the scows were left was a safe and proper one. There is a conflict among the witnesses as to the facts (the testimony is recited in the opinion below); but the district judge saw all the witnesses, and the weight of the testimony apparently supports his findings, which, therefore, are accepted here.

The assignments of error which were principally urged upon appeal relate to questions of admiralty practice. After the tugs were libeled, their owner, the Contracting Company, filed a petition reciting the facts and its contract with Moran, and praying that a citation might issue against Moran, citing him to appear and answer, and that process issue against the tug Flannery, and the cause proceed as if Moran and the tug had been originally proceeded against. Moran and the tug each raised the objection that he and it were improperly joined; but the district judge held that the petition be sustained and decreed recovery by the salvor against both-one-half against each. The practice followed is similar to that provided for in the fifty-ninth admiralty rule, which rule was itself a recognition of the practice already approved by Judge Brown in The Hudson (D. C.) 15 Fed. 162, for collision cases. It has been approved in salvage cases by the District Court in the Southern District of New York (Dailey v. City of New York [D. C.] 119 Fed. 1005), and undoubtedly tends to avoid a multiplicity of suits, while doing no apparent injustice to any one. It is true that the fifty-ninth rule is in terms restricted to cases of collision; but rule 46 accords to the District Courts so wide a discretion in regulating their practice that there seems to be abundant authority for allowing the vessel proceeded against for salvage to bring in the vessel or individual whose neglect exposed her to the peril from which the salvors rescued her.

It is, however, insisted that it is contrary to well-settled principles of admiralty practice thus to bring in both a vessel and an individual, one of whom must be proceeded against in rem and the other in personam. In support of this contention reference is first made to several rules in admiralty. Rule 12 provides that in suits for supplies or repairs libelant may proceed against ship and freight in rem, or against master or owner alone in personam. Rule 13 provides that, in suits for mariners' wages, libelant may proceed against ship, freight, and master, or against ship and freight, or against owner or master alone in personam. Rule 14, that in suits for pilotage libelant may proceed against ship and master, or against the ship, or against owner alone or master alone in personam. Rule 15, that in suits for damage by collision libelant may proceed against ship and master, or ship alone, or against master or owner alone in personam. Rule 16, that in all suits for assault on the high seas the suit shall be in personam only. Rule 17, that in suits upon a mere marine hypothecation libelant may proceed either in rem or against the master or owner alone in perRule 18, that in suits on bottomry bonds the suit shall be in rem only. Rule 19, that in suits for salvage the suit may be in rem against the property saved, or its proceeds, or in personam against the party at whose request and for whose benefit the salvage service. has been performed. But all of these provisions manifestly refer to single interests. The master, freight, and owner mentioned are the

master, freight, and owner of the particular individual ship proceeded against. The rules point out how such interest shall be proceeded against, and require à choice of one mode or another. There is nothing to preclude a similar choice of procedure if another interest is involved in the same controversy. Thus, if a libelant is injured by the independent, but concurrent, negligence of ships A, B, and C, there is nothing in the rules which forbids his proceeding against all three offenders in the same suit; and if, under rule 15, he proceeds against ship A in rem, there is no apparent reason why he may not proceed against the owner alone of ship B, and against ship C and her mas

ter.

The appellants' counsel cites many cases in opposition to this proposition. None of them appear to be applicable, save one, The Young America, 1 Brown's Adm. 462, Fed. Cas. No. 18,178, in which Judge Longyear, at the end of a long opinion, intimates that, where three vessels were in fault, libelant could not join in one suit proceedings in rem against the two vessels and in personam against the owner of the other. The question, however, was not fairly before him. He had to determine whether, after a proceeding had been begun in rem against all three, the libelant should be allowed to amend by substituting her owners for one ship and then proceeding against them in personam. All that his opinion decides is that such amendment should not be allowed. The practice followed in the case at bar seems to be so well settled in the districts of this circuit, it is so expeditious and convenient, and tends so much to avoid multiplicity of suits, that we should feel averse to condemning it, unless the rules of admiralty were more specific in their disapproval than they are, or the authorities more constraining than are those to which our attention has been directed.

The decree is affirmed, with interest, but without costs to libelant, and with interest and costs to the petitioner against the appellants.

NOTE. The following is the opinion of Thomas, District Judge, on the hearing below:

THOMAS, District Judge. On the morning of March 18, 1904, at about 8 a. m, the tug Flannery, returning from sea with scow K 9, placed her outside of scow K 1, which had been moored the same morning, or the previous evening, at the end of pier 36. The scows had been and were to be used in connection with a dredge that lay near the bulkhead on the north side of the slip, between pier 36 and the pier northerly thereof, and about 125 to 150 feet from the ends of the piers. The width of the slip was 213 feet. Copeland, the master of the dredge, testified that when K 9 was moored he called through a megaphone that it was not a fit place to leave the dumpers, as the tide was too strong, but that no reply was received, and that about 10 minutes thereafter the Flannery went up the river, and that between 8 and 9 o'clock a. m. the scows broke away. The mate of the dredge testified that he heard Copeland call to the captain of the Flannery to bring in K 9, or both scows, as he afterwards stated. Both these witnesses testify that there was sufficient room in the slip for the K 9. The captain of the Flannery testified that he did not hear anything from Copeland, and the pilot of the Flannery said that there was no call from the dredge. Burg, the master of K 1, testified that he told the captain of the tug "to put the K 9 into the slip, because the tide was runing too strong for two empty scows to be there," and confirms the evidence of the captain and mate of the dredge as above given. At the time K 9 was landed, the pilot was on watch, although the captain immediately came up. Nobody on the Flannery gave any attention to the mooring or to the lines of 150 F.-8

either scow. Both the captain and the pilot of the Flannery state that the slip was so occupied that it was dangerous to put the scow in the slip on the prevailing flood tide. The pilot stated that he would not have put K 9 in the slip on that tide, even though it were not blocked. The captain of the Flannery testified that his tug was made fast to K 9 and lay there about an hour, and his pilot confirms him in this. Conine, the libelant, who performed the salvage service about to be stated, testified that the scows broke away from 20 to 30 minutes after the Flannery landed scow K 9. The evidence on the part of the Flannery is that it was customary to land dumpers on the outside of the pier, and to place one outside of the other, so that two or three often lay there together. The scows broke away, and the libelant, in charge of the tug Conine, having moored the float which he had in tow, after one of the drifting scows had collided with it, pursued the scows and secured them near the Brooklyn shore, putting his tug between them for the purpose. He testified that he had difficulty in arresting their progress on the flood tide, and that there was great danger of collision with the easterly abutment of the Williamsburgh Bridge, but that he swung them around from port to starboard, avoiding the abutment, and brought them back and tied them up at the end of pier 36, tying together the broken lines and using them again for the purpose of mooring. He places the length of his service at from 2 to 22 hours. He states that the lines of K 1 were very bad. The mate of the Conine also states that the lines that parted were bad-that they were pretty rotten; and a deckhand on the Conine, whose evidence adds little, made a similar statement. The value of the scows was $14,000.

The question is, what should be the salvage award, and who should pay it? It is thought that $500 is sufficient for the service. It is evident that it was customary to moor dumpers at the end of the pier, although it was unlawful to do so. The lines of K 1 were sufficient for herself, but it is evident that they were not good enough for the continued holding of both scows, although they may have been strained by the Flannery's added burden. It is evident that K 1 would not have gone adrift if she had not been burdened by K 9. But the Flannery, in the employ of Moran, added K 9 to K 1, and placed the additional strain on the line. There is no reason why the risk should be placed on K 1, or, indeed, on K 9. Even if K 1 did not object, and her master insists that he did, the responsibility was on the master of the Flannery, as he was a navigator and the scow captain was not. Hence the master of the Flannery was the better judge of the propriety of trusting the two scows to the lines of K 1 and leaving them exposed to the action of the tide. Such conduct on the part of the Flannery does not seem prudent, and it is concluded that the libelant's decree against the scows for the salvage, which is fixed at $500, should, as between the scows and Flannery and Moran, be borne by the tug and Moran.

UTAH CONSOL. MINING CO. v. PAXTON.

(Circuit Court of Appeals, Eighth Circuit. November 8, 1906.)

1. MASTER AND

CISION.

No. 2,338.

SERVANT-INJURY TO

SERVANT-NEGLIGENCE-FACTS-DE

Under the statute of a state which provides that a servant who is authorized by his master to direct another of the latter's servants in the discharge of his duty is a vice principal, a furnaceman, in response to a complaint of danger from a car, promised a grater, whom he had authority to direct in his work, that he would notify a carman, employed by the same master under a different foreman, to stop his car before it came to the furnace, and that the grater was at work upon the track clearing the hopper of the furnace just below it. Such a notice to the carman had frequently caused the latter to stop his car before coming to the workmen similarly situated, and to hold it until they finished their

work. In reliance upon the promise, the grater went to work upon the track and was injured by a car which ran upon it.

Held, the promise of the furnaceman was within the scope of his agency, and it relieved the grater from the assumption of the risk.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 638-640.

Assumption of risk incident to employment, see Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]

2. SAME ASSUMPTION OF RISK-EXCEPTION ON PROMISE TO REMOVE DEFECT. There is an exception to the rule that a servant assumes the ordinary risks and dangers of his employment, to the effect that, where a servant makes complaint to his master of a dangerous defect in his place of work or in the appliances furnished him, and the master promises to remedy it, the risk of that defect is cast upon the master, and the servant is relieved from it for a reasonable time to enable the employer to remove it, unless the danger from it is so imminent that a person of ordinary prudence would not continue in the employment after the discovery of the condition.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 638-640.]

(Syllabus by the Court.)

In Error to the Circuit Court of the United States for the District of Utah.

On July 2, 1904, James Paxton was working as a grater on one of the reverberatory furnaces of the defendant, the Utah Consolidated Mining Company, a corporation, at its Highland Boy smelter. His duty was to open up the grates and do whatever the furnaceman directed him to perform. Thaxton was the furnaceman under whose direction he was employed. The smelter was a large building 300 feet long and 50 feet wide. There were four furnaces ranged along each side of this building, and over these furnaces was a railroad track upon which a trolley car was operated to carry coal to the furThe hoppers of the furnaces opened beneath the rails, were about 22 feet wide, and the coal was dropped into them from the trolley car which passed above them. The coal in the furnace upon which Paxton was employed became clogged, and he and McCandless, a helper, were sent by Thaxton to punch the coal down through the hopper by the use of an iron bar and a sledge hammer. In order to do this work they were compelled to occupy the railroad track above the furnace. The atmosphere was smoky and hot, and after working there a short time they went down to Thaxton and told him that they could not work, that it was smoky and dark, and they were afraid they would be run over by the car. Thereupon he went upon the railroad track with them and tried to persuade them to go on with their work. They told him that, if he did not go and have the car stopped, they would not work there. He replied: "I will go and tell the carman, so that he will stop. He will stop the car." Paxton had seen a furnaceman go and report to the carman that there were men up there at work and had then seen the car stop before it came to the furnace where they were laboring. He and McCandless accordingly waited about 15 or 20 minutes and then commenced to work upon the track driving the coal down into the hopper, when a car came along and struck and injured him. The furnaceman had not informed the carman that Paxton and the helper were at work upon the track. The testimony that the furnaceman promised to report to the carman that they were at work was contradicted. Counsel for the defendant requested the court to instruct the jury to return a verdict in its favor, but the court refused, and this ruling is assigned as error.

W. J. Barrette (H. P. Henderson, Frank Pierce, and E. B. Critchlow, on the brief), for plaintiff in error.

T. Marioneaux (A. B. Irvine and O. W. Powers, on the brief), for defendant in error.

Before SANBORN and VAN DEVANTER, Circuit Judges, and PHILIPS, District Judge.

SANBORN, Circuit Judge, after stating the case as above, delivered the opinion of the court.

The accident which is the subject of this action occurrred in the state of Utah. Under the statutes of that state a servant, who is authorized by his master to direct another servant of the same master in the discharge of his duty as an employé, is a vice principal of the master, and not a fellow servant of the employé. Rev. St. Utah 1898, §§ 1342, 1343; Southern Pac. Co. v. Schoer, 114 Fed. 466, 470, 52 C. C. A. 268, 272, 57 L. R. A. 707. Thaxton was a vice principal of the mining company, and the latter is responsible for his acts and negligence within the limits of his authority. Minneapolis v. Lundin, 58 Fed. 525, 527, 7 C. C. A. 344, 346.

The place in which the plaintiff was at work was dangerous, and he knew it. The general rule is that a servant assumes the ordinary risks and dangers of his employment which are known to him, or which would be obvious to a person of ordinary prudence and ability in his situation. There is an exception to this rule that, when a servant makes complaint to his master of a dangerous defect in his place of work or in the appliances furnished him, and the employer promises to remedy it, the risk of that defect is cast upon the master, and the servant is relieved from it for a reasonable time to enable the employer to remove it, unless the danger from it is so imminent that a person of ordinary prudence would not continue in the employment after the discovery of the dangerous condition. St. Louis Cordage Co. v. Miller, 61 C. C. A. 477, 480, 126 Fed. 495, 498. If the plaintiff below had given notice of the dangerous condition of his place of work to the mining company, and a promise to remove it had been made by that corporation, there could have been no doubt that the case would have fallen clearly within this exception. Counsel for the corporation insist, however, that Thaxton, the furnaceman, had no authority to stop the car, and that the notice to him and his promise were futile, because in receiving the one and making the other he was not acting within the scope of his agency. Weeks v. Scharer, 64 C. C. A. 11, 14, 129 Fed. 333, 336. The superintendent of the smelter testified that furnacemen in the position of Thaxton had no authority to stop the car, but that, if they would say to the carman, "You had better stop that car because there is a man on the track," the carman would stop, the carmen were under a different foreman from the furnacemen, and that Thaxton should have notified the foreman of the presence of the plaintiff and the helper upon the track. Before the accident the plaintiff had seen furnacemen report to carmen that servants were on the track at work upon the hoppers of the furnaces, and he had observed that after such reports the cars stopped before they came to the workmen until the latter completed their work. It was the duty of Thaxton to remove the obstruction from the hopper of the furnace and to keep the latter in operation. The servants under his direction refused to work to this end, unless steps were taken