CITY OF CLEVELAND v. CHISHOLM et al., 90 F. 431

LURTON, Circuit Judge, after making the foregoing statement of fads, delivered Hie opinion of the court. The errors assigned with that particularity and distinctness required by (lie eleventh rule of this court (21 C. C. A. cxii., 78 Fed. cxii.) challenge only the findings of fact by the district court. Full argument has been heard, and the entire evidence fully considered. The evidence, was conflicting. The conclusions to he drawn therefrom depend largely upon the intelligence and frankness of the witnesses.

The district judge saw and heard the witnesses testify, and was aided in arriving at his conclusions by his observations of the witnesses. This advantage we are deprived of. The act of February 16, 1875 (18 Stat. 315), was

an act intended to relieve the supreme court of the labor of looking into the facts found by the circuit court in admiralty cases. That act has no application to this court, inasmuch as the act of March 3, 1891, creating courts of appeals, provides for a direct appeal from the district court to this court. There can be, therefore, no such special findings of law and fact by the circuit court as contemplated by the act of 1875. The trial here is therefore upon the law and the facts. The Havilah, 1 U. S. App. 1, 1 C. C. A. 77, 48 Fed. 684; The Philadelphian, 21 U. S. App. 90, 9 C. C. A. 54, 60 Fed. 423; The E. A.

Packer, 14 U. S. App. 684, 7 C. C. A. 216, 58 Fed. 251. Notwithstanding this right of retrial here, the rule prevails that the judgment of the district court will not be reversed when the result depends alone upon questions of fact depending upon conflicting evidence, unless there is a decided preponderance against the judgment, where the trial judge saw and heard the witnesses, and had an opportunity of weighing their intelligence and candor. This was the rule applied in the circuit courts when the appeal was from the district to the circuit court. The Rockaway, 25 Fed. 775; Levy v.

The Thomas Melville, 37 Fed. 271; The Sampson, 4 Blatchf. 28, Fed. Cas. No. 12,279; The Sunswick, 5 Blatchf. 280, Fed. Cas. No. 13,625; The Albany, 48 Fed. 565; The Parthian, Id. 564. It is the rule prevailing in the Second circuit court of appeals (The Jersey City, 1 U. S. App. 244, 2 C. C. A. 365, 51 Fed. 527; The Royal and Superior, 14 U. S. App. 30, 4 C. C. A. 285, 54 Fed. 204; Aktieselskabet Banan v. Hoadley, 20 U. S. App. 344, 9 C. C. A. 61, 60 Fed. 447), and in the Ninth circuit (The Warrior, 7 U. S. App. 560, 4 C. C. A. 498, 54 Fed. 534).

The same rule was applied by this court in the case of The Charles Hebard, 6 U. S. App. 641-649, 5 C. C. A. 516, 521, 56 Fed. 315, 320, where District Judge Sage, speaking for the court, said: “The record contains over four hundred printed pages of conflicting testimony, which it is impossible to reconcile. There are interested witnesses and incongruities of statement on both sides. The case turns entirely upon questions of fact. Most of the evidence was taken in open court, in the presence and hearing of the trial judge. It was carefully considered and carefully decided.

Under such circumstances, the conclusions of the judge, who saw and heard the witnesses, and knew best what credit to give to their testimony, ought to have great weight with an appellate court, hearing the cause upon the record only, and without any additional evidence.

The judgment below ought not to be disturbed, except upon a clear showing that it was wrong.” A like weight is attached to a finding of fact by a commissioner _to whom a reference has been made in an admiralty cause, and it is difficult to see why at least equal weight shall not be given to a conclusion of fact drawn under like circumstances by the skilled and trained intellect of the judge of the court. The Cayuga, 16 U. S. App. 577, 8 C. C. A. 188, 59 Fed. 483. The record in this cause is a voluminous one. It presents a very wide conflict of evidence upon every material point in the case.

To state its substance, or the reasons for any deduction we might-draw, would be of no advantage. We are content to say that we find no reason for disturbing the conclusion reached by the very able and experienced trial judge who heard the witnesses in this cause testify, and was enabled to judge of their comparative knowledge, intelligence, and integrity. The fact that after such a hearing he found as he did is a fact of determining character on a record such as this. The judgment is therefore affirmed.