Opinion of the Court.

the part of the steamship by reason of any inability of the wheelsman to turn the wheel with sufficient promptness.

Upon the findings in this case there can be no doubt of the fault of the tug in failing to conform to the rule of the supervising inspectors requiring steam vessels, when engaged in towing during a fog, to sound three distinct blasts of their steam whistles in quick succession, at intervals not exceeding one minute. In fact, the tug appears to have sounded no fog signals at all. The fault in this particular was aggravated by the great length of the tug's line, and it is by no means certain that she was not guilty of a distinct fault in failing to shorten the line as she came up the bay. Had the steamship been apprised of the fact that the tug was encumbered by a tow, there is no doubt that by putting her wheel hard-a-starboard, she could have avoided the barque; but seeing the tug alone, she was under no obligation to take further precautions than such as were necessary to avoid her. Her action after she became aware of the fact that a tow was behind the tug was probably the most prudent that was left to her under the circumstances. Whether she should put her wheel hard-a-starboard, and endeavor to pass the barque to port, or should port, in order to pass between the vessels, was, in the imminence of the collision, largely a matter of discretion with her master, and she should not be condemned for the result. The steamship had been brought into a perilous position by the conduct of the tug, and ought not to be criticised for the efforts she made to extricate herself. Her porting, if an error at all, was one committed in extremis.

Fault is imputed to the barque for failure to cast off her line promptly, and also for conflicting orders given to the wheel, but we are not disposed to scan her actions in the excitement of the moment too closely, although the court finds: (16) That "if the hawser had been cast off promptly the steamer would have probably gone safely between the tug and the barque." We do not find it necessary to express an opinion in this particular.

This is one of those cases where a clear fault has been found on the part of one of the vessels both by the District

Opinion of the Court.

and Circuit Courts, and the findings of fact are such as to render it incumbent upon us to affirm their decree. As we said in The City of New York, 147 U. S. 72, 85: "Where fault on the part of one vessel is established by uncontradicted testimony, and such fault is, of itself, sufficient to account for the disaster, it is not enough for such vessel to raise a doubt with regard to the management of the other vessel. There is some presumption at least adverse to its claim, and any reasonable doubt with regard to the propriety of the conduct of such other vessel should be resolved in its favor." The usual effort is made in this case to impeach the findings of the Circuit Court, but libellant at best has only succeeded in raising a doubt, which is not sufficient. If there be any evidence to support the findings, as there undoubtedly is, they should not be disturbed.

We are by no means insensible of the fact that a practical injustice may have been done to the owners of the Quickstep and her cargo in the litigation which is closed by this decision, by reason of the inability of the libellants to obtain service in this suit upon the tug. It appears that a suit was subsequently begun against the tug in the District of New Jersey. This suit resulted in a decree of the District Court condemning her for the want of a proper lookout, and for failing to stop immediately after her first signal. Kiernan v. The Leonard Richards, 38 Fed. Rep. 767. No opinion was expressed as to the fault of the steamship. On appeal to the Circuit Court this decree was reversed, and the steamship held to have been wholly in fault for not complying with the signals agreed upon, and changing her signals at an inopportune moment, the court construing the fog signals of the steamship as signals to the tug to port. It was said by the District Judge that the barque was conceded to have been free from fault. A like assumption was made by the Circuit Judge, who also stated that, if the people in charge of the Holberg had been brought in to testify, the case might have had a different look. In that suit the steamship was not represented by witnesses. To this suit the tug was not a party, and was not represented by counsel, though two of her crew appear to have been sworn

Syllabus.

on behalf of the libellant.

The result is that, in the suit

in which the steamship was not represented, she was found wholly in fault, and in the suit in which the tug was not represented, she is found in fault. The litigation is an apt illustration of the maxim, les absents ont toujours tort.

We regret that the tug could not have been brought into the case; but the District and Circuit Courts were bound by such testimony as was introduced, and we are bound by the record and the findings of the Circuit Court. Adjudging, as we do upon these findings, that no fault can be imputed to the steamship, we have no choice but to affirm the decree. The decree of the Circuit Court is, therefore,

Affirmed.

BALTIMORE AND POTOMAC RAILROAD

PANY v. MACKEY.

COM

ERROR TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.

No. 84. Argued November 19, 20, 1894. - Decided March 4, 1895.

Where the evidence is conflicting, and no reasonable or proper inference can be drawn from it as matter of law, the case should be left to the jury. Knowledge of a defect in a car brake cannot be imputed to the employé charged with keeping it in order, when he has had no opportunity to see it.

When an instruction to the jury embodies several propositions of law, to some of which there are no objections, the party objecting must point out specifically to the trial court the part to which he objects, in order to avail himself of the objection.

Ambiguous or too forcible expressions in a charge may be explained or qualified by other parts of it, and if the charge does not, as a whole, work injustice to the party objecting, the use of such expressions will not be cause for granting a new trial.

A railroad company, receiving the cars of other companies to be hauled in its trains, is bound to inspect such cars before putting them in its trains, and is responsible to its employés for injuries inflicted upon them in consequence of defects in such cars which might have been discovered by a reasonable inspection before admitting them to a train.

In an action by an executor of a deceased person against a railroad company

Statement of the Case.

to recover damages for the killing of the intestate, an employé of the company, brought under the act of February 17, 1885, c. 126, 23 Stat. 307, which provides that the damages recovered in such action shall not be appropriated to the payment of the debts or liabilities of such deceased person, but shall inure to the benefit of his or her family, and be distributed according to the provisions of the statute of distributions," it is not error to charge the jury that in estimating damages they may take into consideration the age of the deceased, his health and strength, his capacity to earn money as disclosed by the evidence, his family, who they are and what they consist of, and from all the facts and all the circumstances make up their minds how much the family would probably lose by his death.

Pennsylvania Co. v. Roy, 102 U. S. 451, distinguished from this case. The plaintiff's declaration claimed $10,000. He obtained a judgment in the trial court for $8000. The appellate court affirmed this judgment, and ordered that he recover "as in his declaration claimed." Held, that these words did not have the effect of increasing the sum actually recovered in the special term, and that the inaccuracy was not sufficient ground for reversal.

THIS action was instituted under the provisions of the act of February 17, 1885, c. 126, 23 Stat. 307, to recover damages from the Baltimore and Potomac Railroad Company, because of the death of Robert A. Brown, an inspector and repairer of cars in its employ, which resulted from injuries to him, caused by his having been crushed between two freight cars of the defendant in the city of Washington, on the night of March 17, 1887.

There was evidence before the jury tending to show the following facts:

For about five years prior to his death, Robert A. Brown, the intestate of the defendant in error, was in the employment of the Baltimore and Potomac Railroad Company as a car inspector. In the evening of March 17, 1887 - the night being dark and, in the language of a witness, a “fearful" one, "snowing and the wind blowing very hard" - he was on duty in what is called the Jersey Avenue freight yard, in company with his uncle, who was also a car inspector. A fast freight train came in from Baltimore, and upon examination he discovered a defective drawhead (called by railroad men a "bull-nose") on one of the cars. The cars were all coupled together and it was, therefore, impossible to repair

Statement of the Case.

the defective draw head without the assistance of yardmen. Brown thereupon requested the yardmen to "cut" the train. so that the defective drawhead could be reached and repaired. He and his uncle asked the conductor, Phillips, who had control of the shifting engine, to have that done-saying to him. that if he would give them from five to seven minutes they would repair the car, and that if not repaired it would be pulled to pieces. Thereupon the conductor ordered a brakeman, with the yard engine, "to cut the train, and give them a chance to fix it." As soon as the train was cut, Brown and his uncle went to work on the defective car, which was the fifth one from the tender. The cut was between the fourth and fifth car. The deceased took the drawhead out and repaired it. Just as his uncle was about to drop the key in, which holds it together, he felt the cars "going away from him." He immediately came out from under the car and Robert A. Brown was "crushed in between the cars."

When the train of cars was cut, those attached to the engine were pulled forward, leaving a gap in the train. Notice was not given of any purpose after cutting the train to detach the engine from the four cars it pulled away in order that Brown and his uncle might reach and repair the drawhead. The two cars next to the one to be repaired were heavily loaded with coal. The grade from South Capitol Street to New Jersey Avenue was quite steep. While deceased was engaged in the work of repairing-his back being towards the engine that had been used to draw some of the cars away so that the inspectors could do their work- the engine was detached from the cars attached to it, and sent off on other duty. The result was, that the cars that had been attached to the engine came back down the grade towards the defective car, and against Brown and the car he was repairing. An effort was made to stop them by the use of a brake on one of the cars a "foreign" car — but the brake was insufficient for that purpose, and was itself out of order and defective.

A car

There was evidence tending to show that car inspectors were not expected or required to repair foreign cars. inspector testified: "There are cars that come into our yards