593

1901.

CHICAGO, R. I. & P. R. Co EXTUR

court of the state defended and vindicated 'cluded from Gony doctrine was fo

the statute. The court said:

"The legislation is justifiable under the in Cogger. police power of the state, so it has been held. It was enacted to make railroad companies insurers of the safe transportation of their passengers, as they were of baggage and freight; and no good reason is suggested why a railroad company should be released from liability for injuries received by a passenger while being transported over its line, while the corporation must respond for any damages to his baggage or freight."

ons

ed

it

zi

ed

E lishment, and to the for the safety of a of whose affair ou pa sorts of persone, then sey in their ways of a sys riers might have as opport ing all persons that less are hope them, by combining w yet doing it in a as would not be pa And this is the reason these doved upon in that point. *That reason may not app) 5 yananya TRA, The law of deo- but other reasons do, whics and from th conditions which exist in and erro other. Other examples are afforded in the be considered as strongly justifying & tva ern railroad transportation, and way liability of the husband for the torts of the of responsibility for injury to yị gặt tạ does, that responsibility be a wish, n

Our jurisprudence affords examples of legal liability without fault, and the deprivation of property without fault being attributable to its owner.

dands was such an example. The personification of the ship in admiralty law is an

wife-the liability of a master for the acts which makes sure, as the com

of his servants.

In Missouri P. R. Co. v. Mackey, 127 U. excuses which do not exist, or the diagrnd S. 205, 32 L. ed. 107, 8 Sup. Ct. Rep. 1161, of which might be impossible. a statute of Kansas abrogating the com- We might extend the discussion and I mon-law rule exempting a master from lia-lustrate it by other cases, but, however is bility to a servant for the negligence of a teresting such discussion might be, we fellow servant, was sustained against the not think it is necessarily demanded by t contention that such statute violated the record. We think plaintiff in error in p [587]14th Amendment of the Constitution of the cluded from objecting to the rule of li And in Minneapolis & St. L. ity expressed in § 3. That rule of liability was accepted by plaintiff in error as a part and as a condition of its charter. "It was incorporated under the laws of the state Nebraska," is the allegation of the petition er. "It is a domestic corporation vindicated of the state of Nebraska," is the allegation of the answer. It was incorporated, there

United States.

R. Co. v. Herrick, 127 U. S. 210, 32 L. ed. 109, 8 Sup. Ct. Rep. 1176, a statute of lowa which extended liability for the "wilful wrongs, whether of commission or omission,, of the "agents, engineers or other employees" of railroad companies,

was

against the double attack of being an unjust discrimination against railroad corporations and the deprivation of property without due process of law. See also Tullis

v. Lake Eric & W. R. Co. 175 U. S
L. ed. 192, 20 Sup. Ct. Rep. 136.
It seemed to the a
Coggs v. Bernard [2
on account of the con
rounded common ca
quired responsibility
injuries to and losse
them, except such in
occurred from the
enemies, and many
cellor Kent praised
which declined to r

rpar

s int

fore, under the railroad incorporation act of
1867, and the liability which has been en-
forced upon it by the decision of the supreme
14 court of the state is the liability declared
by 3 of that act. That bar, we re
peat, plaintin error accented w
corporatio
cannot E7 12
Waters-1
28, 44 I
eed n

Pierce 1

nd ap Judg

1 loss

od

rwar

ion

Mr.

le

ent,

il Co.

20 Su

the ref

Teras
trice a

'n a

in a

rigor.

been ca

been ap

policy,

th

ried fart

think it

and that

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doctrine not follow

de

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old

has

often

idge.[593]

reason

343

Argued October 25, 1901. Decided January | legations of its answer. The testimony,

6, 1902.

N ERROR to the Supreme Court of the

I State of Nebraska to review a judgment

which affirmed a judgment of the District Court of Thayer County entered upon a verdict for plaintiff in an action to recover damages from a railroad company for the death of a passenger. Affirmed.

See same case below, 59 Neb. 698, 82 N. W. 1119.

The facts are stated in the opinion. Mr. W. F. Evans argued the cause, and, with Mr. M. A. Low, filed a brief for plaintiff in error.

upon the objection of defendant in error, was rejected, and at the close of the evidence, on motion of defendant in error, the

court' instructed the jury as follows:

"The jury is instructed that if you find from the evidence that John R. Mathews was a passenger, being carried on the train of the defendant railway company that was derailed and wrecked near Lincoln, Nebraska, on August 9, 1894, thereby causing the death of said Mathews, and that plaintiff is the administrator of the estate of said Mathews, then you should find for the plaintiff if you find a pecuniary loss from such death has resulted to the next of kin, in this case the father."

The jury returned a verdict for defendant

Mr. Thomas C. Munger argued the cause, and, with Messrs. John M. Stewart and A. E. Harvey, filed a brief for defend-in error for $1,500, upon which judgment ant in error.

[589] *Mr. Justice McKenna delivered the opinion of the court:

This action was brought in the district court of Thayer county, Nebraska, by the defendant in error as the administrator of the estate of John R. Mathews, deceased, against the plaintiff in error, for damages, under a statute of the state, for the death of Mathews, caused by the derailment of the train of plaintiff in error upon which Mathews was a passenger.

The record presents the same questions which were presented and passed on in the case of the plaintiff in error herein against Zernecke, administratrix, No. 58 of this term, just decided. 183 U. S. 582, ante, 339, 22 Sup. Ct. Rep. 229. As in the latter case the ground of action in the case at bar was negligence in the railroad company and its servants. The answer of the company denied negligence, and alleged that the derailment was caused by some person or persons unknown to the company, and not in its employment or under its control, who wilfully, maliciously, and feloniously removed and displaced from the track certain spikes, nuts, angle-bars, fishplates, bolts, and rails, and otherwise tore up and destroyed the [590]track. *The company also alleged care in

the maintenance of its track and the management of its train.

was entered. The judgment was affirmed by the supreme court of the state, upon the decision in Chicago, R. I. & P. R. Co. v. Zernecke, 59 Neb. 689, 82 N. W. 26, and this writ of error was then allowed.

The facts, contentions, and questions be ing the same as those presented in the Zernecke Case, 59 Neb. 689, 82 N. W. 26, for the reasons stated in the opinion in that case the judgment is affirmed.

*UNITED STATES REPAIR & GUARAN-[591] TY COMPANY, Petitioner,

บ.

ASSYRIAN ASPHALT COMPANY.

(See S. C. Reporter's ed. 591-601.)

Patent-for method of repairing asphalt
pavement lack of novelty.

The Perkins patent, 501,537, for a method of
repairing asphalt pavements, consisting of so
heating the spot to be repaired and the ad-
jacent surface that the asphalt is reduced to
the soft, pliable state in which it was origi
nally laid, then mixing in enough new ma-
terial to fill up the spot to be repaired, and
then subjecting it to the usual finishing ope-
rations, is void for lack of novelty by reason
of the prior French patent to Crochet, the
process in which differed chiefly in the fact
that the old asphalt was removed from the
spot to be repaired, while this was not done
by the Perkins method.

The petition alleged that the plaintiff in error "was a corporation, duly incorporated under the laws of the state of Nebraska," and the admission of the answer was that plaintiff in error, "at all times mentioned in said petition, was a corporation organized and existing under and by virtue of the laws of the states of Illinois and Iowa, and Argued October 28, 29, 1901. Decided Jana domestic corporation of the state of Nebraska."

The case was tried before a jury. The evidence of defendant in error (petitioner) was that at the time Mathews was killed he was being transported as a passenger over the railway of plaintiff in error, and that the train upon which he was riding was thrown from the track, resulting in his death and the death of ten other persons. The plaintiff in error then offered witnesses and depositions to sustain the al

[No. 61.]

uary 6, 1902.

N WRIT of Certiorari to the United

O`States Circuit Court of Appeals for the
Seventh Circuit to review a decree affirming

NOTE-On patentability of invention-see notes to Thompson v. Boisselier, 29 L. ed. U. S. 76; Corning v. Burden, 14 L. ed. U. S. 683 : Grant v. Walter, 37 L. ed. U. S. 553; WollenStreet Cable R. Co. v. Rowley, 39 L. ed. U. S. sak v. Sargent, 38 L. ed. U. S. 138; Market 285, and Dashiel v. Grosvenor, 40 L. ed. U. S. 1025.

of frost or from other causes, is frequently | the old material. As stated above, while torn loose from its soldered connection with heating the spot to be repaired, the surthe old material, thus necessitating new re- rounding edges or portions must be heated pairs. In practising my invention, how-to a greater or less degree, and the new maever, I subject the spot to be repaired and terial is worked into these edges, as well as the surrounding edges to such a degree of in the spot to be repaired, so that when harheat that the surface asphalt-not only the dened it is practically impossible to tell exact spot to be repaired, but the surround- where the pavement has been repaired. ing portion, to a greater or less degree-is "What I claim isreduced to the soft pliable state in which it is originally laid. With a rake or other suitable instrument it is then agitated and mixed with enough new material to fill up the spot to be repaired. It is then subjected to the usual finishing operation of ironing and burnishing. The heating of the sur-ments, which consists in subjecting the spot face may be accomplished in various ways and by means of various forms of apparatus, and while I have herein shown but one form for accomplishing the result, yet I would have it understood that I do not limit myself to any particular form of apparatus for carrying out my invention."

The apparatus described consists of a suitable tank mounted on a wheel for carrying gasoline. The tank is connected with a series of horizontal pipes which carry a series of burners, and "project a flame downward against the pavement."

"1. The method of repairing asphalt pavements, which consists in subjecting the spot to be repaired to heat, adding new material, and smoothing and burnishing it, substantially as described.

"2. The method of repairing asphalt pave

to be repaired to heat until the material is softened, agitating it, and mixing with it new material, and finally smoothing and burnishing it, substantially as described."

Infringement is only asserted of the first claim, and, considering the language of the claim and of the specifications, it seems impossible to escape the conclusion that the invention claimed is for the application of heat to the spot to be repaired. And the patentee did not confine himself to the particular apparatus he described. That, he said, was "one form of accomplishing the "In carrying out the invention A repre- result." He would have it understood, he sents a suitable tank for carrying gasoline said, that he did not confine himself "to any mounted on the wheeled frame B and con- particular form of apparatus for carrying nected by the pipe C with a series of hori-out" his invention; and the independence of zontal pipes, D. These pipes D carry a se- his method from any form of apparatus is ries of burners, E, which pass through a brought out by *contrast of what had been [595] hood or shield, F, and project a flame down-done and what he proposed to do as an imward against the pavement. Pressure is then obtained upon the gasoline to force it to the burners and to produce a blast by means of an air pump, G, mounted upon the tank."

The letters patent further say:

provement. What had been done was to take out with a pick or other instrument the surface material around the spot to be repaired, sometimes applying heat to the spot to soften the material, so that it might more easily be removed. And the new meth"The apparatus is also provided with a od he proposed was to subject the spot to be handle, H, whereby the operator may readi- repaired and surrounding edges to such a ly move it to the desired spot. Now, as degree of heat that the surface asphaltwould be seen by turning on as many of not only the exact spot to be repaired, but the burners as are desired, a strong blast the surrounding material, to a greater or of heat is projected against the surface of less degree-will be reduced to the soft, plithe asphalt, and readily melts it. As ex-able state in which it was originally laid. plained above, when it is desired to repair Here we have the comparison of the two a spot, the apparatus is moved adjacent methods. The old was to take out the surthereto with the burners directly above the face material around the spot to be repaired, spot. These soon reduce the surface as- sometimes applying heat to soften such phalt, both at the spot and at the surround-inaterial. The new method was to apply [594]ing edges, to a pliable state, the strong blast causing not only the immediate surface, but the particles deep down, to be melted and yet not burned. With a rake or other suitable instrument the operator then agitates or stirs up the softened material, and, by adding new material of substantially the same degree of softness, the spot or depression to be repaired is filled up and subjected to the usual smoothing and finishing operation as in the case of a new pavement. This, as will be seen, is done without the use of the tar for the purpose of uniting the parts or sections of material, and is done without any distinct dividing line between the old and new material. In fact, there is no dividing line, because the new material has been mixed with and becomes a part of

heat, not only to the exact spot to be repaired, but the surrounding edges. What, then, was the advantage of the new method? The patent tells us. In the old method the depression made by the removal of material was "thoroughly cleaned and given a coat or dressing of tar." The tar acted as a solder, but the joint between the old and the new material was discernible, and often a ridge was formed, and the adhesion of the materials yielded to frost and other causes. The new method dispenses with the tar and its consequences. It substitued the melting of the surrounding edges, producing a union and coalescing of the old and new material, making a better appearing and more lasting repair. If the method and effect of the patent be different from this.

we are unable to discern it from the patent | France, had that effect; and we concur in
or from the testimony. Indeed, there is no
other difference established by the testi-
mony. One of the expert witnesses of the
petitioner testified as follows:

the finding. The process described in the Crochet patent is for the "preparation and recharging of compressed asphalt roadways." The following is the specification of the patent:

"It is further evident that in such use of defendants' device and in the repair of pave- "When it was designed to repair or rements in part by the use of said device by de-charge a roadway in asphalt with the means fendants, the use of tar or any other cement which are now at command, the operator or 'solder' is obviated; that the union be-gererally delimits with a pick the part tween the patch of new material and the old pavement is direct, immediate, and complete, without the intervention of an interposed body of tar or like material; and that the joint need, therefore, present none of the disadvantages, objections, or defects, in re[596]spect either of appearance *or of effectiveness, which distinguished the old tar joint and which are obviated by the method here in controversy.

"There are three steps or process elements enumerated in this claim, to wit: First, 'subjecting the spot to be repaired to heat;' second, adding new material;' and third, 'smoothing and burnishing.' These are all performed in the same order by the defendants. The separate steps are, moreover, essentially the same in kind in defendants' practice, as set forth in the patent. The heat is applied to the spot to be repaired with a flame blast. The new material added is the same in condition and character; it is not tar or any part tar, but is solely the asphalt composition like that of the old pavement, and in the soft condition and heated state in which said composition is and was originally applied. The smoothing and burnishing is the same step in both cases, being the old and familiar operation performed by means of heated metal tamping and smoothing irons long before used in leveling and smoothing original asphalt

pavement surfaces."

And he further testified:

"It appears to me to be a feature of the patented method, or a characteristic of the steps of applying the new material, that the new material is placed into direct contact with the old, as if the claim read 'adding new material in direct contact with the old material, and smoothing and burnishing it.'"

which is to be replaced, and takes therefrom the asphalt; but it is rare that this operation has not for consequence the starting of the adjacent portions which are sound, swelling them up in such wise that at the end of a little while it is necessary to repair them in their turn.

"To avoid this I have designed a process for repairing and recharging asphalt roads which suppresses such inconveniences. It consists in reheating the part to be mended by means of a movable furnace which the operator shifts about at the surface of the roadway, until such portion decrepitates and becomes friable. The upper part of the layer of asphalt and that which has been damaged are taken off by means of an iron scraper armed with small teeth which perform the office of a rake; said scraper in raising the material forms at the same time upon the part remaining numerous striae which render the surface wrinkled, and augment the adherence of the additional overthickness which constitutes the recharge.

"The repeated passage of the movable furnace thereon has equally for its effect to vaporize the water and the humidity which are found in the asphalt pavement at the portion to be repaired or recharged.

"After this preparatory operation the workman spreads a convenient depth of asphalt in powder-like state and stamps it by the ordinary means; because of the softening of the subjacent layer, said layer solders itself perfectly to the new coat, and forms with it a thickness without break in continuity. Such repair and such recharging do not at all impair the neighboring portions.

"It is clearly evident, besides, that the same work of recharging can be done over the whole surface of a street, instead of being done in spots, and that it is independent of the depth of the asphalt layer.

In other words, the mixing of the old and new material around the edges of the exca*"The heating apparatus which I have ar- -[598] vation, and "adding of new material in di- ranged for thus effecting the softening the rect contact with the old material, smooth-surface of the asphalt roadways is repreing and burnishing it," is the essence of the sented on the drawing annexed, in longiinvention; and so unqualifiedly is this true tudinal and transverse sections, Figs. 1 and that a witness of petitioner testified that if?. It is composed of a box body, the sides the heat which was applied not only melted, A, A, B, B, of which are perforated throughbut burned, the immediate surface and as out, and the bottom C, whereof is formed a well "the particles deep down," and the ma-grating, below which there is a metal plate terial thus burned raked away clean before new material was applied, the method of the patent would be followed.

As thus described, was there anything in the art which preceded the Perkins method and took from it the claim of originality and invention? The circuit court and the circuit court of appeals found that a pat[597]ent issued to Paul Crochet *June 11, 1880, in

D, to radiate the heat over the surface of the asphalt. Said plate D is movable to allow for the withdrawal of cinders. The box is mounted upon the wheels E, the axes o whereof are adjustable upon supports a, the elevation of which in guides b can be varied to augment or diminish the distance of the box to the roadway. A handle, F, serves to maneuver the car over the pavement. This