,STEVENSON V. MAGOWAN
(Oircuit OOU'l't, D. New,Jer8eg.
PATENTS FOR INVENTIONS-VALID ONLY IN PART-USE OF REMAINDER-VULCANIZING APPARATUS,
In the patent issued to Burritt·M. Hotchkiss and George M. Allerton, complainant's assignors, May 23.1871, for an improvement apparatus, consisting of the application of hydraulic pressure to the moulds in a vulcanizing chamber, the invention claimed was a cylinder and piston outside thevulcanizihg chamber, and pipes ,connecting with a supply of fluid or liquid under. pres!lure, whereby thl' power exerted to hold the moulds together wit)l a yielding force is Independent of the vulcanJzing operation. The evidence showed that the pate,nt granted to George E,Hayes, January 14,1868, and the condition of the artoi, vulcanizing rubber prior to this time, anticipated and invalidated all of 90mplainant's patent, except the vulcanizInA' chamber. The defendants used'machinery substantially covered by complainant's' patent, except that they, used no vulcanizing chamb;er. Held IW mfringement. , " , .
SAME-SUIT FOR INFRINGEMENT-FAILU,IlE TO PLEADl'RIOR
Where nqtice is not given in the' answer of a specified prlo,r use of the invention desci-lbed in the patent; it cannot be set up as an anticipation of Buch inventiol'1;but, as exhibiting the state ,Of the art, the evidence ,is competent to aid the court in putting a cpnstruction on the patent. ' ,
Joshua, PWley, for complainant. F. a. Lowthrap, Jr., f9r defendft:llts.
BRADLEY, J. The bill in this is filed for an injunction, damages, etc., under a patent issued May 23, 1871, to Burritt M. Hotchkiss and George M. Allerton, for, an improvement in vulcanizing apparatus, consisting of. the application of hydraulic pressuret9 the moulds in a vulcanizing chambel', instead of pressure by screws and clamps, or by the steam generated in the chamber; the piston and cylinder producing the pressure being outside of the chamber, and the pressure being 'regulatedby safety-valves, so as not to be greater than necessary. This 'patent has been assigned to the complainant, and the defendants are charged with infringing it, and set up prior discovery, want of inven;tion, and non-infringement. Under the first head, theyrefer to two patents of an earlier date than the plaintiff's-one granted to A. B. Wood'ward, January 16, 1866, reissued May 19, 1868; and the other granted to George, E. Hayes, January 14, lSps. Woodward placed his flask and mould in a cylindrical boiler, in copnection with a piston, arid, by producing steam in the boiler, created a pressure by means. of the piston, whioh compressed the two sectionsot tbe flask, together, at the same time that the steam vulcanized the rubber in the mould. This clp.ady does not anticipate the specifiA,device.described in the patent o(thecomplainant. Hayes produced pressure by steam in a tank or cylindrical compressor, ,the: top of which. by a telescopiq with the body, (made steam tight by could be pressed and driven upward, and on the top of this was placed the flask in such a manner as to receive the pressure by means of a ram connecteq. with the flask by a clamp or otherwise;
and the same heat which generated steam in the compresser was communicated to the flask above, and created steam from the water in the plaster of the moulds, and also vulcanized the rubber. The patent describes the operation thus: " As the heat increases, the pressure of steam inside the compresser, through which the heat has first to pass, will constantly be greater than it will in the space above in which the flasks are placed, where steam can only form from water contained in the plaster'moulds. From this description, it wiII be seen that the difference of pressure is brought to bear upon the flasks to close them, and effectually fill the moulds, and that an early, powerful, closing pressure is induced upon the flasks, while the rubbex 1s ata temperature much below the VUlcanizing point, and more plastic than when highly heated; also that the steam escaping from the plaster moulds, as well as any that may leak from, the compresser at the higher temperature in the operation, will exert a counteracting effect upon the compresser,to prevent undue strain on the moulds, as the tel,llperature is raised to the vulcanizing point." The principle of this patent approaches very closely that of the one in suit; Here we have, in'the language of the latter, a cylinder, and ram or piston connected with the vulcanizing apparatus, and supplied with' an elastic fluid, so that the cylinder and ram or piston wHl avply to the moulds the necessary pressure. The fluid employed is steam, it is true, but the patent claims any fluid. Also it is not introduced into thecylinder by a pipe and pump, but is generated in the cylinder itself by the application of heat. Does that make any patentable difference? The operation and effect upon the ram or piston, and thence upon the flask and moulds. are precisely the same as that produced by the fluid pumped into the cylinder in the complainant's machine; and the elasticity of the steam in the, cylinder with the counterbalancing effect of the steam gen-, erated in the vulcanizing chamber, as means of adjustment to the expansion and contraction of the article in the moulds, are probably superior to those of the "escape or pressure safety-valves" in the apparatus of the complainant. Except that the steam is not pumped into the cy1inder through a pipe, and is not independent of the vulcanizing heat, it is difficult to see any difference in principle between the two methods. These differences, however. may be sufficient to prevent the Hayes patent from being an anticipation of the complainant's. But, besides this prior patent, the defendants have shown the state of the art to be such at the time when the plaintilJ"s patent was applied for (March, 1871,) as to preclude any extension of it, by construction, beyond its precise terms. It is shown by the testimony of George O. Gill that, as far back as 1863, R. Hoe & 00., of New York, constructed for Poppenhausen & Koenig, at Oollege Point, Long Island, a hydraulic pump, and press [01' pressing rubber combs, backs of brushes, and such hard-rubber goods. This apparatus was exactly the counterpart of the machine described in the plaintiff's patent, except that it had no inclosed vulcanizing chamber, and does not seem to have an accumulator. It i6 thus described by the witness: "The constructinn of the pump are two pumps placed on the cover of It cistern or tank, as you may term it. The plungers of the pumps are operated by a working beam, above the pumps, said beam connected to It crank,
on which are pulleys that operate the pump. The press consists of a top, a platen,. cylinder with ram, and bottom.. The top is elevated.above the platen by four rods or columns of sufficient strength to resist the pressure of about 250 tons. On the platen and on under-side of top are two steam-heating tables. The press is operated by water, pumped into the cylinder of the press. which raises the ram and platen, giving the pressure required. On the pumpis a safety-valve, which would exhaust the water after the pressure had been given." . Again: . "The safety-valve is placed midway between the two pumps, on the coverof the cistern or tank, and connected to.poth pumps; safety-valve haVing lI, valve lever, and ball weight, whichwas registered at five tOns per square-incb pressure, to relieve the pressure of water, and prevent damage to pump or pumps." A photograph of this pumping apparatus and press was exhibited at the hearing, The whole fixture is' substantially like that used by thedefendants, except that the defendants use an accumulator. But if the rest was pUblic property at the time of the issuing of the complain'ants' patent, the addition of an accumulator could not have been the8ubjectof a patent. It is such a COmmon appendage to a hydraulic pump, so frequently used in connection with it, that its adoption would have beennC) invention. As notice was not given, in the answer, of this: structure at Oollege Point, as a prior use of the invention described in the patent, it cannot be set up as an anticipation of such invention; but, as exhibiting the state of the art, the'evidence is'competent to aid the the court in putting a proper construction upon the patent. If any fair construction can be given to it which will not make it cover and· include this College Point machinery, erected and used so many years before the patent was applied for, such construction ought to be adopted. An examination of the patent shows that this can be done. As beforestated, the and press at College Point has no vulcanizing ber. The top and platen, between which the rubber is pressed in the moulds and vulcanized, are entirely uninclosed. The patent speaks of a vulcanizing chamber throughout the specification, and suggests no other arrangement. The claim keeps up the same idea, supposing the hydraulic press to be attached to a vulcanizing chamber. It is as follows: ','We claim as our invention a cylinder and piston outside the vulcaniZing chamber, and pipes connecting with a 8upplyof fluid or liquid under pressure. substantially as specified, whereby the power exerted to hold the moulds together with a yielding force is independent of the vulcanizing opera:tion." Thus it is seen that the vulcanizing chamber is, in terms,made a part of the combination embraced in the claim; and the .state of the art, to which we have referred, shows that it was a ma.terial part; and that without it-that is, unless the claim had been confined to cases in which a vulcanizing chamber was usedr.-it would not have been a valid one. Giving to the patent this construction, the defendants do not infringe it; for, as before said, they do not use the vulcanizing chamber, but vulcanize their belts between uninclosed platens. The bill nlusttherefore be dismissed, with costs.
LADD' 11. FOSTER
(District Court, 'D. Oregon. August 20, 188'7.)
CARRIER OJ' PASSENGERB,.,-OBLIGATION.
A carrier of passengers is not an insurer; but the lew holds him to a strict responsibility, and requireshiJ:h to provide for their safe conveyance, so far a8 the same is practicable by the exercise of human care and foresight.!
2. CONTRmUTORY NEGLIGENCE-c-AcT DONE IN DANGER.
Where a passenger is injured by the negligence of a carrier, an act done by the former in the face of impending danger. for the,purpose of avoiding the same, does not constitute "contributory negligence, although it may in fact have helped to produce the injury complained of. s When a casualty occurs. which might have been prevented by the use of known and proper precautions against the danger, it is not an inevitable accident.
SAME-DAMAGES FOR DEATH.
Ii. SHtPS AND SHIPPING-LIABILITY OF OWNERS FOR CAUSING DEATH. The propeller ferry-boat New York, on March 9,1887. after getting 100 feet
The damages, given by section 867, Code Civil Proc., to an administrator for the death of his are, when recovered, assets of the estate, and include nothing but the' 'probable pecuniary loss to the estate from such death; and semble that insurance on the life of the deceased, although assets of his estate, cannot be set off against such loss.
from her landing on a trip from Albina to Portland. was hailed by a person on the landing who desired a passage, when the master undertook to back in for him., and in so doing drifted broadside on the wire cable of the ferry-boat Albina, then plying between Albina and North Portland. and about 800 feet from t4e. east shore going west. The river was much swollen. and. owing to the pressure of the current and wind on the Albina, her cable was held up at or near the surface of the ,water, between the boat and the east shore, so that it caught the New York just under her guards, and held her there as on a pivot. while the pressure of the current on her hull forced it down stream until she capsized up stream, and then washed down stream under th.e wire. As the boat careened. Samuel Taylor, a passenger in the forward cabin, jumped out of the down-stream and was caught between the cable and the boat, as the latter passed under the former, and received injuries of which he died the Same day. The deceased was 84 years of age, had been married nine years, and left a widow and three small children. He had no trade or special vocation, frequented saloons, drank more or less, and treated liberally, but did not save money or accumulate property. Held, (1) the death of Taylor was caused by the negligent and unskillfulliandling of the New York in conjunction with the cabl6 of the Albina, which, stretched as it was, on the surface of the water, was an unlawful obstruction to navigation; and (2) that the sum of $1,500 is sufficient compensation to the estate of the deceased for the probable pecuniary loss resultIng thereto from his death. (SyllabUS by the Oourt.)
Suit in Admiralty to Recover Damages for the Death of a Person. C. E. S. Wood and George H. WiUiams, for libelant.
lAs to the presumptions arising from an accident to a passenger on a railroad train, see RaUway Co. v. Jones, (Ind.) 9 N. E. Rep. 476, and note j Pershing v. Railroad Co., (Iowa,) 32N. W. Rep. 488 i Railroad Co. v. Ritter, (Ky.) 38. w. Rep. 591. 'When, in order to escape a danger which is apparently impending, a person, with· reasonable prnd'mce, does that by which he is injured, he is not guilty of such contributory negligence as will bar recovery, even though he would but for such act have escaped the apprehended injury. Railway Co. v. Ware, (Ky.) 18. W. Rep. 493, and note.