44 L. Ed. 587], and Hancock National Bank v. Farnum, 176 U. S. 640 [20 Sup. Ct. 506, 44 L. Ed. 619], do not bear upon the question, as the plaintiff in each case was the creditor of the corporation." Referring to the expression, "the statute did not confer upon the receiver the right to proceed to enforce the liability of stockholders," the statute of 1899 is, perhaps, susceptible of a different construction; indeed, of such a construction as to bring this case within Relfe v. Rundle, 103 U. S. 222, 26 L. Ed. 337, which the Supreme Court also refers to. We may observe, further, that, while the Supreme Court, with regard to the provisions of the sixth section of the act of March 3, 1891, establishing the Circuit Courts of Appeals, which gives it power to issue writs of certiorari, has not deemed it necessary to make known the general rules which guide it in determining whether to issue such writs, it has given some indications of its methods in reference thereto. That part of the same section which authorizes the Circuit Courts of Appeals to certify questions to the Supreme Court, and the provision authorizing the latter court to issue its writs of certiorari, have alike been uniformly held to apply only when matters. of gravity and importance are involved. Forsyth v. Hammond, 166 U. S. 506, 514, 17 Sup. Ct. 665, 41 L. Ed. 1095, and cases there cited. A further disclosure is found in In re Woods, 143 U. S. 202, 206, 12 Sup. Ct. 417, 36 L. Ed. 125. There it is said that the power of issuing writs of certiorari was given by the act of March 3, 1891, as a provision for such supervision "as would tend to avert diversity of judgments and guard against inadvertence of conclusion in controversies involving weighty and serious matters." It is, therefore, unsuitable to presume that the Supreme Court entertained a petition: for a writ in Hale v. Allison, and entered judgment therein against the receiver, but refused the writ in the present case, and yet had any impression that the two involved the same question, and thus practically induced the very "diversity of judgments" which it says it was the purpose of the statute to avert. On the whole, for us to assume to reconsider questions which the Supreme Court has had an opportunity to reconsider in the identical case and on the identical record, and refused to reconsider, would ordinarily involve grave impropriety. Aside from that, we can perceive in this particular instance nothing which calls on us to do so. The petition of the plaintiff in error, filed on February 4, 1903, is dismissed. HENDRYX et al. v. PERKINS. (Circuit Court of Appeals, First Circuit. May 15, 1903.) No. 378. 1. APPEAL-FINDINGS OF FACT-CONCLUSIVENESS. Rev. St. § 1012 [U. S. Comp. St. 1901, p. 716], providing that appeals "shall be subject to the same rules, regulations, and restrictions as are or may be prescribed in law in cases of writs of error," does not have the effect of making a finding and statement of facts by a Circuit Court in an equity cause conclusive on the appellate court. 2. SAME. A mere opinion expressed by a circuit judge upon a question of fact in an equity case is not a finding of facts. Appeal from the Circuit Court of the United States for the District of Massachusetts. On motion to recall mandate. Lauriston L. Scaife (William L. Bennett and Charles M. Reed, on the brief), for appellants. John M. Perkins, pro se. Before PUTNAM, Circuit Judge, and ALDRICH and BROWN, District Judges. PUTNAM, Circuit Judge. After a full argument on the merits, and a careful consideration of this case, judgment was rendered against the appellee at the October term, 1901, 114 Fed. 801, 52 C. C. A. 435. On April 29, 1902, during the same term, the appellee moved for leave to file a petition for a rehearing, which we carefully examined, and denied in an opinion passed down on June 10, 1902, 52 C. C. A. 684, 116 Fed. 1020, but without stating therein any reasons therefor. Thereupon a mandate was ordered. Afterwards, on September 19, 1902, which was before our October term, 1901, expired, the appellee filed in the Supreme Court a petition for a writ of certiorari, which has been denied during this term. We granted the appellee leave, on March 10, 1903, to file the petition now before us for recalling the mandate. As merely recalling the mandate does. not go to the substance of anything, we assume that the petition looks to a rehearing, and that that is the substance of it. It is useless to recall a mandate unless something would thereby be gained on a rehearing. Although the term at which the mandate was ordered expired in October, 1902, it is claimed by the appellee that, in contemplation of law, the case remained under our control on the ground that the petition for a writ of certiorari operated as a stay. On the other hand, he has attached to his present petition his petition to the Supreme Court for the writ of certiorari, and his brief in support thereof, by which it appears that he therein submitted to that court considerations regarding the entire merits of the case. Passing by the important and interesting question raised by the petitioner, whether the petition for writ of certiorari operated to hold the case under our hand notwithstanding the expiration of the term at which the mandate was ordered, and also passing by the other important and interesting question whether we should reopen a case which has been presented to the Supreme Court on a petition for certiorari involving the merits, as in this instance, both of which questions we have considered in an opinion passed down by us on May 1st in Burget v. Robinson, 123 Fed. 262, we will proceed to examine the alleged new matter now suggested. This is, in substance, that "the finding and statement of facts by the Circuit Court" in the case before us is conclusive on us, notwithstanding this is an appeal in a cause in equity, and not a writ of error to a common-law judgment. The appellee, petitioner, has cited many cases which he main 1 tains sustain this proposition, and he, also, has referred us to section 1012 of the Revised Statutes [U. S. Comp. St. 1901, p. 716], as follows: "Appeals from the Circuit Courts and District Courts acting as Circuit Courts, and from District Courts in prize cases, shall be subject to the same rules, regulations, and restrictions as are or may be prescribed in law in cases of writs of error." The cases he cites, however, state only the rule on writs of error, barring some exceptions where some statute has made special provision for appeals. For us to admit his proposition, and to give effect to his construction of section 1012 of the Revised Statutes, would clearly reverse the rules of procedure in the federal courts from the time of the judiciary act of 1789; and this could not possibly be permitted. It may be well to state here that the law is thoroughly settled that a mere opinion of a judge in the Circuit Court in an equity case is not a "finding and statement of facts." This has been very lately said by the Supreme Court in Finney v. Guy, in an opinion passed down on April 6, 1903, 23 Sup. Ct. 558, in the following language: "No such issue was involved in the Hanson Case, and the opinion regarding such question is only the opinion of the very able judge who gave it upon an abstract proposition, as distinguished from an adjudication upon a point actually in issue." In the present case, however, as fully explained in our prior opinions, the decree of the Circuit Court appealed from necessarily implied a finding of facts, though not the fact of a mistake suggested by the opinion of the learned Circuit Judge. Therefore, the appellee's proposition in his present petition is in point in this particular case, although met in the way we have already stated. This disposes of all judicial aspects. Whatever we have decided with reference to the case has been on it as made by the record, which we have held discloses an original bill to impeach a decree on the ground of fraud. While a consideration of this question necessarily called out several propositions which may lead to the conclusion that the complainant below, now the appellee, is entitled to no relief whatever, yet it must not be assumed that we have so decided. In other words, we have not judicially considered whether he could proceed by a summary petition, or by any method which would claim that the proceedings below on the original bill were void for mistake on the part of either himself or the court, if there was any. As to all such considerations we express no opinion, except as necessarily involved in the questions judicially before us in the manner we have already stated. Between the Supreme Court and this court, we are of the opinion that every question which the appellee can raise on this record has been met and disposed of; and we therefore must suggest to him that we can consider no further applications with reference to this appeal. The petition filed by the appellee on March 10, 1903, is dismissed. ALDRICH, District Judge, takes no part in this decision. CLEMENT v. METROPOLITAN WEST SIDE EL. RY. CO. No. 942. 1. NAVIGABLE WATERS-OBSTRUCTIONS TO NAVIGATION-Bridges. A bridge across a navigable stream is an obstruction to navigation tolerated only because of necessity and the convenience of commerce on land, and, the right of navigation being paramount, it is incumbent on the owner of the bridge to so construct it that it may be readily opened to permit the passage of vessels, to place it in charge of persons competent to operate it, and to equip it with lights and signals giving warning of its position in opening and closing, and to give timely warning to approaching vessels if for any reason it cannot be opened. A vessel having given proper signal to open a bridge, and prudently proceeding under slow speed, in the absence of proper warning to the contrary, has the right to presume that the bridge will be opened in time for passage, and is not bound to stop until it has been opened. 2. SAME-MUNICIPAL REGULATIONS. The ordinance of the city of Chicago requiring the commissioner of public works to provide and maintain vessel signals on all bridges over the Chicago river, and providing that it shall be unlawful for any vessel to attempt to pass a bridge, or to approach nearer than the end of the bridge protection, while the signals are up or the bridge is opening or closing, as that the same may be injured, applies only to bridges owned by the city, and is for their protection, and does not affect the rights of vessels with respect to private bridges, nor determine what shall be prudent navigation. 3. SAME-FAILURE TO OPEN BRIDGE-LIABILITY OF OWNER FOR INJURY TO VESSEL. A steamer 254 feet long was proceeding up the Chicago river at night, at a slow speed, which enabled her to stop within her length. She passed through a number of bridges, and gave timely signal for the opening of a private bridge owned by defendant, an elevated railway company, which was raised by electrical machinery. As she entered the draw of the next bridge below, which was 135 feet distant, it was seen that defendant's bridge was not opening, although no warning of such fact had been given, and the vessel was immediately started full speed astern, but could not be entirely stopped until she struck the bridge and was injured. Held, that the vessel was not in fault, and that the burden rested on defendant to excuse its failure to perform its duty to open the bridge; that in the absence of any such showing, beyond the mere statement that the bridge could not be opened, defendant was liable for the injury. Appeal from the District Court of the United States for the Northern District of Illinois. In Admiralty. This is a libel in personam by the appellant to recover damages sustained by the steamer F. H. Prince in consequence of her collision with the railway bridge of the appellee, respondent below, which spans the South Branch of the Chicago river. This bridge is known as a "Schurzer Roller Lift Bridge," connecting the tracks of the elevated railway of the appellee on the east and west sides of the river, and is used exclusively for the passage of elevated trains. The bridge breaks in the middle and the two halves are raised by electricity and lowered by gravitation. Near the center of the bridge, upon four steel towers each about eight feet high, are four red lights for use in the nighttime, and four red disks for use in the daytime, two of each being on 13. See Navigable Waters, vol. 37, Cent. Dig. § 96. the south side and two upon the north. It is the duty of the operator or bridge tender, when the bridge is about to be opened, by some mechanical arrangement to turn in the nighttime the red lights to one side away from the river, and in the daytime in a similar manner to turn the disk. The bridge is locked in the middle by sliding bolts, and these bolts, as well as the signals, the locks, and the opening and closing of the bridge, are controlled from the west tower. When the bridge is about to be opened the west towerman signals to the east towerman to throw the track switches and signals to warn approaching trains from the east. When these switches and signals have been thrown to "danger," the east towerman signals the fact to the west towerman, who then draws the bolts, thereby unlocking the bridge, turns the signal lights or disks, and raises the west half of the bridge, the other half being raised by the east towerman. This bridge was located from 125 to 135 feet south of the Jackson street bridge. There are bridges north of Jackson street at Washington, Adams, and Madison streets, but at what distance apart is not stated in the record, but concededly at a much greater distance, certainly not less than 400 feet. About 1 o'clock in the morning of July 16, 1899, the steamer F. H. Prince left her dock at or near Washington street bridge, and proceeded south under steam up the South Branch of the Chicago river at a speed of from two to three miles an hour, her engine being set at a "dead slow check," passing safely through the Washington, Madison, and Adams street bridges. She was properly manned, and was in command of her captain, an experienced mariner, who occupied his proper position on the pilot house, the first mate and a mariner being forward on the lookout. The steamer was 254 feet in length, and at the speed at which she was going could stop in a distance equal to her length. At Adams street bridge the captain signaled for the Jackson street bridge, and, according to the testimony of the bridge tender in the west tower, when 150 feet north of Jackson street bridge signaled for the opening of the Metropolitan bridge, and the bridge tender attempted to open the bridge. At this time the red lights on the Metropolitan bridge were exhibited. There is some contradiction in the evidence, however, whether when the steamer was passing the draw of the Jackson street bridge more than one red light was exhibited; but the fact is perhaps inconsequential, and the record does not disclose how those lights were operated. As the steamer entered the draw at the Jackson street bridge the master of the steamer observed that the Metropolitan bridge was not opening, and he thereupon signaled the engineer to stop, and immediately signaled him to back and back strong; but before the headway of the vessel could be entirely checked she came into collision with the bridge, her bow passing some fifty feet under the bridge, which carried away her mast and the pilot house. The west towerman testified that he undertook to open the bridge, but was unable to do so, as the "locks would not work." There was, however, no explanation of the cause, and no signal or warning to the approaching boat was given with respect to the difficulty, otherwise than by the red signal light or lights upon the bridge. An ordinance of the city of Chicago pleaded by the respondent below instructs the commissioner of public works to provide and maintain at the several bridges over the Chicago river and its branches, in the best and most practicable manner, vessel signals as required by the article, the signal for the nighttime to be a red lantern of such size and so placed and arranged when elevated as to be easily seen up and down the river and street. It further provides as follows: "It shall be unlawful for the owner or owners, officers or officer, or other person or persons in charge of any vessel or vessels navigating the Chicago river or its branches or any part thereof, to attempt to pass any of the bridges over the said river or its branches while said signal or signals are up or elevated, or to approach nearer than the end of the bridge protection to any of said bridges at such times, as that the same may be injured or damaged, or while the said bridges, or any of them, may be opening or closing." Charles A. Munroe, for appellant. |