view of such fault on the part of the schooner, it is incumbent on her .to m.ake out by clear proof that the tugs could have done somet4ing after they saw, or ought to have seen, the danger of collision to prevent it. On all the evidence, including that taken in this court, this has not been made out. It was no fault in the tugs that they did not whistle to the schooner at any time. They saw no risk of collision, and there was none which they ought to have seen. They were not intending to go, and did not go, to the westward. There was plenty of room for the schooner to go by them to the westward. They could have no ide.a that the. schooner would chase the wind as she did, and would make the leeway she did. The tugs stopped as soon as it was incumbent on them to do so, and were not guilty of any fault in ping. There must be a decree against the schooner for $2,775, with interest from April 9, 1880, and the costs of the libellant in the district court, taxed there at $236.50, and the oosts of the libellant in this court, to be taxed; The libel must be dismiased as against each of the tugs, with costs to the claimants of the Nichols in the district at $178.87, and to them in this court, to be taxed; and with costs to the claimants of the Sammie in the district court, taxed there at $73.27, and costs to them in this court, to be· taxed.
THE BADGER STATE.
(District Court, No D.IZlinois. May 27,1881.)
Where a sailing vessel and one propelled by steam are approaching each other bow on, the steamer must give way.
In case of a collision between such vessels, the steamer is prima fade in
Jt amo\mts to neglIgence on the part of those in command of a steamer t., make the port of Chicago at night at a speed from nine LO ten miles an hoUl
n. J. This is a libel for damages by a collision between the propeller Badger State and the schooner Helen Blood, owned by libellant. The schooner left the. port of Chicago, about Do'clock in the evenl8J7, in tow of tuo. tug Pl'o:eetion, was towed Jut ing ()f Qctober
:J;HE BADGER lilTATE,
to the vicinity of the crib, where she was let go, and proceeded to make sail. ' The wind was about south-west, as is shown by the witnesses on both sides. The jib and foresail of the schooner were set, and her course was laid north by west. The captain, Thomas Matthews, was at the wheel, and the mates and seamen were engaged setting the remaining sails, when the lights of the propeller were discovered nearly ahead; the course of the steamer being, according to her witnesses, about south by east. The schooner did not change her course, and the steamer kept her course until a'Very short time before the collision, when she put her wheel to starboard, and swung to port so as to strike the schooner a severe but glancing blow on her starboard quarter, just abaft the main rigging, doing some damage to the schooner. The case was duly referred to Commissioner Proud.' foot, who has taken the proof and reported, finding that the collision was occasioned by the negligence of those in charge of the ·steamer. To this report the respondent has filed exceptions,'which have been fully argued. The substance of these exceptions :is that the proofs show the collision occurred through the negligence of those in charge of the schooner, and not from any fault orlieglect on the part of the steamer, because'
(1) The schooner did not have a proper lookout; (2) the schooner did not have proper signal lights set, as required by law, and did not display a tMch in proper time to secure attention from the steamer; (3) that the captain'of the schooner was intoxicated and incapable of attending to his duty.
At the time of the hearing on the 'exceptions, the testimony of three of respondent's witnesses tended to show the eaptliin was intoxicated on the night of the collision. Since the' hearing, the deposition of Capt. Matt4ews has been taken and put into the record, in which he emphatically denies the charge of intoiication:;'andsho"Ws the respondent's witnesses to be so far mistaken in regard 'to other matters connected with his history as to at least seriously impair the value of their evidence upon the main charge of drunkenness. In cases of collision between a steamer and schooner, the presumption as to who is at fault is stated by the supreme court of the United States as follows:
"If the two vessels in this case were approaching each other in opposite directions, so as to involve risk of collision, the duty of each was plainly marked out by the law. The steamer was required to keep out of the way, slacken her speed, or, if necessary, stop and reverse, while the schooner was required to maintain her course, and was not justified in changing it unless obliged to do so to avoid a danger that immediately threatened her. As the
steamer did not keep out of her way, and as the collision did oceur, the steamer is prima /aaie liable, and can only relieve herself by showing that the accident was inevitable, or was caused by the culpable negligence of the schooner." The Carroll, 8 Wall. 302.
The oollision having occurred, in this case the only question is, has the steamer shown that it was inevitable, or that it occurred through the culpable negligence of the schooner? The testimony bearing upon this question has been exhaustively and ably discussed and analyzed by the commissioner in his report, and, although, while I think it must be conceded that the questions of fact a.re not wholly free from doubt, yet, when we consider that the law has cast upon the steamer the burden of showing, by a preponderance of proof, that the collision was the result of the schooner's palpable negligence, I am not disP9sed to disturb the commissioner's finding. The charge of negligence by reason of the intoxication of the captain, is, in my judgment, fairly overcome by the additional testimony before referred to, put into the record since the hearing. I will also add that the testimony shows the steamer's speed to have been from nine to ten miles an hour at the time of the collision-the same rate of speed at which she had been the entire distance between Chicago and Milwaukee-and I think the suggestion of the commis. sioner a very pertinent one: that this was too fast a rate of speed for a steamer to be making in the night-time at the entrance to a harbor like Chicago, where there is not only a liability, but almost a certainty, of meeting sail vessels just arriving or departing, and where the utmost caution is required to avoid oollision. It seems to me quite clear that this collision would not have occurred but for the high rate ()f speed at which the steamer was running. The exceptions to the report are overruled, the report confirmed, lnd a decree will be entered finding the at fault, and direct· ing a reference to take proof and report as to damages.
BROOKS V. 0 ·HARA.
HARDY V. O'HARA BROS.
(Oircuit Court,p. Iowa.
EQUITY PLEADING-ALTERNATIVE ALLEGATIONS.
A bill is demurrable because too indefinite, wherein it is alleged that the decree which is sought to be set aside was obtained either by the mistake of all parties, or by deception practiced upon the complainant, or by the collusion of the respondent with third parties.
SAME-AVERMENTS UPON INFORMATION AND BELIEF-FRAUD-INJUNCTIOKS.
Where an injunction is asked for, in the first instance, upon the ground of fraud, the facts constituting the fraud must be made to appear by positive averments, based upon the knowledge of the complainant, or that of some one else who is personall.v cognizant of them. Allegations oascd upon information and belief only are insufficient. S. REs ADJUDICATA. One is estopped 'from raising any question which migllt have been deter. mined in a former suit between the same parties and upon the same SUbject. matter, provided he was not prevented from raising it in such former suit by the wrongful act of the other party.
Bill in equity brought to set aside a decree in favor of respondents, establishing a mechanic's lien upon the Burlington & Southwestern Railway for $39,763.26, here.tofore rendered in this court. The material allegations of the bill are the following:
"Your orators represent and show to the court that heretofore, to-wit, about 1870, the BUrlington & Southwestern Hailway Company, a corporation in Iowa, constructing, owning, and operating a railroad in Iowa and Missouri, by a certain deed of trust, duly and legally executed, conveyed its railroad property and franchises to your orators and one James F. Joy, who subsequentlyassigned his interest in said trust to your orators; said railway com· pany being then and now a citizen of the state of Iowa, and your orators cit. izens of the state of Massachusetts, and said James F. Joy a citizen of the state of Michigan. "That said deed of trust was made to secure certain bonds, to be issued by said railway company to aid in constructing said railway, to the amount of $20,000 per mile of road, which bonds were actually issued and sold; and said railway having made default in payment of interest on said bonds, your orators filed their bill to foreclose said mortgage in this court, and such proceedings were had that on the eighth day of June, 1871, a decree of foreclosure was entered, whereby it was found and decreed by the court that said company was indebted to your orators in the sum of - - - million dollars, and said property ordered to be sold. "Your orators further state and charge that said respondents, prior to 1874, were engaged in constructing a certain portion of said road, having a contract t(l do the grading under J. W. Barnes, who was the original contractor, and which gL'ading was to be done at certain prices set out and stipulated between him and said Burlington & Southwestern Railway Company.