sence of all evidence tending to show whether the deceased, Luke Conneally, stopped, looked, and listened before attempting to cross the west track, the presumption would be that he did. But that presumption may be rebutted by circumstantial evidence, and it is a question for the jury whether the facts and circumstances proved in this case rebut that presumption, and, if they find that they do, they should find that he did not stop and look and listen; but if the facts and circumstances fail to rebut such presumption, then the jury should find that he did so stop and look and listen. In order to justify them in finding that he did not, all evidence tending to show that should be weightier in the minds of the jury than that tending to show the contrary."

The court also gave the jury these instructions:

"The jury are the sole judges of the facts and the credibility of the witnesses, and in civil cases, such as the present one, should base their findings on a preponderance of evidence, uninfluenced by sympathy or prejudice for or against either party.

"The jury are not bound, however, to decide in conformity with the declarations of any number of witnesses, which do not produce conviction in their minds, against a less number, or against a legal presumption or other evidence, satisfying their minds.

"If you believe from the evidence that said deceased was guilty of contributory negligence, your verdict will be for the defendant, even though there may have been negligence on the part of the defendant."

The instructions of the court concerning contributory negligence were duly excepted to by the plaintiff in error, and are here assigned as error. The portion most strenuously objected to is that relating to the presumption to be indulged by the jury that the deceased stopped, looked, and listened before attempting to cross the railroad track. That instruction is a copy of one approved by the Supreme Court in the case of Baltimore & Potomac Railroad Company v. Landrigan, 191 U. S. 461, 24 Sup. Ct. 137, 48 L. Ed. 262, and was evidently taken from it. But that case presented a very different state of facts from the present one. In the first place, the instruction itself is to the effect that the presumption mentioned arises only "in the absence of all evidence tending to show" whether the deceased stopped, looked, and listened before attempting to cross the railroad track. Such instruction was applicable to the facts of the Landrigan Case, for, so far as appears from the report of the case, there was no evidence there tending to show whether the plaintiff's intestate_stopped, looked, and listened before attempting to cross the track. The present case is wholly different in that respect, for not only did the motorman (the only eyewitness to the accident, so far as appears) testify that the horse that the deceased was driving came out of the darkness on a gallop, upon the discovery of which he immediately applied the brakes, and did everything in his power to stop the car, and that he so slowed the car that the deceased almost got across the track before the cart in which he was riding was struck, but that testimony was somewhat, at least, corroborated by other uncontradicted testimony to the effect that the horse was "sweaty," indicating that he had been driven rapidly; that he was naturally so gentle as to stand, after such a crash, quietly with two of his feet. on the curbing of the sidewalk; and that the cart when struck was from 30 to 50 feet south of the south line of the crossing, which would tend to show that the deceased saw the car and took a diagonal course to cross ahead of it. The jury might have found some corroboration

of all this, too, in the uncontradicted testimony to the effect that, during the evening of the accident resulting in the death of the deceased, he took three drinks of whisky, and at least four glasses of beer, all of which beer, and two glasses of the whisky, were taken by him within about an hour and a half of the time of the accident.

The facts and circumstances here presented wholly differentiate the case, in our opinion, from that of Baltimore & Potomac Railroad Company v. Landrigan, supra, for it is very clear that in the present case there was evidence tending to show that the deceased, Conneally, did not stop before attempting to cross the track upon which he was injured. Where there is evidence upon the question of alleged contributory negligence, the case should be determined upon the evidence, and not upon a presumption that arises only in the absence of all evidence. Philadelphia, etc., Railway Co. v. Stebbing, 62 Md. 504; Salvers v. Monroe, 104 Iowa, 74, 73 N. W. 606; Bell v. Clarion, 113 Iowa, 126, 84 N. W. 962; Smith v. Railway Co. (N. D.) 53 N. W. 173; Olmstead v. Railway Co. (Utah) 76 Pac. 557; V.kman v. Railway Co. (Dak.) 37 N. W. 731; Huber v. Railway Co. (Dak.) 43 N. W. 819; Seaboard, etc., Co. v. Walthour (Ga.) 43 S. E. 720. But for the instruction of the court to the effect that the deceased was presumed to have stopped, looked, and listened before crossing the track, the jury might, as said by counsel for the plaintiff in error, have found from the evidence that the car was lighted; that he put his horse into a gallop, and undertook to cross the track ahead of the car, thereby taking the risk of doing so.

There is also another marked distinction between the present case and that of Baltimore & Potomac Railway Company v. Landrigan. The latter was a case of a steam railroad, in which the duty usually devolves upon one crossing its tracks to stop, look, and listen before undertaking to do so. There could, of course, be no legal presumption that such an act was performed, unless the duty to perform it existed. We know of no decision, and have been cited to none, in which it has been held that it is always the duty of a person to stop before crossing a street railroad track in an incorporated city. Certainly, in the populous portion of a city or town such a rule would be unreasonable and highly inconvenient; but it may be that in the more sparsely settled portions a like rule to that applicable to steam roads should apply to street railroads.

In the case of Tacoma Railway & Power Company v. Hayes, 110 Fed. 496, 49 C. C. A. 115, this court, in the course of its opinion, said: "The defendant maintains that the rule usually applied to the conduct of persons crossing the tracks of steam railroads is applicable to street railroads as well, and that the omission of the plaintiff to 'stop, look, and listen' before crossing the track was negligence as a matter of law. This rule, even in the case of steam railroads, is not inflexible, but is dependent upon the surrounding circumstances to a greater or less degree, and is only applicable to street railways where the attending conditions are such that reasonable care and prudence would dictate such precautions. The duties of persons with respect to steam railways and street railways are not so analogous as to be governed at all times by the same rule. Railway Co. v. Whitcomb, 14 C. C. A. 183. 66 Fed. 915, 919. The rights of the person are greater, and the dangers less, in connection with the latter; the rights of street cars, no matter by what

power impelled, not being superior to those of other vehicles, save in the one instance where a vehicle is bound to get out of the way, and not to obstruct the passage of the car, owing to the inability of the car to travel in any other part of the street. The element of trespass is entirely absent in the case of a person crossing a street railway at any point, and the only care required of him is that which a reasonably prudent man would exercise, having due regard to the rights of others, and assuming that others (including the street car companies) will exercise the same care; in fact, knowing that such care is imposed by municipal regulation upon the persons operating the street cars. This assumption does not, of course, warrant such a reliance upon it as to neglect means of self-preservation, but is an element of consideration in arriving at the standard of care to govern the particular case."

For the error above pointed out, the judgment must be, and is, reversed, and the cause remanded to the court below for a new trial.

THE SVEALAND.

(Circuit Court of Appeals, Fourth Circuit. February 21, 1905.)

No. 575.

1. ADMIRALTY-REVIEW ON APPEAL-FINDINGS OF FACT.

A decree in admiralty, based on facts found by the court from conflicting testimony of witnesses, the most of whom were examined before the court, will not be disturbed on appeal unless clearly unsupported by the evidence.

2. SEAMEN-INJURY IN SERVICE-LIABILITY OF SHIP FOR FAILURE TO FURNISH PROPER TREATMENT.

The master of a steamship held not negligent for not deviating from his course during a voyage to a port to procure medical treatment for. a seaman who had broken his ankle, where the end of the voyage near New York was reached within 48 hours after the injury; but the ship held liable for his failure to procure proper treatment and attention for the seaman after reaching port, it having been 10 days, and after starting on a new voyage, before he was taken off the vessel and placed in competent hands, the result being that the injury was greatly aggravated by the delay

Appeal from the District Court of the United States for the Eastern District of Virginia, in Admiralty.

For opinion below, see 132 Fed. 932.

H. H. Little, for appellant.

W. B. Barton, for appellee.

Before GOFF and PRITCHARD, Circuit Judges.

GOFF, Circuit Judge. This appeal is prosecuted from a decree of the court below allowing damages to the appellee because of the neglect of the master of the steamship Svealand to furnish him proper medical aid and treatment after he had been injured on said vessel when in the discharge of his duties as a seaman thereon. The appellant insists that the court below erred in holding the vessel liable under the circumstances, existing at and immediately after the accident to appellee, set forth in the testimony taken at the hearing of this cause. The case is clearly stated in the opinion filed by the judge who heard it, and before whom most of the witnesses were orally examined.

There is no serious contention as to the law applicable to the facts existing at the time the appellee was injured. It is not claimed that the vessel is liable to the appellee for the injury he sustained, but the insistence is made that, because of the failure of the master to provide competent medical attention at the earliest possible time after the accident, the vessel is responsible for such neglect, and for the injury and suffering caused thereby. With the propositions of law announced by the court below, we are in full accord. The decree is based on the facts found by the court from the conflicting testimony as to the conduct of the master in providing medical attention, with hospital care and comforts. Clearly the evidence offered by the appellee sustains the conclusion reached by the court below. It is quite as clear that the court did not give full weight to the, at least, unsatisfactory testimony submitted by the master. Under such circumstances this court will not reverse a decree based on such findings, unless clearly against the evidence. Whitney v. Olsen, 108 Fed. 292, 47 C. C. A. 331, and cases. there cited.

We include in this opinion, as part thereof, the views of the court below, as follows:

"The libelant, a seaman on board the Swedish steamship Svealand, en route from Tampico, Mexico, to New York, by way of Perth Amboy, N. J., on the return voyage to New York, from whence he had shipped to Tampico and return, on the 14th day of December, 1903, while on the high seas, in the vicinity of Cape Hatteras, in descending a ladder into the hold of the ship lost his footing, and fell a distance of some 20 feet, fracturing his ankle. The libel is filed to recover damages against the steamship because of its failure to put into the port of Norfolk, where the libelant could have received prompt medical and surgical treatment, but instead proceeded on its journey to New York; also for the failure to afford the libelant prompt and proper surgical treatment, and for the additional pain and permanent character of the injury caused by such delay.

"The duty of the master to furnish the libelant with proper and prompt medical treatment and surgical aid, on account of an injury sustained by him while in the service of the ship, may be conceded, but whether the ship should be held liable for the failure to divert its course and put into Norfolk depends upon the facts and circumstances of this particular case. The conclusion reached by the court is that the ship was not at fault, under the circumstances in which the master was placed, in this respect. The time to be saved by so doing, and the extent of the injury to the libelant, as the same then appeared, was not sufficient to justify the vessel making a deviation from its route. This particular subject has been so recently under review by the Circuit Court of Appeals for the Ninth Circuit, in the cases of The Troop (D. C.) 118 Fed. 769, and The Iroquois, 118 Fed. 1003, 55 C. C. A. 497 (the latter also by the Supreme Court of the United States, 194 U. S. 240. 24 Sup. Ct. 640, 48 L. Ed. 955, to which latter opinion by Mr. Justice Brown, with the authorities there cited, special reference is made, as containing a 'comprehensive and complete discussion thereof), as to render further elaboration unnecessary.

"The inability of the libelant to recover for the injury he sustained by reason of the fall is conceded by his counsel. Indeed, such claim is not asserted. And the freedom of the ship from liability to its seamen for injury received in the discharge of their duties, except in cases arising by reason of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship, is recognized. The Osceola, 189 U. S. 158, 175, 23 Sup. Ct. 483, 47 L. Ed. 760. But the libelant bases his claim upon his right to recover damages for the failure of the ship to afford prompt and efficient medical and surgical aid after he sustained his injury. That such last-named liability exists, if in point of fact there was neglect on the

part of the ship, seems equally well settled. In the Iroquois Case, supra, the Supreme Court of the United States affirmed a judgment of the lower court for $6,000, awarded the libelant for the failure of the ship to deviate from its course and put into a nearer port, where the libelant could have received medical treatment more promptly. It would follow that if there was a failure to furnish medical treatment at the end of the voyage, in a case like the one under consideration, where the circumstances did not necessarily require a departure from the course, that likewise a recovery should be had for such neglect, as it is for precisely the same thing in a more aggravated form. The master would be more readily excused for a failure to deviate from his course, and go hundreds of miles out of his way, involving the loss of time and expenses necessarily incident to such a change. But the imposition upon the master to give proper and prompt attention to a crippled seaman on reaching the port of destination is a very different thing. The neglect in the latter case, having in view the humanities of the situation, seems almost inexcusable. Here the libelant sustained his injury, the horrible breaking of his ankle joint, which has crippled him for life, and on account of which he suffered greatly, and from which he was required to stay in a hospital from the 24th of December, 1903, certainly as late as the middle of June, 1904, without walking, except on crutches. He was injured at sea on the early morning of the 14th of December, and reached the port of Perth Amboy 48 hours afterwards. He remained at Perth Amboy two days, leaving there on the 18th, and reached Norfolk on the 20th. The master of the ship, it seems, visited him twice after his injury, and once at Perth Amboy, where he called in a doctor, who saw the libelant only once, and considered the injury to his ankle a sprain, and instead of the libelant, who was then at the end of his voyage, and entitled to be released and discharged, being sent to the hospital for medical treatment, all of which he insists he asked should be done, he was brought back to Norfolk on another voyage, where he arrived two days later, when another doctor was called in, who saw the libelant daily on the ship for three or four days, and who likewise practiced upon his limb for sprain, until the libelant insisted upon calling in another physician, who discovered his serious condition, and promptly sent him to the hospital, where, 10 days after the receipt of his injury, he was afforded proper medical treatment. During all of this time this seaman was confined to his bunk in the ship's forecastle, an unsuitable and uncomfortable place, the bunk being, it is claimed, too short, and in which he suffered greatly. Dr. Graves, the physician having charge of the libelant at the hospital, described his injury, and what had to be done for it, as follows:

"I examined his ankle and found it in a little disturbed conditiontwisted; and I made a diagnosis of fracture of the larger bones, and considerable tearing of the ligament; that is, the tissues that bind the bones together, and especially on the outer side, which allowed the foot to tilt freely. I chloroformed him, and broke up the union which had taken place in the bone, and the bone was somewhat impacted-broke; that is, when broken in two, the shock had dovetailed it, and under the anesthetic the bone was carried out again; that is, the break was renewed, and the ankle put straight, and put in place. After taking it out of plaster, the foot on the inner side was straight, but on the outer side it remained very prominentthe outer bone pushed forward and outward of the foot; had the appearance below the joint of still tilting in. A second examination showed something interposing between these bones, and that necessitated opening the joint, and the interposition there was a dislocation of one of the smaller bones, and caused the ankle to go in. After that was removed, the bone was carried straight, and the foot comes down level. But the ankle is permanently disabled; he will have a useful foot, and be able to carry on good work on that foot; but whether he will be able to climb ladders as he did before, and stand on that foot, where heavy weights are necessary, and pulling, I cannot say but that he may feel some giving away in the ankle.'

"It will be seen from this statement that during the time that elapsed before proper medical treatment was afforded the libelant, which was readily at hand both in New York and Norfolk, a union had taken place in the bone, and that the first thing necessary to be done was to administer chloroform,