Page:Federal Reporter, 1st Series, Volume 1.djvu/625

MALONÏ V. CITY OP MILWAUKEE. 617 �bridge from the Gibson, to save the horses which were on board, the shore end of the bridge rested in the water on the sloping wall below the tow-path. This, it is claimed, shows that the Gibson was too far out into the canal. The argu- ment has little force, for want of certainty in the elements of the calculation. The length of the bridge, and the distance from the wall to water deep enough to fioat the Gibson, are only given according to the estimates of witnesses, and not from actual measurements. The possible variation or error in these elements leaves the place still undetermined, and to be fixed by other proof. The libellant's witnesses deny the fact that the bridge rested in the water, but quite likely they have forgotten the circumstance ; and it is probable that some of the claimants' witnesses have exaggerated it when they place the end of the bridge two feet under water, and make the horses climb or jump a steep wall of stone some six feet above the bridge. But, however this may be, the evidence is wholly indecisive as proof of the Gibson having sheered out. Such a sheer, under the circumstances, would be in the high- est degree improbable and fool-hardy — a runninginto danger with one's eyes open. Upon the whole evidence it is clear that this allegation of a sheer on her part must be held not proved. �In reaching this conclusion I have given very little weight to the testimony of the steersman of the City of Syracuse, who was a wituess for the libellant, and who testifies that it was impossible, on aecount of the wind and defects in the rudder of that boat, to keep her headed towards the berme bank at ail as she approached the Gibson. This witness is shown to have made contradictory statements on that point out of court, and on several other points he is so seriously contradicted that I should be unwilling to find any fact on his unsupported testimony. �On the question how the City of Syracuse headed with reference to the course of the City of Milwaukee, the master and steersman of the latter boat, as above stated, thought she followed nearly straight. The libellant's witnesses testify that she did not f oUow straight, but headed more towards thô ��� �