[3] The jury was instructed at length concerning the assumption of risk and that the plaintiff assumed the ordinary risks inherent in his employment. The jury was informed that, when a man enters an employment, he assumes all the danger that comes from and only from the ordinary risks inherent in the character and nature of that employment, but that he does not assume the extraordinary risks. The rule on that subject as laid down by the Supreme Court in Chesapeake & Ohio Railway Company v. De Atley, 241 U. S. 315, 36 Sup. Ct. 564, 60. L. Ed. 1016, was read to the jury, and their attention was called at length to the theory of both plaintiff and defendant on this branch of the case. They were instructed that the obligation was upon the defendant to satisfy them by a fair preponderance of evidence that the plaintiff assumed the risk. "If they satisfy you that he did," the judge instructed, "they must have the verdict." The jury could not have failed to understand the law on that subject. But it seems that the court submitted to the jury six written questions upon which to find special verdicts. In brief they were: Was defendant guilty of negligence? Was plaintiff guilty of contributory negligence? If you find for the plaintiff, what are the full damages? If you find plaintiff guilty of contributory negligence, what proportion of the full damage should be excluded from recovery? If you find that defendant was guilty of negligence, and plaintiff was guilty of contributory negligence, by how much in money have you reduced the verdict against the defendant? State whether your verdict is for plaintiff or defendant, and, if for plaintiff, then for what amount. There was no special question submitted as to whether the accident happened as a result of one of the risks which defendant claimed that the plaintiff assumed. If the plaintiff had assumed the risk, that fact constituted an absolute defense. The defendant claims that by not including the question as to whether plaintiff had assumed the risk in the number of questions upon which the court required a special finding it in effect withdrew from the consideration of the jury that question. Counsel for defendant expressly requested the submission of a special question on assumed risks. The court said: "I decline to send that as a special question to the jury." Counsel took an exception. The court then said: "That they will take care of in their general verdict." We are not prepared to say that this constituted reversible error, as the jury had been fully instructed on that subject, and must have understood perfectly that, if plaintiff assumed the risk, he could not recover. The defendant asserts that the plaintiff was guilty of contributory negligence as a matter of law. The federal Employers' Liability Act has changed the law of common carriers by railroad as respects the effect of contributory negligence. That act abolished contributory negligence as a defense, and it now merely diminishes the damages. Act April 22, 1908, c. 149, § 3, declares that: "The fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee." United States Compiled Statutes (1916) Annotated, vol. 8, § 8659. The jury was correctly instructed on this subject, and charged to make special findings regarding it. They were to answer specifically: "Was plaintiff guilty of contributory negligence?" If they answered that question in the negative, they were to state: "What are the full damages?" Then, if they found he was guilty of contributory negligence, they were to state: "What proportion of the full damage should be excluded from recovery?" If you should say that he was guilty of contributory negligence, then you must make up your minds whether it was half his fault or one-third his fault, or one-tenth his fault, or whatever you believe, and you put down one-half or one-third or one-tenth or whatever it is." And then they were told that, if they found defendant guilty of negligence and plaintiff guilty of contributory negligence, they were to state: "By how much in money have you reduced the verdict against the defendant?" The jury answered "No" to the question, "Was the plaintiff guilty of contributory negligence?" This court is unable to say as matter of law that the plaintiff was guilty of contributory negligence. According to the defendant, if the plaintiff's testimony is true, the car which crashed into the stationary car must have been within the sight of the plaintiff, and he should have seen it had he looked with proper care and vision. The plaintiff's testimony was that he could see 4 or 5 or 6 car lengths, and that the cars were on an average 36-foot cars. That would make the distance somewhere between 144 and 216 feet, instead of 310 feet, as defendant contends. The distance from the top of the hump to the place of the accident was not less than 1,230 feet, instead of 1,000 feet, as claimed by defendant. There is no basis, therefore, for the defendant's statement that: "If the plaintiff's testimony is true, then the car, which was more than 310 feet away from the place of the accident, while plaintiff was only 10 feet away therefrom, must have been traveling without an engine attached, at the rate of 93 miles an hour, in order to have reached the point of accident at the time the plaintiff did, and must have covered the distance from the top of the hump to the place of the accident, which was 1,000 feet in 7.33 seconds." The plaintiff, on the other hand, asserts that, if there be substituted the actual evidence in the case in place of the defendant's assumptions, it will be found that the speed of the car did not need to be more than 19 miles an hour to place it beyond the range of his vision when he last looked, and that a car traveling at the rate of 19 miles an hour would make the trip from the top of the hump to the place of the accident in 45 seconds. We are satisfied upon looking into the evidence that it is not of such compelling character as would justify us in holding as matter of law that the plaintiff's negligence contributed to his injury. Judgment affirmed. UNITED STATES DISTRICT COURT. D. NEW JERSEY.. THE ERIE LIGHTER 108.* 1. ADMIRALTY-JURISDICTION. A person who has a cause of action of admiralty cognizance has always been entitled to seek his remedy in either the common-law courts, where they are competent to give it, or in the admiralty courts. (For other cases, see Admiralty, Dec. Dig. § 2) 8. COMMERCE-INJURIES TO SERVANT-WHAT LAW GOV ERNS. Where decedent at the time he received his fatal injuries was employed in interstate commerce by a railroad company on one of its boats which was then being used for that purpose, the rights and responsibilities of the parties must be adjudged according to the provisions of the federal Employers' Liability Act so far as applicable. (For other cases, see Commerce, Dec. Dig. § 27[5].) 9. MASTER AND SERVANT-INJURIES TO SERVANT-LIABILITY OF MASTER. To support a recovery under the federal Employers' Liability Act April 22, 1908, c. 149, 35 Stat. 65 (Comp. St. 1916, §§ 8657-8665), against a railroad company engaged in interstate commerce on account of the death of the captain of its lighter who was struck by a part of one of the lighter's bits which was wrenched off in towing, the defect must have been result of negligence on the part of the company. (For other cases, see Master and Servant, Dec. Dig. § 129[1].) 16. DEATH-DAMAGES-PECUNIARY LOSS. There is a presumption that a widow and minor children sustained a pecuniary loss by reason of the death of the husband and father, and such presumption will sustain recovery by the administrator under the * Decision rendered, April 16, 1918. 250 Fed. Rep. 490. federal Employers' Liability Act, without proof of actual loss as in ordinary cases. (For other cases, see Death, Dec. Dig. § 58[2].) In Admiralty. Petition of the Erie Railroad Company, as owner of a lighter, known as Erie Lighter 108, for limitation of liability. On final hearing. Liability limited. Collins & Corbin, of Jersey City, N. J., for petitioner. HAIGHT, District Judge. This is a proceeding, instituted pursuant to Admiralty Rules 54-57 of the Supreme Court (29 Sup. Ct. xxxi, xxxii), to procure the benefits of the limitation of liability provided for in sections 4283-4289 of the Revised Statutes, as amended by the Acts of June 26, 1884, and June 19, 1886 (23 Stat. L. 57; 24 Stat. L. 80; U. S. Comp. Stat. 1916, §§ 8021-8028). There is but one claimant. The claim is based on personal injuries which resulted in death. Several jurisdictional questions were disposed of when the matter was previously before the court on exceptions to the petition. The additional questions which have arisen on final hearing can be better stated after the general facts have been outlined. On December 23, 1914, one Theodore Thomassen was, as he had been for some time, employed by the petitioner as the captain of one of its lighters, known as "Erie Lighter 108," which was used in transporting freight in and about the harbor of New York. On the date last mentioned, while loaded, she was pulled from alongside a dock in Weehawken, in the state of New Jersey, where she was moored, by one of the petitioner's tugs, known as the "Waverly," to be towed to Pier 6, Bush Dock, in the city of Brooklyn, state of New York, where she was to discharge her cargo. When she was clear of the dock and out in the Hudson river, the hawsers that had been used in pulling her out were released. Thereupon one end of a spliced loop of rope, about 6 fathoms in length and 134 to 2 inches thick, known as a "strap," was placed over the forward bit of the tug, and the strap so fastened at one end, was then thrown to the captain of the lighter. It was his duty to place the other end over the forward starboard bit of the lighter. It was intended, as soon as one end of the lighter had thus been made fast to the forward end of the tug to permit the lighter to drift with the tide until it had assumed a position parallel with the tug, and then to pass another strap from the afterbit of the tug to a corresponding bit on the lighter, so that the lighter could be towed alongside of the tug. When the first-mentioned strap was passed to the captain of the lighter, he immediately placed it over the proper bit of the lighter; but, there then being some slack in the strap, a part of it slipped down over the starboard corner of the lighter. Suddenly, due to the action of the tide (the lighter being in the act of drifting and the tug being held stationary against the tide), the slack in the strap was violently taken up, and the cornerpiece of the cap, which was mounted on the log rail of the lighter, was thereby wrenched from its fastenings, and struck the captain of the tug on the head, inflicting a wound from which he subsequently died. The administrator of his estate instituted a suit in one of the state courts of New Jersey against the petitioner, under the federal Employers' Liability Act of 1908 and supplements (35 Stat. L. 65; 36 Stat. L. 291 [Comp. St. 1916, §§ 8657-8665]), to recover, for the benefit of his widow and children, the damages which they suffered through his death. The petitioner thereupon filed a petition in this court to limit its liability, alleging that the injuries which deceased received occurred without its privity or knowledge. It also, pursuant to Admiralty Rule 56 of the Supreme Court (29 Sup. Ct. xxxii), denied any liability for the accident. The claimant, after his exceptions were overruled, filed an answer and claim, the effect of which was to put in issue both the petitioner's right to limited liability, and its claim to exemption from any liability. [1, 2] 1. It is necessary, primarily, to determine whether the petitioner is entitled to limit its liability. If it is, this court may undoubtedly proceed to determine whether it is liable at all, and, if so, to fix and assess the damages that should be awarded the claimant. That is what the Supreme Court rules sought to accomplish. The Benefactor, 103 U. S. 239, 26 L. Ed. 351; Providence & N. Y. S. S. Co. v. Hill Mfg. Co., 109 U. S. 578, 592, 595, 602, 3 Sup. Ct. 379, 617, 27 L. Ed. 1038; Butler v. Boston S. S. Co., 130 U. S. 527, 552, 9 Sup. Ct. 612, 32 L. Ed. 1017; White v. Island Transportation Co., 233 U. S. 346, 34 Sup. Ct. 589, 58 L. Ed. 993; The Annie Faxon (D. C. Wash.) 66 Fed. 575, 577, affirmed 75 Fed. 312, 21 C. C. A. 366 (C. C. A. 9th Cir.); Quinlan v. Pew, 56 Fed. 111, 5 C. C. A. 438 (C. C. A. 1st Cir.). On the other hand, if the petitioner may not avail himself of the limited liability statutes, it would seem, both on authority and reason, that, at least without claimant's consent, this court is without jurisdiction to proceed further, but must dismiss the proceeding, leaving the claimant free to pursue his remedy in the courts of New Jersey. It was expressly so held by the Circuit Court of Appeals of the First Circuit in Quinlin v. Pew, 56 Fed. 111, 5 C. C. A. 438. Such also is the necessary conclusion to be drawn from the disposition which was made of such proceedings, when the owners were held not to be entitled to limit their liability, in Weisshaar v. Kimball S. S. Co., 128 Fed. 397, 63 C. C. A. 139, 65 L. R. A. 84 (C. C. A. 9th Cir.); Parsons v. Empire Transp. Co., 111 Fed. 202, 49 C. C. A. 302 (C. C. A. 9th Cir.); In re Myers Excursion & Navigation Co. (D. C. S. D. N. Y.) 57 Fed. 240, affirmed sub nom. The Re |