
    
      M‘INTOSH vs. FORSTAL & AL.
    
    
      Appeal from the court of the first district.
    
    
      Decision of a jury prevails on question of fact, unless clearly erroneous.
   Porter, J.

delivered the opinion of the court. This action is brought to recover damages, in consequence of a flat boat being run against and stove by the steamboat United States. The loss is alleged in the petition to have proceed ed from the negligence of the persons having the command of the steamboat.

East’n. District.

May 1825.

The general issue is pleaded. The case was tried by the judge of the inferior court without the aid of a jury. He gave judgment for the defendants. The plaintiff appealed.

The evidence on which the cause was decided, comes up in the record. We have examined it with the utmost attention, and confessing with the judge below, that we have had considerable difficulty in coming to a conclusion, still we are unable to say it authorises us to give a decision different from that which he has pronounced.

The principal difficulty in our minds, has been this: it is admitted on all hands the flat boat was discovered several minutes before the accident happened, and there cannot be a doubt, that the steamboat, by turning out into the current, as soon as she came in sight, might have avoided the meeting. If then, the care necessary to be exercised on occasions of this kind, be tested by the steam vessel not having taken so wide a birth, as to render the contact impossible, there can be no doubt the defendants are responsible. We have hesitated whether this was not the true rule in relation to craft of this kind, where the one has such command of the stream, and the other is almost completely under its guidance. But on reflection, we do not think such extraordinary diligence was called for on the part of the captain of the steam-boat. Relying on the command of the river, which the agent that impelled his vessel, gave him, he may have fairly considered that he could avoid the flats (for there were more than one in company) without leaving the shore such a distance, as to delay his own voyage up. Whether, he took the necessary precaution in due time, is the real question in the cause. The presumption is against him, since the boat struck. The evidence we have from the persons on board the flats, fortifies this presumption. That we get from the pilot and others on board the steamboat destroys it, and states the accident to have arisen from the conduct of the persons on board the flat pulling out from shore, so as to render it impossible for the steam-boat to pass between the two flats; which she could have easily done, had they not rowed, or had ceased rowing, when hailed from the steamboat. With such contradiction in the testimony, and the opinion of the court below on a question of fact, against the party who held the affirmative, and was bound to make out his case; we think the judgment of the inferior court should be affirmed with costs.

Hennen and Strawbridge, for the plaintiff, Eustis for the defendants.  