TROY J,AUXDRY MACHINERY CO. V. BUNNELL.
denying infringement, relies upon the want of novelty in the patented invention. 'fhe object of the invention is to dispense with the hand labor of folding and curling linen or cotton collars· after they have been starched and partially folded, and to substitute mechanism by which starched and partially ironed collars, having the curved foldline moistened, can be accurately folded, curled, and dried progressively, from end to end. The machine described in the specification consists of a feeding guide, E, two rollers, Band C, and a curling guide, G. The feeding guide serves to introduce and direct a partially folded collar between the two rollers. The rollers are supported, rotated, and pressed together by any suitable meq,ns. The roller, B, is of much greater diameter than the roller, C. The collar feeding surface of the roller, B, is made elastic, a tight layer of felt covered with muslin being commonly used to give it this quality. The roller, C, is of metal, with a hard, smooth surface, and is adapted to be artificially heated. 'fhe curling guide is concavely curved, with its concaved surface in the form of a section of a hollow cone. In operation, the collar, partly folded, and having the curved fold-line moistened, is placed in the feeding guide, E, which is inclined to the plane of contact between the two rollers; is introduced by the feeding guide between the rollers; and by their action is pressed and dried, retaining a curved shape, until it issues from between them into the curling guide, G; and is directed in a spiral course, by the form of the curling guide, away from the point where it enters, from between the rollers, and discharged in a curved shape. The patentee refers in his description to two prior patented machines, as follows:
"United States patent No. 57,308 shows and describes a machine for moulding, turning, or flaring outward the fold portion of a folded paper coUar, by the combination and arrangement of a concave roller, a convex roller, a gUide to direct the folded collar between the rollers, and bend it towards the concave roller, and another guide to receive, bend, and direct the collar as it issues from between the rollers; but that patent does not show, describe, or mention any roller haVing an elastic, yielding, or cloth-covered surface, nor any means whatever for heating one of the rollers. Consequently that machine was not capable of folding, drying, and curling a pal'tly-folded starched and ironed collar, haVing a moistened fold-line; and that particular combination and anangement of the two guides of the concave and convex rollers would not produce the plain fold required 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; 80 that that machine could not accurately fold and curl partly-folded, starched, and ironed collars, baving curved lines of fold."
The claims of the patent are as follows:
"(1) The combination with the rollers, B, C, of tlle folding guide, E, and the curling guide, G,· in the form of a section of the inner surface of a hal" low cone, and arranged in respect to said rollers and folding guide substan-
tially as dcscribal. (2) The combination with the roller, E, 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, boU, arranged ill 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 specificat.ionof the complainants' patent. Letters patent granted May 31, 1881, to Richard H. Gardner and John W. Gardner, and March 8, 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 metalic 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 to be elastic, and the other a hard roller, artifi· cially 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 complainant's 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 specifications 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 detail of construction and arrangement to insure their efficient cooperation. 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 a'3 had previously
THE BAY QUEEN.
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 operation, as those in the machines of patent No. 57,808, 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 modification in parts which were sub· stantially old, in order so to combine them as to affect 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 are new as modifications of old parts which had been applied to the same use. The bill is therefore dismissed.
JERSEY STEAM TRANBP.
(Dia&rict Oourt. S. D. New York.
April 12. 1886.)
COLLISION-OVERTAKING VESSEL-RIVAL BOATS.
An overtaking steamer must keep out of the way of the one ahead. It is no defense that the latter had not acquired full speed. ·
SAME-ROUNDING POINTS-SIGNAL WHISTLES, MEANING OF-CROWDING-. STATE STATUTES.
When two steamers, bound around a point, and approaching it from the same side. upon courses somewhat crossing, signal to each other, the one giving two whistles, and the other replying with one whistle, sucll signals mean that the former will starboard her wheel and keep to the left, and that the latter will port her wheel and keep to the right, so far as is reasonably necessary to pass the common point. The outside vessel, in such a case, is bound to keep away enough not to crowd the other; 20 yards being required by the state law.
SAME-CASE STATED-RECKLESS NAVIGATION.
The rival passenger boats B. Q. and D. R. M. left their docks in the Kills, Staten island, at about the same time; both being bound around Long Dock, and between that and a schooner which lay at anchor 400 or 000 feet to the westward and outside of it. The D. R. M. signaled by two blasts of the
whistle; the B. replied by one; the former being then under full speed, but considerably further from the Long Dock than the B. Q., which was under half speed. There was sufficient room for both to pass at the same time between the schooner and Long Dock. When nearly abreast of it, the B. Q.'s stem struck the wheel· house of the D. R. M" doing the latter some damage, but the latter kept on without pause. Held, discrediting much of the testimony of the D. R. M., that she was, at the time of the signals, considerably astern of the B. Q.; that she was an "overtaking" boat; and that. as such, as well al by reason of having the B. Q. on her own starboard hand, she was bound to keep out of the way of the latter; that by her signal of two whistles, also, she was bound to keep to the left; that she did not do so to the extent easily within her power, but crowded upon the B. Q.'s course; that she was navigated recldessly, if not with the intention, even, of running down the B. Q.. or forcing her upon the dock. Held, further, that upon the signals given, the B. Q. could not have anticipated such navigation on the part of the D. R. M.; and having proceeded slowly, and gone as near the Long Dock as was safe, and reversed shortly before the collision, she was without fault, and the damage should be borne by the D. R. M. alone.
In Admiralty. Wilcox, Adams it Macklin, for libelant. Stewart d; Boardman and Geo. L. Nichols, for claimants. BROWN, J. At about a quarter past 2 in the afternoon of August 13, 1885, the riv811 passenger boats the Bay Queen and the D. R. Martin, running from Staten island to New York, came into collision in the Kills, at Port Richmond, very near iheend of Starin's Long Dock; the port bow of the Bay Queen striking the Martin just forward of her wheel-house. Both boats were upon their regular trips. The time of each for leaving her dock at Port Richmond was 2: 10, and the boats left nearly upon time. The Kills run there very nearly east and west. The Long Dock extends about 400 feet fr0m the shore. The Bay Queen's dock was only a short dock, distant from 400 to 600 feet to the westward of the Long Dock; the Martin's dock was about 1,000 feet further westward. Both boats were accustomed to pass near the end of the Long Dock. At this time there was a schooner lying at anchor from 400 to 500 feet to the westward of the end of the Long Dock, and a little further out in the stream. The tide was about half ebb, running to the eastward. The schooner lay somewhat qnartering, and tailing to the south-east. The ordinary course for both steamers was to paBS between the schooner and the Long , Dock; and the witnesses on both sides prove that there was plenty of room for both to pass between the schooner and the dock, at the same time. The full speed of the two boats was about the same; but the Martin could be more quickly handled. At the time of the collision she was going under full speed, £roo;1 10 to 12 knots. The Bay Queen had stopped her engine before the collision, and had at no time reached fnll speed. The distance from the Bay Queen's dock to the end of Long Dock was not over six or seven hundred feet, less than half the distance from the Martin's dock to the end of Long Dock. The Martin, in shaping her course to pass Long Dock, went about 250 feet outside of the end of the Bay Queen'sdock. The
Bay Queen's dock was so near to Long Dock that the Bay Queen was obliged to start out under a hard a-starboard wheel, and keep her wheel to starboard until she got far enough out to be able to clea] the Long Dock; and then, when near the end of the dock, she would straighten down to the eastward. Until she approached the end of the Long Dock she was subject to the eddy, which was somewhat against ber on the ebb, while the Martin, from opposite the Bay Queen's dock, had little or none of the eddy against her. The circumstances just stated render it impossible that the collision could have occurred, if the testimony of various of the libelant'g witnesses were true; namely, that at the time the Bay Queen started from her dock the D. R. Martin was abreast, or nearly abreast, of the Bay Queen. The full speed at which the Martin was running, hel shorter distance from the end of Long Dock, and the less eddy to pase through, would, if that testimony had been true, have brought the Martin several lengths ahead of the Bay Queen at the time the latter reached Long Dock. I am obliged to hold all this testimony, there fore, as a gross misrepresentation of the facts. The same circumstances, above stated, agree with the clear preponderance of the other testimony, that when the Bay Queen left her dock, the Martin was several lengths to the westward. 'fhe weather was .fine; both were in full view of each other; and each knew the course and intention of the other. Upon the above facts the fault of the Martin is clear. 1. The Martin was plainly the overtaking boat; and, as such, she was bound to keep out of the way of the vessel ahead. Her speed at that time being considerably greater than the Bay Queen's, there is no doubt that the Martin did not actually lap the stern of the Bay Queen until a very short time before the collision. During all the time before that, she was clearly in the position of an overtaking boat, and had abundant time and room to keep out of the way, either by slackening speed, or by stopping, or by going to the northward. It is no defense that the Bay Queen had not acquired her full speed. Again, she had the Bay Queen, from the first, on her own starboard hand, and on that ground she was also bound to keep out of the way. Considerable testimony was given on her part to the effect that she could not stop. I must consider that the merest pretext, and as untrustworthy &s her testimony that she was not an overtaking boat. There was not in fact any need of stopping. She had only to keep to the northward after passing the schooner, and she would have been out of the way of the Bay Queen, and given the latter all the room she required to pass the Long Dock. I am satisfied from the evidence that the collision took place within less than 100 feet of the north· west corner of Long Dock. The Bay Queen was not yet perfectly straightened down the. river, and she was 80 near the Long Dock that her stern concealed the end of the dock from the view of persons standing on the Bay Qneen's dock. I find, therefore, that thE:l Martin violated the state statute, which for-
bade her, as the overtaking boat,. to go within 20 yards of the Bay Queen, (1 Rev. St. p. *684, § 7;) and she violated a further rule of navigation which forbade her passing so as to crowd upon the proper course of the vessel passed. As above stated, there was abundant room to the northward, and nothing to prevent the Martin, upon passing the stern of the schooner, from keeping away to the northward, giving to the Bay Queen sufficient space along the end of the dock. 2. I think no part of this loss can be charged upon the Bay Queen. The disregard of the various rules of navigation above indicated, on the part of the Martin, was so manifest and persistent as hardly to be deemed less than deliberate and reckless. The boats had repeatedlyexchanged signals; the Martin giving two blasts, meaning that she would keep away to port. She might have done so, and have avoided the collision, but did not. The Bay Queen bad the right of way. She had no reason to anticipate that the Martin, after passing the schooner, would not keep to the northward under a starboard helm, as her two whistles had repeatedly promised. The Bay Queen to go at slow speed, and just beIore the collision she stopped her engines; while the Martin ported her wheel, which tended to bring hur across the Bay Queen's bows. The Martin's officers state that the wheel was ported but a few seconds before the collision, and was designed to throw her stern off, and ease the blow. Other witnesses state that the wheel was ported earlier, and that her course was actually changed so as to throw herself across the Bay Queen's bows. No reliance can be placed on the asserted intentions of the Martin's pilot to ease the blow, or to avoid the collision. Had any bonafide in. tention existed to avoid collision, or to yield the Bay Queen her rights, it is incredible that he would not have gone to the northward, lll,der a starboard wheel, and have slowed her engines before the boats lapped each other. There is no small ground for suspicion that the Martin was handled with the deliberate purpose of running down the Bay Queen, or else forcing her upon the end of the pier, which, her witnesses say, would have Leen the result had she undertaken to back. The subsequent conduct of the Martin in continuing on at full speed, notwithstanding the collision, is in keeping with her previous management. Her whole navigatIOn was so extraordinary that it could not have been anticipated by the Bay Queen; and I lind that the latter, therefore, did all that was reasunably incumbent upon her to avoid the collision; and that the loss rightly falls upon the Martin, and that the libel should be dismissed, with costs.