The Troy Laundry Machinery Company v. Bunnell. in starched and ironed collars having curved fold-lines. United States patent No. 173,096 shows and describes a plain clothed roller combined with a plain hard roller of less diameter than the clothed roller, and means for supporting and rotating the rollers, pressing one against the other by a yielding force, and heating the hard roller, but without any folding and curling guides, so that that machine could not accurately fold and curl partly folded, starched and ironed collars having curved lines of fold." The claims of the patent are as follows: "1. The combination with the rollers B C, of the folding guide E and the curling guide G, in the form of a section of the inner surface of a hollow cone, and arranged in respect to said rollers and folding guide substantially as described. 2. The combination with the roller B, having a covering of cloth, hard roller C, and means substantially as set forth for heating said hard roller, of the folding guide E and curling guide G, both arranged in respect to said rollers with each other substantially as described." The proofs show that machines for folding paper collars, known as the "Churchill machine," had been in public and extensive use as early as 1870, which embodied the parts of the combination of the patented machine, except that neither of the rollers was elastic or was adapted to be artificially heated. This machine was a modification of that described in letters patent No. 57,308, referred to in the specification of the complainants' patent. Letters patent, granted May 31st, 1881, to Richard H. Gardner and John W. Gardner, and, March 8th, 1881, to James G. Crawford, have also been put in evidence by the defendant, as anticipations of the complainants' patent. The first of these patents describes a machine known as the "Gardner collar shaper," which combines a metallic roller with a larger elastic roller, but has no feeding or curling guide, and neither roller is adapted to be heated. The second of these patents describes a machine for folding and shaping collars and cuffs, which combines a feeding device with three rollers, two of which are designed The Troy Laundry Machinery Company v. Bunnell. to be elastic and the other a hard roller artificially heated. This patent does not contain a hint of a curling guide. The defendant has attempted to show that a curling guide was used with machines constructed under this patent, and that the machines with the curling guides were in public use prior to the date of the actual invention of Wyles; but the proofs fail to show this satisfactorily. All the machines thus described in prior patents, or shown to have been in public use prior to the invention of Wyles, differ, in details of construction, from the machine of the complainants' patent; and none of them embody the identical combination of either claim of the patent, except the Churchill machine. That machine contains the combination of the first claim, in which an elastic roller or a roller, having a covering of cloth, is not an element. Although no one of the prior patents or machines is sufficient alone to negative the novelty of the second claim, considered together, and in connection with the machines referred to in the specification of the patent, as illustrating the prior state of the art, they are sufficient to defeat this claim and authorize the conclusion that the combination did not involve invention. What Wyles really did was to combine the parts of the inventions described in patents No. 57,308 and No. 173,096, into one machine, making the necessary modifications in details of construction and arrangement, to insure their efficient co-operation. He selected the plain clothed roller and plain hard roller, adapted to be heated, of patent No. 173,096, and combined with them the feeding guide and curling guide of patent No. 57,308, introducing such changes in the form of the guides as had previously been made and used in the Churchill machine, and in the form and material of the rollers as had been shown in the machine of the patent to the Gardners. In the machine of the patent, the two rollers perform the same functions and have the same mode of operation as those in the machine of the patent No. 173,096; while the feeding guide and curling guide perform the same functions and have the same mode of oper VOL. XXIII.-36 Onderdonk v. Smith. ation as those in the machine of patent No. 57,308 and in the Churchill machine. It is not invention merely to bring old devices into such juxtaposition as will allow each to work out its own effect, without contributing any new function or mode of operation to the other. This is all that has been done in the machine of the patent. It may involve invention to make changes or modifications in parts which were substantially old, in order so to combine them as to effect their efficient co-operation. Where such changes constitute the invention, the claims of the patent must be carefully limited, either by express terms or by fair construction, to the precise improvement which is the subject of the invention. An attempt has been made to do this in the present patent, by making a curling guide of a peculiar form a constituent of the first claim, and a roller having a covering of cloth, or what is substantially an elastic roller, a constituent of the second claim. As has been stated, neither of these constituents is new as a modification of an old part which had been applied to the same use. The bill is, therefore, dismissed. William H. King, for the plaintiffs. WILLIAM M. ONDERDONK vs. RICHARD P. SMITH AND WILLIAM K. SOUTHER. A person who, though not owning a pier and its adjoining slip, has the exclusive privilege of using them to ship coal, is not liable to the owner of a barge loaded there with coal, for damages to the barge caused by her settling down, at low Onderdonk v. Smith. water, on a spile in the bottom of the slip, although the existence of the spile and its dangerous character were known to such person, where the barge, of her own accord, remained in the slip for 5 hours after she was loaded, instead of departing. (Before WALLACE, J., Southern District of New York, June 30th, 1886.) WALLACE, J. The District Court, (21 Fed. Rep., 588,) awarded damages to the libellant for the injuries to the scow barge and her cargo, occasioned by the sinking of the barge in consequence of being punctured by a spile which projected from the bottom of the slip, and directly under the place where the barge had taken her cargo. The defendants have appealed. Although the appellants were not the owners or lessees of the pier, and were under no obligation, as between themselves and the owners, to make repairs or remove any obstruction in the slip, inasmuch as they enjoyed the exclusive privilege from the owners of using the pier and the adjoining slip for shipping their coal, and had, to that extent, the control and occupation of the premises, they assumed the duty towards those whom they invited there for the transaction of business not to expose them to hazard from any defects in the condition of the premises, known to themselves, or which by the use of reasonable diligence should have been known. Their superintendent knew, and they were, therefore, chargeable with notice, of the existence of the spile, because, about three weeks before the occasion in question, another boat, the Getman, while lying at the same place, was struck by the same spile. On that occasion, the Getman had taken on her cargo in the morning, the loading having been completed by eleven o'clock, but no tug came to take her away; and she remained there until half-past two o'clock P. M., the tide in the meantime going down until it was somewhat more than half ebb, when she struck this spile. Her captain succeeded in getting her off without serious injury, but the attention of the appellants' superintendent was called to the occurrence. Onderdonk v. Smith. If the scow had been injured by this obstruction while being loaded at the pier, or while going to it or away from it, in the prosecution of the business which called her there, the case of the libellant would be clear. But the evidence is, that her loading was completed at half-past four o'clock in the afternoon, when the water was a little below high tide, and the accident happened about half-past nine in the evening, when the tide was low ebb; and that, if the scow had been removed from the place where she was loaded within a reasonable time after the loading was completed, she would not have been injured. When the tide went out, the scow settled down upon the spile, which projected about a foot from the bottom of the slip, and sufficiently far to puncture the boat at that condition of the water. The place was entirely safe under ordinary circumstances, notwithstanding the existence of the spile. The captain of the Getman testifies, that he had loaded his boat there forty times without discovering the spile, and, although boats were being constantly loaded there, there is no evidence that any of these had ever encountered the spile except the Getman. It was only when the tide was at half ebb, or when, owing to some other cause, the water was low in the slip, that the place was not safe. According to the usual course of business, the master of the scow should have hauled her away from the place where she was being loaded when the cargo was fully delivered, to make way for other boats. Indeed, he had been expressly directed by the defendants' superintendent, to move out of the berth when loaded, because another boat was expected to come in that afternoon. The master of the scow subsequently ascertained from the master of the other boat, that the latter did not intend to begin loading that night, and, assuming, doubtless, that there was no necessity for moving his boat away, as the other boat was not to be hauled in, took the responsibility of permitting his boat to remain at the pier. He testifies, that he asked permission of the defendants' superintendent, to allow his boat to remain there over night, and that the superintendent consented; but in this he is contradicted |