VERMONT I"ARM MACHINE CO. V. CONVERSE,
VERMONT FARM MACHINE CO.
fOircuit Court, D. Connecticut.
February 3, 1882.}
A motion to " reopen" a cause, and allow defendant to take additional testimony, was denied; the defendant not stating that the evidence was not accessible at the trial, or that it was not then known to him, or that it is material.
On motion to reopen the cause and allow additional testimony to be taken. TV. E. Simonds, for plaintiff. Charles B. Tilden, for defendant. SH1PMAN, D. J. This is a motion to "reopen" the cause and allow the defendant to take additional testimony upon 16 points. The testimony seems by the record to have been closed on November 25, 1881, when the plaintiff's rebutting testimony was taken. The defendant did not then suggest that he was intending to reply. He does not now state that the evidence was not then as accessible and as well known to him as it is now, or that it is material. He says that the statements of the plaintiff which it is desired to answer "consist for the mosi part of new matter, not yet set forth or alluded to in the prima ,til,t:ic case made by the plaintiff, and not being in reply to anything set up by the defendant," and that the testimony "tends to injure him and prejudice his rights in the present suit." I am of opinion that when the plaintiff closed his rebutting testi. many the defendant did not think that this new matter required any reply or was of importance. Subsequent reflection leads him to fear that, if it is unanswered, it may prejudice his case, but he does not think that it will injure him, or that it is of importance. If the case is opened, and the defendant is allowed to take testimony upon 16 points which are not claimed to be material to the case, I think that the present compact record would become needlessly voluminous, and that needless expense would be imposed upon both parties. The motion is denied.
and others v.
January 5, 1882.)
FINDINGs-AFFIRMANCE ON WRIT OF ERROR.
Where the finding of facts by the district judge IS warranted by tlle proofs, and the new testimony put in this court does not substantially change the facts found, helfl" that the libel be dismissed, with costs.
On Writ of Error. A. S. Cushman, for libellants. David Torrance, for respondents. BLATCHFORD, C. J. The finding of facts by the district judge in his decision in this case is warranted by the proofs, and the new testimony put in this court does not substantially change the facts so found. The conclusion that on those facts the respondent is not liable must follow. The libel alleges that the schooner hauleJ up to and occupied the berth at the derrick provided for the unloading of her cargo of coal, and at the place where she had on previous voyages safely laid for the purpose of discharging her cargoes, and that the respondent was bound to keep that berth safe, but had, by dredging, rendered it un. safe, without notice to or knowledge by the libellants or the master. The master moored where he did without instructions or directions from anyone in the employ of the respondent, and without the knowledge of anyone in the employ at the respondent. The berth 8,t the wharf, for the distance the respondent was bound to excavate, and had excavated, was safe, and would have been safe for this schooner. Her stern extended below the lower end of the wharf to a distance at least one-third greater, and from that to one-half greater, than ever before. The depth of water at her stern was so little that if it had been ascertained by her master that fact would necessarily have indicated danger to him in lying there over low tide, even with the depth at the front of the wharf such as it was before the additional excavation was made. Movement of his stern out· wardly and securing it there would have insured safety as it was. The libel is dismissed, with the costs of the district court, taxed at $130.70, and with costs to the respondent in this court.