MOONEY v. CARTER, 152 F. 147

PARDEE, Circuit Judge (after stating the facts).

Erom the view we take of the case, we find it only necessary to consider one assignment, to wit, the court erred in refusing the following instruction: “If the jury believe the evidence they will find for the defendant.” Counsel for defen'dant in error, after a short statement, begin their brief with the proposition: “We submit that on the undisputed evidence the defendant in error was entitled to the general affirmative charge.” As the defendant below requested the affirmative charge for the defendant, and the counsel for the plaintiff below insist in this court that the affirmative charge should have been given for the plaintiff below, it seems that there cannot be much dispute of fact in the case “to deflect or control the questions of law.” See Beuttell v.

Magone, 157 U. S. 154, 15 Sup. Ct. 566, 39 L. Ed. 654. We have carefully read the evidence all brought up in the transcript, and we conclude that the steamer was guilty of negligence in not having a proper and sufficient lookout. The Ottawa, 3 Wall. 268, 18 L. Ed. 165; The Genesee Chief, 12 How. 443, 13 L. Ed. 1058; St. John v. Paine, 10 How. 567, 13 L. Ed. 537; Manhasset (D. C.) 34 Fed. 408; St. Nicholas (D. C.) 49 Fed. 679; Geo. W. Childs (D. C.) 67 Fed. 270.

We also conclude that the failure of Smith and his companion, when on a dark night in a rowboat anchored in the channel of the Tennessee river, to carry a white light two feet above the stem of the boat, as required by the rules of the supervising inspector of steamboats, approved February 8, 1899, was negligence. Belden v. Chase, 150 U. S. 698, 14 Sup. Ct. 264, 37 L. Ed. 1218. It is possible that if the steamer had had a vigilant and sufficient lookout, the location of Smith and his companion in the rowboat might have been discovered in time to have prevented injury.

It is equally possible that if Smith and his companion had carried the regulation light two feet above the stem of the rowboat the inefficient lookout on the steamer would have seen the same in time to have avoided the injury. But these are conjectures. The actual case is that both the steamer and Smtih were in fault, and the death of Smith was the result of the combined negligence.

There is no sufficient evidence to support the specific allegation of the third count that after Sellars had discovered the peril of Smith and saw signals of distress displayed, he negligently persisted in holding the steamer to her course. The proof is undisputed that as soon as Sellars was warned of the position of the skiff, he stopped the steamer, and to such purpose that the life of Smith’s companion was saved, he being picked up by the steamer.

Nor is there sufficient evidence to warrant any finding that the master of the steamer was guilty of any willfullness or wantonness in sailing his vessel, or in failing to stop and change his course, when he saw or heard the signals of distress displayed from the skiff. .Reversed and remanded.