character for the purpose of· characterizing the series, as the name was applied by Johnston. By association, this title, when used upon' juvenile books of illustrations and stories, pointed "distinctively to the origin or ownership" of the books to which it was applied, and the name has acquired "an understood reference" to the English series, whose character has become widely known. Oanal 00. v. Olark, 13 Wall. 311; ManujacfJuring 00. v. Trainer, 101 U. S. 51. . The defendant has published, or caused to be published, divers juvenile books, of which complainants' Exhibit Worthington Chatterbox, A to K, are examples, which bear upon the covers the name or title" Chatterbox," and which, some in a greater degree than others, strive to imitatf the external appearance and the general style and manner of cover of the plaintiff's' books, and simulate the appearance and decoration of the plaintiffs' Chatterbox series, but do not contain the contents of their books. Such use of the name, especially as it is coupled with an tion of the general external appearance, manner of cover and of decoration of the plaintiffs' books,shows clearly that the defendant has unfahlya.ttempted to make use of the reputation which the Johnston series had acquired, by deceiving the public into the belief that, in purchasing the defendant's books, it was buying the compilations which Johnston had rendered acceptable and popular. Instead of acquiring for himself a reputation by the skill, good taste, and superiority of his own compilations, the defendant has endeavored, by the unwarranted use of the name which Johnston had appropriated, to obtain some portion of the pecuniary advantage which belongs to the reputation which the latter had gained. The use by the defendant of the name "Chatterbox" upon the books which are represented by the plaintiffs' exhibits in this case, or upon similar books of a juvenile character, of the general appearance and style of the plaintiffs' books, and from presenting to the public for sale juvenile publications with the use of the title" Chatterbox," and thereby leading the public to believe that they are the publications of the plaintiffs', should be enjoined.
THE JOSEPH STICKNEY. LoUTH 'D. THE JOSEPH STICKNEY.
(Di8trict Oourt, S. D. New York. May 21, 1887.)
NEGLTGENCE-ClIARTER OF TuG-LOWER CABIN-CONTRmUTORY NEGLIGENClll.
The tugJ. B.was chartered to take a club of gentlemen to sea to witness the races. The libelant, the superintendent of the club, in searching for berths, was referred by a deck-hand to the lower cabin, which was in the bottom of .the stern, and was approached by a stairway, the door of which was hooked open. The room had eight berths, not fitted for passengers, and used only by the engineer and two firemen as a sleeping room. It was somewhat
THE JOSEPH STICKNEY.
dark, being lighted mainly by"the Gpen door. ,The propeller shaft ran Just beneath the floor. a part of, WhICh was made movable for the purpose of OIlIng the shaft. The libelant, in crossing the floor, put hie foot in the opening, which wae_partlyuncovered, and received injuries for which this suit was brought. Held, upon the facts. that the room was not ostensibly a P?;iv(l,te room, into which the libelant had no right to enter, but one which,being open, the tug was bound to keep frae from danger to those who might enter; but that the libelant, not having exercised due care, should recover,. a!lln the case of The MarlJ Morria, 28 Fed. Rep. 881, his expenses and disbursements only.
In Admiralty. Roome RofYTM, for libelant. E. D.McCarthy, for claimant.
BROWN, J. In September, 1885, the steam-tug Joseph Stickney was chartered to take the Larchmont Yacht Club down the bay to witness the races. The libelant acted as superintendent of the club; and while upon the passage, and looking about the boat to see what provisions there were for the comfort of the passengers in case sickness or other emergency, he made inquiries, of a young man, one of the deck-hands, in regard to berths, who stated that there were some in the lower cabin, in the bottom of the ship. On going in the direction pointed out, the libelant found a door open, and hooked back. He descended, accompanied by a companion, and found a somewhat dark cabin, with eight berths in it, none of which were fitted up for use except three, which were occupied by the engineer and two firemen. The main shaft ran fore and aft through the center of the room, a few inches below the floor. It required oiling frequently, and a portion of the flooring, about three feet long by a foot and a half wide, was movable so as to be taken up and put down for this purpose. At this time a part of the opening was uncovered, the boards having been laid aslant. The libelant, in crossing the cabin, put his foot in the opening, and it was caught by the revolving shaft, and severely injured. Although it is clear that the berths in the lower cabin were not at this time fitted up for the use of the passengers,and that very probably the lower cabin was not expected by the master to be used by them, yet, looking at all the circumstances of the case, the general design, size, and construction of the lower cabin, and the ordinary use of such rooms, I cannot find that it was ostensibly a private apartment, for the use of the engineer and firemen only, where the libelant, on approaching it, had apparently no business to be, or into which he entered at his own risk; but that it was a room rightly available, under the charter, for the uses of the club, if berths became necessary; and that its open door, considering that it was a cabin, and considering the easy and ready access to it, was a reasonable indication thereof to the libelant, and an inducem.ent to him to enier for the purpose of examination, and of finding Buah accomm.odations as it might afford to those who might need it, and for whose comfort he was properly making provisions. Had such a cabin been intended to be excluded from the use of the members of the club, and from even any entrance, the door to it should have been kept
.' 'FEDERAL ,REPORTER·
Oolony, eu:., 10 Allen, 372; Walker v. Midland R. 00., Alb. Law J., January 8,1887. " , ' I think it was the duty of the boat, therefore, to keep the floor in a reasonably safe condition for such persons as might go there while it was ostensibly open to the passengers, and that the improper adjustment of the boards over the opening was negligence on the part of the boat. I cannot, however, regard the libelant as free from fault. His proper course to ascertain what provisions there were for berths was to inquire of the master, or some officer of the ship, instead of exploring the vessel on his own account. It is clear from the evidence that no preparation had been made for the use of the lower cabin by the club upon thib ,trip. Had inquiry been made of the officers, who were aware of the condition of the lower cabin, and of the uses then actually made of it, cautions would doubtless have been given before sending strangers into it. Moreover, I think, upon the evidence, that the room was not so dark, that the libelant, after being in it some little time, as he was, could not have seen the opening, had he acted with due caution. The noise and vibration caused by the revolving shaft were, at least, some notice that there was machinery near requiring care on his part. While this neglect on the libelant's part does not deprive him of all relief, under the decision in the case of The Max MCYT"I'iB, 24 Fed. Rep. 860, affirmed 28 Fed. Rep. 881, and cases there cited, I allow him, under the circumstances, the disbursements proved, including the wages of his substitute during his confinement, amounting in all to $206, with costs.
n,ot hooked wide 23 Fed. Rep. 103; The Gwi1lermo, 26 Fed. Rep. 921; Anderson v. Scully, p08t,161; Sweeny v. Old
THE TRURO. 1 FLAHERTY 'V. THE TRURO.
(Diatrict Oourt, E. D. New York.
June 8, 1887,)
BHIP·OWNER-LIABILITY FOR NEGLIGENOE-UNSAFE LADDER.
Libelant, a stevedore, in descending a ladder which led to the hold of the bark T.,clasped a batten which had been nailed across the ladder in place of a missing round. The nails at one end of the batten pulled out, and libelant fell to the bottom of the hold, injuries for, which this suit was brought. The ladder was furnished by the shIp-owner, who knew that it was to be used by the stevedores who were to load the vessel. Held that. in providing an unsafe ladder, the/ship-owner failed to discharge a duty he was under to the lil1elant, and was guilty of negligence.
SAME-CONTRIBUTORY NEGLIGENOE-FAILURE TO INSPEOT.
Libelant failed to scrutinize the batten before using the ladder. Bela. that he was as well able to judge of the security of the ladder as the shipowner, and was chargeable with knowledge of its insecurity equally with the latter; that his failure to so scrutinize the ladder was negligence.
lReported by EdwardG. Benedict, Esq., of the New York bar.