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W. & J. SLOANE V. DOBSON et al.

(Circuit Court of Appeals, Second Circuit January 7, 1907.)

No. 97.
PATENTS-INFRINGEMENT-FASTENER FOR STAIR CARPETS.

The Adams patent, No. 587.633, for a fastener for stair carpets, claim
1, is void for anticipation. Claim 2 held not infringed.
Appeal from the Circuit Court of the United States for the Southern
District of New York.

For opinion below, see 145 Fed. 352.
E. R. Newell, for appellant.

Chas. E. Brock, Frederick S. Stitt, and Grafton L. McGill, for appellees.

Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judgeo.

PER CURIAM. The first claim in suit is limited to a single bar having a toothed edge. This construction is anticipated by the patent to Penrose. The second claim comprises "brackets or bars secured at intervals,

and tooth bars or plates secured thereto,” etc. These brackets or bars are described and shown as attached to and forming an essential part of the fastener. We are not satisfied that the construction covered by this claim did not involve invention, but it is clear that it is not infringed by defendants' fastener, which consists merely of two separate slotted plates, having toothed edges having no such brackets or bars, and no connecting attachments of any kind.

The decree is affirmed, with costs.

ELEVATOR SUPPLY & REPAIR CO. V. PEDERSEN.

(Circuit Court, S. D. New York. February 28, 1907.) PATENTS/INFRINGEMENT-ELECTRIC SIGNALING APPARATUS.

The Armstrong patent No. 499,411, the Opdyke patent No. 572,561, and the Smalley & Reiners patent No. 634,220, all relating to an electric signaling apparatus for elevators, held valid and Infringed. In Equity. Suit to restrain alleged infringement by defendant of certain United States letters patent owned by the complainant, and for an injunction.

Emerson R. Newell, for complainant.
Quincy Ward Boese and Ernest W. Stratmann, for defendant.

RAY, District Judge. As the case is finally submitted, the patents in suit are the C. G. Armstrong, No. 499,411, dated June 13, 1893, claims 1, 2, 3, 7, 8, 10, 11, 12, 13, 14, 15, and 16; Stacy B. Opdyke, Jr., No. 572,561, dated December 8, 1896, claims 19, 20, and 21; and James B. Smalley and Charles A. Reiners, No. 634,220, dated October 3, 1899, claims 2, 17, and 18. These relate to electric signaling apparatus, and the infringement claimed is the installation by die

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fendant of the electric signaling apparatus for elevators in the Presbyterian building, 156 Fifth avenue, New York City. The defendant's alleged infringing structure has at each floor and above the doorway of each shaft an up incandescent floor light and also a down incandescent floor light. On each floor is a single push-button box having an up push button and a down push button. A person desiring to take passage up pushes the "up" button, and, when the very first upgoing elevator approaches that floor and is within three or four floors of the passenger who has pushed the button, the "up" floor light on that floor for that shaft lights up. The light within the elevator car for signaling the operator in the car of the elevator also lights up when but a floor and a half away from such intending passenger. When the passenger has entered and the car moves away, and as it commences to move, a restoring circuit is automatically closed. This energizes a restoring magnet in the push-button box, and permits the push button switch to snap out and break the circuits. When the car moves downwardly the same general operation takes place. The signal lights, both for waiting or intending passenger and operator of the car, are not lit up until the proper push button on a floor has been actuated by such intending passenger and the elevator is approaching that floor and is within three or four floors of him. This results from the fact that there are always two breaks in each lamp circuit, one at the push-button box and the other at the commutator, which is in part actuated by the movement of the car and which determines the time when the second break shall be closed and the lamp lighted. I cannot see any advantage to any one in going into a detailed description of defendant's construction, connections, and mode of operation, and then comparing them with those of the patents in suit and prior patents in evidence, which would have to be done in order to be intelligible. The defendant defines his defenses as follows:

"Defendant's contention is that, when the three patents in suit are construed in the light of what is therein shown and described and their positions in the art of electric signaling apparatus for elevators, the defendant's apparatus in the Presbyterian building does not infringe, and each patent may be valid.

"When the patents in suit are construed as broadly as complainant contends, in order to make out infringement, then the said patents are anticipated by the prior art.

"The defendant contends that, in view of the prior art, the combinations of elements or devices particularly pointed out in the several claims in suit must be strictly construed and limited to the particular combinations of elements or members having the specific mode of operation set forth in the specification as therein shown and described, and that all combinations of elements or members having other and materially different modes of operation by which a general result may be accomplished are not the combinations recited in the sev. eral claims in issue; whereas the complainant contends that the Armstrong patent in suit is a pioneer patent, and as such entitled to a broad range of equivalents so as to cover combinations having esseniially different modes of operation, and that the Opdyke and Smalley & Reiners patents, .except as limited by the Armstrong patent, are also to be thus broadly construed and thereby bring within their grasp defendant's signaling apparatus."

I have examined the patents in suit, the prior patents, the details of defendant's devices and construction and mode of operation, and also the expert evidence, and am satisfied that, having in view the prior art, the complainant is entitled to a sufficiently broad construction of the claims of its patents to cover defendant's construction. Complainant's patents are valid, and infringement of the claims specified of the patents in suit is made out. I cannot find that defendant's construction or combination with its mode of operation presents other and different modes of operation from complainant. It seems to me they are essentially the same, giving the complainant's patents the construction they are entitled to.

There will be a decree for the complainant adjudging the validity of his claims in dispute, infringement thereof by defendant, and for an accounting, with costs.

THE LACKAWANNA.

(District Court, 8. D. New York. February 13, 1907.) SUIPPING-LIABILITY FOR INJURY TO PASSENGER-FALLING THBOUGI OPEN

COAL HOLE.

A ferryboat held liable for personal injuries to a passenger through falling into an open coal hole in the deck, which was being used for coaling just prior to the boat's leaving her slip, on the ground of negligence in failing to have a personal guard or some device to warn passengers who were allowed to go on that part of the deck. The passenger also held guilty of negligence in a greater degree for failing to see the hole; there being plenty of light and the hole on a part of the deck not intended for passengers, although they were permitted to go there. One-third damages allowed.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Shipping, 88 544, 551.) In Admiralty. Action by passenger for personal injuries. Henry W. Hardon, for libellant. James J. Macklin and John C. Seager, for claimant.

ADAMS, District Judge. This action was brought by Abraham Oppenheim against the ferry boat Lackawanna, of the Delaware, Lackawanna and Western Railroad Company line, to recover damages for personal injuries sustained through falling into a coal hole in the forward deck of the ferry boat about 2 o'clock in the afternoon of the 14th day of November, 1905, while she was lying in her slip at 14th Street, Hoboken, previous to departure for 23rd Street, New York. It is alleged by the libellant that the injuries were solely due to the negligence of the ferry boat in leaving the coal hole open, unprotected and unguarded. The claimant admits that the libellant was a passenger and fell into a coal hole but avers that it was through his own fault, negligence and carelessness, the boat all the time being engaged in finishing the receipt of coal and the opening was in plain view and had the libellant moved with care the hole could have been plainly seen and avoided, and further, the claimant denies that the hole was negligently left open.

It appears that the libellant, a banker at The Hague, arrived in Hoboken, New Jersey, on the steamer Kaiser Wilhelm on the 12th day of November, 1905, and was met by his sister, a resident of this city. Having obtained a carriage they started to cross the river on the said ferry boat. The carriage went on the port side of the boat, preceded by another carriage and a coal cart. The load of coal from the cart was dumped into a coal hole in the centre of the deck of the boat between the two horse gangways. After the carriage came to a rest, the libellant alighted and, proceeding somewhat across the deck, fell into the hole.

A diagram, prepared by the claimant, was put in evidence by the iibellant, and shows that the hole was 3 feet across the deck and 18 inches lengthwise of it. It was 52 feet 11 inches from the bow and 17 feet 4 inches from the end of the covering over the teamway, on the line of the keel. Forward of the coal hole 3 feet 10 inches was a 10 inch round iron column extending from the deck to the covering or roof of the teamway, which it supported. The base of this column was larger than the column itself by 1 foot and 10 inches, and sloped all around the column to the deck. Forward of that 2 inches was a rudder chain box, 1172 by 18 inches, extending also to the roof from the deck; outside of the box was a tapering wheel guard, 18 inches, above the deck. This extended 9 inches further toward the horse gangway than the coal hole. The covering was 12 feet 11 inches above the deck. The deck was worn by use into depressions about 5 feet from the coal hole. This boat was built in 1880 and has been in service since without any change in the opening or obstruction mentioned.

The carriage was 5 feet wide from the extreme outsides of the wheels and 7 feet 2 inches long from center to center of the hubs of the wheels and the tongue 9 feet 7 inches long. It was 6 feet 1 inch high, leaving a space of 6 feet and 10 inches between the top of the carriage and the roof. There was good light in this portion of the gang

It has been proved, without contradiction, that the horse gangways were habitually used by passengers. Such being the fact, it was the evident duty of the boat to provide some device to prevent them from walking into the hole or to have some one there when it was open to warn passengers against the danger. There was nothing of this kind. Some witnesses say that there was no one there at the time. One witness for the boat, a deck hand, testified he was there then sweeping up the coal, which the cart had dumped, but even if so, according to his account of the matter, his back was towards the libellant, and he does not claim to have seen him until after he had fallen into the hole. This was not the kind of a guard the boat should have provided. If it was deemed necessary to avoid the use of a device, such for example as is often placed over coal holes in the side walks of New York, then the personal guard should have been alert to warn any approaching person of the danger. In the absence of such device or warning, I think there can be no doubt of the boat's liability.

It has been strongly urged that the libellant was solely responsible for his injuries because he failed to observe due care in attempting to go forward. He said it was a very clear day with the sun shining at the time; that he wanted to look out and opened the door himself without giving the driver any warning; that after taking a step or two he fell into the hole. The hole was about 4 feet across and 4 or 5 feet forward of the carriage and about 5 feet from it. He must have

wav.

taken, therefore, two or more steps before he reached the hole and then he did not go straight forward but partly across the boat. He walked with his head up and failed to see the hole which would easily have been perceived by an ordinary observant person. It was not similar to some cases called to my attention where it was held that the passenger had a right to presume that a railway platform was a safe place, nor is it similar to sidewalk cases. Here the libellant was in a place not designed for use of passengers on foot, though they were permitted to go there, and I do not think he was entitled to proceed with the same sense of security that he could legally have done in the classes of cases mentioned. When he attempted to go forward, he should have looked about him and seen where he was stepping. The hole and cover, with other small things about them, were plainly visible and his failure to do so, in my judgment, constituted negligence on his part to a greater degree than that of the ferry boat in failing to especially guard the hole. The boat of necessity required the use of an opening in the deck to receive the coal and the failure to notify a heedless passenger, walking in an unusual place, of its being open, was less deserving of condemnation than the passenger's obvious carelessness in going into easily discoverable danger. Therefore the damages will not be divided in halves, as is common where both' vessels are found in fault in collision cases, but the libellant will be allowed one third of his damages. Hughes Admy., 193, citing The Max Morris, 137 U. S. 1, 14, 11 Sup. Ct. 29, 34 L. Ed. 586,

Decree for the libellant for one-third damages, with an order of reference.

THE WILKESBARRE. (District Court, S. D. New York. February 16, 1907.) COLLISION–TUG AND STEAMER AT PIER-ABSENCE OF LOOKOUT.

A tug with a tow, and having no lookout, was approaching a pier, near which she intended to leave her tow, and the master, who was at the 'wheel, changed her course toward the pier in order to make a turn. Immediately after he suddenly fell in a faint, and the tug, being without guidance, ran into a steamer which was lying at the pier. Held that, while the collision was the result of inevitable accident so far as related to the master, it was proximately due to the failure to keep the lookout required by, law, since, if a competent one had been properly stationed and attentive to his duties, he would have noticed the trouble and prevented the collision, either by changing the tug's course or having the engineer stop or reverse.

[Ed. Note-For cases in point, see Cent. Dig. vol. 10, Collision, $$ 140151.) In Admiralty. Suit for collision. Wing, Putnam & Burlingham, for libellant. Carpenter, Park & Symmers, for claimant.

ADAMS, District Judge. This action was brought by the Deutsche Dampschiffahrts Gesellschaft Hansa, the owner of the steamer Werdenfels, to recover from the tug Wilkesbarre the injuries sustained through a collision between the vessels while the former was lying

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