Page:Federal Reporter, 1st Series, Volume 8.djvu/729

THE J. 8. NEIL. 71S �ought, at least, to be as persuasive aswould have been a similar find- ing on the facts by the district court, or by a jury, if a jury iiad been allo-wed. Decree of the district court affirmed. �ON BEHEABING. �( : ; �McCbaby, C. J. Being in doubt upon the first hearing upon the question whether the collision and injury was the resuit of mutual fault, I granted the petition for rehearing so far as that question was concemed, and, having reconsidered it, I am now prepared to state my conclusions. That the Neil was in fault I have no doubt. If the Hickory was alscin fault, it was because she did not bear as far to her larboard as was required under the circumsta,nces. I adhere to the rnle expressed on the first hearing, that if the Neil had one-half the cha,nnel left to her occupation that was enough. But in applj'ing this mie in this case we must consider the condition of the channel as to width and depth at the time of the collision. It is clear that the navigable channel was at that time much wider and deeper than at an ordinary stage of water. The evidence shows that the width of the river from the island to the Missouri shore was half a mile. While it appears that the ordinary channel was only about 400 yards wide, and ran near the shore of the island, it also appears that at the time of the collision the water was high, and the whole half mile — certainly the greater part of it — was good navigation. The question how much room the Neil was entitled to depends somewhat upon the width of the navigable channel at that time. As this was not much, if any, less than half a mile, it seems that the Hickory should have been more than 150 yards from the island shore when the accident occurred. If the Neil was entitled to one-half of the width of the channel as it existed on that day, that would have given her at least 400 yards. Some consideration must also be given to the fact that the Neil was proceeding down stream with a heavy and unwieldy tow, and was, in consequence, somewhat difficult of management, as well as to the further fact that the Hickory had ample time in which to have borne over towards the Missouri shore still further, so as to incbr no risk of collision. �It must be observed, too, that, even upon the theory that the Neil was entitled to one-half of the ordinary channel, (400 yairds,) it is doubtful whether the Hickory was in her proper place. The weight of evidence locales the collision at a pointloO yards from the island ��� �