Page:Federal Reporter, 1st Series, Volume 5.djvu/391

 MAY V. STEAM-SHIP POWHATAK. 879 �I pass the testimony of the second and third mates with the lemark that their statements are so general in charaoter as to have little weight in Bo sharp a conflict; and with the fur- ther remark that it is not without significance that so impor- tant a fact as the time when wind-sails were put up should have been left, on the part of the steamer, to be decided upon the testimony of the master, and mate unsupported ex- <5ept by such general statements as are made by the second and third mates. The testimony of the Sandy Hook pilot, ■who says that he has no reoollection in regard to wind-sails, but thinks that if no wind-sails had been pp he would have remarked the circumstance, as he knew that she had cattle in the between-decks, affords but little support to the master and mate; for it would seem that it could hardly be that twelve wind-sails could bave been rigged on the steamer while she was passing down the bay without attracting the attention of the pilot in charge. Still, I must say that I have not been convinced that no wind-sails were up until Wednesday. The only omission on the part of the ship that can be deemed proved is the omission to have wind-sails up during "Sunday, while the steamer lay at the pier. �The case, then, presents two questions : First, whether it was negligence on the part of this ship to permit their ves- sel to lie at the pier with the between-decks full of cattle, during Sunday, without any wind-sails up; and, second, whether the subsequent sickness and death in the between- decks is attributable to that omission. �The evidence hardly admits of doubt that a reasonable care for the health of the cattle in the between-decks required that wind-sails should have been put up as soon as the cattle were on board. It was a hot July day; the steamer was an iron vessel; she was lying in the slip along-side a shed; the cattle fiUed the between-decks very full; the beat there was extraordinary; the animais were suffering greatly, so much so that fears were expressed that ail would die, and the necessity for wind-sails was called to the attention of the mate in charge by an agent of the Society for the Prevention of Cruelty to Animais, who was present for the purposo of ����