Brooman v. Vanderbilt

37 F. 116, 1888 U.S. App. LEXIS 2728

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: October 15, 1888
• Status: Published

Opinion

Lacombe, J.

I see no reason for reversing the decree of the court below. There is a conflict of testimony as to whether the Vanderbilt did or did not stop and' back at once after giving her assenting whistle. The learned district judge, who heard the witnesses, credited those who testified that she did not so stop and back, and disbelieved those who swore that she did. There is nothing in the case which makes that testimony so incredible that this court, which has not heard the witnesses, and is therefore without facilities for estimating the value of the personal equation, with which all human evidence is to be tested, should disturb his finding on that point. He has also found that the Lee stopped only to permit the inside tow to pass, going as near to such tow as was necessary and proper. The evidence abundantly sustains that finding. The Lee’s tow, though a long one, was not improperly so, in view of the presence of ice in the river. She had a right to stand to for her slip; and when the Vanderbilt, whose pilot could see both the length of the Lee’s tow and the presence of the inside tow, avoidance of which would necessárily delay the Lee, gave its assenting whistle, the Lee was justified in carrying out the maneuver which it had offered to make, and which would have been successfully accomplished had the Vanderbilt stopped and backed at once.