Appeal from the District Court of the United States for the Southern District of New York. This was a libel in rem by Horatio G. Craig & Co. against the steamtug Victoria, to recover damages resulting from alleged negligent towage. This appeal is from a decree in favor of libelant. The opinion filed below, and here reprinted from 88 Fed. 524, was in full as follows: BROWN, District Judge. There is no doubt that tugs in undertaking the towage of canal boats as well as of any other craft, are entitled to assume, in the absence of notice to the contrary, that the boats are in reasonably sound condition and able to receive without damage all the usual and ordinary contacts of navigation, whether in making up or shifting the tow, or in landing the boats at the piers. But this rule in no way justifies any rude, rough or indifferent handling of boats, nor absolves the tug from the duty of navigating with reasonable care, so as to avoid contacts that may become injurious. In every case the question of liability for damage must be determined from all the circumstances in evidence, depending on whether the blow was one of unnecessary violence, and therefore indicative of lack of reasonable care, under the circumstances of the case. The Victoria in this case took the libelants' canal boat from the tow in mid river, a little above Rockland Lake, for the purpose of landing her at the end of the dock at that point, whence she might afterwards proceed across the river to Tarrytown. There was nothing in the circumstances of the wind or weather, the wind being from the westward, to make the landing at the Rockland Lake Dock at this time difficult, or in any wise different from ordinary landings at night. The tug came down nearly in line with the dock, on the last of the flood tide, and the starboard bow of the canal boat struck the spring piles at the upper corner of the dock. In a few moments afterwards she was found to be leaking so badly that she had to be beached in the basin. Subsequent examination showed that two planks in her starboard bow at about the light water line were cracked, and that another plank lower down and running from the stem obliquely downwards and partly beneath the bottom, was sprung off at the lower end, so as to admit water freely. A disinterested witness inside the basin and asleep upon his boat, was awakened by the crash; and the blow was sufficient to burst open the door of the cupboard in the cabin of the canal boat and throw the dishes out upon the floor. This is certainly not an ordinary mode of landing. The circumstances seem to me to indicate very clearly a too rapid approach to the pier, and a landing altogether unjusti fiable where there are no special circumstances of difficulty from wind, waves or weather. There is some difference in the testimony concerning the proper respiking of the planks of this boat that ran underneath the water line. There is some evidence supporting the captain's testimony that the boat had been respiked since she was built in 1891; but there is no distinct evidence that more than one new spike was placed in the plank that started off. This new spike however was in the end that started off, and all the spikes both new and old in that part of the plank, were broken by the blow. It is unnecessary to make any finding as regards the perfect sufficiency of the spiking of the plank in question, since the canal boat is not a party to this action. I cannot avoid finding upon the evidence that the contact was one of unnecessary violence, and without reasonable excuse; and that the tug is, therefore, answerable for the damage resulting to the cargo. Decree accordingly. Amos Van Etten, for appellant. Le Roy S. Gove, for appellee. Before WALLACE and LACOMBE, Circuit Judges. 1. TRIAL-ADMISSION OF EVIDENCE-ORDER OF PROOF The order of proof is largely within the discretion of the court, and the admission of evidence without the requisite preliminary or connecting proof is not prejudicial error, where such proof is subsequently introduced. 2. MASTER AND SERVANT-ACTION FOR INJURY TO SERVANT EVIDENCE. In an action by a servant against the master to recover for an injury caused by the caving in of a tunnel in which plaintiff was working, evidence of the character of the timbering was admissible on the issue of defendant's negligence, when supplemented by evidence tending to show that it was defective, and known to be so by defendant, and that such defects were responsible for the injury. 8. SAME-CONTRIBUTORY NEGLIGENCE. A servant injured by the caving in of a tunnel in which he was working, and which was insufficiently timbered, cannot be charged with contributory negligence as matter of law, where it was shown that he was inexperienced in the work, and there was evidence tending to show that the master assured him the place was safe, and that planks were put up by direction of the master to hide the danger from the workmen. 4. SAME-NEGLIGENCE OF FELLOW SERVANT. Negligent acts of fellow servants cannot be relied on as a defense to an action by a servant for a personal injury, where it is clearly shown that such acts were done under the direct orders of the master. 5. EVIDENCE-OPINIONS OF EXPERTS-HYPOTHETICAL QUESTIONS It is proper to permit a witness testifying as an expert to answer a hypothetical question stating only facts which there is evidence fairly tending to prove, and it is not necessary, as a general rule, that such question should embrace all the facts of the case. 6. MASTER AND SERVANT-ASSUMED RISKS. A servant does not assume the risk of injury from the negligence of the master in failing to exercise ordinary care to make the place where the servant works reasonably safe, considering the nature of the employment.1 1 Assumption of risks incident to employment, see note to Railroad Co. v. Hennessey, 38 C. C. A. 314. 7. DAMAGES-PERSONAL INJURY-FUTURE INCAPACITY TO WORK. Where there was evidence tending to show that plaintiff had, ever since the injury sued for, been incapaciated from work in a greater or less degree, and that such incapacity would continue for some time, it was not error to instruct that the jury in estimating the amount of his compensatory damages should take into consideration the loss sustained through inability to work "during the period of his incapacity and probable incapacity alleged in the complaint." 8. TRIAL INSTRUCTIONS-REFUSAL OF REQUESTS. If the charge of the court, in its own language, embraces all the points of law arising in the case, it is not error to refuse further instructions requested, although they correctly state the law. It is the duty of the court to simplify its directions to the jury, and a repetition in different language not only tends to confuse the jury, but to give undue prominence to the proposition repeated. In Error to the Circuit Court of the United States for the Southern District of California. Herbert Cutler Brown, for plaintiffs in error. W. C. Petchner, for defendant in error. Before GILBERT and MORROW, Circuit Judges, and HAWLEY, District Judge. HAWLEY, District Judge. This action was brought by the defendant in error to recover damages for injuries alleged to have been received by him through the negligence of the plaintiffs in error, who were contractors engaged in the construction of the Third Street tunnel in Los Angeles, Cal. A trial of the case before a jury resulted in a verdict in favor of the defendant in error for $1,592.75, upon which verdict a judgment was duly rendered, and thereafter a writ of error was taken to have said judgment and all proceedings had in said. cause reviewed by this court. The errors relied upon for a reversal of the judgment relate to the admission of certain testimony, to the action of the court in refusing to grant a nonsuit, to alleged errors in giving instructions to the jury, and in refusing to give certain instructions asked for by the plaintiffs in error. The complaint, after alleging jurisdictional facts, alleges: "That on or about December 1, 1899, plaintiff was engaged in laboring with pick and shovel inside said tunnel, in the construction thereof, and that at said time plaintiff was unskilled in such work, and unfamiliar therewith; that on said first day of December said tunnel had been constructed inward a distance of about 200 feet; and on account of the increasing distance inward, the unusual character and (un)familiarity of such work to plaintiff, and the darkness of the interior of said tunnel, on a certain day about two weeks preceding said 1st day of December, plaintiff hesitated about proceeding with his work in said tunnel, fearing that the same might be dangerous, but the person employed by the defendant to superintend the work of construction of said tunnel, and who at all times herein mentioned was in charge of the work in the interior of said tunnel, and who was in immediate control of plaintiff and his said work, seeing plaintiff's hesitancy to proceed with said work, and knowing that plaintiff feared danger therefrom, ordered this plaintiff, in the presence and hearing, and with the approbation, of defendant Anthon Swenson, to go ahead with his said work, and assured plaintiff that there was no danger therein or thereabout; that thereafter plaintiff was, up to the said 1st day of December, a number of times given such assurance by said person in charge of said work; that on the said first day of December, while plaintiff was engaged in shoveling inside said tunnel, at a point about 170 feet inward thereof, and while in full reliance on the said assurances of said person so in charge of said work, to the effect that there was no danger in or about the same, and knowing that said assurances had the approbation of these defendants, and while this plaintiff was so engaged in work, unsuspecting danger because of said assurances, a great mass of earth fell from the roof of said tunnel upon plaintiff, crushed him to the ground, and broke his right arm in two places, and greatly bruised his left arm, so that for the space of two weeks thereafter plaintiff required the services of a personal attendant to feed him and attend to all his personal wants; and because of the falling upon plaintiff of said earth he was caused great bodily suffering, and the shock that resulted from such injury greatly impaired plaintiff's nervous system, and rendered him sick, so that at this date he is unable to perform work of any character, and such incapacity will probably continue for the space of two months hence, that said injuries so received threaten to permanently impair the health of plaintiff; that said earth was caused to fall upon plaintiff, as aforesaid, by the neglect and failure of defendants to exercise ordinary care to provide a reasonably safe place for plaintiff to work in, to do which was a positive duty due from defendants, personally, to plaintiff, and because said defendants, in violation of their said duty to furnish plaintiff with a safe place in which to work, negligently and carelessly failed to properly, or at all, brace or timber said tunnel at the point where plaintiff was working under the direction of defendants, when injured, as aforesaid, or to take proper precautions to prevent the falling of said earth from the roof of said tunnel, as aforesaid, and, further, because the dangerous character of the place at which plaintiff was employed when so injured, and of the work at said place, was such as defendants, had they exercised ordinary care and diligence, should have known and apprehended, but whereof this plaintiff was unaware by reason of his inexperience, and by reason of his reliance upon the assurance, given to plaintiff as aforesaid, that no danger need be apprehended in or about said work; that by reason of the injuries sustained by the plaintiff by the carelessness and negligence of the defendants, as aforesaid, plaintiff has been unable to work since said 1st day of December, 1899, and thereby has lost 53 days' work to this date, the value whereof per day is $1.75, and the total value whereof is $92.75, to plaintiff's damage in said sum of $92.75; and that by reason of such injuries received as aforesaid, plaintiff has been further damaged in the sum of $5,000.00.” The answer of the defendants denies these allegations of the complaint, and alleges, in substance, affirmatively, that plaintiff was fully aware and informed of all the dangers of his employment; that defendants exercised every possible precaution for the protection of their employés in said tunnel; that defendants were not guilty of negligence in any respect whatsoever, but that plaintiff's injuries resulted solely and proximately from his own negligence; and, as a further defense, that plaintiff's injuries were the result of the acts of his fellow servants. The objections made to the various rulings of the court are quite numerous. It will be unnecessary to specifically notice all of them. Several of the objections present substantially the same question, although made at different times and in different ways. 1. It is claimed that the court erred in admitting evidence, at various times, as to the strength and size of the timbers used in the tunnel, in that it does not appear from the evidence that the accident to plaintiff was caused by defective timbering. While it may be the better practice to first show how the accident occurred, it certainly was not error to overrule the objections upon the promise of counsel for Bender that he would show that the injury resulted from the defective timbering, which was afterwards done. The order in which testimony should be introduced is largely within the discretion of the court. The rule is well settled that an error in admitting evidence without the requisite preliminary, or connecting, proof is cured by the subsequent introduction of such proof; and this is the rule in California, where the case was tried. People v. Shainwold, 51 Cal. 469; Robinson v. Bank, 81 Cal. 106, III, 22 Pac. 478. In the light of the issues raised by the pleadings, evidence upon this point was admissible for the purpose of showing negligence upon the part of the plaintiffs in error. Testimony was thereafter given which certainly tended to show that the place where Bender was injured was unsafe, and that the timbering about that point was defective. Touching these questions Mr. Pugh, who had been engaged for about 10 years in tunnel work, after describing the usual methods of timbering used, and of his familiarity with the tunnel, and of the timbering therein, testified as follows: "I was foreman of the excavating. I have complained many times to Mr. Swensen of the insufficiency of the timbering; that is, as to the distance apart it was placed. I told him a couple of times that the timbering was not sufficient to protect the ground and the men. He said he thought it was all right. I complained to him maybe a dozen times. The morning of the accident I * met him at the entrance of the tunnel, and told him that the place was in a dangerous condition, and that we ought to put, what we call generally, a set of timbers three or four feet apart. And he said to me, 'Pugh, I can't stand it; they must be six feet apart;' and I told him, 'If that is the case, Mr. Swensen, that will put the men in danger; and, another thing, they can't do their work; they are afraid to work.' He then asked me, 'Is there anything we can do there? I said, 'Well, there is only one thing.-to put the timbers there to protect the men.' And he suggested something this way, 'Can we put some planks there? (meaning two by 'twelves) to hide the danger from the men, so that they won't be afraid to work? And I said, 'You can do that if you will take the responsibility of it.' I had the men to work that morning just clearing out the timbers. The timbers and the dirt were in the way. I did not put the men to work where the danger was until Mr. Swensen came there. I wanted to inform I him about the place and conditions before I put the men to work. After he came there he told me to put the men to work, and to get the dirt out. * At about half past ten or eleven Mr. Swensen came in. We were talking over some things, and Mr. Bender, he was looking around and looking up that way, and I walked up to him and said, 'Mr. Bender, it seems to me you are afraid to work in here. If you are afraid, the best thing you can do is to get out of here, because you are liable to catch a good hurt here.' Mr. Swensen passed me and went into the men, and said, 'Go ahead about your work. It is absolutely safe to work here. There is no danger at all. Go ahead with your work.' I was present at the time of the accident. * * At the place where the accident occurred timbers two inches by twelve inches, about four or five or six, were put forward about six or seven feet, to hide the danger from the men." Mr. Botwright, who was the timber man at the tunnel, testified as follows: "I was doing timber work in the east end of the tunnel. I was working there on the first day of December, 1899. I was acquainted with Mr. Bender, the plaintiff in this case, and I recollect the occurrence of an accident to him in the tunnel, between one and two o'clock on the first day of December, 1899. In the morning of that day Mr. Swensen came to me outside, and we talked over about the place where the accident occurred later that day, and I asked him what I had better do; that I did not think that it was really |