coal barge, which formed one of a tow of 34 vessels which was being taken down past the mouth of the channel at a distance of 400 or 500 feet; the entire tow being about 1,300 feet long. Held, that both tugs were in fault; the one passing down for proceeding with so long a tow so near the mouth of the channel without taking precautions to observe and warn any vessels coming out, and the transfer tug in failing to see and avoid the barge, there being no evidence that the latter did not carry proper lights. [Ed. Note.-For other cases, see Collision, Dec. Dig. § 102.*] Appeal from the District Court of the United States for the Southern District of New York. This cause comes here upon appeal from a decree of the District Court, Southern District of New York, holding the steam tug No. 32 solely responsible for the damages resulting from a collision between the coal barge West Farms, in tow of No. 32, and a car float, which it is alleged was in tow of Transfer No. 18. Robinson, Biddle & Benedict (W. S. Montgomery and Roderick Terry, Jr., of counsel), for appellant. Wilcox & Green (Herbert Green, of counsel), for appellee Williams. James T. Kilbreth, for the Transfer No. 18. Before LACOMBE, COXE, and NOYES, Circuit Judges. LACOMBE, Circuit Judge. The collision happened in the upper bay of New York, off the mouth of the dredged channel to Greenville, a Pennsylvania Railroad terminal on the west shore of the bay, the channel lying about half way between Bedloe's Island and Robbins' Reef. No. 32 was proceeding down the bay with 34 boats in tow, the flotilla extending about 1,300 feet, and passed the mouth of Greenville channel about 400 or 500 feet out. As her tow was passing the mouth of the channel, the West Farms, which was the starboard boat in the last tier, was run into by one of two car floats which came out of the channel and were heading towards Brooklyn. The District Judge held No. 32 in fault for failing to keep a proper lookout, and for proceeding with so long a tow so closely to an outlet into the bay, without taking special precautions to observe whether anything was coming out. The testimony of the master of No. 32 as it is found in the record iş contradictory and very unsatisfactory. Apparently the District Judge who heard him testify did not credit his account of what took place, and we see no reason to dissent from the conclusion that he was in fault. There is nothing in the evidence to indicate that there were no lights on the tow, or that it could not be seen and easily avoided by the tug which brought the car floats out of the channel. In the absence of any testimony explaining and excusing her navigation, she should be held in fault. The defense presents solely a question of identity, it being insisted that neither of the car floats which Transfer 18 had in tow that night collided with anything. If the record contained only the testimony of the master and deckhand of No. 32 as to their observations of the colliding flotilla, identification would not be established. But there is other evidence which we find conclusive. No one challenges the truthfulness of the story told by the master For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes of the West Farms that she was run into that night by one of two car floats in tow of a tug somewhere between the Statue of Liberty and Robbins' Reef; nor is it disputed that she was damaged by such collision. Apparently the blow was not a very severe one. The cost of repairs was only $250. Since the heavy loaded car floats projected far in advance of the tug, it is quite conceivable that the impact of the blow might not be felt by the witnesses called from the tug, who testify that they did not hit anything. There has been much inconsistency in the averments and assertions made on behalf of No. 32 as to the hour when the collision took place; but there is record evidence which definitely establishes it. Her tow was made up at the scow Amboy at Liberty Island. The regulations of the Pennsylvania Railroad Company require a blank "report of towing by tugboat" to be filled up, which gives the name or number of the tug, enumerates the units of the tow, and sets forth various other particulars in reference to them. Such report of towing by tugboat 32 from 2:35 a. m. June 6, 1907, to 10:40 a. m. of the same day, is produced from the records of the company. The first hour therein given, "2:35 a. m.," was taken by the deckhand, as he testified, from the clock in the pilot house at the time. the lines were cast off from the scow, and he entered it in the report. This establishes the time the tug and tow started, and, although the tow was a large one, they could easily have reached the mouth of Greenville Channel by a little after 3. A record of the movements of boats was also kept at the Pennsylvania terminal docks, head of Greenville Channel, and the entries in that record were testified to by the man who made them and put in proof. From this record it appears that the only floats and tugs which left between midnight and 6 a. m. were as follows: Transfer No. 16 left at 12:50 a. m., with car floats Nos. 12, 50, and 53 in tow. Transfer No. 18 (N. Y., N. H. & H.) left at 3:10 a. m., with car floats 46 and 42 in tow. The tug Gladiator left at 4:03 a. m., with a Long Island Railroad float No. 15 in tow. The Maryland left at 5:30 a. m. There is nothing to impugn the accuracy of this record, and in view of its disclosures we cannot escape the conviction that the tug, with two car floats, which the West Farms encountered when about halfway between Bedloe's Island and Robbins' Reef, off the mouth of Greenville Channel, was Transfer No. 18; and, having no sufficient explanation of her failure to observe and avoid the barge, we think she should be held in fault. The decree of the District Court is reversed, without costs, and cause remanded, with instructions to decree against both vessels. F. W. WOOLWORTH & CO. v. CONBOY. (Circuit Court of Appeals, Eighth Circuit. June 3, 1909.) 1. NEGLIGENCE (§ 44*)-DANGEROUS PREMISES-STAIRWAY IN STORE. jury received by a customer, who fell down such stairway in the daytime when the place was light. [Ed. Note.-For other cases, see Negligence, Cent. Dig. § 59; Dec. Dig. § 44.*] 2. NEGLIGENCE (8 32*)-MERCHANT-CARE AS TO PERSONS IN STORE. A mercantile firm cannot be held responsible for an injury to a customer caused by the pushing or violent conduct of a crowd attracted to a bargain counter in its store. [Ed. Note. For other cases, see Negligence, Cent. Dig. § 42; Dec. Dig. $ 32.*] In Error to the Circuit Court of the United States for the District of Minnesota. This is an action for personal injury. The plaintiff in error, the defendant below, is the owner of the Five and Ten Cent Store at Minneapolis. The store room is 44 feet wide and 127 feet deep, and extends east and west fronting on Nicollet avenue. It advertised a special sale of granite ware, which attracted a large crowd, and among them the plaintiff. The counter at which this ware was sold was a long wall counter on the north side of the store, and situated a little to the west of the center. In front of it was a broad aisle extending the entire length of the store. To the west, and separated from this counter two or three feet, was a small counter, immediately back of which was an open stairway leading to the basement. The counter served to protect the stairway on the south side. On the east side it was protected by a railing, and on the north side by the wall of the building. A short distance back of this counter and the stairway was the partition of a private toilet room for the employés. Between this partition and the end of the counter was an aisle leading to the stairway. The entrance to the stairway was guarded by a gate, which was open at the time of the accident. The store was well lighted by windows, and also by arc lights, one of which was situated about 11 feet from the stairway. The basement was used only for storing goods, and not for their sale. The aisle leading to the head of the stairs was for the use of employés, and patrons had no occasion to enter it. At the time of the accident a clerk was standing on the long counter above referred to, handing out goods to purchasers, who were required to approach him with the correct change for their purchases in their hands. The crowd became violent. Some of the women fainted, and others clambered on the counter. So great was the crush that the plaintiff was pushed past the man on the counter. She claims that she was crowded along down the aisle past the small counter, and then into the side aisle between it and the partition. Plaintiff, all the time that she was moving along, claims to have had her eyes on the clerk, and was hoping to attract his notice. But she says that she was pushed sidewise or backwards, head foremost, down the stairs. The negligence charged in the complaint is the unguarded stairway, and the permitting of a large and violent crowd to assemble on the store premises. A motion for a directed verdict was made by the defendant at the conclusion of the evidence, and denied. The case was then submitted to the jury, and resulted in a verdict and judgment in favor of plaintiff for $500. The denial of the motion for a directed verdict is the chief error assigned in this court. Arthur M. Keith (Charles T. Thompson and Edwin K. Fairchild, on the brief), for plaintiff in error. W. H. McDonald (F. H. Ayers, on the brief), for defendant in error. Before HOOK, Circuit Judge, and RINER and AMIDON, District Judges. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes AMIDON, District Judge (after stating the facts as above). The motion should have been granted. It was not negligent to maintain the open stairway. It was separated from the part of the store to which patrons were invited or accustomed to resort. Indeed, if it had been situated in a portion of the room used by the public, that would not have constituted negligence. Important retail establishments are now accustomed to occupy several stories of the building in which their business is carried on. Open stairways leading from one story to another are a part of the ordinary equipment of such premises. Even when elevators are provided, there is usually a stairway adjacent to the shaft, and there are frequently other stairways in such rooms. Such stairways are closed on three sides, as was the one in this case; but the entrance is left open. Any other arrangement would be manifestly impracticable, and defeat the very object which the stairways are designed to accomplish. Such open stairways being an ordinary feature of store premises, the public, when resorting there, assume the risk arising therefrom, and are bound to protect themselves by the use of their eyes against such dangers. Mr. Justice Holmes, then speaking as Chief Justice of the Supreme Court of Massachusetts, states the rule applicable to such a situation as follows, in Hunnewell v. Haskell, 174 Mass. 557, 55 N. E. 320: "There is no duty on the part of a shopkeeper to give warning of the presence of an ordinary flight of stairs in broad daylight, or to guard the necessary access to it, even if there is a crowd in his shop. The sides of the opening were guarded. Every one who is on an upper story knows that there probably are stairs from it somewhere, and must look out for them. The case is different from that of a hole in the floor which commonly is covered, and which is of a kind not to be expected." See, also, Dunn v. Kemp, 36 Wash. 183, 78 Pac. 782. The crowd on the present occasion seems to have been somewhat more violent than usual. Still such crowds are often found in large stores at the time of special sales, and during holiday seasons. They are an unavoidable feature of mercantile life in large cities. The defendant on the occasion in question had no reason to believe that such a sale as it was conducting would lead to any uncontrolled or violent conduct on the part of customers visiting the store, and was not therefore required to maintain its store in an unusual condition of safety to meet such an emergency. It had no reasonable cause to anticipate such violence, but, on the contrary, had a right to believe that patrons would demean themselves with a proper regard to others using the store. It was not, therefore, guilty of any negligence by reason of anything done by the crowd. In the excitement plaintiff seems to have lost her head and become wholly oblivious of her own safety or environment. She has met with an accident which is quite frequent, and there is nothing in this record justifying the shifting of her misfortune upon the defendant. The judgment must be reversed, and a new trial granted. THE SENECA. NEW YORK & CUBA MAIL S. S. CO. v. DE BUHR. (Circuit Court of Appeals, Second Circuit. May 25, 1909.) Nos. 273, 274. COLLISION (§ 82*)-STEAMSHIP AND BARK MEETING IN FOG-EXCESSIVE SPEED. A decree affirmed, holding a steamship solely in fault for a collision at sea, at night, in a dense fog, with a meeting bark, for excessive speed and inattention to the bark's fog signals. [Ed. Note.-For other cases, see Collision, Cent. Dig. 88 170-174; Dec. Dig. § 82.* Collision rules-Speed of steamers in fog, see note to The Niagara, 28 C. C. A. 532.] Appeals from the District Court of the United States for the Southern District of New York. For opinion below, see 159 Fed. 578. Wing, Putnam & Burlingham (Harrington Putnam, of counsel), for appellant. Convers & Kirlin (J. Parker Kirlin, of counsel), for appellee. PER CURIAM. Decrees affirmed, with interest and costs. THE GUTENFELS. (Circuit Court of Appeals, Second Circuit. May 19, 1909.) No. 275. SHIPPING (§ 118*)-DELAY IN FORWARDING GOODS-LIABILITY OF SHIPOWNER. The owner of a steamship, which issued bills of lading acknowledging the receipt of merchandise on board for transportation from Calcutta to New York, is liable for loss resulting to the consignee because of the failure to forward by such vessel and the delay resulting. [Ed. Note. For other cases, see Shipping, Cent. Dig. § 436; Dec. Dig. § 118.*] Appeal from the District Court of the United States for the Southern District of New York. The decree of the District Court was for $720.69 in favor of the libelants for damages sustained by them through the failure of the steamship Gutenfels to deliver a quantity of shellac in New York. For opinion below, see 166 Fed. 989. Wing, Putnam & Burlingham (Charles C. Burlingham and Henry E. Mattison, of counsel), for appellant. Alfred W. Varian (George Whitfield Betts, Jr., of counsel), for appellees. Before LACOMBE, COXE, and NOYES, Circuit Judges. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |