Page:Federal Reporter, 1st Series, Volume 9.djvu/686

THE BUOKBYœ. 671 �Montauk, instead Of shutting off steam and reversing, if necessary, he put on additional steam, hoping to swing his steamer, ashe says she was then swinging, to starboard more rapidly, so as to avoid collision with theMontauL Granting that he did not discover the exact locality of the Montauk until just as he was turning the bend above Allen's slip, which I can hardly believe to be true, he could then have stopped before striking her if he had promptly reversed his engine. I cannot avoid the conclusion thatthef oonduct of the master of the Buckeye savors strongly of recklessnesa in the speed with which he was going down the river, and the maneuvers which he adopted to avoid a col- lision after he says he discovered the Montauk. I haye carefully looked over tb^ proof, and considered wbether thisi^ a proper case to divide the damages, but can see no evidence of mutual negligence. The only ground for it is the ass'umption that the Montauk was on the eastside of the river, which I do not think sustained" by the proof. The proof in the case, when carefully considered and analyzed, satisfies ine; that this collision did not oocur later than 7:30 o'clbek in the evening. The sun set that night^at 6:53; so that it Was, at most, only a little. more than half an hour after sunset; and this, on a summer night, would not make it so dark, even if it was quite cloudy, toat an objebt as large as the Montauk could not be plainly seen on the water at least twioe the distance from the bridge to Allen's slip. The map of that part of the river which is in proof in the case shows that it is over 700 feet from the west draw of the bridge to the point where the collision occurred, and that even if the Buckeye steered directly over to the east side or to the east half of the river imme- diately after passingthrough the draw, she would have a plain viewof the whole river to a point below Allen's slip as soon as she reached a point opposite the mouth of the gas-house slip, and she would then be over 400 feet above the point of collision, and probably 500 feet away from the Montauk. Let any one interested in the solution of this question of fact, as I have been ever since I have heard this case, notice from evening to evening the amount of light remaining, even in a cloudy evening, and at this season of the year, for 30 or 40 min- utes after sunset, and I think he can hardly avoid the conclusion that there must have been on the evening of August 19, 1880, ample light at 7:30 o'clock to have enabled those on the Backeye to have seen and avoided the Montauk. The night or evening was not phe- nominally cloudy or dark, but merely an overeast or cloudy evening. I come, therefore, to the conclusion that the collision in question ��� �