Second. Where the whole testimony has not been incorporated in the record, it will be presumed that such testimony preponderates in favor of, and sustains, the judgment of the trial court.

Third. Where findings of fact are specifically filed by the trial court, sitting without intervention of a jury, and no exceptions are taken to such findings, no other or additional findings are asked, and the testimony in full is not incorporated in the record, such findings will be taken as true, and the appellate court, in passing upon the case, will only reverse it in case it finds the judgment rendered to be contrary to the facts so found and set forth by the trial court.

Under these principles, it is clearly apparent that the judgment of the lower court in this case must be in all respects sustained. And in justice to that court we feel constrained to state that, by what we have said herein, we do not intend to imply that improper and irrelevant testimony under the peculiar circumstances involved was admitted and considered. In the course of the trial the learned judge presiding, in passing upon the motions to strike out the testimony excepted to, said:

“I think that those motions should not prevail because the testimony that you move to strike out is all in one shape or another material and pertinent. It all has some force. How much weight or probative force is to be given to it is another matter, because this motion does not go to that. This mo. tion is based on the theory that it is altogether inadmissible for any purpose for which it is offered. Now, it seems to me that it is admissible for some purpose or another. Some of your criticism goes to the exactness of the testimony. On the whole consideration of the matter, I admit the testimony for some weight, for some probative force as to each item. Of course, as to how much is a question for after consideration, but I will refuse the motions to strike out."

A careful consideration of the 14 bills of exceptions setting forth summaries of the evidence excepted to has convinced us that he was entirely right in this ruling, and such consideration further convinces us that he was entirely right in the final conclusions reached by him, for from this record as it is before us comes the abiding conviction that this railroad company, after securing the efficient services of these engineers--men standing in the forefront of their profession, and of approved character for probity—has sought by technicalities to escape its liability for the just and contract compensation due from it for such services. The appeal bond in this case was in the penalty of $1,000, conditioned to pay damages and costs. The formal order of judgment is not set forth in the record, and we are wholly unable to determine whether provision was made in it for the payment of interest upon the principal of the debt from the date of the judgment until its payment. To such interest plaintiff engineers are clearly entitled. More than a year has already elapsed since this judgment was rendered.

Out of abundance of caution, therefore, we will remand this cause to the court below, with direction, if such order of judgment does not already so provide, it be corrected so as to make full provision for the payment of such interest. And, affirming, as we do, the court below in its adjudication of the principles involved, it follows that defendants in error must recover of the plaintiff in error their costs in this court expended.

THE BALTIMORE.

(Circuit Court of Appeals, Fourth Circuit. May 25, 1907.)

No. 686.

COLLISION-STEAMER AND SCHOONER-FAILURE TO Show PROPER LIGHTS.

A schooner held in fault for a collision with a steamer in Chesapeake Bay in the night, on the ground that, while becalmed, she had been drifted around by the tide so that the steamer was an overtaking vessel, and could not see her side lights, and she failed to exhibit any white light or flare-up astern as required by the rules, although the steamer was seen approaching for a considerable time before the collision.

[Ed. Note. For cases in point, see Cent. Dig. vol. 10, Collision, $$ 103– 116.

Overtaking vessels, see note to The Rebecca, 60 C. C. A. 254.] Appeal from the District Court of the United States for the District of Maryland.

The following is the opinion of the District Court by Morris, District Judge, delivered orally:

This collision occurred in the Chesapeake Bay about 11 o'clock at night, December 19, 1905, some four miles to the north of Point-No-Point. The night was dark, but the atmosphere was clear, except for a slight haziness on the surface of the water. The schooner was a small and very old vessel of about 55 tons, loaded with lumber. The deck load extended three or four feet outside her hull and up to the foremast, and was about four feet in height above the deck. She was on her way up the bay, having come out of the Rappahannock river the day before. The steamer Baltimore, a large passenger steamer of the Chesapeake Steamship Company, had left Baltimore at 5 p. m. on her regular trip to West Point on the York river. She was proceeding south by E. 14 E. down the bay in the usual track of steamers of her class. The case stated for the schooner in her libel is that the schooner was on her port tack with the wind very light from N. N. W. with hardly sufficient headway for steerage, making a course N. N. E., that the lookout reported the steamer's headlight an hour before the collision, and that the schooner held her course and watched the lights of the steamer until in a short time, without change of course, the steamer ran into the schooner, striking her on her port side forward of the fore rigging, cutting off the fore part of the schooner and carrying away her foremast, fore rigging, foresail and fore topmast, and so injuring her that she filled at once, carrying down one of her crew who was in the forecastle, and who was drowned.

The case for the steamer, as stated in her answer and cross-libel, is that she was proceeding at her usual speed of 12 miles an hour with her second officer on duty in the pilot house, a quartermaster at the wheel, and a lookout forward near the stem; that the first they saw was the bow light of the steamer reflected on the sails of the schooner directly in front of the steamer, less than 100 feet distant, and heading southeast in such a direction that her side lights could not be seen from the steamer and that no white light or flareup was exhibited to the steamer over her stern; that the reflection was reported by the lookout and seen by the second officer at the same moment; that the second officer at once rang for full speed astern, but before the steamer's headway was checked her stem struck the schooner on the port side, forward of the foremast, and cut away the schooner's bow, without disturbing the deck load. The fault charged against the schooner is not having displayed a white light or flare-up on the schooner's stern, in compliance with article 10 of the act of Congress of June 7, 1897 (30 Stat. 96, c. 4 [U. S. Comp. St. 1901, p. 2879]), she being the overtaken vessel. The course of the steamer I take to be established as south by E. 14 E.; that was the proper and usual course for her, and there is no reason to doubt the steamer's witnesses that it was the course of the steamer that night. The schooner's witnesses gave her heading as N. N. E., and the pinch of the case is the correctness of the schooner's contention as to her heading.

In the first place, it may be well to consider the relative possibility of want of vigilance on the part of those on watch on the respective vessels. The crew of the schooner consisted of the master (who was also the owner) and three colored men. The master for some time before the collision was below in the cabin and the colored mate had the wheel. There was a young colored man as lookout standing on the deck load at the port forerigging. The lookout was also cook during the day, and the mate had been on duty nearly all Monday and Monday night, and had but short intervals of rest on Tuesday. The steamer had left Baltimore only five hours before; the lookout had been on watch only one hour and the second officer since 6 o'clock. The mate and lookout on the schooner testify that they saw the steamer's light a very long distance off, and that she continued to approach directly toward the schooner, but the mate did not call the master, who was just below him in the cabin, and the lookout did not call up the man who was asleep in the forecastle just under him. That the mate did not call the master is certainly significant and leads to the inference that, after the two men on the schooner first saw the steamer, they were too drowsy to watch her, and too stupid with weariness to do anything.

The important question is the heading of the schooner. In the schooner's libel and in the testimony of the two men on her deck and of her master it is said that the wind was N. N. W. and the schooner's heading N. N. E., but it is also stated that the wind was so light that the schooner did not have steerageway. If the wind had been as they state, N. N. W., and sufficient for steerageway, the schooner could not have made a course N. N. E. It would be impossible for a schooner of this class with a heavy deck load piled four feet, in a very light wind hardly sufficient for steerage, to keep a course four points off the wind. That may have been her heading when those on the schooner first saw the steamer's light, but there was no reason why she should keep that heading. The fact was that the schooner was becalmed and was keeping no course at all, but was drifting. The tide since 8 o'clock had been flooding and setting her up the bay, and that current acting with most force on her stern, which was deepest in the water, would carry her stern to the northward and set her bow more and more to the eastward and southward. the wind, if there was at that time any wind, I am satisfied that the preponderance of proof is that it was not from the N. N. W., but to the east of north, what there was of it. I am satisfied that, whatever may possibly have been the heading of the schooner when those on her deck say they first saw the steamer to the northwest off their port bow, that before the steamer had approached near enough to see the schooner's port light, the schooner's head, under the influence of the tide, had come around until she pointed at least southeast. In that relative situation, the schooner's port light could not be seen from the steamer. The schooner was then the overtaken vessel, and was under obligation to exhibit a bright light or flare-up from her stern.

The second officer and lookout of the steamer appear to have been vigilant, and there does not appear to me to be any way of accounting for their not seeing the schooner's port light, except that the schooner had drifted around so as to bring her port light abaft her beam to the steamer. It is urged in behalf of the schooner that the character of the wound is not consistent with a blow from the stern. The effect of a blow given by one vessel to another in collision cases is often surprising, and is not an altogether safe premise to argue from. Both vessels are moving and both yield to the impact. In this case the blow was just forward of the deck load. The bow of the schooner was cut off and the deck load but slightly moved. If the blow had come from forward, more in the direction toward the schooner's stern, it seems probable, as the steamer was going full speed, that the steamer would have brought up against the deck load and carried the schooner with her and have forced her open, rather than have sliced off the bow and headgear as she did. I see nothing sustaining the theory urged in behalf of the schooner which is deducible from the wound to the schooner produced by the blow.

It is urged that because at the moment of the collision the second officer of the steamer says he did discern the red light the steamer must have been approaching the schooner from forward of the schooner's beam. I do not think it necessarily so follows. The steamer was running forward on the schooner, and may have opened the light to the second officer by running past

The bow of the steamer may have already struck the forward rigging and disturbed the screen, or the second officer, being high up above the schooner's deck, may have looked down on the light from above. I must further say that there is some doubt cast upon the schooner's case by the discrepancies between the testimony of the master and owner at the investigation before the steamboat inspectors and his statements in court.

Upon the whole case, I find that the schooner was in fault, in that she was heading in such a direction that the steamer was coming up more than two points abaft her beam and unable to see her side lights, and that the schooner did not make known her presence by exhibiting a white light or flare-up light from her stern.

I find the schooner solely in fault.
J. Kemp Bartlett and Robert H. Smith, for appellants.
Arthur D. Foster and Reuben C. Foster, for appellee.

Before PRITCHARD, Circuit Judge, and BRAWLEY and BOYD, District Judges.

PER CURIAM. The decree of the court below dismissing the libel of George H. White, master and owner of the schooner Amelia M. Price, is affirmed.

In so far as said decree awards damages to the steamship Baltimore for the injuries sustained by said steamship in the collision, and orders execution against George H. White, the owner of the schooner, said decree is reversed, the costs in this court to be divided.

PHILADELPHIA & R. R. CO. V. BAKER.
(Circuit Court of Appeals, Third Circuit. May 13, 1907.)

No. 27. 1. RAILROADS-ACTION FOR INJURY IN COLLISION-PENNSYLVANIA STATUTE.

Act Pa. April 4, 1868 (P. L. 58), which provides that, when any person shall sustain personal injury or loss of life while lawfully engaged or employed "on or about the road, work, depots and premises of a railroad company” of which company such person is not an employé or passenger, the right of action and recovery shall be the same as would exist if such person were an employé, does not prevent a recovery from a railroad company for the death of an engineer in the employ of another company, who, while running a train of such company over a track of defendant, under an agreement which gave it the right of way, was killed in a collision with a train of defendant negligently being run upon the same track, since the track was not at the time the premises of defendant, whose train was

there without right, but of the lessee. 2. SAME-INSTRUCTIONS-CONTRIBUTORY NEGLIGENCE.

The charge of the court, in an action to recover for the death of a railroad engineer, killed in a collision between his train and a train of defendant company, held to have fairly submitted to the jury the question of contributory negligence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Railroads, $ 951.] In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.

Fcr opinon below, see 149 Fed. 882.

Gavin W. Hart, for plaintiff in error.
Charles H. Edmunds, for defendant in error.
Before DALLAS, GRAY, and BUFFINGTON, Circuit Judges.

BUFFINGTON, Circuit Judge. In the court below, Sarah Jane Baker, a citizen of New Jersey, brought suit against the Philadelphia & Reading Railroad Company, a citizen of Pennsylvania, to recover damages for the death of her son, Henry K. Baker, which she alleged resulted from the negligence of that company. There was a verdict and judgment in her favor. Thereupon defendant sued out this writ of error.

Henry K. Baker was a locomotive engineer, employed by the Central Railroad Company of New Jersey. At the time of his death his engine was hauling a train of freight cars for that company from Jersey City to Philadelphia. The latter portion of the run was made under a trackage arrangement between the two companies over the tracks of the defendant. After Baker's train approached Tabor Junction, he was signaled by the defendant company's tower man to take the south-bound track of the defendant company. While running thereon, at a point south of the signal tower, Baker's engine struck the engine of a local freight train of the defendant company which was passing from the south to the north bound track. This Reading train had not only no right on the south-bound track at the time, but it violated the rules of that road in having no flagman out to warn approaching trains.

It is thus clear that Baker's death was caused by the negligence of the Reading Road's employés, and that company was justly held responsible for damages unless, by virtue of the Pennsylvania statute of April 4, 1868 (P. L. 58), Henry K. Baker is held to be an employé of the Reading Road, and the negligence of its employés treated as that of his co-employés. This statute provides :

"That when any person shall sustain personal injury or loss of life while lawfully engaged or employed on or about the road, works, depots and premises of a railroad company, or in or about any train or car therein or thereon, of which company such person is not an employé, the right of action and recovery in all such cases against the company shall be such a one as would exist if such person were an employé; provided that this section shall not apply to passengers."

It was lately before us in Delaware & Hudson Company v. Yarrington, 152 Fed. 396. We there said:

“Seeing then that the defendant company had at the time and place of this accident no right whatever to occupy this tract, and that it was guilty of neg. ligence in obstructing the passage of the train on which plaintiff rode, we hold the act had no application."

That case controls the present, for here, as there, the track where the accident occurred, while the property of the Reading Company, was, when the accident occurred, the property for the time being of the Central Railroad of New Jersey. The court below therefore rightly held the act of 1868 did not apply.

Objection is made that the court excluded from the jury considera