a.dvised of the cirCllmstances rendering the :deliveryo'f the rows iJ, matter of urgency. These damages claimed are consequential. Without notice of urgency and' spechU coJtract "the'measure of 'dam.: ages, for delay in delivery of goods shipped by a common carrier, is' the difference in the market value at the time of the delivery and 'the time when the goods should have ,been delivered. See Desty, Adm., § 256. As to any such difference in value there is no evidence. The libel was properly dismissed in the district court,and the same. , decree will be entered in this court. ':' ,
THE SYLVAN GLEN,
, , (Di8tricl Oourt, E. D.New York. Octbuer 4, 1881.)
ADMIRALTY -AOTS CAUSING DEATH - ACTION IN litEM FOR DAMAGES':"" LIEN UNDER THE STATUTE OF NEW YORn:. ,J
A row.boat containing .two men anq woman, crossing the river at New York just at dusk, was struck and capsized by a steam-boat pi a regular line plying to Harlem, and While the men were savedthii woman drowned. An action in rem for damages being brought 1>y the husbaD!:Lof tile deceased woman as administratof, held, that the statute of the stllte of }lew York created no maritime lien for, sucb alld no right of action to, libellant arose therefrom. ".
W. W. Goodrich, for libella1l:t. 'i R. D. Benedict, for claimant. , " , ". BENEDIC1', D. J. This ,action ,is brought by John istrator of Margaret Welsh, deceased, to, recover, 'for the benefit Of himself and the next of kin of Margaret Welsh, the damages tained by hiinand such next of kin by reason of the death of said Welsh, which death, it is averred, was caused the gence of those in charge of the flylvan, Glen" in, ruD.:ning over a small boat ,wherein the was being transported UpOD the East river. ' " , , !tis supposed by the libellant that; the determination of the case depends upon the question of in question was cl1used by negligence OIl; the plutof those naVigating the steam.boat; but there lies the thfeshold of the case a question of law, which, as I view it, is decisive of the contrqversy. The of action set up in the libel is derived from a statute of the state of N:ew York which ' ,',. . provides that-;-, ' , , " . '...
,. Whenever the death of a person be cause,d by wrongful act, neglect,or default, and the neglect, '01' 'defaltlt is' such as' 'WOUld, if death had not ensued, have entitled the party injured to maintain an action ahd recover damages in respect thereof, then and a,nev:ery 8uchcase the person ·whd, or
FEDERAL REPORTER. the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured." Act of December 13, 1847, as lI.mended by act of April 7, 1849, and act of March 16, 1870.
This statute does not provide for the survival of any right of actioD belonging to the deceased.· It creates a liability where none before existed. It makes a new cause of action, namely, the death, and it daclares who shall be liable to action, and by whom, as well as for whose benefit, the action may be maintained. It is not douMed . that the right created by this statute of the state may be enforced, in a proper case, by the courts of de United States; northat it may be enforced in the admiralty, when a· marine tort is the foundation of the right. These propositions have not been controverted here, but they by no means afford ground on which to th\s action; for this is an action in rem, and, if maintainable at all, must rest upon the proposition that the lib'ellant, by virtue of this statute of the has a maritime lien upon the vessel proceeded aga.inst for the damages resulting to the husband and next of kin of Margaret Welsh from'the death of that person. No ground has been suggested upon which such a proposition can be maintained. The words of the statute are, "the person who or the corporation which." Those words create no lien, much less a maritime lien ; and, if they did, how can it be held that a state has power to create a maritime lien for the benefit of this husband and next of kin? It is true that it is held by the supreme court of the United States that a lien, created by a state statute, for supplies and repairs to a domestic vessel, may be enforced by admiralty proceedings in the courts of the United States. But the rule in the class of cases referred to is peculiar. It is conceded by the court to be anomalous, and its basis upon any sound principle doubted, (The Lottawanna, 21 Wall. 581,) and I know of no expressions of that court that will warrant the belief that any extension of such an anomaly would be app.roved. Besides, in this instance, the state l statute creates no lien at all. It is not seen, therefore, how in any aspect the statute upon which the libellant relies can afford a right of action against this vessel. The case of The Highland Light, Chase, Dec. 155, affords authority adverse to the libellant, while the case of The Garland, 5 FED. REP. 924, cannot be deemed an authority in favor of his action, for the reason that the point in question does not appear to have received attention in that case. The libel must be dismissed, and with costs.
ST. LOUIS, IRON MOUNTAIN & SOUTHERN BY. CO.
ST. LOUIS, !BON MOUNTAIN
(Circuit Court, E. D. Missouri. November 2,1881.)
PRACTICE-DEMURRER TO EvIDENCE.
If there is conflicting evidence which the jury should pass, the court can· not draw to itself the decision of what the evidence or the weight of tlvldence establishes. ,
MASTER AND SERVANT-NEGLIGENCE.
An employer who introduces, without notice to his employe, new and unusual machinery, whether belonging to himself or another, involving ail unexpected or unanticipated danger, through the introduction of which the employe, while using the care and diligence incident to his employment, meets with an acci. dent,is liable in damages.
Where an accident occurs to a railroad employe in consequence of the intro· ductlon of a foreign and defectively-constructed car into the train qn which he is employed, and he sues the railroad company for damages, he is not bound to ; allege in his petition that the accident was caused by the introduction of a foreign car.
The plaintiff avers in his petition that, at the time of the accident therein referred to, he was a brakeman in the employment of defend· ant; that while, in the performance of his duties as such, he was coupling a car, used and operated by defendant at the time, to lit certain engine of the defendant, his hand and arm were caught between the car and engine, and crushed and lacerated so that it was necessary to amputate it between the elbow and wrist, .and that it was that said injuries were caused by the defective, unsuitable, and dangerous apparatus and appliances for coupling said engine and car together; that the dead-woods on said car and engine were insufficient and unstable, and dangerous to plaintiff whilst coupling, by reason of their not keeping said car and engine apart and allowing the draw-heads of the engine and car to interlap, thereby catching and crushing plaintiff's arm and hand as aforesaid; that plaintiff was ignorant of the dangerous condition of the appli. ances for coupling said engine and car together, and that neither defendant nor its agents informed him thereof; and that his injuries were caused by the negligence of defendant in supplying him with unsuitable, defective, and dangerous appliances with which to work in the discharge of his duty, and without any negligence on his part. The case came on for trial October 13, 1881. It was tried before lit jury, T1·eo.t D. J., presiding. The testimony of witnesses produced on behalf of the plaintiff tended to prove the allegations of the petio v.9,no.6....,..22