KIERtiAN -".THE LEONARD RICHARDS.
mon path of upward bound vessels, especially at night,· tends to show a careless disposition of mind. There was an abundance of water for haIfa;' mile westward, and the chances of encountering vessels there was much less. When the schooner was sighted the respondents kept their course without dimunition of speed, until the vessels were quite near together, and then did nothing but sound a warning, which oneof'their witnesees says signifies, out of the way," but which the schooner supposed, from what she saw, signified "Go westward." They say the signal was not sounded until the schooner had turned, and was crossing her bows. I believe they are mistaken; and that it was just before, as the scbooner's witnesses say. If she was then crossing their bows, they shouJli an,d doubtless would have reversed their engine, instead of signaling, or have done both. Of course much testimony maybe found in the case to support a different conclusion. It is, however, opposed by an equal amount entitled to at least equal credibility, and is also opposed by t\le inferenQeB,. generally, arising from surrounding circumstances. I have n9t overlooked the fact that the witness Beers, who was on the tug lIughes, (half a mile, and probably more, behind the respondents,) -SUPPOSlpc:l to be an impal'tial witness,-undertakes to define the loca.: tion and course of the schooner, aF! well as of the respondents; and that in doing so hecQntradicts the schooner's witnesses. I am unable, however, pll,l.geentire confidence in his statements. His situation, the distance away., the intervening objects, and the hour, were not favorable to correct observation. Furthermore, it is quite clear that he did not see the schooqer, (and, judging, by the distance at which the parties inable to see each other, he could not see her,) until the collisvolved ion was imminent; or is it probable that he would have felt any interest in noting her situation or course at such a distance, nor until impending danger.roused his curiosity, if he had seen her. The responsibility of the bark arises out of her connection with the tug, together with, the .fact. that her pilot was in charge of both veSsels. I attach no importance to the faults of steering imputed to her, nor ;her fail· ure to cut the hawser.
(DiBtrict OOU'I't. D. NetD
April 18, 1889.)
.. ,", .'A tug and-lshrp were approachmg nearly head on when tirst dIscovered. The tug whistled, but the signal was not answered. Soon there was a confusion of signals. and the tug continued her course with no diminution of speed until the collision. Held, that the tug was responsible for want of a vigilant lookout, and for continuing her course after her signal was unanswered.
Libel for damages.
See same case, 36 Fed. Rep. 914. Owen &- Gray, for libelant James E. Stafford. Sidney ChuM, for libelant The F. O. Matthiessen and Wiechers Sugar Refining Co. Edward D. McCarthy, for claimants.
B:JTLER, J. In this case, as in most others of its kind, there is such conflict of testimony as renders a satisfactory conclusion almost impossible. The witnesses seem to testify as their interests, or those of their vessel, require. The indications found in surrounding circumstances afford abetter, if not the only, guide. 'fhe bark is admittedly free of blame. The respondent undertook to convey her safely, but did not. She must therefore be held to proof of justification for the failure. She alleges that the steam-ship Leonard Richards is alone responsible for the collision. The allegation is not sustained. The vessels (the tug and ship) were, I believe, approaching nearly head on when first seen. I do not rely on the testimony of Pilot Wood and others, who say the ship was heading eastward,-broadside to the tug. Wood is deeply interested, being responsible for the tug's conduct; and the others are subject to the prejudice usual in such cases. If the steam-ship's course had been such as they assert, there was no occasion whatever for the tug's signal at this time. Why order the ship eastward when she was fully on that course? Why signal at all when the respective courses were safe? Moving as these witnesses testify they were, collision was impossible. The signal shows that the courses were not as stated. They manifestly involved danger.; and therefore the whistle was sounded. It is incredible that the ship zigzagged as these witnesses assert. If running eastward when sighted, why should she turn westward, and incur risk? And, thus turning, why should she again change and render collision inevitable? I do not believe she did. In my judgment the tug's lookout was not vigilant, and the vessels were in dangerous proximity when the ship was sighted and signaled. The signal was not answered, and the tug was in doubt of the ship's course. Soon there was confusion of sig" nals, and collision imminent. The tug should have stopped immediately after her first signal. Instead she continued her course with little variation, and no diminution of speed, until the catastrophe was unavoidable. Whether the ship was in fault I need not consider. The tug certainly was. While,I believe a vigilant lookout would' have discovered the ship earlier, she was discovered in time to have been avoided if proper measures had been adopted. Respondent virtually did nothing but sound a signal, which was not answered, and keep on her way collision was inevitable. She must 'therefore be held responsible lodhe consequences. .
M. & ST,P'"RY. CO.
P. Ry. Co.
(Oircuit (Jourt, N. D. Iowa,
REMOVAL OF CAUSES-LoCAL PREJUDICE-PLEADING.
SmRAS, J. The defendant seeks an order for the removal of this cause from the district court of Clay county into this court, under what is known in common parlauce as the "local prejudice elause" of the statute. The petition sets forth the citizpnship of the respective parties, the nature of the snit, and then avers that "your petitioner cannot obtain justice in the said district court of Clay county, nor in any state court in the state of Iowa to which said cause could be removed." The affi· davits filed with the petition simply state that"from prejudice and local influence said defendant will not be able to obtain justice," etc. The showing thus made is insufficient. In the petition itself it is not averred that there exists either or Jocal influence; the averment being only that the defendant cannot obtain justice in the state court. While it may be said that by reading the petition and affidavits together it may be fairly inferred that it is intended to allege that prejudice. or local influence exists, and by reason thereof the party cannot obtain· justice in the state courts, still L think that the averment should beelear and positive, and not a matter of inference. The petition is filed as the basis for the action of the court. If the court should now grant an order for the removal of the cause for the reasons assigned in the petition, it would not appear upon what ground the court proceeded. The statute contains two gronnds of removal, i. e., prejudice, local influence. I f by reason of the existence of either ground, or both, justice cannot be had in the state courts, then the right of removal exists. The however, should directly aver the existen<:e of prejudice against the party seeking the removal, or of local influence exerted by the adversary party, and, as a consequence thereof, an inability to obtain justice in the state court. Furthermore, the affidavits submitted with the petition· should state facts supporting the averments of the petition, and not merely the oonclusion stated in the language of the statute, as is the case in the present application. For the reasons stated the petition presented in this cause must be held insufficient, and the order of removal cannot b. granted.