Kelly

By the Court,

It appears from the testimony that on the night of the 7th of September, A.D. 1850, the brig Caleb Curtis was anchored in the roadstead (not in the harbor) of San Francisco, in or near the track of bay and river steamers. The steamer Senator from Sacramento City, on her usual course in entering the harbor, about 9 o’clock at night of the 7th, came in collision with the brig by which both vessels were damaged. This action was brought by the owners of the brig against the master and owners of the steamer for recovery of damages. The night was dark and foggy—the steamer at half her usual speed—the brig being without lights or a watch on her decks. The testimony is voluminous and in many things contradictory ; but it appears from the testimony of several experienced seamen, who are not contradicted, that in the position of the brig “ common prudence” and “ self preservation” required lights and a watch. It is not contended that the collision was intentional, but that it occurred from a want of care and diligence on the part of the master of the steamer. The court was requested to instruct the jury “ that if both parties were guilty *367 “ of negligence the jury must…