Christensen. If he had properly attended to that duty, he would have thrown the gypsy out of gear after the last move, and he would have seen to it that the winch head was kept out of gear until the spud was raised and the dredge could be moved forward. He would have seen, when the whistle sounded, that the after gypsy was still in gear, and that the giving of steam to the engine could not fail to start the gypsy and take in the quarter line on the port side, necessarily endangering the persons and property near the point where the libelant was. The preponderance of the evidence convinces the court that Christensen saw Nelson just before or at the time the whistle sounded. He therefore knew that the libelant was in a dangerous position, and even then it was his duty, either to see that the libelant moved from that position of danger, or to see that the gypsy was at once thrown out of gear, so as to avoid the great peril in which the libelant was placed. For although the libelant had placed himself in a position of some peril which he knew, namely by being within the bight of a rope, the great peril was a peril which he did not know. That peril resulted from the fact that the gypsy head was in gear, so that when steam was given to the engine great danger would ensue to any one in that vicinity.

The principle that the party who has the last opportunity of avoiding the accident is not excused by the negligence of any one else has now become settled law. It is a familiar rule that where the plaintiff's negligence is so communicated by knowledge that by the exercise of ordinary care and skill the defendant might have avoided the injury the plaintiff's negligence cannot be set up in defense of the action. The leading case upon it is Davies v. Mann, 10 M. & W. 547. Parke, B., announced the rule of the court that "the negligence which is to preclude a plaintiff from recovery in an action must be such as that he could by ordinary care have avoided the consequences of the defendant's negligence."

case.

The federal courts have followed in the line of this leading English In Gilbert v. Erie Railroad, 38 C. C. A. 408, 97 Fed. 747, the court quoted from a celebrated text-writer:

"It is not necessary that the defendant should actually know of the danger to which the plaintiff was exposed. It is enough if, having sufficient notice to put a prudent man on the alert, he does not take such precautions as a prudent man should have taken under similar circumstances."

In Grand Trunk Railway Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485, the court said:

"Although the defendant's negligence may have been the primary cause of the injury complained of, yet an action for such an injury cannot be maintained if the proximate and immediate cause of the injury can be traced to the want of ordinary care and caution in the person injured, subject to this qualification: ** That the contributory negligence of the party injured will not defeat the action if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party's negligence."

*

In the Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, II Sup. Ct. 653, 35 L. Ed. 270, Mr. Justice Gray, of the Supreme Court, states the rule substantially as laid down in Grand Trunk Ry. v. Ives.

B. & O. R. R. Co. v. Hellenthal, 31 C. C. A. 414, 88 Fed. 119, affirms this rule.

In Washington & Georgetown R. R. Co. v. Harmon's Adm'r, 147 U. S. 582, 13 Sup. Ct. 560, 37 L. Ed. 284, Chief Justice Fuller comments very clearly upon this principle. He said:

"If the conductor negligently failed to observe whether the plaintiff had alighted, or, knowing that he had not alighted, he started the car too soon, and in consequence of that a sudden jerk of the car took place, and threw him down, and was the immediate cause of his falling, and the accident would not have happened but for that fact, we think it clear that such negligence as might be imputed to the plaintiff in being upon the step at all could not, under the circumstances supposed, be properly held to have been contributory negligence. It may be said that he placed himself where he was in the risk of falling off, but that was a risk he could not have anticipated as the result of a sudden start before he got off."

*

The law of the case on this subject has never been more clearly stated than by Judge Taft in the Louisville & N. R. R. Co. v. East Tennessee, V. & G. R. R. Co., 9 C. C. A. 317, 60 Fed. 996. Judge Taft says:

"If, with the knowledge of what the plaintiff has done or is about to do, the defendant can, by ordinary care, avoid the injury likely to result therefrom, and does not, the defendant's failure to avoid the injury is the last link in the chain of causes, and is in law the sole proximate cause."

The courts of Maine have passed very fully upon this question. In Ward v. Railroad Co., 96 Me. 144, 51 Atl. 949, the court said:

"The plaintiff's intestate went upon the premises in connection with the business of the company. # He was properly there, and not a mere licensee upon the premises for his own convenience, and, even although he might have been negligent, if his negligence did not contribute directly as a proximate cause to the injury it does not prevent his recovering, unless it contributed to some extent as a proximate cause for the injury. So that although a plaintiff may have been negligent, and his negligence may have afforded an opportunity for the injury, if it precedes the injury, which is caused by a defendant's subsequent and independent negligence, then such negligence upon the part of a plaintiff will not prevent a recovery by him."

In Fickett v. Fibre Co., 91 Me. 268, 39 Atl. 996, it was held:

"In an action brought by the servant against the master, if the plaintiff knew and appreciated the danger which was the cause of the injury then he may be held to have voluntarily assumed the risk. But mere notice that there was some danger, without appreciating the risk, will not, of itself, preclude the plaintiff from recovering."

In Conley v. Maine Central Railroad, 95 Me. 149, 49 Atl. 668, the court said:

"However negligent he [plaintiff] may have been in getting into the path of the ferry boat, still such negligence was not the proximate cause of the injury; that the negligence of Conley preceded and was independent of the negligence of the defendant; and that, notwithstanding Conley's negligence, the collision could have been avoided by the use of ordinary care and caution at the time by the defendant; and hence that Conley's conduct did not contribute to produce the collision. If Conley and the Hercules were respectively where the plaintiff's witnesses say they were, at the time the alarm whistle was sounded, the Hercules approaching Conley, and Conley apparently unable to make headway against the tide and to get out of the path of the Hercules, the defendant was bound to exercise due care to prevent a collision."

See, also, Atwood v. Railroad Co., 91 Me. 399, 40 Atl. 67; Pollard v. Railroad Co., 87 Me. 51, 32 Atl. 735; O'Brien v. McGlinchy, 68 Me. 552.

In the federal courts contributory negligence is a defense. The burden of proof is upon the defendant. Reasonable presumptions and inferences in respect to matters not proven or left in doubt should be in favor of the injured party. Wabash Railroad Co. v. Central Trust Co. (C. C.) 23 Fed. 738.

The cases which we have cited seem to us to decide principles which are vital in the case at bar. They are principles drawn from the courts of common law. It is true that courts of admiralty have much greater powers than courts of common law in dividing the damages, and in fixing these damages in accordance with the fault or negligence which is properly to be charged to either party. The principles drawn from the cases above cited seem to us, however, to be entirely applicable to the admiralty side of the court and decisive of this case.

We think that the libelant is not chargeable with fault in failing to avoid the consequences of the defendant's negligence. It was not his duty to take charge of the gypsy heads. He knew nothing of their management, and he was not bound so to know. He was not charged with the duty of going to the gearing and seeing if it was in a proper position when the whistle sounded, but Christensen was charged with this duty. It is true that the libelant was guilty of some negligence in sitting within the bight of a hawser. But, as bearing upon the measure of this negligence, it may properly be said that those who saw him there, and had no further information than he did as to the condition of the clutch and gear, did not think his negligence was of sufficient account to demand any warning upon their part. The injury could have been avoided if, after his position was known to the management of the dredge, and particularly to Christensen, the gypsy head had been thrown out of gear; for it was the duty of Christensen, when he found that the libelant was in a dangerous position, to see to it that the great danger was avoided by throwing the gypsy head out of gear. Even though he had left it in gear after the last move, and allowed it to remain in gear up to the time of seeing the plaintiff on the bitt, still at that time he could have avoided the injury by throwing it out. of gear. The evidence convinces the court that Christensen had either carelessly left the clutch in gear, or had neglected to seasonably see that it was thrown out of gear. Having been guilty of one of these two faults, he could still have avoided the injury when the whistle sounded by giving the libelant warning, or even by then throwing the gypsy out of gear. So that the primary fault and the final. fault was with Christensen.

Although the libelant placed himself in a position of some danger, he clearly did not appreciate the great danger he was actually in, for he did not know it, and did not have reason to know it. Under the doctrine of the cases which we have cited, while he is charged with notice of some danger, he did not appreciate the risk he was taking, for he did not know the danger he was actually assuming. It was not the case of two contemporaneous negligences, for the negligence of the defendant was continued after the negligence of the

libelant. The final negligence of the defendant in not throwing the winch head out of gear when or just before the whistle sounded was sufficient to produce the injury. If the ordinary precautions, which the libelant had a right to expect, had been observed by those in charge of the dredge, particularly by Christensen, there would have been no injury. It cannot be contended that the ordinary use of the lines, passing over the gypsy head and around the bitt, in a proper management of the dredge, would have broken the bitt; but the heavy strain being placed upon the lines, the spuds not being up, disaster must and did follow.

The court finds that the injury was due to the negligence of the dredge and those in charge of it. There must, therefore, be a decree in favor of the libelant, with an order of reference to ascertain the amount of the damages.

In re DAUCHY.

(District Court, N. D. New York. May 19, 1903.)

CONCEAL

1. BANKRUPTCY-DISCHARGE-DENIAL OF APPLICATION GROUNDSMENT OF PROPERTY. Bankr. Act July 1, 1898, § 14, subd. "b," 30 Stat. 550, c. 541 [U. S. Comp. St. 1901, p. 3427], provides that a discharge will be refused if the bankrupt has committed an offense punishable by imprisonment as provided in the act. Section 29, subd. "b," 30 Stat. 554, c. 541 [U. S. Comp. St. 1901, p. 3433], provides for the punishment by imprisonment of a bankrupt who has knowingly and fraudulently concealed property from his trustee, or who has made a false oath in relation to the proceedings in bankruptcy. An amendment to said section 14, subd. "b," made February 5, 1903 (Act Feb. 5, 1903, § 4, 32 Stat. 797, c. 487), provides that such discharge will be refused if the bankrupt has "(4) at any time subsequent to the first day of the four months immediately preceding the filing of the petition transferred, removed, destroyed or concealed * any of his property with intent to hinder, delay, or defraud his creditors." Held, that where, prior to the amendment, property was transferred by a bankrupt by a deed absolute on its face, and without consideration, but not limited by an agreement retaining some interest in the grantor, there was, as to such property, no concealment by the bankrupt from the trustee of property belonging to the estate.

2. SAME-SECRET TRUST-SUFFICIENCY OF EVIDENCE.

More than two years prior to the date when she was adjudged a bankrupt, a debtor conveyed real estate, without consideration, to her father, who conveyed it to the debtor's son. It was shown that the debtor was insolvent at this time, if liable on a note indorsed by her; that after the conveyance the property was rented, the negotiations being mainly conducted by her; that she indorsed checks given her for the rent to her husband, who used the proceeds for the benefit of the family, i..cluding the son, who was 23 years old, and not accustomed to business; and that she received some of the rent, but expended it for repairs on the property. It did not appear that there was any agreement to hold the property for her benefit or to reconvey to her, or that she retained an interest therein, or was to have the income thereof, or that she then contemplated bankruptcy, or had, since the conveyance, claimed any beneficial interest in the property. Held insufficient to defeat her application for a discharge on the ground that, while a bankrupt, she knowingly or fraudulently concealed the property from her trustee, or to prove that it was held in secret trust for her.

B. SAME-PREponderance of EVIDENCE.

The concealment of property by a bankrupt, sought to be shown in order to defeat his application for discharge, need only be shown by a fair preponderance of satisfactory evidence, as such a proceeding is not a criminal one, in any sense.

Application by Bankrupt for Order Confirming Report of Special Master and Granting a Discharge in Bankruptcy.

Thomas O'Connor, for bankrupt.

Walter S. Logan, for opposing creditors.

RAY, District Judge. Esther A. Dauchy was duly adjudged a bankrupt on her own petition on the 24th day of June, 1901. It is sought to defeat her application for a discharge on the ground that while a bankrupt she knowingly and fraudulently concealed from her trustee in bankruptcy certain property, real estate in Lansingburg, N. Y., and real estate in Nantucket, Mass., which it is alleged she owned-in fact, that is, that it was held by another under a secret trust for her. The question is, is there proof to sustain the allegation? That more than four months prior to the filing of her petition in bankruptcy she disposed of this property by deed in fraud. of her creditors cannot be denied. If the creditors had taken proper action in time, it cannot be doubted that these conveyances would have been set aside as fraudulent as to them. But no proceedings of this nature have been had. The trustee has not taken any steps to have such deeds or conveyances declared fraudulent and void. They were voidable, not void. In 1889 Esther A. Dauchy purchased a cottage at Nantucket, Mass. She gave a mortgage for the amount of the purchase money to her grandmother, and in August, 1893, the grandmother having died, her executor discharged the mortgage without payment. May 15, 1896, said Esther A. Dauchy indorsed the note of her husband's firm for $36,000, which went into judgment December 21, 1900, for $45,403.89. In March, 1897, Esther A. Dauchy deeded this property to her father, Albert E. Powers, in consideration, expressed, of $5,000. August 10, 1898, Mr. Powers reconveyed the property to Esther A. Dauchy. November 28, 1898, Mrs. Dauchy again conveyed the property to said Powers, for expressed consideration of $500, and he conveyed it to Mrs. Dauchy's son William P. Dauchy in consideration, expressed, of $1. The proof shows that Mrs. Dauchy was insolvent at this time, if she had to pay the note. July 15, 1901, shortly after Mrs. Dauchy was adjudged a bankrupt, William P. Dauchy mortgaged the property to one Allen G. Peckham for $5,000, its full value; and in November, 1901, said Joseph A. Powers purchased said mortgage, paying the full amount thereof, with interest. The property has been rented, when occupied at all, since 1898. In 1901 the lease was executed by one Mowry, in the name of the bankrupt, to one Cabot. She mainly conducted the negotiations. The bankrupt received some of this rent, but expended it for repairs. It is evident from the evidence that the husband has been, in the main, controlling and enjoying this property. Mrs. Dauchy, so far as is shown, could not have re13. See Bankruptcy, vol. 6, Cent. Dig. § 722.

122 F.-44