59f}
RE¥9RTJj;R,. y;ol.
45.
and nothing to. The controversy has been· The .doctrine of res,adj1fdicata is sometimes spQken of ,as" estoppel"by judgroent." , This is an unfortunate use of Wells, ReS, Adj. § 1. It is not founded on the narrow doctrine toppel.'Y!len, has once had tl;1,e opportunity of rights tribuqal,and qashad an adjudication therec:;>o, tl:1ey question with the same parties. He has had ftayin cO,urt. With reeult he himself. The demand that there be, an endofJitigation, The libel ml,lst bedi$l;nissed. But as the defendant assented to the offer for dIscontinuance; without which it would not havebeen granted, or this action brought, the cost:s of the clerk and 'marshal only will fall 00 libel-
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, ',<l>£strtct Court, E.'D.'Pennsulvania. J'anuary6,189i.) The libeIlj,nt,passing dowp at night, south byeal!t, met respond, ent malrlng red lightS of each appeadng slightly off the port bow of the, miter,. respondent turned'lllightly east,. and: the libelant, when from 300 tp,4QO Yl1ordsoff, a1so"t\lrned in the same direction, Ilnd, collided. libelant IIhoiIId have assumed, when'so close to the respondent, that t.he latter had , accommodated himself to the situation, Rnd ,should have held her course, she Wall , '
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COLLISIOlIl....VESIIEliSEND ON.....CHJ.NGE OPCOURSB.
9:'·Tbe respondent' failed to keep well oft from the'libelant, which, when about 300 SAME':'-VUTY TO 'REVERSE. , ,
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, or 400 an abl'upt tUl'll, causing tbe disappe!lrance of her light.s·. It did not. appel'lr from the in whic.h dire,ction tJ:e of.course was in' fault for not stoppmg or reversmg, even if It Was 'notcertam , that wquld have 8Voided.the coUisioll- ';.. '
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.. ., " " " ' J08.L. {lYtll and q)U,[8ton Driver, fQrlibelant., .' ' f?r resppndent, cIted 'on the d\liy of schooner to hold )1,e1' 22,; ,AUianr.a, 39 Fed: Rep,4'Z,6,; . The America, of cO,urse of schoonereven if made at a. w.as ll' fl1-u1t. The (',atharine ,Y: ,Dick.in8o'/t, 17 ,How. llr70. which ought to hold, embarrass .tpe duty keep by aCllange of course. The 299;TM Vir!linia, e'j ,":: -.
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pllSSed, QOwP the ! bay L at from ;tc:rNorlolk, eoup, latter, R1llC:6 to .the. former, courses of the vessels a,8, tqey to·have ' Each saw
tbe red ;'lighf slightly Off' DOW. The respondent, de e1ll ing the courses unf;jafe, turned slightly eastward.. '. The also turQed in this direction, atsolue pi:Ht;lt'between thatRtwhich she first saw the respoIident'"'-ahalftb three quarters of a niile away, as she says-and tbeplace of collision. ,The dire¢tion of thewih4 was, I believ'e-"-though the evidence respecting ins, eonflicting-tobe nearly east; probably a little north of that point. Tije'ti'dewasfiood.. The disfunce vessels when the lipelant tUfQed' cannot. be. known with. accUracy. The witnesseediffer about it, and, as is manifest, none of them can form: a: reliable judgment on the subject. It i'sClear, howev.et,that' tbeehange occuri'rosbme' litthdime, at least, aftetsheo:liserved' 'tlie light; ·and probably: h'langei time after ths, hers. . t believe from a careful examiI)!it'ion' of bearing on the subject that ,it occurred wben the vessels were within 300 to '400 ,a . it at this ?istance 'or it' ,,;as. iIi my Judgtnent, unJustifiable; and,tended ,dIrectly to the d1sa'ster Jowl*!:: the'vessels fully into toge'ther;as, it shouJd have been assumed By thelatte!: that the hadtheiiaccommodated hirnsel{ to the' adootingpliopermeasures' (or passing ,and slltmld have ,steadily, beld 'her ;cdUrse. :on her pai;t 'after that the and" $houta;ihave been It is qrgred that the' change to hold :and !steady her on the only, and'that 'it" had 'no greaterr'effect. "This view; howevei, ls'clearlyrepelled 'bY' Mr n1tii,e's tesHfnony i as well as by the circumstances ot'the collision. ','She turnedeastwarll, ,with a view"to o.ut to hlm',Il'S' tM mate testIfies; ¢xpectmg hnn, as, the WItness further says, to respond'to thiS ttirding in dir&ctiotl'.'Tbe staten!l'eHts of the mateittimedratelyafterthe' collisibir, 'lLre1tO the saip:e' effect, fuller. ¥emplainly- to ,l;ldniitthe:libehlnt1s She had 110 rIght, to reqUlte the respondent to turl1 westward, after the latter 'had adopted b:1easQres;for,passirig. ' A cba:ngeof course the ch:cjlmst!tnces-even 'iit the., distance' of half n mile-"-was There was no necessity regtiiring it. To grope. after the moHvEifor this conduct 'would be An apparent absence of motive, and, the factthat, it was dangerojls lind reckless can have noweight against the c}eirr'proof thalitoccul.'rell. I need not pursue the stlbject. The libela:nbvaswrong in'm'aking the change. I cannot imp,ortand{fo the testimQll! other Ipokout, on this subject. Heseetns to be even for th\l Class of men .on 8uch He dld,not know,: and could not even apprOXImate, the cpurse of eIther vessel, nor indeed 'understand. the. meaning of the term II course.,t Ue: did 'not distinguish the steamer's' head.light though it was burning brightl,r in .. vi.ew, nor ?bserve .that the. schoone! ¢Hanged course',' tBtmgh. ij; IS. entlrelyplillU she dId. . It. IS doubtful whether 'he Was' competent'f6r:atiY responsibkduty'On bOard:' :It inquire whether the libelant was guilty of other misconduct; ·or to
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error:>
592
FEDERAL REPORTER,
vol. 45.
late.on the question whether she. would have be.en if she bad neid her original course. I do not think, however, thatshealone, was in fault. The respondent should, probably, have kept t'qrther off. He should have calculated for some little variation in the schooner's course-such as may ar;se fJ:om wind and tide, withol,lt change of wheel. There was nothing tc. prevent him from going further, away, and I incline to believe he should haye d9ne so. He evidently, and .naturally desired to keep very near the original course-as near as he could and escape collision. A majority of ,such disasters arise from this mistake. Yet it is not certain that he /;1houIabe hdd responsible on this account, and ,I am not sure he should be, a.oheld, if nothing more ""ppeared against him. He seems, however, to been stPpping (and probably reversing) his immed,iatelyupon' the' schooner's light disappearing; He had observed this light for moretl;um amile, steadily approaching on a direct Course, and saw it disappe,ar.l!luddenly, ashe says, when within 200 or 300· yards. According to. the witnesses' statement of the lapse of time the was considerably: Neither statement, however, cap. be relied, on as accurate. probable the distance was 300 to 400 yards, as that it was lellS;, I think more so. The disappearance of the)ight could only arise fl.'onltan, abrupt, aI).d under the circumstances extra.ordinary, change in cours,e. It seems incredible that a copstant and vigilant lookout, prqperly statioIle!l, shQuld not have observed, whether it disappeared eastward or westward. Granting,however,:tliat he .should not, steamer was thus left to conjecther course, there was nQ more reason to suppose that she turned westward than eastward. ' In either. eveJ;lt-whether it could Qr could not be seen-':""therefore itseepls plain that tbe steamer should Qr at least slowed down, u,ntil the tact was ascertaiued. Instead ofdoing so he continued his course,without diminution of speed, until the schQoner was directly across his, pows only a few yards distant. . It is not a satisfactory answer to say tl;111t there was no time to deliberate and that nothing could then be accomplished. The natural and first impulse would have been to stop if the mate had not taken it for granted, as he says, that the schooner turned westward. This was entirely unjustifiable. Allbefore !>tated, the same' appearance would be presented if she turned eastward, and to rely on the supposition which he seems to had not. so turned because this course was have entertained, that dangerous, was llnjustifiable and It cannot be known with certaintjwhether the have been avoided by a prompt endeavo.r to stop; but it, nevertheless was the respondent's duty to make I think it probable that the accident would have been avoided if he had done so. saw her directly across. his bows 40 feeraway, he made the effort,as it was his duty to do even then, but it wail too late.. .. . ' . ,It to consider questions raised. FQr the reasons stated,'both vessels must be adju.dged in fault, and a decree be entered accordingly.
ELECTRIC IMP. CO. V. PITY AND COUNTY ,OF SAN FRANCISCO.
593
'ELECTRIC IMP. CO. 11. CITY AND COUNTY OF SAN FRANCISCO.
(CircwU Court, N. D. Oaliifornm. March 30,1891.) CONSTITUTIONAL LAW-POLICD POWER.
. Where the shows that the stretching of electric wires over and upon the roofs of buildings is extremely dangerous, both as being liable to originate fires and as obstructions to the extinguishment of fires otherwise originated. a city ordinance absolutelY the practice is a valid exercise of the pol1Qe power.
On Motion for Injunction. An ordinance of the board of supervisors of San Francisco, January 2Q,,189Q, yrs,s as follows: No. 2163. Prohibiting thesuspeDsion of electric wires over or uppn.t1Ieroofs of buildings, etc. The people of the city and county of San ordain as follows: , It shall be unlawful for any person, company, or corporation to rtl1i'dr shspllDd or stretCh over or across or upon the top or roof, or any portidri' of the top or roof, of any building in the city and (Jounty of San Francisco; ail'yiwire used for the purpose of conducting electricity, or an electric current, or for any purpose whatsoever. "Sec.2! It shall be unlawful for any person, company, or corporation to keep 91't;llain:tain over or across or upon the top or roof, or any portion of the top or toOf, of any building in the city and county of San Francisco, any wire used for the ,l>.urpose of conducting electricity or an electdc current, or for any'putpbsewbatsoever, for more than ten days after such person, company, or corporation shall have received notice in writing, signed by the chief en. gineel' of the fire department of said city and county, to remove the same; and every day subsequent to the ten days after such prescribed notice shall been given, any maintenance or. keeping of any wires hereinabove prohibited shall constitute a new and separate violation of this ordinance·." "S'eo. S. !tshall be unlawful for any person, company, or corporation to attach to or suspend from or support upon any building in the city and county of San Francisco any wire used for the pnrpose of conducting electricity, unless the same be attached, suspended, or supported for the purpose of supplying to the owner or the occupant of such building, or to the owner or occupant of some part thereof, electdc light or electric power, or telephone or telegraph service. , ":Sec.4· ..It shall be unlawful for any person, company, or corporation to run or suspend or stretch, or keep or maintain. upon any pole or other support erel.lted, in or upon the streets, or in or upon any str:oot, in the dty and county of Sap Francisco, any electric light wire, or any, wire used to conduct electricity, or an electric current, for the purpose of producing electric light Or motive power, unless such person, company, or corporation shall have heretofore .obtairied, or shall hereafter obtain,' permission of the board of supervisors of said city and county so to do. "Sec. Ii. The provisions of this ordinance shall not apply to any building occupied in his or its business, J;ly any person. company, or corporation engagedin selling or furnishing or supplying electric lights or electric power. or engaged conducting Ql'carrying on a telephone or telegraph business; nor ,. they apply to any wIre erected and. used exclusively for fu'e alarm and , "Sec. 6. Any person violating any ordinance shall be guilty
v.45F.no.9-38
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