catastrophe they considered imminent.' :. If so" the.steamer had no right to expose her to such real or apparent danger; and it is'alIilostiJiconceivable that they could have entertained such sels had for "some minutes," and for at least a mile, been sailing, starboard tostarboard,mpljyergent ,or.pa.ro.llel courses. The nature and extex,.t of the damage sustained by the sloop, and the fact- that the steamer seem to show that the sloop was struck bYithe steamer, steamer by the by the claimant's witnesses; thefacttl;lat far. more injury was inflictedithan.could be cause,4 the impaot of two vesa:eI$, one of which, :by stopping and backiQg.; had lost her lleAodway I, w):lile the sails of the other were shivering. in .tp.ewipp, lendsadditionl,t]. improbability to the a.ccount ofrtbe aeby claimant'!!witnMSes.· With regard to the testimony on · the ,plU]t pfthe libelan,ts,..it is enough to say that all of the three persoDS · on board the positively. 4any.having· ,-her course, or· hav,the green, the: steamer 1,lntil the Il)omentof the COllision. set up for the steamer. in this case ia not unfamiliar to the In Han6Y ,v. Packet ·,00.,.23 How. 291, Mr.·JustiCle ' ,o.Bgt it [tbe answer] allegesBs aDeltCnSe that, whfie tlie steam-boataltd . 8choone:r l'Iuddenly changed her · CQurl5er.ll-,ndran under PIe .bows of the stl!llmer. cuse' ustlliIIy: re30rted to for the pnrpose oJ is ll1Waysirnprobable, and generalIy'false. H ' . . i'
Tilis is tile stereotyped .exa, carelesl'l collision, )t .' . . .
I,,;;
:!,n'tl:l.ecase atbar,it,wou14 not be diffioultto suggest anexplanatHm · Qr:. collision much more probable than that offered by the claimants. But jt',ia unpecessary. 'It is enough that the claimants are .presump,tivelyltable fQl' the accident, and that the burden of :proof is' on them·to show'tp thesatisfa'ction.of.th1l CQurt that the steamer was not in-fault. have failed to do. Decree for libelants. .,
THEB.\yQUEEN. 1 . STANTON , ,
et alr t1.T1IE 'BAY. QUEEN.'
cd J
(Di8trict Oourt, S. D. New York. April 9,1890.) OoLLIllIOW-:MllTUAL FAULT-STEAMER AND SAIL-BOAT BEOALMED-LAOK
oJ'Row-LoOlt!. When a small sail-boat lay becalmed, her condition being visible to a steam-boat with a barge along-side, which approached her head on, between the Brothers and Riker's Island, in the East river, and collision ensued between the vessels, held, that the steam,boat was in fault for running down the sail-boat; but al.Bo held, that the latter was to blame for the lack of proper oars and row-locks in place, to aid in getting out of danger in such an emergency. The damage. were t.herefore divided.
I
Reported by Edward G. Benedict, Esq., of the New York bar.
FEDERAL REPORTER,
vol. 42.
In Admiralty. Action for damage by collision. Robert L; Stanton, for libelants. Wing, Shoudy &: Putnam, for claimants. BROWN, J. In the case of ThePlymoufh, 26 Fed. Rep. 879, in the first oircuit, it was as,mmedthll.t the obligations of a tug-boat with a tow to,wards "a little sail-boat" were the same as towards a larger craft. In the case of The Missisquoi, 8 Ben. 6, the libel was dismissed, because the small boat had time to pull out of the way, and did not do so, her duty intha.tregard "being cOMeded in the libel." Article 24 of the rules of navigationdeolares that nothing in the rules shall excuse neglect of "any preoaution required by the ;ordinary practice of seamen, or by the special cire,umstancesof the case." It is certainly the common practice of seamen, and but a reasonable exercise of common sense,' that .A1l1all boats, Wh"ether with or without sails, should'do something to keep out of the way,dfimpending collision with large and cumbersome vessels, and be : provided'with the ordinary means of oars for doing so. The libelant's boat, waSil. small cmft, abollt20 feet long, with a flat bottom, a centerboard, two sails, and no jib. Being suddenly becalmed, after the passa.ge,'Ofa ,thunder shower, she was run down, in the East river, between the'Two :Brothers and Riker's Island,about 5 P. M., by the steamer Bay Queen"",h1eh had a barge in tow along-side. The boats were approaching about heailatld Head. ,The small boat being becalmed, it was plainly the duty of the steamer to avoid her by turning either to the l"igbtor the left. ,Her, sails were drooping, her sheets dragging in the ;water. This was visible at a sufficient distance: The Bay Queen might.haveavoided herbystarboarding more promptly, 01' by reversjng, 'which she ,did not do. Seeing that the boat was mainly helpless, "the Bay (Queen was in fault!for l'unningher down. The small boat must also be held to blame for the lack of any ready means of getting out of danger in such emergencies. Had her row-locks been in place, even with the small oars or pafldles that she had, I have no doubt the libelants would have turned and rowed herpout of danger after they saw that the Bay Queen was not likely to clear her. Even very much larger sailing vessels are in the habit of providing means, and keeping them in readiness, for use to avoiUthe dangers to which they are liable when becalmed. In the case of The B. K. Washburn, 19 Fed. Rep. 788, this court held a schooner:becalmed jointly liable for not using such means to avoid collision. Decree for the libelants for half their damages and costs. o o ,
CUMBERLAND TELEPHONE &: TEL. CO. ".UNITED ELECTRIC RY. CO.
273
CuMBERLAND TELEPHONE
&
TELEGRAPH CO. CO. et al.
'I).
UNITED ELECTRIC
Ry.
(Oircuit Oourt, M. D. Tennessee. :May 19, 1890.) TBLEPHONECoMPANIES-ELECTRIO RAILWAYS-INJUNCTioN.
In the present state of electrical science, a telephone company cannot maintain a'bill for an injunction against the operation of an electric railway to prevent damagesincldentally sustained by the escape of electricity from it. rails. '
,(Syllabu8,
b1I the Ooun.)
InEquity. On motion for an injunction. This Was a bill in equity ,to enjoin the use of electricity by the street railways of Nashville under any system which makes lise of the earth for its ret'urn:circl1it. The complainant is a KeFltucky corporation "empow· · ered" by its charter "to construct and operate lines of telephone." It entered the state of Tennessee, claiming a right under section 1535' of the state Code, which provides that "any person or company may con· Btruct at.el£graph line along the public highways and streets of this state, or acrOSs the rivers, or' over any lands belonging to the state, free of charge, andover the lands of private individuals as hereinafter pro· vided; and may erect the necessary fixtures therefor. "The city of Nttsh· ville gave its consent to tM use of its streets by an ordinance passed in 1879, and in that year complainant established a telephone plant, which it has continued to enlarge and improve to the present time. In 1885 an act was passed by the legislature of Tennessee authorizing both foreign and domestic corporations to "construct, operate, and maintain such tele. graph,tIkphone, or other lines necessary for the speedy transmission of intelligence,along and over the public highways and streets of the cities and towns of this state: * * * provided, that the ordinary use · of such public highways and streets * * * be not thereby ob· struoted," etc. In 1888 the city passed another ordinance,.confirming complainant's 'rights to the streets and alleys, as then established, ,and gra.nting the further right to extend its plant as public needs might ra. quire. Under these provisions, complainant built and operated its lines of telephohe through the streets of Nashville, now having in use about 1,400 telephones, and 1j300 miles of wire. Defendants. are five street railways, .all now operated by electricity, under the Sprague and Thompson-Houston systems, and using a single trolley or .overhead· wire. Three of these roads were originally illcorpa. rated by special acts authorizing them to operate street railways by horse· power. By an act approved March 21, 1887, amending the general incorporation laws, all street railways thereafter organized under the gen· erallaws of the state were authorized to propel their cars by electricity. Two of these railways were organized under the general incorporation · laws. By another act; approved February 28, 1889, all street railway which before that time had operated ca.rs by animal power . were empowered to operate the same by electricity, provided the .city v
