THE WEST BROOKLYN. BROWN
fl. THE WEST BROOJO,YN.
(mrcuu OO'llh't Qf AppeaZS, Second 01.rcuU. December 1" 1BeL)
OoLLtIlION-FimRy-BOA-T AND TtrG-OBSTRUOTION 011' FERRY SLIPS.
A tug has no right unnecessarily to maneuver at the entrance of the IIUp of · ferry-boat .so as to obstruct the latter wbile making her slip, and a ferry-boat, which has lPven in IIellollon the proper signals to Indicate her approach to a tug so situated, is in aBsuming that the tug will get out of the way, and is not liable, if collisIon ensue.
In Admiralty. Appealfrom a decree of the circuit court of the United States for the southern district of New York. The district court for said distnctdismissed the libel, (45 Fed. Rep. 60,) and libelant appealed to the circuit court, which affirmed pro forma the decree of the district court, and libelant appealed to this conrt. The ferry-boat West BrOOKlyn was entering her slip between piers 2 and 8, East river. The pilot of the ferry-boat had previously observed the tug R. S. Garrett backing towards the slip, and had given her two whistles to indicate that the ferry-boat would go astern of the tug, and, just before entering her sli she gave a danger signal. The Garrett had been moored alongside pier 4, with her head up-stream, inside of another tug, which prevented the ferry.,.boat from seeing her at a distance. Receiving orders for Harlem, the Garrett cast off and backed to get out under the stem of the other tug. The stern of the Garrett struck the starboard paddle-wheel of the ferry-boat, after the latter was half-way in her slip. Carpenter e:fc Moiher, (Joseph F. Mosher, of counsel;) for appellants. Burrill, Zabriskieclc BurriU, (J. Archibald Murray, of counsel,) for ap.. pellee. Before WALLAcE and LACOMBE, Circuit Judges.
PER CURL\M. We thinlt the collision in. this case is to be attributed solely to the fault of the tug. .The ferry-boat was excusable in not discovering the before she did, and when she did discover her it was too late to reverse without danger of injury to the tug, more by doing so than by proceeding with her engines stopped. As soon as she did (liscover .the .tug,shegave proper signals to indicate her approach, and immediately followed them with da,nger signals. If those in charge of the tug had been reasonably vigilant they woule;! have observed the ferryboat, even before she gave the signals; and there was sufficient time after the signals were given for the tug to go ahead and avoid the ferryboat, if an order to do so had been promptly given and obeyed. We accept the version of the occurrence substantially as it is given by the witnesses Denoyelles and Little. We agree with the learned district judge that the tug had no right unnecessarily to maneuver at the entrance of the slip of the ferry-boat so as to obstruct the ferry-boat while making ber slip, and that the pilot of the ferry-boat was justified in assuming that the tug would go ahead as soon as it was apparent that otherwise a. collision would probably ensue. The dec ree is affirmed, with interest and the costs of the appeal.
O'DONNELL ,. ATCHISON, T. "
B. 1'. B. 00.
O'DONNELL ,. ATCHISON, T. & S. F. R: Co.
8. D. Iowa, O. D. March 8, 1892.)
O. C.lt1sE8-AppB.llUNOB J1ll' BTATE Cot1JtT-EnBOT. An appearance in the state court to file a petition and bond for removal does Dot the right to present in the federal court any question of jUrisdiction which might have been urged in the state court, and concerning which the federal court haa powllr ,to actB..lVB--o,WiJyBR O. DEFECTIVE BERVICB. Where service of notice of commencement of action In the Iowa courts could have been made upon defendant In the district to 1lll every requirement of the state statute", appearance by defendant in the federal court,!dter removal of the cause, is 'Waiver of any defect of service on him. . .
B.um-VBNt1B-DxSCRETION OF COt1JtT·
. Polk Iowa, is In the central division of the circuit court for the BOuthern district of Iowa, while Lee county is in the eastern division. Defendant railroad compaily,lued in the state court lD Polk county, had the right, by the Iowa stat,ute, place of trial transferred to HeZd, that defendant, by procuring the removal of the cause from the state court, and in filing the transcript iil the Cllntral division of this court, was precluded from aaserUng,that the in wrong division, and that It has the right to demand a removal to tliEi eastern diVIsion· The·factthat defendant isa Xansaa corporation, whose railI:oad touohes only Lee l;n Iowa, and that the cause of action did not grow out of nor waa It connected with any oftice or agency within the central division, lanot suftioient to impel to action the discretion of the court to grant a transfer.
At Law. .On petition for change of venue and plea to jurisdiction. Overruled. Cole, Mc,Vey &:- Che8hire, for plaintiff. G. Lath,rup, J. D. M. Hamilt<m, and J. O. Davis, for 9,efendant. WOOLS()N, District Judge. This is an action for personal injUries brought into this court on removal from state court The petition, originally filed in the district court of Polk county, Iowa, states as cause of action that defendant is a Kansas corporation, whose line of operated railway extends through Colorado, Kansas, Iowa, and other states; that in July, 1891, plaintiff's decedent, at Pueblo, Colo., while exercising due care on his part, and while employed by defendant in the operation ofits railway, was killed, by reason of the negligence of the defendant. Service of notice was made on defendant by serving notice upon l'S. M. Osgood, general agent for the state of Iowa of the defendant, Atchison, Topeka, and, Santa Fe Railroad Company, at his office, and the general office of defendant company, in the city of Des Moines, Polk county, Iowa." Upon the first day ofthe term to which the' notice was returnable, defendant filed in said Polk county district court its petition and bond for removal to the federal court, and said court ordered removal accordingly. Upon the day on which the certified pleadings, etc., he.rein were filed in this court, the attorneys for defendant filed herein in this entitled" prlWipe for appearance," the body of which is sa court follows: "The Clerk of said court will please enter oUr appearance for defendant in theabove-erititled action, and docketihe same on proper docket, "-which prtl'AJipe was duly signed by all the attorneys whose v.49F.no.9-44 .