Page:Federal Reporter, 1st Series, Volume 5.djvu/550

588 hire, and for their protection was subject to a very strict responsibility. Therefore, it was bound to provide for the safety of the deceased, while upon its boat and getting on shore, "so far as was practicable by the exercise of human care and foresight." Shoemaker v. Kingsbury, 12 Wall. 376. To this end, it was certainly its duty to have had its boat and landing, particularly the latter, well lighted, and to have maintained a guard or gate across the bow of the former to prevent passengers from debarking before the landing was fully made, and to have signified to the passengers in sore. suitable and sufficient manner as by the ringing of a bell- when it was safe and proper to go ashore. But all these precaution's were substantially omitted, and although the fact that the boat did not usually cross the river at night may in some measure excuse those in the immediate charge of the boat for the omission, it does not exonerate the defendant from the legal effect thereof.

But the defendant claims that the deceased was duly warned not to go ashore when and as he did, and that his disregard of such warning was the cause of his death, or substantially contributed to it; and also that he was intoxicated at the time of his death, and incapable of apprehending or avoiding the danger which caused the loss of his life.

Contributory negligence is a defence to this action. The Chandos, 4 FED. REP. 649. But the burden of proof is upon the defendant to establish it. I admit the authorities are in hopeless conflict upon this question, but in my judgment any. other rule than this violates all the analogies of the law, and is practically illogical and unjust. See 2 Thomp. Neg. 1175, § 24.

The evidence in regard to the warning and intoxication' comes from the witnesses of the defendant, and must be taken with many grains of allowance, besides being substantially contradicted by those of the libellant. The witnesses of the defendant, from whom this evidence comes, are its employes, or persons habitually traveling on its road in connection with the transportation of the mail, or engaged as solicitors for