Hampton

Appeal from the order granting plaintiffs’ motion for a new trial.

The parents of the plaintiffs, John C. Hampton and Helen M. Hampton, his wife, were passengers on the steamer City of Chester, August 22, 1888, bound from San Francisco to Eureka, Humboldt Bay, and were drowned by the sinking of said vessel, in consequence of a collision with" the steamer Oceanic, operated and controlled by the defendants, in the entrance to the bay of San Francisco, between Fort Point and Lime Point, and near the latter. The action is for damages for the death of the plaintiffs’ parents, upon the. ground that the collision occurred through the negligence of the said' defendants.

It is recited in the order granting the new trial that it is based upon the sole ground that the court erred in giving defendants’ instructions Nos. 3 and 14. Instruction No. 3 is as follows: “If you believe from the evidence that the Oceanic arrived off the port of San Francisco on a voyage from Japan and China on the morning of August 22, 1888, and that the weather was foggy, and that, as the Oceanic entered the harbor, the officers of the ship were at their proper station and an efficient lookout was kept and proper…

I concur upon the ground that the instruction No. 3 is erroneous. In my opinion, instruction No. 14 is not objectionable. It does not say that the officers of the Oceanic are not presumed to know “the conditions of the tide.” It says they are not presumed to know “the knowledge of its [the City of Chester’s] officers” of the conditions of the tide. This they could not know.

I concur upon the ground that the instruction No. 3 discussed in the opinion was erroneous.