Page:Federal Reporter, 1st Series, Volume 5.djvu/390

 378 FEDERAL REPORTER, �confined to the first three days. If, then, it could be con- sidered to have been proved that wind-sails were for the first time put up on Wednesday, the third day out, there would be little difficulty in arriving at the concluBion that the absence of wind-sails on Sunday, Monday, and Tuesday was the cause of the siclmess and death that ensued. But while it is con- eeded on the part of the steamer that no wind-sails were put up until the vessel was passing down the bay, two wit- nesses are produced from the steamer who swear that before the steamer passed Sandy Hook twelve wind-sails were put up to convey air to the between-decks. Upon the question whether wind-sails were used during Sunday night, Monday, Tuesday, and Tuesday night, we bave, then, four witnesaes, ail of them possessed of sufficient intelligence to observe the fact, ail of them called on by the tiature of their duties to know when wind-sails were up, and each of whom must of neces- sity know how the fact was ; and yet the two eattle men swear positively that no wind-sails were up until Wednesday morn- ing, and the master and mate of the steamer swear as posi- tively that twelve wind-sails were up from the time of passing Sandy Hook. �In regard to this conflict of evidence, whieh presents a plain question of veracity, it must be remarked on the one hand that the testimony of the eattle men discloses a desire to make out a strong case against the steamer, and there is consider- able improbability in their statement that the master of this steam-ship, although often req'uested, and when the necessity was obvions, ref used to put up wind-sails until Wednesday ; and this, too, when he had plenty of them on board, and, for ail that appears, could have put them up at once without trouble. Such neglect would be gross indeed, and requires to be clearly proved. Moreover, some of the statements of the eattle men, such as that ail permanent ventilators were closed up, have been clearly disproved. On the other hand, the master and mate of the steamer, who contradiot the eattle men, testify in regard to a neglect, which, if it existed, is chargeable to them, and they cannot be considered as free from a bias in favor of the steam-ship. ����