port his selection, and that he had selected room 28 without giving notice. But the testimony on this point resulted in an assertion of the company's mine foreman and a denial of Williams. Still another issue of fact arose out of a claim of the company that the room was unsafe and that Williams was employed to make it safe. This kind of service was called "company work," and was paid for by the day, while mining coal was paid for by the ton mined. The company's assistant foreman testified that, about two days before Williams began work in room 28, he told Williams that the room was in bad shape, and that some slate in it would have to be taken down before the room would be safe to work in. (In the testimony, and in the charge, the material in the roof of the room was sometimes called rock, and at other times slate.) This foreman further testified in substance that he told Williams to remove the slate and fix the place for work, and that Williams said he would. But Williams contradicted this testimony.

Further issues of fact were made concerning alleged failure of the company to cause the room to be inspected and put in a safe condition, and also failure of Williams himself to inspect it and acquaint himself with its condition. It was quite consistent for the company to claim that it had the room inspected, and so learned of its condition; for, as just shown, it claimed to have engaged Williams to make it safe. But it is not easy to reconcile the two positions taken by the company: First, that Williams was given the choice of three rooms, including room 28, in which to mine coal; and, next, that Williams was employed to put that room in safe condition for mining coal. To take the first position was to say that the company did not know that the room was in a dangerous condition; to take the second was to assert that it did.

But, apart from this seeming inconsistency, Williams testified that no officer of the company inspected the room while he was working in it. The mine foreman, who said that he gave Williams the choice of the three rooms, and his assistant, who stated that he had employed Williams to make the room safe, testified that some days before Williams began to work in the room they each discovered loose top in it. One man, however, who worked in the room shortly before Williams worked there, testified that the assistant had told him there was no danger in the room, and accused him of being afraid of it. Williams testified that, when he began his work in the room, he tested the top with a pick, and called for props, and placed them where he thought necessary for his protection. He also testified, in substance, that he had never been in the room before and had been given no warning; also that there was nothing to put him on his guard, further than he discovered and attempted to provide against. This is sufficient to show that there was also conflict in the testimony touching the lastmentioned issues of fact.

But in considering the foregoing issues of fact, and the conflict of testimony concerning them, we must not lose sight of the question: What was Williams' real employment? He testified in effect that he was employed to mine coal in this room; the mine foreman telling him to work in the room in question, and the assistant pointing it out. The testimony is reasonably clear that Williams did in fact mine coal in

that room for at least three days before his injury, and that he was paid for the work by the ton. It is true that, for purposes of his own mining, he did such propping as is usual in a place of ordinary safety; but he was not in fact occupied in what was known as "company work" for making a dangerous place safe. Could the company close its eyes to what its employé was thus in truth doing? Can the company justly complain against a finding that it was not in the exercise of ordinary care in thus engaging and permitting a person to mine coal, where its mine foreman and his assistant testified that at that very time they knew there was loose top in the room? If the company's testimony is to be believed, it should not have tolerated mining in this room until it was made safe. If Williams' testimony is to be believed, the danger claimed to have been known by the company's officers was not apparent to the average miner. But it is not necessary to pursue the subject further.

Turning, now, to the assignments of error, we think they must be overruled. The company waived the exception taken to the overuling of its motion to direct a verdict in its favor at the close of the evidence offered by plaintiff. Leonard Martin Construction Co. v. Highbarger (decided by this court November 2, 1909) 175 Fed. 340, 342. It was not the province of the court below to weigh the evidence, when considering the motion to direct at the close of all the testimony. The motion. must be overruled, where the testimony presented by the plaintiff, if believed by the jury, will support the petition. Mt. Adams & E. P. Inclined Ry. Co. v. Lowery, 74 Fed. 463, 477, 20 C. C. A. 596; Central Union Depot & Ry. Co. v. Mansfield, 169 Fed. 614, 95 C. C. A. 142; Norfolk & W. Ry. Co. v. Hazelrigg, 170 Fed. 551, 95 C. C. A. 637; L. S. & M. S. Ry. Co. v. J. Eder, Jr. (decided December 7, 1909) 174 Fed. 944; Noble v. C. Crane & Co., 169 Fed. 55, 94 C. C. A. 423; Van Stone v. Stilwell & Bierce Mfg. Co., 142 U. S. 128, 135, 12 Sup. Ct. 181, 35 L. Ed. 961. In our opinion there was such testimony. The weight of evidence and the extent and effect of contradiction present questions for the jury. Crumpton v. United States, 138 U. S. 361, 363, 11 Sup. Ct. 355, 34 L. Ed. 958.

When, however, the trial judge came to consider the motion for a new trial, he was required to weigh the evidence. It was said by this court in regard to the duty of the trial judge in passing upon a motion for a new trial, the present Mr. Justice Lurton announcing the opinion, in Mt. Adams & E. P. Inclined Ry. Co. v. Lowery, supra (74 Fed. 477, 20 C. C. A. 609):

"In passing upon such motions he is necessarily required to weigh the evidence, that he may determine whether the verdict was one which might reasonably have been reached."

In the opinion of the court below overruling the motion for a new trial, this appears:

"I have gone carefully over the grounds assigned upon which the defendant bases its motion for a new trial, and am of the opinion that the motion must be disallowed. * The questions of the negligence of the defendant and of the contributory negligence of the plaintiff were submitted to the jury, and they found for the plaintiff. I think the proof warrants this finding by the

jury. As to the question as to the amount of the verdict, I am of the opinion that it was reasonable, in view of the severe injuries that the proof discloses were inflicted upon the plaintiff."

The case therefore falls within the settled general rule that the granting or refusing of a new trial is a matter of discretion, and not subject to review. In Louisville & N. R. Co. v. Summers, 125 Fed. 719, 723, 60 C. C. A. 487, 491, Judge Severens said:

"It has been often said by this court that it will not review the action of the lower court in its disposition of a motion for a new trial, or other matters addressed to its discretion."

See, also, L. S. & M. S. Ry. Co. v. J. Eder, Jr., supra; Illinois Cent. R. Co. v. Coughlin, 145 Fed. 37, 75 Č. C. A. 262; Railway Company v. Heck, 102 U. S. 120, 26 L. Ed. 58; Wilson v. Everett, 139 U. S. 616, 621, 11 Sup. Ct. 664, 35 L. Ed. 286; Van Stone v. Stilwell & Bierce Mfg. Co., supra, 142 U. S. 134, 12 Sup. Ct. 181, 35 L. Ed. 961. The assignment respecting admission of testimony in regard to the duty to place props in position for mining purposes does not, in our view of the testimony relating to the previous exposure of the rock and the apparent knowledge of the company touching the condition of the roof of the room, present any question of prejudicial error.

We have not found it necessary to consider the statute of Tennessee providing for the regulation and inspection of mines. We do not think its provisions were involved or applied, at least in any prejudicial sense. Nor is it important to consider the decisions cited and relied on so confidently by learned counsel for the coal company. We think the law applicable to the trial of the cause is to be found in the clear and impartial charge of the learned trial court. No exception was taken to it, as before stated, and the only special instruction asked by the company was given. The law, then, as stated in the charge and the special instruction, is not now open to review. Railway Company v. Heck, supra.

The judgment must be affirmed, with costs.

CALIFORNIA NAVIGATION & IMPROVEMENT CO. v. UNION
TRANSP. CO. et al.†

(Circuit Court of Appeals, Ninth Circuit. February 21, 1910.)

No. 1,769.

1. COLLISION (§ 123*)-DAMAGES-BURDEN OF PROOF.

The burden of proof to establish the amount of damages recoverable for an injury to a vessel in collision rests upon the party demanding compensation.

[Ed. Note. For other cases, see Collision, Cent. Dig. §§ 259-261; Dec. Dig. § 123.*]

2. COLLISION (§ 124*)-MEASURE OF DAMAGES-EVIDence.

Where a vessel sunk in a river by collision was not surveyed, was allowed to remain four months before being raised, was injured by rough and unskillful handling in raising, and allowed to stand in a port for eight months longer full of water and without care or protection, whereby she •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes † Rehearing denied April 25, 1910.

was further seriously damaged, the price at which the wreck was then sold cannot be taken to indicate her value after collision; but the only way in which the damages caused by collision can be even approximately estimated is to establish her value before collision and immediately afterward before being raised, which must be shown by competent evidence, and subtract one from the other.

[Ed. Note. For other cases, see Collision, Cent. Dig. § 265; Dec. Dig. § 124.*]

Appeal from the District Court of the United States for the Northern District of California.

Petition in admiralty by the California Navigation & Improvement Company; the Union Transportation Company and others, claimants. From the decree, petitioner appeals. Retained for further proof.

Charles Page, Edward J. McCutchen, Samuel Knight, and A. L. Levinsky, for appellant.

Nathan H. Frank (Campbell, Metson & Campbell, of counsel), for appellees.

Before GILBERT and ROSS, Circuit Judges, and HANFORD, District Judge.

HANFORD, District Judge. The litigation in this case is to determine the rights and liabilities of the respective parties consequential to a collision between the Mary Garratt and the Dauntless, two stern wheel river steamboats, which happened on the San Joaquin river, in the month of August, 1901. The Mary Garratt rammed the Dauntless, cutting a large hole in her side, admitting a flow of water which caused her to sink. By a petition filed conformably to the statutes and rules, under which a shipowner may avoid liability for a maritime tort in excess of the value of the offending vessel and her pending freight, the owner of the Mary Garratt, which is now the appellant in this court, contested its liability for any damages, and also prayed that its liability, if any, be limited as the statute prescribes. The owner of the Dauntless appeared and answered the petition, and, after a trial upon the issues joined, the District Court rendered an interlocutory decree placing the blame for the collision upon the management and navigation of the Mary Garratt, and granting the petition for a limitation of liability. Thereupon the case was referred to a commissioner to ascertain and report the amount of the damages. He reported the amount of damages to be $35,834, which amount exceeds the appraised value of the Mary Garratt and her pending freight. That award was confirmed by the District Court, and a final decree was entered accordingly for a pro rata share of the available fund, and an appeal was then taken to this court. The appellant does not now dispute the correctness of that part of the District Court's decision which fixed the responsibility for the collision upon the officers and crew of the Mary Garratt, and the appeal brings to this court for decision only the remaining question as to the amount of damages which the owner of the Dauntless is lawfully entitled to recover,

The general principle governing courts of admiralty in assessing damages recoverable by the owner of an injured vessel free from fault, in a suit against an offending vessel or her owner, has been clearly

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

stated by this court in an opinion written by Judge Morrow, in the case of The Rickmers, 142 Fed. 305, 73 C. C. A. 415, as follows:

"Restitutio in integrum' is the rule of damages in collision cases, and, where repairs are practicable, the general rule followed by admiralty courts in such cases is that the damages assessed against the respondent shall be suffi cient to restore the injured vessel to the condition in which she was at the time the collision occurred. The Baltimore, 8 Wall. 377, 385, 19 L. Ed. 463; The Atlas, 93 U. S. 302, 307, 23 L. Ed. 863. If, however, the injuries are of such a character that they cannot be repaired at reasonable cost, an allowance may be made for actual or permanent depreciation, for the reason that an attempt to make complete repairs would involve an expense greatly disproportionate to the amount of such depreciation. Petty v. Merrill, 9 Blatchf. 449, Fed. Cas. No. 11,050. But this allowance in a collision case is subject to the general rule that damages which are uncertain, contingent, or speculative cannot be recovered, and under this rule it has been held that there is uncertainty when the nature of the damage cannot be determined. It follows that, to recover damages over and above repairs for actual cost or permanent depreciation, the nature of such damages must be clearly established, and not be left to speculation or uncertainty."

This court deems the rule thus stated to be applicable to the case in hand, and will endeavor to make an award of damages as nearly as possible commensurate with the amount of the loss proved, or which may be proved. In this connection it is to be observed that the onus probandi rests upon the party demanding compensation to prove his loss and the facts necessary to be ascertained and considered by the court in fixing the definite sum to be awarded. From the evidence it appears that the owner of the Dauntless declined to accept an offer made by a competent contractor to raise the steamboat promptly and deliver her at either San Francisco or Stockton for the gross sum of $5,000, and instead of that, by intermittent efforts, under the direction. of several superintendents, successively, without efficient apparatus and power, the boat was raised and delivered at Stockton four months after the collision. It will be assumed that the cost of salving was $5,500, although the evidence as to the amount expended is secondary and unsatisfactory. Instead of proceeding promptly to repair the injured vessel, her owner waited until one year after the collision, and then sold the wreck at private sale for $9,500. She was then in a dilapidated condition, she was waterlogged, her upper decks and cabins were gone, her hogchains and smokestack were gone, and her hull was bulged up in the middle. In his testimony, the man who made the purchase said:

"Q. She had been repaired, and was then in Stockton? A. No, sir; not repaired. She had been floated and brought to Stockton. Her hull was full of water when I bought her.

*

"Mr. Frank: Q. You had to reset the machinery, repair it, and clean it up? A. Yes, sir; we had to lift the wheel out. In fact, the wheel was mostly all gone the buckets gone. We had the wheel hanging on a crane while we put the boat in dock to try and get her straightened up. The center of the boat had come up in such a shape was one reason that we got her so cheap. In the judgment of most of the steamboat men I talked to, we would never be able to get her back to shape, because the middle of her had come up in the middle, and the hogchains were all gone."

Mr. Tucker, a witness called in behalf of the owner of the Dauntless, testified that after being floated the boat was pumped dry, and that she was not hogged when she was delivered at Stockton; and