Page:Federal Reporter, 1st Series, Volume 1.djvu/634

 620 FEDEKÀli BEFOSIEB. �badly and sink in 10 or 15 minutes. It is a fact that she Bunk soon after the libellant discovered that the water was running in. It was shown that she was 12 or 13 yeara old and very weak — so much so that the libellant yielded to the advice given him by the pUot of the tug not to have her towed to her destination at the foot of Fifty-third street, East river, on the inside of two other loaded boats, lest sha should not bear the pressure, although the day was fair and the water smooth. The libellant had at first insisted on -being taken away with these other boats, and had been put along-side the tug, and inside of two boats, where it was proper to put her, because she was the last boat to be delivered ; but upon the remonstrance of the pilot that she could not stand the voyage, she had, with the consent of the libellant, been put back again along-side the pier shortly before the allcged collision. �The burden of proof is upon the libellant to show by a fair preponderance of the evidence that the collision happened and that it was the cause of the injury. I do not think the evi- dence is sufficient. He is himself the only witness to the collision, except his young son, who really corroborates his story very slightly as to there being a collision, and by his not confirming his father's account upon several other points he really weakens the force of the libellant's whole testimony. It is also hardly credible that, if there was so serious a blow and pressure as he testifies to, and particularly if it burst out the stern, he should not have noticed the effect of it at once. �The proved condition of the boat was such that her spring- ing a Budden leak and sinking from the effect of ordinary usage and without apparent cause would have been nothing surprising, and the slight jarring caused by moving her about and putting her back to the pier is quite as likely to have caused the leak as any effect which resulted from what is proved to have been done by the tug and tow after she was put back along-side the pier. �While the libellant is made by the law a competent witness, he is an interested party, and as his story is not corroborated, and is in itself scarcely credible, and is contradicted by two ��� �