Nicole v. The Grand Isle

34 F. 767, 1888 U.S. App. LEXIS 2361

• Court: U.S. Circuit Court for the District of Eastern Louisiana
• Decided: April 6, 1888
• Status: Published

Opinion

Pardee, J.

The liability of the Grand Isle in this case turns upon the fact whether or no the Grand Isle collided with the lugger. If she did, she was in fault, and the lugger was not in fault thereafter in swinging out into the stream and colliding with the barge. If she did not, then the lugger was not properly -held or secured to the bank of the canal, as the rules required, and whatever collision there was with the barge in tow was the result of the lugger’s negligence. On this point Joseph Balsamo, crew of the lugger, swears “that the steam-boat struck us, and gave us a side lick in passing:” and he says, “the shock of the steam-boat caused the oysters to open.” Pierre Nicole, the libelant, swears. “The steam-boat struck me; the shock broke the pole I was holding, and it struck me a blow which knocked me down.” Salvadore Pi-cone, witness for the libelant, who was with the lugger Eva, says, in his examination in chief, “that the steam-boat did not strike the lugger;” but on cross-examination says “that the steam-boat did strike the lugger.” This constitutes the libelant’s entire evidence on this material and turning point. The claimant produces the testimony of 'Michael Mc-Swensy, Jacob Prevost, Francisco Payreagan, and Joseph Worley, all at the time employes of the Grand Isle, and all of them swear positively that the steamer passed the lugger without colliding in any way. William Appel, another employe of the Grand Isle, swears positively both ways. There arc many circumstances developed by the testimony in the case which corroborate to some extent the testimony of claimant’s witnesses, and there are some circumstances which corroborate the libelant and his witness. Where the truth lies, the court cannot undertake to say. The weight of the evidence is with the claimant. Considering this, and the fact apparent from the record that, if the libelant’s boat was injured at all, he has grossly exaggerated the circumstances and damages, it is clear that the libel in this case should be dismissed; and it is so ordered,, with costs of both courts.