Page:Federal Reporter, 1st Series, Volume 8.djvu/362

848 FEDERAL REPORTER. �the indications of a change of wind were not so decided, or so threat- ening, as to have operated on his mind as a ground for leaving the lee of the island when they did. I think, however, from the whole course of the trial, the state of the pleadings, and the testimoiiy, that this piece of evidence first suggested to Captain Meyers, and his very astute counsel, the idea of setting up the justification of a change, or threatened change, of wind. Captain Meyers testified only to a change to E. by S., which still left the west aide of the island a safe lee, and to indications of a further change. It is very easy for an interested witness to bring himself to believe that he noticed indica- tions of a change of wind, but it is not satisfactorily shown that the tug and tow could not safely have waited, notwithstanding such indications, till the threatened change came in fact. When the island ceased to afford a lee, they would be no worse off thau they were the moment they came out from its shelter. One circumstance of great weight against the tug is that, while they were under the lee of the island, they took coal from the canal-boat for the use of the tug. It was carried across in pails, only a small quantity, but all that the canal-boat had suitable for the use of the tug. This was a most absurd thing to do, unless the tug was getting very short of coal. Captain Meyers' testimony as to the amount of coal on board is also very conflicting. He first testified that they probably had seven tons when they left New London. The tug used about four tons in 24 hours. This would have left at least four tons, or 24 hours' eupply, when they left Duck island. In another part of his testimony he says they then had enough for 12 hours, which would be but two tons. An ingenions attempt is made, by the testimony of witnesses as to the amount of coal taken on board before leaving New London and at New Haven, and the number of hours the tug ran without coaling afterwards, to show that she must have had a good supply of coal on board when she left the island. Such evi- dence is always liable to involve some error in a mistakeu estimate of amount, or the misrecollection as to details, of some one of sev- eral witnesses, when examined a considerable time after the event. It is not sufficient to overcome the admissions of the answer, and the overwhelming weight of testimony, that it was this urgent necessity, and nothing else, which oompelled the tug to take the desperate haz- ard of towing this disabled boat out into the sound on that stormy night. �Assuming this fact, then, as proved, the question is whether it is ��� �