Page:Federal Reporter, 1st Series, Volume 5.djvu/104

 92 FEDERAL EePORTEB. �This înquiry need not, however, be pursued. The fact that the bark could have been seen, with the exercise of proper vigilance, earlier than she was, (of whieh I am fully con- vinced,) shows conclusively an absence of proper care. Wherein this consisted need -not be determined. The bark should have been seen earlier. That she could have been, even without lights, seems to admit of little, if any, doubt. Wis- mer (of the steam-ship) says he could see a ship, without lights, the fourth of a mile off, at the time, and believed so tben. Sodergren (also of the steam-ship) thinks a man with a sharp eye might bave seen a ship, without lights, half a mile off. Lutz (of the steam-ship) says he saw the bark as she came up, and looked out the air-port of his state-room a third time before reporting that she would strike. Peters (of the steamship) says he heard the report, and passed from below to the deek before she struok. Captain Jackson (of the steamer) says he did not lose sight of the wreck, which King says was 500 to 600 yards away, and without lights. Peters says he kept the wreck in view from the steam-ship untU they left, and could see the mizzen-mast above the water. King (of the steam-ship) says: "When at the wreck, judging as near as I could of the distance, it was from 500 to 600 yards from the steam-ship; I could count every port-hole." Tonneson (of the bark) says he saw the steam-ship' s sails when she was three lengths away. Captain Simonson (of the bark) says he saw her sails as she came up, and, after the collision, saw her constantly, as he clung to the wreck. Edwardson (of the bark) says he saw the steam-ship's sails and rigging as she came up, and kept her constantly in view from the wreck. Jansen (of the bark) says he also saw her from the wreck. That these witnesses may be inaccurate, and, no doubt, are, respecting time and distance, must be admitted. Still, their testimony is convincing that the bark, even with- out lights, might have been seen earlier than she was. With lights she could oertainly have been seen, aooording to the concurrent testimony on both sides, from half a mile to a mile off. That her lights were burning is not, in my judg- ment, open to serious question. Simonson, her first officer, ����