Hawgood & Avery Transit Co. v. Meaford Transp. Co.

EVANS, District Judge.

I cannot rid myself of the conviction that the owners of the Curry used due care in selecting its rudderstock when she was built and in retaining it when she was lengthened, that this was demonstrated by the direct testimony and by 19 years of active use, which brought no visible sign of any defect previous to the collision with the Bothnia, that under these circumstances she should not be held to have absolutely guaranteed its soundness, and consequently that the breaking of the rudderstock on that occasion was the result of inevitable accident, as that phrase is defined by the authorities.

Upon these grounds it seems to me, though the result may be harsh, that the rule stated and applied by the Supreme Court in The Morning Light, 2 Wall. 550, 560, 17 L. Ed. 862, by this court in The Olympia, 61 Fed. 120, 9 C. C. A. 393, by Judge Benedict in The Flowergate (D. C.) 31 Fed. 762, and by Judge Toulmin in The Lizzic Frank (D. C.) 31 Fed. 477, upon substantially similar conditions, should govern our decision, with the result that the judgment be reversed.