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citizenship or alienage. There is no mention of either in this declaration or writ. The defendant is set up as a corporation organized under the laws of the commonwealth of Massachusetts, which may well enough show that it is a citizen of the state of Massachusetts; but the plaintiff is only set up as "of Brattleboro, in the county of Windham and state of Vermont, executrix" of the will of Walter D. Stockwell, late of Brattleboro. This may be true and she not be a citizen of Vermont, but only a temporary resident or inhabitant, and a citizen of the same state as the defendant. Shaw v. Quincy Mining Co., 145 U. S. 444, 12 Sup. Ct. 935, 36 L. Ed. 768. This leaves the court now without jurisdiction of the question discussed by counsel as to maintaining a suit upon the New Hampshire statute.
STOCKWELL v. BOSTON & M. R. CO.
(Circuit Court, D. Vermont. July 11, 1904.) 1. FEDERAL COURTS-DIVERSITY OF CITIZENSHIP-AVENDMENT OF RECORD.
Where a demurrer to a declaration in a federal court was sustained because of an insufficient averment of diversity of citizenship on which jurisdiction depended, plaintiff was entitled to amend the writ to show
diversity of citizenship according to the fact. 2. WRONGFUL DEATH-TRANSITORY CAUSE OF ACTION-ACCRUAL-PLACE.
Where intestate was domiciled in Vermont at the time he was killed in New Hampshire, the cause of action for his alleged wrongful death ac
crued to him in Vermont, and not in New IIampshire. 3. SAME-SURVIVAL OF ACTION.
A cause of action for wrongful death would not survive, as authorized by Pub. St. N. H. 1901, c. 191, in any place where an administrator should be appointed merely for the purpose of recovering damages for such wrongful death as an asset of decedent's estate, but survived only in the state where deceased had his domicile at the time of his death,
where the cause of action accrued.
WHEELER, District Judge. As the writ has been amended according to the fact, which is allowable in such cases, the plaintiff now stands as a citizen of this state, and this court has now jurisdiction to consider the cause of action set up in the declaration as challenged by the demurrer.
The intestate was domiciled in Vermont, and, although he was killed in New Hampshire, here is the place where transitory causes of action would accrue to him and survive, if by law survivable. The action is for causing his death, and by the statute of New Hampshire is made to survive for the benefit of the widow and of the children, if any; but the statute does not provide to what personal representative the cause
11. Averments of citizenship to show jurisdiction in federal courts, see note to Shipp v. Williams, 10 C. C. A. 261.
of action shall survive. That is left to the operation of general law. Pub. St. N. H. 1901, c. 191. It would not survive in any place wiere an administrator should be appointed merely for recovering this liability as an asset. Lyon v. Boston & M. Railroad Co. (C. C.) 107 Fed. 386. As no cause of action would accrue to the deceased in such a jurisdiction, there would be none to survive; but wherever it should accrue to him, there it would be to survive. Dennick v. Railroad Co., 103 U. S. 11, 26 L. Ed. 439; Stewart v. Baltimore & Ohio Railroad Co., 168 U. S. 445, 18 Sup. Ct. 105, 42 L. Ed. 537. The right of action seems by the statute to be intended to survive where it would accrue to the deceased, which would be at the place of his domicile and principal administration, which is here; and the plaintiff seems to be his personal representative here, to whom it would survive if it existed.
(District Court, D. Maryland. June 28, 1904.) 1. COLLISION-F0G-NEGLIGENCE.
Defendant steamer, while seeking anchorage in Chesapeake Bay during fog, collided with libelants' schooner, laden with cord wood, with such force as to cut into the schooner's hull, though her deck was loaded 8 feet high, with wood which extended about 10 inches beyond her hull. At slow speed, with her engines full speed astern, the steamer could have stopped her headway in not more than twice her length, yet, when those on the steamer heard the schooner's fog horn, and the pilot gave orders to reverse, the vessels were so close that a collision could not be averted. The only lookout maintained on the steamer was in the crow's-nest on the foremast, 60 feet above deck, and over a flock of sheep laden on deck, the bleating of which tended to neutralize signals. There was evidence that the schooner was going at a speed not exceeding four miles an hour, and that she blew proper fog signals at very frequent intervals. Held, that the collision was caused either by the immoderate speed of the steamer, or by her failure to seasonably hear the schooner's foghorn, caused by failure to maintain a lookout in the bow, and that the steamer was therefore liable.
Arthur George Brown, Charles W. Field, and R. E. Lee Marshall, for respondents.
MORRIS, District Judge. This was a collision in a fog off Smith's Point, in the Chesapeake Bay, between the steamer Vedamore and a small schooner-rigged sail vessel loaded with wood. The fog was of such density that vessels could not be seen more than 200 or 300 feet off, and the master of the steamship considered it was unsafe to navigate a vessel of the great size and momentum of the Vedamore in the Chesapeake Bay, and had urged the pilot to come to anchor. The pilot sounded the depth, and, finding 17 fathoms, concluded that it would be better to take the steamer nearer to the westward shore, and more out of the track of vessels, before anchoring. He headed the steamship to the westward, going at a slow speed, and had stopped his engines preparatory to anchoring, when he heard the fog signals of another steamer approaching him in her course down the bay. He then, in order to avoid lying directly across the track of the approaching steamer, started his engines slowly ahead, directing his course to the southward until the approaching steamer had overtaken him and passed on his port side. Having again sounded the depth of the water while proceeding at a very slow speed, he was preparing to anchor, when the fog signal of the schooner was heard on the port bow. As soon as the signal was heard on the bridge, the pilot rang to stop and reverse the engines; but, before the steainship came to a standstill, it collided with the schooner, with the result that the schooner was so cut into that she filled with water, and would have overturned, but was held upright by the entanglement of her rigging with the bow of the steamer until the steamer, after the schooner's master and crew had been taken on board, backed out from her.
1. Collision rules, speed of steamers in fog, see note to The Niagara, 28 C. C. A, 532.
The proof in the case supports the contention that the schooner had a light wind, and was going at a moderate speed, not exceeding four miles an hour, and that she was blowing proper fog signals at very frequent intervals. The light wind was blowing from her directly towards the steamer, the water was smooth, and there was nothing in the weather or the water to prevent the schooner's horn from being heard on the steamer. As to the steamer's speed, the proof and all the surrounding circumstances support her contention that she was going at a moderate speed-probably not over four or five miles an hour, and perhaps less. The testimony of the master, the pilot, the second officer, and the wheelsman, all of whom were on the steamer's bridge, is that, as soon as the schooner's horn was heard on the bridge, the pilot signaled full speed astern to the engine room. And yet the vessels came together with sufficient force to cut into the schooner's hull, although lier deck was loaded 8 feet high with cord wood, which extended out 10 inches beyond the sides of the schooner's hull. Going at slow speed, the steamer, with her engines full speed astern, could have stopped her headway in not more than twice her length; but it appears that when those on the steamer's bridge heard the schooner's fog horn, and the pilot gave the order, the vessels were so close together that the steamer did not stop her headway in time to avoid cutting down the schooner. I think the proof leaves only one probable explanation of this state of facts, and that is that the schooner's signals were not heard as soon as they should have been.
The steamer is of the largest class of ocean freight steamers. Her bridge is at least 150 feet from her bow. The only lookout was in the crow's-nest on the foremast, some 60 feet above the deck. The steamer was carrying on her deck a large number of sheep. The master, I think, said about 1,000 of them. When the schooner's fog signal was first heard on the bridge, the master said to the pilot, "I just heard either a fog horn or the bleating of a sheep;" and, the lookout just then signaling by one stroke on his bell a vessel on the port bow, the pilot rang to the engine room, “Full speed astern,” and the collision quickly followed. It seems not improbable that the attention of those on the bridge was directed to finding a suitable anchorage, and to getting ready to anchor, and to the danger from the other steamer which had been coming down behind them, and had only just then passed clear, and their hearing may have been distracted by the noises from the animals on deck. The lookout was up high on the foremast, about a hundred feet from the stem, and over the animals. This was not the best location for hearing the fog signals of the small sailing vessels, of which so many navigate the Chesapeake Bay. I should say that a man forward in the very bow would be in a better position. In so dense a fog, and in a water so frequented by vessels, every reasonable precaution should be observed; and it would seem that, under the surrounding circumstances, a lookout forward on the bow would have been a proper additional safeguard. It seems quite satisfactorily proved that the schooner gave fog signals which should have been seasonably heard. The mate of the schooner testified that on the schooner they heard at intervals three fog signals from the steamer, and that the schooner's signals were blown more frequently and at less intervals. If they had been seasonably heard, I cannot find that there was anything to prevent the steamer coming to a standstill in time to prevent damage to the schooner. The schooner having but little speed, the collision must have been caused either by the immoderate speed on the part of the steamer, or by her failure to seasonably hear the schooner's horn. In my judgment, the surrounding circumstances point to this latter cause as the fault to which the collision is attributable.
Decree in favor of the libelants.
PETERSON v. ROESSLER & HASSLACHER CHEMICAL CO.
(Circuit Court, D. New Jersey. July 22, 1904.)
1. MASTER AND SERVANT-INJURIES TO SERVANT-MEASURE OF DAMAGES.
In an action against a master for injuries to a servant, in the absence of aggravating circumstances, the measure of damages is the pecuniary
loss sustained by plaintiff, and compensation for suffering endured. 2. SAME-DAMAGES-PECUNIARY Loss-How ESTIMATED ON COMPLETE DESTRUC
TION OF EARNING POWERS.
Where there has been a complete destruction of the plaintiff's earning powers, the pecuniary loss is to be theoretically estimated by the capital which, at a fair rate of interest, will produce a yearly sum equal to the average wages likely to be earned during the plaintiff's expectancy of life, less such a sum as, at compound interest for the same period, will equal duced to $8,000, of which $6,000 should be awarded for the pecuniary loss
and offset such sum. 3. SAME-DAMAGES-ExcESSIVENESS.
Where plaintiff, a laborer 39 years of age, who had been in defendant's employ for 11 years, during which time the character of his work had not materially changed, was so injured by the explosion of certain lime that he lost his sight at a time when his earning capacity was $1.50 per day, a verdict awarding plaintiff $9,500 was excessive, and should be re
sustained, and $2,000 as compensation for suffering. Rule to show cause why a new trial should not be granted on the ground that the verdict is excessive.
Willard P. Voorhees, for the rule.
ARCHBALD, District Judge. The ground of the defendants' liability is a narrow one. The plaintiff, who was employed as a laborer at their works, was engaged in the somewhat ordinary task of making whitewash from unslacked lime. He was using a sheet-iron can or drum, about the size of a barrel, and, after the lime had slacked a little, incautiously pouring in a second supply of water and stirring it around with a stick as he stood over it, the lime exploded in his face and burned out his eyes.
The jury have found that, on account of the danger involved in the process, particularly where such a vessel as this was used, the plaintiff, who was unacquainted with it, ought to have been properly warned and instructed, for failure of which they have given him a verdict for $9,500. It is claimed that this is excessive, in view of the fact that the plaintiff was an ordinary laborer, earning but $1.50 a day; and the court is moved to reduce the verdict to what would be reasonable, or to grant a new trial in case the plaintiff refuses to consent to it. It is a delicate matter to revise the action of a jury in such a case, the whole subject of the damages to be given being committed so completely to their judgment. There are a few general considerations, however, which afford some guide. Aside from the question of the suffering endured, and there being no circumstances of aggravation, the basis of the verdict is the pecuniary loss which has been sustained; and to that, so far as it can be determined, it is to be confined. The question in the present instance is whether that has been exceeded. The plaintiff, as already stated, was a day laborer, doing the most ordinary manual work, and earning $1.50 a day. He was 39 years old at the time of the accident, and had been in the defendants' employ for about 11 years, during which time the character of his work had not materially changed. By the loss of his eyes he is deprived of the means of making a living, such as he had been doing, and the question is, what is a fair compensation therefor?
The earning capacity of the plaintiff at the time of the accident was undoubtedly at its maximum. In all the years of his employment, he seems to have made no advance, and none could therefore be expected in the years to come. His physical powers were also at their best. With steady employment, uninterrupted by sickness, accident, or other cause, his wages would amount to about $450 a year. But with the uncertainties of life considered, of which his present condition affords an unfortunate example, he could hardly count on this for all time. Much less could he with advancing age, assuming that he lived out his expectation, according to the tables of mortality, of 25 or 30 years. What, then, can be said to represent the present cash value of the abil
1 Specially assigned.