BUSHEY v. HURON STEVEDORING CO.

BUSHEY v. HURON STEVEDORING CO. No. 257. Circuit Court of Appeals, Second Circuit. March 7, 1932. Kirlin, Campbell, Hickox, Keating & Mcgrann, of New York City (L. De Grove Potter, of New York City, of counsel), for appellant. Foley & Martin, of New York City (James A. Martin, of New York City, of counsel), for appellee. Before L. HAND, SWAN, and CHASE, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. The appeal presents no question but of the credibility of witnesses, as to which we have often declared ourselves. The libelant’s ease depended, it is true, upon the testimony of a single bargee, but he made fresh complaint, and, though he was contradicted by several others, we cannot decide cases by counting heads. Indeed, when analyzed, the actual contradiction comes from fewer witnesses than the appellant believes. That the draught of copper may not have fallen four feet we can well believe, but that the winch got somewhat out of hand the judge has found, and we cannot gainsay him. How far the imperfect design of the scow may have contributed to the injury is not before us; when the damages are computed, the question may arise whether the injury was greater for that reason and whether the recovery must be limited to what a seaworthy seow would have suffered. Neither point do we now decide; the evidence does not justify the conclusion that a seaworthy seow would not have been injured at all. The decree must be affirmed, but in view of the extravagant delay in prosecuting the cause, the libelant must bear a deduction of four years from the period during which interest is allowed. Decree affirmed.