pose him to mean that he may have found some difficulty in ringingprobably had been obliged to press the button more than once. At all events, the situation had become safe; the signals had been transmitted correctly, the elevator was at rest, and the other laborers were removing the car. Nothing would have happened if Patz had not meddled with the bell, but he chose this moment to lay hands on the cap. If something had gone wrong, it was not his business to set it right; his duty was to report, so that a skilled man might be called in. But at this unfortunate instant he interfered, probably out of curiosity, and did something that caused a signal of one bell to be carried to the engineer, who naturally obeyed it and raised the elevator. But the car was then only partly off, and of course was tipped up and then fell back down the shaft. The deceased went down also and was killed, and some evidence tended to show that he would have escaped if he had not been on the elevator in a dangerous and unusual place. We lay no weight on this, however, as no point was made of it on the argument of this writ.

On the facts thus stated we think the nonsuit was right. The sole cause of the accident was the negligence of Patz, and no negligence of the company is shown to have concurred. There was no proof that the care of the bell had been neglected, and it is certainly common knowledge that electric bells sometimes fail to ring at the first attempt. Whenever this happened at the shaft in question the proper attention was available, and indeed such attention had been given earlier in the day. So far as appears, there was then no reason to anticipate further trouble, and in fact the signals just preceding the accident had been correctly transmitted. After the elevator had come to rest, no signal was required until the car had been removed, and we think it clear that this unfortunate occurrence was wholly due to the meddling of a fellow servant outside of his duty. The judgment is affirmed.

PENNSYLVANIA R. CO. v. PRICE.

(Circuit Court of Appeals, Third Circuit. April 9, 1917.)

No. 2208.

RAILROADS 222(1)—INJURIES FROM OPERATION-LIABILITY.

Where a railroad company, which elevated its tracks, placed the foundation of such elevated tracks against the foundation of plaintiff's house, and by reason thereof the vibrations made by the trains caused the walls of plaintiff's premises to crack open, the railroad company is not liable; it not appearing that its foundations were improperly constructed or extended beyond its right of way, or that its trains were carelessly operated.

[Ed. Note. For other cases, see Railroads, Cent. Dig. § 720.]

In Error to the District Court of the United States for the District of New Jersey; John Rellstab, Judge.

Action by George C. Price against the Pennsylvania Railroad Com

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pany. There was a judgment for plaintiff, and defendant brings error. Reversed.

Thomas L. Gaskill and Gaskill & Gaskill, all of Camden, N. J., for plaintiff in error.

Ethan P. Wescott and Wescott & Weaver, all of Camden, N. J., for defendant in error.

Before BUFFINGTON, MCPHERSON, and WOOLLEY, Circuit Judges.

BUFFINGTON, Circuit Judge. In this case, originally brought in a state court and thence removed on the ground of diversity of citizenship, George C. Price, a citizen of New Jersey, sued the Pennsylvania Railroad, a corporate citizen of Pennsylvania, to recover damages for injury alleged to have been done to a house adjoining the elevated tracks of said railroad in the city of Camden. The case was tried, and resulted in a verdict for the plaintiff. On entry of judgment thereon, the defendant sued out this writ, assigning for error the court's refusal to give binding instructions in its favor.

The plaintiff's statement of claim sets forth that plaintiff was the owner of a house and lot in Camden, that defendant constructed an elevated railroad adjoining such house, that it placed the foundation of such elevated track against the foundation of the plaintiff's house, and "that because of the circumstances hereinabove set forth, the vibrations made by trains, operated by the defendant over said tracks, have caused the walls of the above-described property to crack open,'

etc.

There is no proof that the foundations of the elevated tracks were not properly constructed, that they extended beyond the line of the railroad's right of way, or that its trains were carelessly operated. The question involved, therefore, is whether the railroad is liable for the vibration incident to the proper use of trains on proper foundations built on its own right of way, for into that question the case revolved itself under the pleadings and proof.

The holdings of this court in Roman Catholic Church v. Pennsylvania Railroad Co., 207 Fed. 897, 125 C. C. A. 629, L. R. A. 1915E, 623, which followed Beseman v. Pennsylvania Railroad Co., 50 N. J. Law, 235, 13 Atl. 164, answer that question in the negative, and as there was no evidence whatever that the railroad was doing anything else than properly operating its trains over proper appliances located on its own property, it follows there was no ground for submitting to the jury a question of the railroad's negligence.

The judgment below will therefore be reversed.

HOME TELEPHONE CO. v. HOME DREDGING CO. et al.

(Circuit Court of Appeals, Fifth Circuit. March 12, 1917.)
No. 2895.

Appeal from the District Court of the United States for the Southern District of Alabama; Harry T. Toulmin, Judge.

Suit in admiralty by the Home Telephone Company against the Home Dredging Company and dredge No. 4; Home Dredging Company, claimant. Decree for respondents (241 Fed. 201), and libelant appeals. Affirmed.

Palmer Pillans, of Mobile, Ala., for appellant.

T. M. Stevens, of Mobile, Ala., for appellees.

Before PARDEE and WALKER, Circuit Judges, and GRUBB, District Judge.

PER CURIAM. We have examined the record and briefs in this case, and we reach the same conclusion as to the facts and law as in the lower court.

The judgment appealed from is affirmed.

EVANS V. ASSOCIATED AUTOMATIC SPRINKLER CO.

(Circuit Court of Appeals, Third Circuit. March 29, 1917.)

No. 2150.

1. PATENTS 90(5)-PRIORITY OF INVENTION-RULE OF EVIDENCE.

On the question of priority between two inventors, each of whom used reasonable diligence in adapting and perfecting his invention by reducing it to practice, each can carry the date of his invention back to the date of his conception and disclosure, and the one who first conceived and disclosed his invention, and with reasonable diligence connected his conception with its reduction to practice, is the original and first inventor under the statute, without regard to which of the two first completed the reduction to practice.

[Ed. Note. For other cases, see Patents, Cent. Dig. § 116.]

2. PATENTS 91(1)—PRIORITY OF INVENTION-Burden of Proof.

In a contest between rival inventors for priority of invention, where both have reduced their conception to practice, the burden is on the second reducer to practice to show his prior conception, and to establish the connection between his conception and its reduction to practice by proof of due diligence.

[Ed. Note. For other cases, see Patents, Cent. Dig. § 121.]

3. PATENTS 91(3)—PRIORITY OF INVENTION-BURDEN AND MEASURE OF PROOF.

Where, through inadvertence, interference was not declared between two pending applications for the same invention until after a patent had been issued to the junior applicant, who brought suit for infringement against the other applicant, and interference proceedings later declared were suspended to await the determination by the court of the issue of priority of invention, the patentee, although the second constructive reFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

ducer to practice, by his application is not required to establish his prior date of invention beyond a reasonable doubt, but only by a fair preponderance of evidence, in accordance with the rule governing in interference proceedings in the Patent Office.

[Ed. Note. For other cases, see Patents, Cent. Dig. § 123.]

4. PATENTS 328-VALIDITY-FUSIBLE LINK FOR AUTOMATIC SPRINKLER HEAD.

The Evans patent, No. 1,120,462, for a fusible link for a sprinkler head of an automatic fire extinguisher system, held void for priority of invention by another.

Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.

Suit in equity by Powell Evans against the Associated Automatic Sprinkler Company. Decree for defendant, and complainant appeals. Affirmed.

For opinion below, see 229 Fed. 1007.

Howson & Howson, of Philadelphia, Pa. (Charles H. Howson, of Philadelphia, Pa., of counsel), for appellant.

Hector T. Fenton and Frederick A. Blount, both of Philadelphia, Pa., for appellee.

Before BUFFINGTON, MCPHERSON, and WOOLLEY, Circuit Judges.

WOOLLEY, Circuit Judge. This is an action for infringement. The patent in suit (No. 1,120,462) was granted Powell Evans, December 8, 1914, on an application filed March 13, 1914. The defense is invalidity by reason of an alleged prior invention of one Arthur C. Rowley, whose application for a patent was filed May 22, 1913 (Serial) No. 769,139) and is still pending. To overcome the effect of the prior application of Rowley (the defendant's inventor), the plaintiff claimed and produced evidence to prove a prior conception and disclosure of his invention of a date not later than November 21, 1912, and a reduction to practice by January 1, 1913. Opposed to this, the defendant claimed that the invention of the patent had been conceived by Rowley even before that date and had been reduced to practice in 1905, and claimed a further disclosure and reduction to practice about November 6, 1912. The trial court found that the date of Evans' invention was not before January 1913, while that of Rowley was some time prior to November 21, 1912, and accordingly held the patent invalid. 229 Fed. 1007. Error is charged to the court in failing to find November 21, 1912 as the plaintiff's date of invention, and in finding the date of the defendant's invention any time prior to November 28, 1912.

Two questions are raised on appeal; one is a question of priority of invention, a question of fact as close as the dates upon which it turns; the other relates to the rule of evidence by which the question of priority is to be determined.

[1] The law upon the question of priority of invention is well established. As the evidence shows that both inventors used "reasona

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ble diligence in adapting and perfecting" their inventions by reducing them to practice, each can carry the date of his invention back to the date of his conception and disclosure (Christie v. Seybold, 55 Fed. 69, 75, 76, 5 C. C. A. 33; Automatic Weighing Machine Co. v. Pneumatic Scale Corporation, 166 Fed. 288, 298, 300, 92 C. C. A. 206), and the one who first conceived and disclosed his invention and with reasonable diligence connected his conception with its reduction to practice is the "original and first inventor" under the statutes, without regard to which of the two first completed the reduction to practice. [2, 31 It is also well established as a rule of evidence that in a contest between rival inventors for priority of invention, where both have reduced their conceptions to practice, the burden is on the second reducer to practice to show his prior conception and to establish the connection between his conception and its reduction to practice by proof of due diligence (Christie v. Seybold, supra; Wurts v. Harrington, infra); but before that rule can be applied in this case we must first determine which of the two first reduced his invention to practice, and by what rule of evidence that fact is to be found.

It appears that the applications of Evans and Rowley, involving the identical subject matter, were pending in the Patent Office at the same time. The conflict between the two was not observed, and through inadvertence the Evans patent upon a junior application was issued over the Rowley senior application without interference proceedings having been declared. Upon discovering its mistake, the Patent Office declared an interference between the issued Evans patent and the pending Rowley application. In the meantime this action was brought for infringement of the patent, raising here the precise issue framed by the declaration of interference. The interference proceedings are still pending in the Patent Office, but have been suspended, with the approval of the Commissioner of Patents, to await the decision of this case, whereupon it is stipulated the losing party will file a concession of priority in favor of the other party, and thereby dispose of the interference.

While it thus appears that we are really trying an interference issue raised but not prosecuted in the Patent Office, the defendant urges that we should not apply the rules of evidence there applicable in such an issue, but that Evans, because of the inadvertent issue of a patent to him upon his junior application, must overcome the senior application of Rowley and establish beyond a reasonable doubt his prior date of invention just as though Rowley had been regularly granted a patent on his prior application, sued Evans for infringement, and Evans in defense had denied the validity of the patent because of anticipation or priority or want of novelty.

We do not understand this to be the rule in respect either to the junior or senior applicant. Though a patent has been granted Evans, the controversy is still one between rival applicants for a patent for the same invention. Evans, being the junior applicant, receives, and in fact, claims no advantage of position on account of the grant of the patent to him; while Rowley, having nothing more than an application, can claim only the advantage arising from its seniority.