Page:Federal Reporter, 1st Series, Volume 8.djvu/542

 528 FEDERAL REPOIiTEB. �steamer did not keep ont of her way, and as the collision did occur, the steamer is prima facie liable, and can only relieve lierself by showing that the accident was inevitable, or was caused by the culpable negligence of the schooner." The Carroll, 8 Wall. 302. �The collision having occurred, in this case the only question is, bas the steamer shown that it was inevitable, or that it occurred, through the culpable negligence of the schooner? The testimony bearing upon this question bas been exhaustively and ably discussed and analyzed by the commissioner in his report, and, although, while I think it must be conceded that the questions of fact ajre not wholly free from doubt, yet, when we consider that the law bas cast upon the steamer the burden of showing, by a preponderance of proof, that the collision was the resuit of the schooner's palpable negligence, I am not disppsed to disturb the commissioner's finding. �The charge of negligence by reason of the intoxication of the cap- tain, is, in my judgment, fairly overcome by the additional testimony before referred to, put into the record since the hearing. I will also add that the testimony shows the steamer's speed to have been from nine to ten miles an hour at the time of the collision — the same rate of speed at which she had been running the entire distance between Chicago and Milwaukee — and I think the suggestion of the commis- sioner a very pertinent one : that this was too fast a rate of speed for a steamer to be making in the night-time at the entrance to a harbor like Chicago, where there is not only a liability, but almost a certainty, of meeting sail vessels just arriving or departing, and where the utmost caution is required to avoid collision, It seems to me quite clear that this collision would not have occurred but for the high rate of speed at which the steamer was running. �The exceptions to the report are overruled, the report confirmed, ind a decree will be entered finding the steamer at fault, and direct- ing a reference to take proof and report as to damages. ��� �