she was at anchor. Whether the lights of the tug indicated that she was moving or at anchor is disputed. The steamship, in passing down the river, having rounded the Edgemoor buoy, which was 1 to 11⁄2 miles above the dredge and tug, took a course by which the dredge's lights were kept slightly on the steamship's starboard bow, so that, if she had not subsequently changed her course, she would have passed, or attempted to pass, on the easterly side of the dredge. The nearer she approached the dredge, therefore, the further was she departing from the line of the range lights, by which alone she should have steered her course. It is admitted by her counsel that she was on the wrong side of the river. We are satisfied, too, that, if she had not subsequently changed her course, she would have fouled the dredge's port lines and incurred the risk of doing serious damage to the dredge. The evidence of the steamship's pilot shows that he thought the dredge was on or nearly on the line of the range lights, which were to his stern, and that, instead of guiding his course by those lights, he guided it by the lights of the dredge. The dredge had withdrawn from the ship channel for the express purpose of leaving the channel free and unobstructed during the night. It was the duty of the pilot of the steamship to keep to his starboard side of the channel. Instead of doing so, he not only passed over to his port side of the channel, but beyond it into the shallower water, where the dredge was anchored. He was in charge of a moving steamer which he had under full control. He was going down the river on an ebb tide running two or more miles an hour. While he says that after rounding the Edgemoor buoy he reduced his speed, the master, who executed the pilot's orders, declares that until within about five ship lengths from the dredge the steamship was going at full speed. That the pilot was grossly negligent is perfectly clear, and, as above stated, the liability of the steamship for at least one-third of the damages has been admitted and the amount paid. The question now to be decided is whether either the dredge or the tug is chargeable with contributory negligence. In The Oregon, 158 U. S. 186, 197, 204, 15 Sup. Ct. 804, 809 (39 L. Ed. 943), the court said: "Where one vessel clearly shown to have been guilty of a fault adequate in Itself to account for the collision seeks to impugn the management of the other vessel, there is a presumption in favor of the latter which can only be rebutted by clear proof of a contributing fault. This principle is peculiarly applicable to the case of a vessel at anchor, since there is not only a presumption in her favor by the fact of her being at anchor, but a presumption of fault on the part of the other vessel which shifts the burden of proof upon the latter." In that case the Clan Mackenzie was at anchor in the Columbia river outside of the usual track of steamships. Her lookout saw the Oregon bearing down on the Clan Mackenzie. The lookout hailed the Oregon, and continued to shout until just before the collision. Concerning the shouting, the court said: "It was a case of action in extremis, and, while it is possible that a bell might have called the attention of the approaching steamer, it is by no means certain that it would have done so and, whether the lookout acted wisely or not, he evidently acted upon his best judgment, and the judgment of a competent sailor in extremis cannot be impugned. As we have already observed, it is not sufficient for the Oregon to cast a doubt upon the management of the Clan Mackenzie. In view of the clearness of her own fault, it is not unreasonable to require that she should make the fault of the other equally clear." In The E. A. Packer (C. C.) 49 Fed. 92, 98, Judge Wallace said: "I understand the rule to be well established that in every case where a vessel, by her own negligence, or the breach of a statutory rule, places another in great peril, the latter will not be held guilty of negligence because at the last moment she did something that contributed to the collision, or omitted to do something that might have avoided it. It has often been held by the Supreme Court that a vessel which by her own fault causes a sudden peril to another cannot impute to the other as a fault a measure taken in extremis, although it was a wrong step, and but for it the collision would not have occurred, and that a mistake made in the agony of the collision is regarded as an error for which the vessel causing the peril is altogether responsible." Is the dredge chargeable with contributory negligence? The steamship contends that she was, first, because she did not sink her anchor lines extending to the eastward; second, because, it is alleged, she gave to the steamship an irregular and improper signal by the waving of a lantern; and, third, because, it is again alleged, she was improperly anchored in the fairway of the river. It is true that the dredge's port breast line and port quarter line were not weighted, and that they were obstructions to any vessel that should attempt to pass near to the dredge on her port or easterly side; but, if it be assumed that there was a duty on the part of the dredge toward smaller craft to sink those 154 F.-60 |