It loss to which the negligence of the carrier has contributed." may be styled a "maritime accident policy," undertaking only against purely fortuitous casualties. Bazin v. Steamship Co., 3 Wall. Jr. 229, Fed. Cas. No. 1,152. 2. Ought a new trial to be granted on the ground of newlydiscovered evidence? "By newly-discovered evidence is meant proof of some material fact in the case which has come to light since the verdict." Grah. & W. New Trials, 1016. Such evidence must not be merely cumulative in its nature, and it must have been unknown to the party at the time of the trial. It must also be of such a character that, if it had been produced upon the trial, it would have changed the result. It must also be shown why the facts sought to be proved were not ascertained at the time of the former trial. The Iron Chief, 11 C. C. A. 196, 63 Fed. 294; Pittsburgh Reduction Co. v. Cowles Electric Smelting & Aluminum Co., 64 Fed. 125; Baker v. Whiting, 1 Story, 218, Fed. Cas. No. 786; Page v. Telegraph Co., 2 Fed. 330; Chandler v. Thompson, 30 Fed. 44; Alsop v. Insurance Co., 1 Sumn. 457, Fed. Cas. No. 262; Wiggin v. Coffin, 3 Story, 1, Fed. Cas. No. 17,624. The evidence outlined in the affidavits filed in support of this ground of the motion is cumulative. No sufficient reason is given why the witnesses were not produced at the trial, and, from the positions held by many of the affiants on the "F. & P. M. No. 2," the matters stated in their affidavits should have been known to the officers of the plaintiff if they had used proper diligence in learning the facts of the loss. Some of the affiants testified on the trial. Several of them will testify that the density of the snowfall was such that a lookout would have been of no benefit, and that the steamer would swing with equal facility under either wheel. If these things were true, the testimony of the master, mate, and wheeisman to the condition of the rudder, to the contrary, notwithstanding,-they leave unexcused and unexcusable the master's fatal blunder in driving this heavily laden steamer at full speed in the direction of the near shore, until he had ascer tained and fixed her position beyond doubt or deliverance, "by running down a cape or a continent," to use the forceful language of Justice Grier in Bazin v. Steamship Co., 3 Wall. Jr. 229, Fed. Cas. No. 1,152. The affidavits of some of the crew of the steamer Newburgh, which stranded a short time after the F. & P. M. No. 2, and about five miles to westward of the latter, when on the same general course, are offered to show that a lookout could not have seen land after 5 o'clock that morning, so heavy and constant was the snowfall. This only proves that the Newburgh encountered worse weather in that locality than the F. & P. M. No. 2 had met at the same place, according to the latter's crew, who agree that the snow came in squalls, and that there were intervals of clearer weather. The master of the Newburgh unqualifiedly condemns as "reckless navigation and bad seamanship" the starboarding of the steamer when eight fathoms were reported by the leadsman, and the running of the vessel thereafter at full speed. He further states that "we were not keeping any lookout for land. We did not suppose we were anywhere near land." In another affidavit he states that a lookout was stationed forward. The fireman, who at intervals observed the weather, is confident that the land could not have been seen, so heavy was the storm when the Newburgh struck; but his opinion is of little value, as he was on watch in the fire hold from midnight until 6 o'clock a. m. of the morning of the stranding. A careful examination of all these affidavits is convincing that the proposed testimony is cumulative, was easily obtainable at the first trial, and is manifestly insufficient to change the result. No court has ever extended to a defeated litigant such a degree of indulgence as that asked by this motion, upon a state of facts like those in issue here. * 營 營 3. The claim that the plaintiff was taken by surprise, and was unable to meet or explain the questions raised by the court and counsel on the effect of the absence of a lookout, and as to the seaworthiness of the vessel by reason of the alleged defect in the rudder, merits no favor. The plaintiff had urged the trial of the cause, and announced its readiness to proceed. This ground of the motion is fully answered by Judge Story in Ames v. Howard, 1 Sumn. 482, Fed. Cas. No. 326, where, as here, "no application was made to the court for a postponement or continuance for the purpose of a more full and thorough examination of the point or to search for further testimony. If the party interested makes no such application, but elects to go on with the cause, relying upon his other strength to sustain his claim, he is understood to waive the matter of surprise; and he cannot be permitted to take his chances with the jury, and, if unsuccessful, then to move the matter as ground for a new trial. The purposes of justice would be defeated, and not advanced, by any different course." Judge Curtis in Carr v. Gale, 1 Curt. 384, Fed. Cas. No. 2,433, expresses the same view with equal emphasis. In the case at bar, the plaintiff, if not satisfied with the evidence, might also have elected to take a nonsuit, with leave to move to set it aside, or it could have applied for permission to withdraw a juror. The failure to make either application, and the election to rest the case on the evidence submitted, is an additional, and in itself a decisive, consideration against this ground of the motion. The motion for a new trial in these causes is denied, and judgment will be entered on the verdict. AMES v. AMERICAN LOAN & TRUST CO. (Circuit Court of Appeals, Ninth Circuit. September 16, 1895.) No. 240. Appeal from the Circuit Court of the United States for the District of Oregon. Edward P. Sanborn and Zera Snow, for appellant. Dolph, Nixon & Dolph, for appellee. Dismissed, pursuant to stipulation of counsel. THE LOUIS OLSEN. (Circuit Court of Appeals, Ninth Circuit. May 7, 1894.) No. 125. Appeal from the District Court of the United States for the Northern District of California. No opinion. Dismissed, pursuant to subdivision 3 of rule 22 and rule 23 (47 Fed. x.) NORTHERN PAC. R. CO. v. HEMPEY. (Circuit Court of Appeals, Ninth Circuit. May 4, 1894.) No. 173. Error to the Circuit Court of the United States for the District of Washington. Charles K. Jenner, for defendant in error. Affirmed, per stipulation. PACIFIC MUT. LIFE INS. CO. v. NIXON. (Circuit Court of Appeals, Ninth Circuit. March 26, 1894.) No. 99. Error to the Circuit Court of the United States for the District of Washington. Charles N. Fox, for plaintiff in error. W. S. Relfe, for defendant in error. Dismissed, per stipulation. SOUTHERN CALIFORNIA MOTOR ROAD CO. v. UNION LOAN & TRUST CO. (Circuit Court of Appeals, Ninth Circuit. April 3, 1894.) No. 136. Appeal from the Circuit Court of the United States for the Southern Dis trict of California. R. E. Houghton, for appellant. Stephen M. White, for appellee. Dismissed, on motion of counsel for appellant. WATERLOO MIN. CO. v. DOE. (Circuit Court of Appeals, Ninth Circuit. February 28, 1895.) No. 144. Appeal from the Circuit Court of the United States for the Southern District of California. A. H. Rickets, for appellant. R. E. Houghton, for appellee. Dismissed, pursuant to stipulation of counsel. WILLIAMS v. SNYDER. (Circuit Court of Appeals, Ninth Circuit. July 15, 1895.) No. 241. Appeal from the Circuit Court of the United States for the District of Idaho. W. W. Woods, for appellant. C. W. Beale, for appellee. Dismissed, pursuant to stipulation of counsel. YEE LUNG v. UNITED STATES. (Circuit Court of Appeals, Ninth Circuit. May 23, 1894.) No. 177. Appeal from the District Court of the United States for the Northern District of California. T. D. Riordan, L. I. Mowry, and H. C. Dibble, for appellant. Charles A. Garter, U. S. Atty. No opinion. Submission of appeal vacated, and judgment of dismissal entered by consent. FIRST LITTLETON BRIDGE CORP. V. CONNECTICUT RIVER LUMBER CO. (Circuit Court, D. New Hampshire. September 24, 1895.) REMOVAL OF CAUSES. No. 404. In this case the petition for removal to a federal court was not filed until after the time allowed by the state court for filing pleas in abatement, and it was held that the circumstances did not show a waiver of the matter of time, and the case must be remanded. Action by the First Littleton Bridge Corporation against the Connecticut River Lumber Company. On motion to remand to the state court. James W. Remick and Harry Bingham, for plaintiff. Drew, Jordan & Buckley and Geo. H. Bingham, for defendant. PUTNAM, Circuit Judge. I find that the writ was returnable to the term of the supreme court of the state held on the third Tuesday of September, 1894, and that at that time the following rule of that court was in force: "Pleas in abatement shall be delivered to the counsel of the adverse party or filed with the clerk, and notice thereof put upon the docket within the first four days of the term." I find that there is no claim that this rule is not peremptory, with reference to the period named in it, or that the court has power to extend it. I find that the petition for removal was not filed in the state court until after the expiration of the period of four days. named in the rule, so that, on the authority of Martin's Adm'r v. Railroad Co., 151 U. S. 673, 684, 14 Sup. Ct. 533, it was not seasonable. I find that there was no actual waiver of the defect, with any intention to waive. I find the petitioner did not serve the plaintiff with a copy of the removal papers, or notify it that the petition had been filed. I find that no appearance has been entered in this court by the plaintiff, as provided by rule 5, which was in force on and after September 1, 1894, and that no appearance by the plaintiff, in any form, has been actually made in this court, except for the purpose of making the motion to remand. I find that the attorneys for the plaintiff intended to enter their appearance, wrote the clerk to make the entry for them, and that the clerk called their attention to the necessity of a formal entry under rule 5, but that, as already said, no appearance was in fact entered. I find that certain conversations and correspondence have taken place between the attorneys of the plaintiff and those of the defendant touching this case and its trial on the merits; but I am unable to find, from the facts submitted, that the plaintiff or its attorneys knew, or were bound to know, before these conversations and correspondence, either with the clerk or the defendant's attorneys, or until about the time when the petition to remand was filed, that the removal papers were not seasonable. Therefore I do not find that the plaintiff has, by unreasonable delay or otherwise, waived, as a matter v.71F.no.2-15 |