HOLLAND e. nnowx. ’47
the exercise of human care and foresight." Shoemaker v. Kingsbury, 12
Wall. 376. i “ , t
’ Indeed, I think the Mikado was primarily in fault, in undertaking to
cross the_bow of the ferry-boat in such proximity to it, while it was
moving forward, especially while there was so much open water and free
way on her starboard. The signal made by the Mikado did not give her
the absolute "right of way" over any particular part of the river. It
only signified that the Mikado would pass to the starboard of the ferry·
boat, and therefore the latter must pass to her starboard or slow up or
A stop until shegot by. It would have been very inconvenient for the
-ferry-boat to have kept under way and ported her‘ helm, as that would
have taken her up stream, while her course was diagonally down stream.
' Therefore, she might properly slow up or stop until the Mikado passed. -
,' But the ferry-boat is a large machine,—a floating bridge,—an established
and licensed method of transit, moving to and fro at regular and short
intervals onthe line of a great interstate thoroughfare; and, in my judg- .
‘ment, it is an abuse of the sailing rules prescribed by section 4233 of
‘ the;Revised· Statutes—particularly in and about the wharves and harbor
~ ‘ of this city—for every littlecockle-shell of a craft that catches the ferry-
i boat coming out of her slip to whistle for the ·so—called "right of away,"
`and thus compel her not only to stop her engines but reverse them, so
fthe cockleshell can pass-immediately in front of the great boat with im-
‘ punity,’instead of waitingafew seconds until she has‘passed_ on. t_ 4
` But in this proceeding themisconduct of the one party does not ex-
'seuse 'theother. The pilotof each boat was bound, irrespective of the
“ propriety of the conduct off the other, to do what he could to avoid a
I collision- on‘·accou·nt of the danger to human life. I ‘·`i
{ · In the consideration of this question no specific effect has ‘been—`given
· tothe fact that the Mikado did not have a licensed pilot at the wheel.
” For thus acting without license Jones -may be proceeded against under
the law personally, and Brown hasalready paid a fine. But inthis suit
the only inquiry, so far as the Mikado is concerned, is, was 'she iu-fault,
whether managed by a licensed or unlicensed pilot? But, inconsidering
; the propriety of Jones’ conduct on the occasion, it is impossible to al-
together overlook the fact that he was an inexperienced and determined
` youth, who probably was more concerned to assert what he called his
·f‘right of way" against the ‘€big boat" than to avoid a collision? t ‘
’ ‘ Although this suit was brought on the theory that this courtmight
‘ have jurisdiction ofthe `wrong complained of,`without“the aid of any
'statute of congress or the state, and therefore the damages were only lim-
‘ ited by the judgment of the court, yet on the hearing it was admitted,
, on the authority of the case of The Harrisburg,'119 U. S. 199, 7 Sup. Ct.
Rep; 140, that the right to damages at all was derived from the statute '
"lofthe state, which li·mits the amount to $5,000, and thereforelthe claim
in the libel for $10,000 damages was abandoned. In additions to the
  claim for generaldamages the libel contairlwclaimv for specialdamages,
A-arising. front the expenses of the last sickness and burial of the deceased,
'ai:nounting.to$1,415.‘ » r   i » . _ __ . -   :=w·· o