In a case of collision upon the River Mississippi between the
steamboats
Iowa and
Declaration, whereby the
Iowa was sunk, the weight of evidence was that the
Iowa was in fault, and the libel filed by her owners
against the owners of the
Declaration was properly
dismissed.
Ex Parte depositions, under the act of 1789, without
notice, ought not be taken unless in circumstances of absolute
necessity, or in cases of mere formal proof or of some isolated
fact.
The libel was filed by the appellants, in the district court,
where they obtained a decree on 1 May, 1848, for $18,500 and costs.
An appeal was taken to the circuit court.
On 19 February, 1850, the cause was heard finally in the circuit
court, and upon consideration of all the testimony, as well that
considered by the district court, as the testimony subsequently
taken, and arguments of counsel, the judgment of the district court
was declared to be erroneous, was ordered to be reversed and
annulled, and the libel to be dismissed at the costs of the
appellants.
The libellants then appealed to this Court
MR. JUSTICE GRIER delivered the opinion of the Court.
This case presents no question of law for our decision. As is
usual in cases of collision, each party makes out a good case by
the testimony of the pilot and crew of his own boat. This collision
occurred, also, after night; and although the night was
Page 54 U. S. 284
not very dark, the most calm spectator, on such occasions, is
subject to great illusions as to the motion and position of the
respective vessels. The attention of passengers is also seldom
given to the subject until their fears are excited, and the danger
to life and property threatened by the sudden shock of the
collision, generally renders them incapable of a clear apprehension
of what passes at the time, or a distinct recollection of what
preceded the event. The pilot and crew of each boat feel bound to
exonerate themselves from blame, and consequently cannot be
expected to give a very candid statement of the facts. In such
cases, the oral examination of witnesses before the court, with a
stringent cross-examination by skillful counsel, is almost the only
method of eliciting truth from such sources. This may be done in
the district court, and sometimes, possibly, on appeal to the
circuit court. But such a course of sifting out the truth in
doubtful cases cannot be pursued here. We are disposed, therefore,
to require that the appellant should be held to make out a pretty
clear case of mistake in the court below, before he should expect a
reversal of their judgment. Raising a doubt on contested facts, is
not sufficient for the action of this Court. An appeal should not
be a mere speculation on chances.
It is admitted in this case that if the story told by the
libellants' witnesses is true, they are entitled to recover the
value of their boat. It is admitted, also, that if the facts
testified by the respondents' witnesses are true, the appellants
ought not to recover. Their several statements cannot be
reconciled, and one or the other of them must be false in all its
material allegations.
The libellants' witnesses testify:
That on 1 October, 1847, about 8 o'clock in the evening, the
steamboat
Iowa was ascending the River Mississippi, above
Morgan's Bend, on a voyage from New Orleans to St. Louis. That she
had previously landed a passenger about two miles below the place
of collision, on the right bank of the river. That she then crossed
the river to the left bank, and was proceeding in her proper place,
close to the shore, from ten to twenty-five feet from it. That the
Declaration was seen coming down the river towards the
Iowa. That the
Iowa stopped her engine a minute
before the collision. The
Declaration turned towards the
left bank and ran quartering into the
Iowa, driving her by
force of the collision against the shore, where she sunk
immediately, and so suddenly that one of the passengers was drowned
in his berth. In support of this statement, the pilot, the captain,
fifteen of the crew, and five passengers, have testified. They are
supported also by two witnesses on the right bank, who testified
that the
Iowa crossed the river immediately after letting
out the passengers. Without criticizing these depositions, as to
the probability of the facts
Page 54 U. S. 285
stated, or the consistency of each with itself and the others,
we shall merely state the opportunity which they respectively had,
by their own statements, for observing the material facts to which
they have testified. The pilot and five of the crew were, by their
own account, in a situation to know and correctly judge of the
facts to which they have testified. The captain and eleven of the
crew were not; some were in the cabin, some in the social hall, and
many in their beds asleep, till their attention was aroused by the
collision. Yet, whether asleep or awake, they all swear as
positively to the relative course and position of the vessels,
before and at the time of the collision, as those who were in a
situation to observe them.
Of the five passengers who corroborate the statement of the
crew, one was engaged in the social hall playing cards, and another
asleep in his berth, till aroused by the collision; a third was
discredited by proof of his declarations, soon after the
occurrence, that the pilot of the
Iowa was drunk, and
caused the collision by his incapacity; and a fourth by his
admission that he expected to recover six hundred dollars lost by
the sinking of the
Iowa, out of the damages to be
recovered from the defendants.
On the contrary, the witnesses for the respondents swear
distinctly and positively to the following statement of facts:
1st. That the
Declaration was coming down the river in
the middle of the channel, rather nearer the left than the right
bank, having two or more companies of volunteers, with their
officers, on board as passengers.
2d. That it was a clear, starlight night, and that the decks of
the
Declaration were covered with passengers in a
situation to see correctly everything that occurred.
3d. That the
Iowa, when first seen, was about a mile
off, coming up the right shore of the river, and had not yet
crossed to the left.
4th. That when the
Iowa came near, or somewhat below
the
Declaration, she turned suddenly across the river,
either because the boat became unmanageable by the pilot from
"smelling a bar," or with an intention to cross under the bows of
the
Declaration.
5th. That from the course pursued by the
Iowa she
threatened to strike the wheelhouse of the
Declaration,
and that, to avoid this, the engine of the
Declaration was
stopped, and afterwards reversed, so that she was commencing a
retrograde movement at the time of the collision.
6th. That the
Iowa came on under a full head of steam,
and impinged herself against the bows of the
Declaration,
breaking her flagstaff, and causing the death of one of the
soldiers on the deck.
Page 54 U. S. 286
7th. That the head of the
Declaration was turned round
quartering up stream by force of the collision, and that the
Iowa continued under a full head of steam till she struck
the left bank of the river, and there sunk in a few minutes.
Nineteen of the crew of the
Declaration were examined.
Eleven of them were in a situation to see what they testify to.
Eight others, whose attention was first called to the matter by the
stopping of the engine and backing the boat, corroborate the others
as to that fact, without attempting to testify to facts which could
not have come under their personal notice. Their statements are
circumstantial, consistent, and probable, while those detailed by
appellants' witnesses are improbable and almost incredible. But
what is perfectly conclusive of the case, is the fact that the
testimony of these nineteen witnesses, who may be supposed to be
under the usual bias on such occasions, is completely corroborated
by that of seventy of the passengers. Fifty-four of these were
standing on the decks, or other parts of the vessel, where they had
a full view of the whole transaction from the time that the boats
came within sight of each other, till the
Iowa sunk to the
bottom. They all concur in swearing positively to the facts we have
stated, and that they could not be mistaken. The remaining sixteen
corroborate them as to the stopping and backing of the engine of
the
Declaration and the position of the boats immediately
after the collision.
If confidence can be placed in human testimony, it is plain that
the libellants are not entitled to the judgment of the court in
their favor.
Indeed the only argument which has been urged against this
overwhelming mass of testimony is that the numerous witnesses of
respondents coincide so completely in all the circumstances and
facts related, not only in their order of narration, but in their
language and phraseology, that it leads to the suspicion of a
factitious story, got up after consultation. But the number of the
witnesses, the respectability and standing of many of them, the
fact that their testimony was taken at different times, by
different commissioners, at different places, leaves no room for
such an imputation. The coincidence of statement and similarity of
language and expression may well have arisen from the fact that
their testimony was taken under the act of Congress
ex
parte, without cross-examination, and probably by an agent who
had the same stereotyped leading questions put to each of the
witnesses in the same sequence and in the same words.
While we are on this subject, it will not be improper to remark,
that when the Act of Congress of 1789 was passed, permitting
ex
parte depositions without notice, to be taken, where
Page 54 U. S. 287
the witness resides more than a hundred miles from the place of
trial, such a provision may have been necessary. It then required
nearly as much time, labor, and expense to travel one hundred
miles, as it does now to travel one thousand. Now testimony may be
taken and returned from California, or any part of Europe, on
commission, in two or three months, and in any of the states east
of the Rocky Mountains in two or three weeks. There is now seldom
any necessity for having recourse to this mode of taking testimony.
Besides, it is contrary to the course of the common law; and except
in cases of mere formal proof, such as the signature or execution
of an instrument of writing, or of some isolated fact, such as
demand of a bill, or notice to an endorser, testimony thus taken is
liable to great abuse. At best, it is calculated to elicit only
such a partial statement of the truth as may have the effect of
entire falsehood. The person who prepares the witness and examines
him can generally have just so much or so little of the truth, or
such a version of it, as will suit his case. In closely contested
cases of fact, testimony thus obtained must always be
unsatisfactory and liable to suspicion, especially if the party has
had time and opportunity to take it in the regular way. This
provision of the act of Congress should never be resorted to unless
in circumstances of absolute necessity, or in the excepted cases we
have just mentioned.
Let the judgment of the circuit court be
Affirmed.
Order
This cause came on to be heard on the transcript of the record,
from the Circuit Court of the United States, for the Eastern
District of Louisiana, and was argued by counsel. On consideration
whereof, it is now here ordered, adjudged, and decreed by this
Court, that the decree of the said circuit court in this cause be,
and the same is hereby, affirmed with costs.