a bare acquiescence upon their part, and therefore they did not owe him any duty in reference to the condition of the premises.

The defendants' lease excepted and reserved from the premises demised the use of the premises for the purpose of loading or unloading coal, and the right to use the premises for the loading and unloading of coal was in the Consumers' Coal Company at the time of the accident to the libelant's boat, and had been for some time previously. At the time of the accident the wharf was used by the defendants for loading and unloading building materials, and by the Consumers' Coal Company for loading and unloading coal. The libelant came there with his boat to unload coal for the Consumers' Coal Company. As the libelant came to the wharf upon the express invitation of the Consumers' Coal Company, .the case, upon the facts proved, would be clear against that company, if it, instead of the present defendants, had been sued. But it seems equally clear that the defendants, as occupants of the wharf, having the general possession and control, were under an obligation to keep the premises in a reasonably safe condition for the use of all persons who might lawfully resort there; and any person lawfully going there for the transaction of business to which the premises were appropriated had a right to assume, as against the defendants and all other persons in occupancy and control, that the structure itself, and the access to it, were in a reasonably safe condition. Upon this ground, and not because of the covenant in the defendants' lease to keep the premises in repair, the decree of the district court is affirmed.

CLEARY v. OCEANIC STEAM Nav. Co.

(Circuit Court, S. D. New York. December 23, 1889.)

WHARFINGERS-DUTY TO REPAIR.

In an action to charge the defendant for negligently allowing a wharf to get out of repair, the fact that the door and fastening were in good repair when the defendant assigned the right to collect wharfage and cranage does not relieve the defendant from its duty to keep the wharf in a safe condition.

Motion for a New Trial.

Herman H. Shook, for plaintiff.

Wheeler & Cortis, for defendant.

Before LACOMBE and WHEELER, JJ.

PER CURIAM. There was sufficient in the evidence to warrant the jury in finding that the door or its fastening was in a condition of disrepair for a period long enough to justify the imputation of negligence. The fact, which was quite clearly shown, that the door and fastening were in good repair when the defendant assigned to the Spanish-American Company the right to collect wharfage and cranage at the pier did not relieve the defendant from its duty to keep the wharf in safe condition.

THE JOSEPH LAUGHLIN v. THE JAS. RUMSEY.

(District Court, S. D. New York. January 20, 1890.)

SALVAGE-STRANDING-APPREHENDED DANGER-PROMPTNESS.

A tug-boat, going upon signal to the relief of a ferry-boat stranded in a dangerous position, though not in immediate peril, and lying by her and assisting in getting her off the rocks, is entitled to salvage compensation. The service being short, the labor light, and without danger to the salying vessel, held, $300 is a reward sufficiently liberal to induce the promptest assistance in harbor cases.

In Admiralty. Libel for salvage.
Peter S. Carter, for libelant.

Carpenter & Mosher, for claimant.

BROWN, J. While the ferry-boat Jas. Rumsey was on her usual trip from Ninety-Ninth street, East river, to College point, at about half past 11 in the forenoon of July, 1889, she grounded on the rocks at Negro point. She signaled for assistance, and the steamer Sylvan Shore came along-side a few moments afterwards, and took off such of her passengers as wished to leave her. Soon afterwards several other tug-boats came in answer to her signals, and the libelant's tug, the Laughlin, was hired to remain by her, and give such assistance as might be needed. No price was named. The Rumsey had grounded on the point about amidships, heading eastward. The tide was strong flood. The point was a dangerous one, but she lay easy for the time being; and though upon an immediate examination of the Rumsey it was found that she was not leaking, and so far as appeared had not sustained any material injury, her situation was one of more or less danger, owing to the very rapid tide, from five to eight knots, and the tendency of the vessel in the rising tide to swing one way or the other, and possibly get again on the rocks, or suffer some twist, before she could be got under control by her own machinery; or, if her machinery should be obstructed in its full working power, she was liable to be carried on to Steep (Scaly) Rock on the other side, unless a tug was retained for assistance in an emergency. At the time when the Laughlin went to her the case was not one of immediate and present danger, but of a reasonable apprehension of danger, sufficient to bring the case within the line of salvage service. The Plymouth Rock, 9 Fed. Rep. 413. The Laughlin lay along-side of the Rumsey for about an hour and a half, when, in the rise of the tide, the Laughlin, working in conjunction with the Rumsey's engines, shoved her astern off the rocks, and then, by a line thrown to her stern quarter, checked the swinging of her stern in the strong flood-tide, and brought her to; whereupon she proceeded to College point, and thereafter performed her usual trips during the day. The Rumsey was taking the place of another boat laid up, and, to be safe against all contingencies, the services of the Laughlin were retained during two of those subsequent trips.

I can have no doubt, upon the foregoing facts, that when the Laughlin was hired compensation was contemplated by both parties on a salvage

basis, rather than a mere towage compensation at the ordinary rate of eight dollars an hour. The amount to be allowed must be determined with reference to the various elements on which such compensation is based. The ferry-boat was worth not over $10,000; the tug, somewhat less. As it turned out, the damage to the Rumsey was small, and her working power unaffected; so that it is probable, or at least possible, that she might have taken care of herself without any aid. There is no evidence of any danger to the Laughlin in rendering the services she rendered. There was no occasion for daring, and no special skill. The acutal service was short; it was attended by no difficulty, and by little labor. All the elements that enter into a salvage award exist herein but in a small degree. There were also plenty of other tugs ready to give any needed help. Four others, equally good, were in attendance. The Laughlin was selected instead of another tug, with whose master negotiations were already pending when the Laughlin arrived, because the Laughlin was at the time understood to have a wrecking pump that might possibly be serviceable. The Laughlin had no such pump, and none was in fact needed. These considerations preclude any large award. The Baker, 23 Fed. Rep. 109; award reduced, 25 Fed. Rep. 771. It is of great importance, however, in all cases of danger, or of apprehended danger, that, where a call for help is made, other boats able to aid should repair instantly to the place of danger; and, though the service finally found necessary may be comparatively small, the compensation allowed should be so far beyond the ordinary rates of daily work, and so liberal that there should never be the slightest hesitation in dropping ordinary business and running to the scene of danger. The rate of compensation must be such as to secure always the promptest assistance. Upon the above considerations I award the libelants $300 and costs; two-thirds of the award to go to the owners of the tug, and of the remaining third $25 to go to the master, and the rest to be divided among the master and the crew in proportion to their wages.

THE KIMBERLEY.

BAKER SALVAGE Co. v. THE KIMBERLEY.

(Circuit Court, E. D. Virginia. August 4, 1889.)

In Admiralty. On appeal from district court. See ante, 289.
Butler, Stillman & Hubbard, for appellant.

Sharp & Hughes, for appellee.

HARLAN, Justice. This cause having come on to be heard in this court upon the appeal of John Higgins, master of the steamer Kimberley, and the claimant of the said steamer, her cargo and freight money,

from the decree of the district court entered in this cause on the 29th of June, 1888, and upon the pleadings and proofs presented in the said district court, and having been submitted by Messrs. Sharp & Hughes, as proctors for the libelant, and Messrs. Butler, Stillman & Hubbard, as proctors for the claimant, it is now by the court ordered, adjudged, and decreed as follows:

First. That the services in the libel mentioned are salvage services of a high degree of merit.

Second. That the libelant do recover of the said steam-ship Kimberley, her cargo and freight money, the sum of $100,000, with interest thereon from this date until the date of payment, and the costs.

Third. And it appearing to the court that by a consent decree entered in the district court on April 23, 1888, registered bonds of the city of New York of the par value of $200,000 were authorized to be transferred to Charles G. Ramsey and Walter H. Taylor as trustees, and have been so transferred, in trust to hold the same until the final decree of said court or of any appellate court to which the cause might proceed, and directing the said trustees, 10 days after service of such final decree, to sell and convert into cash the said bonds, or such portion of them as might be necessary, and out of the proceeds to satisfy any decree that might be rendered in favor of the libelant, if the same should not be previously satisfied or appealed from, and directing them also to pay the surplus of such bonds, if any, to the National Board of Marine Underwriters, as guarantors for the said John Higgins; and it appearing, further, that by the said decree of April 23, 1888, and by the final decree of the district court in this cause, that other bonds (of a class to be approved by the libelant's proctors) were directed to be transferred to the said trustees upon the like trust; and it appearing that they have been so transferred to the said trustees,-it is further ordered, adjudged, and' decreed by the court that the said trustees do proceed to execute the said trust as set forth in the said decree of April 23, 1888, 10 days after the service upon them of a copy of this decree.

At Law.

ETNA LIFE INS. Co. v. DAVEY.

(Circuit Court, D. New Jersey. September 27, 1889.)

On motion to set aside verdict, and for new trial.

For report of charge on first trial, see 20 Fed. Rep. 482. On motion for new trial, see Id. 494. For report of opinion reversing the judgment, and granting a new trial, see 8 Sup. Ct. Rep. 331. For report of charge on second trial, see 38 Fed. Rep. 650.

John Linn and Cortlandt Parker, for plaintiff.

Theron G. Strong and Jos. D. Bedle, for defendant.
Before BRADLEY, Justice, and WALES, J.

PER CURIAM. We feel compelled in this case to set the verdict aside, and grant a new trial, on the ground that it was contrary to the weight of the evidence, and the instructions of the court. It was a condition of the policy that "if he [the insured] shall become so far intemperate as to impair his health, or induce delirium tremens, or if his death shall result from injuries received while under the influence of alcoholic liquor, this policy shall become and be null and void." The proof of the physician who attended the deceased in his last illness, and of others immediately around him, was so positive on this subject, and so free from contradiction, that it is difficult to conceive how the breach of the condition could be proved, if it was not proven in this case. The evidence on the subject of his general habits was of a negative character, the witnesses never having seen the deceased intoxicated, and cannot outweigh the positive evidence. The court is always reluctant to interfere with the verdict of the jury on this ground, and will not do so where the evidence is really conflicting. But if it is apparent that the jury disregarded the evidence, and that they must have acted under some misapprehension or prejudice, it is the duty of the court to correct their error, and set aside the verdict. We think that this was the case here. It is argued that a second verdict on the facts will not be interfered with. That rule has qualifications. The former verdict was set aside, not for an error of the jury, but for errors in the charge of the court; and hence the case does not come within the reason of the rule. It is where the evidence is conflicting, and the judgment of the jury upon it is twice called in question, that the rule applies. Let the verdict be set aside, and a new trial granted.

END OF VOLUME 40.