when for the first time any signals were given by either. The boats were on crossing courses, differing about three-quarters of a point from opposite after the Purcell had rounded Throgg's Neck and taken a course of N. N. E., or allowing for an error of about one-quarter of a point, N. by E., three-quarters E.; the Eagle being on a course S. W. by S., half S. Upon these courses the Purcell when from onequarter to one-half mile distant, saw the Eagle's red light, soon after rounding the red buoy at Throgg's Neck, a little on her starboard bow; and she was bound to keep out of the way of the Eagle, as well as to signal her properly under the inspector's rules. She did neither. Her excuse is, that not seeing any white light to indicate a steamer, she did not know what the two red lights seen might be, and therefore gave no signal at all until after receiving a single blast from the Eagle, when about 300 or 400 feet distant. I cannot accept this as a reasonable or sufficient excuse for not signaling earlier. It must have been seen that the boats were steamers long before this, had any proper attention been given to them; and even if the red light had been that of a sailing vessel, as the Purcell's witnesses say they first supposed, her duty to keep out of the way would have been the same. Nothing effectual was done by her until too late, when the only chance of escape was seen to be to go on as fast as possible, and this was unavailing. The fault of the Purcell was, the lack of suitable care and attention, i. e. a proper lookout, and consequent failure to take any efficient and timely measures to keep out of the way of the red lights admitted to have been seen, as well as the failure to signal when the two red lights ought to have been seen to be steamers' lights. The fault of the Purcell does not excuse the equally plain fault of the Eagle. Her contention is, that the red light of the Purcell continued to bear about half a point upon her port bow until the vessels had come within about 300 or 400 feet of each other, when the Purcell, it is alleged, made a sheer to the westward across the bow of the Eagle, showing then for the first time her green light; whereupon the Eagle gave a signal of one whistle, which was soon followed by collision. It is evident, however, that no continuous watch was kept by the Eagle after the red light of the Purcell was first seen. No person was stationed as a constant lookout. The sheer of the Purcell, as alleged by the Eagle, is altogether improbable. It is denied by the Purcell, whose course of N. N. E. by her compass, was taken and kept from the time of rounding the buoy at Throgg's Neck. Her story in that regard is consistent and probable, and should be accepted. I have no doubt that the red light of the Purcell testified to by the Eagle's witnesses was the light seen while the Purcell was rounding the buoy at Throgg's Neck, and before she had taken her compass course of N. N. E.; and that the change from red to green was made as soon as she took that course, which must have been when she was from one-quarter to one-half a mile distant from the Eagle. That no one on the Eagle was watching the Purcell, and did not know just when that change of light from red to green was made, is shown by the fact that none of them saw the Purcell's green and red lights at the same time, which they must have seen had they been watching, and known when the change was made. It was the duty of the Eagle to keep a proper continuous lookout; to observe in time the change which put the vessels on crossing courses after the Purcell rounded Throgg's Neck, so as to involve danger, and required the rules as regards signals to be observed. Through lack of proper attention in this regard, the Eagle failed to give the signal which she was bound to give under the inspector's rules, and which if given in time, as required, would have corrected the mistake and confusion to which the Purcell's witnesses testify in regard to the Eagle and Vulcan, through not seeing the vertical staff lights, whether they were properly set and burning, or not. For these reasons, both vessels must be held in fault, and the libelant is entitled to a decree against both vessels, with costs. THE FLORIDA. HILLS et al. v. THE FLORIDA. (District Court, E. D. New York. May 27, 1895.) SHIPPING-DAMAGE TO CARGO-NEGLIGENCE IN DISCHARGING. A steamship held liable for damage where bags of filberts, in the course of discharging, were placed so near the coal bunkers that dust from the coal blew upon and through the bags. This was a libel by John Hills and others against the steamship Florida to recover for damage to certain bags of filberts, constituting part of her cargo. Carpenter & Park, for libelants. BENEDICT, District Judge. This is an action to recover of the steamship Florida for alleged damage to 383 bags of filberts, caused by coal dust upon the filberts. These filberts were part of a consignment shipped from the port of Messina on board the steamship Florida, which arrived in New York about August 5, 1890. Upon their discharge on the dock a large number of the bags were found. to be covered with coal dust, and considerably damaged thereby. The allegation of the libel is that the cargo in question was damaged by coal dust from the bunkers of the ship permeating said bags, and damaging their contents, and that the same was caused by negli gence and improper attention on the part of the master of the vessel, his agents and servants. Although some point has been made upon the testimony as to the sufficiency of the evidence to show that the filberts in question came by the steamship Florida, the testimony, taken together, leaves no doubt on that point; and it is found that the filberts were transported in the steamship Florida, and that they were damaged by the coal dust, as alleged in the libel. It is true that the evidence shows good stowage of the filberts on board the ship, and makes it plain that no coal dust from the bunkers could have reached them while so stowed; but this fact, taken with the fact that the filberts, when landed, were covered with coal dust, would warrant the inference that the filberts were permitted to come in contact with coal dust while discharging. But the case is not left to depend upon this inference. There is positive proof in the case that the filberts, while discharging, were placed by the bunkers of the ship where the coal was put down, and that coal dust blew right through the bags of filberts. It must therefore be found that the filberts were damaged by negligence on the part of the ship. For such negligence as this the ship is not absolved by the terms of the bill of lading, under the law of this country. Let there be a decree for the libelants, with an order of reference to ascertain the amount. The VICTORIA. DAVI v. The VICTORIA. (District Court, E. D. New York. July 8, 1895.) SHIPPING-PERSONAL INJURY TO STEVEDORE-FELLOW SERVANTS. Where a stevedore engaged in discharging cargo was injured by being struck by a sling which the winchman, employed by the vessel, started too rapidly, held that the doctrine of fellow servants did not apply, and that the ship was liable. This was a libel by Antonio Davi against the steamship Victoria to recover damages for personal injuries. Francis L. Carrao, for libelant. BENEDICT, District Judge. This is an action for personal injury sustained by the libelant. The libelant was a stevedore, engaged in discharging the steamship Victoria at the time he was hurt. The immediate cause of the injury was the swinging of a sling of fruit against the end of a board which the libelant was at the time adjusting in the hold, whereby one of his fingers was cut off and serious injury was done him. There is a conflict of testimony as to which sling did the injury, but the weight of the evidence seems to me to support the allegation of the libel in that particular. The evidence further shows that the libelant's injury was caused by negligence on the part of the winchman in not heeding the direction to "go easy," and in starting the winch so rapidly as to cause the sling of boxes to swing past the center of the hold, and against the board which the libelant was at the time adjusting. The owner of the ship furnished the power, machinery, and winchman to hoist the cargo out of the hold. The doctrine of fellow servant does not apply in such a case (see Johnson v. Navigation Co., 132 N. Y. 576, 30 N. E. 505), and the ship is liable for the injury caused by the negligence of the winchman. Let there be a decree for the libelant, with an order of reference to ascertain the amount of the damages. In re THE JARNECKE DITCH. (Circuit Court, D. Indiana. July 30, 1895.) No. 9,225. 1. FEDERAL COURTS-EFFECT OF STATE DECISIONS-REMOVAL OF CAUSESSTATUTORY PROCEEDINGS. Decisions by a state supreme court that a special statutory proceeding under the state laws (such as a proceeding to establish a drain, and assess the benefits and damages thereof) is not a civil suit or action, are not controlling upon the federal courts, when the question is whether the proceeding is a civil suit in law or equity, within the meaning of the acts relating to the removal of causes. 2. REMOVAL OF CAUSES-REMOVABLE CONTROVERSIES-SPECIAL STATUTORY PROCEEDINGS FOR THE ESTABLISHMENT OF DRAINS. Under the Indiana statutes relating to the establishment of drains (2 Burns' Rev. St. §§ 5622-5664) the proceedings are commenced by a petition of landowners, after which the drainage commissioners locate the route of the proposed drain, ascertain the cost, assess benefits and damages, and then file their report in the circuit court. Thereafter any landowners opposed to the drain may file remonstrances putting in issue the questions whether the drain will promote public health or be of public utility; whether the scheme is practicable, and can be accomplished for the aggregate amount of benefits assessed; and whether the assessment of benefits to the lands of the remonstrant is too large. These issues are to be tried by the court without a jury, and each party aggrieved has a right of appeal from its decision. Held that, within the meaning of the removal acts, this proceeding presents a controversy of a "civil nature,” in which the petitioners for the drain may be regarded as complainants, the remonstrants as defendants, and the report of the commissioners as a complaint stating the cause of action. 3. SAME-DIVERSE CITIZENSHIP-SEPARABLE CONTROVERSY. In such a proceeding there is no separable controversy which will authorize a removal by some of the remonstrants, who are citizens of other states, for all the parties to the proceeding are inseparably interested in the main issue, namely, the right of the petitioners to have the drain established; to which issue the question as to the amount of benefits assessed to each remonstrant is merely incidental. 4 SAME SEPARABLE CONTROVERSIES-SEPARATE DEFENSES. There are no separable controversies within the meaning of the removal acts unless the case as made by the complaint embraces controversies which are separate. The cause of action is not made separable because one defendant sets up a separate defense, peculiar to himself, which may defeat the entire cause of action. These were applications by the Tolleston Club of Chicago, James Stinson, the Michigan Central Railway Company, and John Gunzenhauser for leave to file in this court a transcript of certain proceedings had in the circuit court of Lake county, Ind., in relation to the establishment of a drain, and to docket the said proceeding herein as a removed cause. J. Kopelke, for petitioners. J. W. Youche, Winston & Meagher, and W. C. McMahon, contra. BAKER, District Judge. On September 9, 1892, John F. Jarnecke and 72 others, owners of land in the county of Lake, in the state of Indiana, filed their petition in the circuit court of that county, alleging that a large amount of land in said county would be benefited by drainage, which could not be accomplished without affecting the v.69f.no.3-11 lands of others, who are named, with a description of the lands owned by them; that such drainage could be best effected in the manner particularly described in the petition; that the public health would be promoted, and public highways and the right of way of railroads would be benefited by such drainage, and that the samue would be of public utility. Notice of the filing and pendency of the petition was given in the manner provided in the statute. On December 23, 1892, the court referred said petition and the matters therein contained to the commissioners of drainage of said county. On April 22, 1895, said commissioners filed their report, accompanied with a map and profile of said drain. On May 3, 1895, 27 landowners, parties to, and who would be affected by, said proposed drainage, tiled their several remonstrances to said report. On the same day, and contemporaneously with the filing of said remonstrances, four of said remonstrants, to wit, the Tolleston Club of Chicago, James Stinson, the Michigan Central Railway Company, and John Gunzenhauser, filed their several petitions and bonds for the removal of said cause from the state court into this court. The state court found that the petitions for removal, which are substantially alike, were in due form, and that the bonds tendered therewith were sufficient, but refused to grant the prayer of either petition, for the reason that, in the opinion of the court, no removable controversy was shown to exist. A transcript of the proceedings in the state court has been presented here, and the petitioners for the removal now ask leave to file the same, and to have said cause docketed, to which the petitioners for the drain object. The proceedings for the establishment and construction of a drain are purely statutory. The statute providing therefor depends for its validity on the power of eminent domain and the taxing power of the state. A drain cannot be established or constructed unless the work will promote the public health or conduce to public utility. The landowner can only be assessed for the accomplishment of this public purpose to the extent that his land will receive a special and particular benefit from the drain, as contradistinguished from the benefit to the general public. The drainage act in question (2 Burns' Rev. St. §§ 5622-5664, incl.) has been repeatedly considered by the supreme court of this state, and it has always been regarded as providing a special statutory proceeding for the establishment and construction of drains, kindred in character to statutes providing for the establishment and construction of gravel roads, streets, sewers, and other like public improvements. A commission is provided for, which determines the public utility of the drain, the extent of the district on which the assessments are to be laid, the amount of the benefits or injuries to each parcel of land situated therein, and how much each landowner shall pay or receive on account of such public improvement. In the case of Hays v. Tippy, 91 Ind., 102, 106, the court, in construing the drainage act in question, held that a drainage proceeding was not a civil suit or action. The court said: "This proceeding is not, in any proper sense, a civil action or a civil case. It is a special proceeding, authorized by the general assembly for the express |