Johnstone v. Furness, Withy & Co.

Second Circuit

Johnstone v. Furness, Withy & Co.

179 F. 1019, 102 C.C.A. 664, 1910 U.S. App. LEXIS 4728

Court of Appeals for the Second Circuit·Decided July 26, 1910·No. No. 269·Published

Opinion

PER CURIAM.

The facts are stated in the opinion of Judge Adams and we concur in his findings and conclusions. The merely negative testimony of the ship’s officers cannot in our opinion overcome the testimony of the three witnesses (to which he refers) that before 7 o’clock on Monday morning they saw a five-inch stream of water coming out of the discharge pipe. And, accepting the length of the lighter to be 70 feet as stated in the survey and not 60 feet as some of the witnesses estimated, we are not persuaded by the argument that she was so located on the port side of the steamer that it would not be possible for this stream to fall upon her. We find no abuse of discretion in allowing the amendment conforming the pleading to the proof. Decree affirmed, with interest and a single bill of costs of this appeal against appellant.

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PER CURIAM.

The facts are stated in the opinion of Judge Adams and we concur in his findings and conclusions. The merely negative testimony of the ship’s officers cannot in our opinion overcome the testimony of the three witnesses (to which he refers) that before 7 o’clock on Monday morning they saw a five-inch stream of water coming out of the discharge pipe. And, accepting the length of the lighter to be 70 feet as stated in the survey and not 60 feet as some of the witnesses estimated, we are not persuaded by the argument that she was so located on the port side of the steamer that it would not be possible for this stream to fall upon her. We find no abuse of discretion in allowing the amendment conforming the pleading to the proof. Decree affirmed, with interest and a single bill of costs of this appeal against appellant.

Johnstone v. Furness, Withy & Co., 179 F. 1019, 102 C.C.A. 664, 1910 U.S. App. LEXIS 4728 (2d Cir. 1910).

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179 F. 1019 (Johnstone v. Furness, Withy & Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.