¥ARX V. TR4VELERS' INS. CO.
has convinced the court that the defendant, though he might, perhaps, have taken additional precautions, did all that the law, custom, and common prudence required to relieve himself from liability. It follows that judgment should be entered for the defendant.
MARX V. TRAVELERS' INS.
(Oircuit Oourt, D. Uolorado.
July 24, 1889.)
INSURANCE-AcCIDENT-VOLUNTARY EXPOSURE TO UNNECESSARY DANGER.
It cannot be said that a passenger on a railroad train, who goes out onto the platform while the train is in motion, because he is overcome by the heat of the car, or suffering from nausea, voluntarily exposes himself to unnecessary danger, within the meaning of a policy of accident insurance.
SAME-RuLES OF RAILUOAD COMPANY.
Where a rule forbidding passengers on a railroad train to ride on the platform of a car is generally disregarded by both passengers and trainmen, it cannot be said that to so ride is a violation of "a rule of a corporation," within the meaning of a policy of accident insurance
On motion for new trial.
Patterson & Thomas, for plaintiff. Markham & Dillon, for defendant.
HALLETT, J. Plaintiff is the widow of Sigmund Marx, to whom defendant issued an accident policy under date of August 19, 1887, for $5,000. :Marx came to his death by falling from a platform of a railroad car on which he was a passenger proceeding from Denver to Central City. At the trial it became a question whether in riding upon the platform of a car there was" voluntary exposure to unnecessary danger," or a violation of a rule of the railroad company within the meaning of certain conditions indorsed on the policy. There was testimony to show that in traveling upon cars deceased was at times affected with nausea, and found it necessary to go to the open air for relief. The day of the accident was extremely hot, and other passengers had taken position on the platform on that account. When last seen on the platform deceased was sitting with his feet over the end in a position of some danger in case of collision, but not especially so as to falling from the platform. It may be said, however, that he was riding on the platform, and that the accident would not have occurred if he had kept inside the That deceased was in a dangerous position on the platform, as distinguished from the body of the car, in which as a passenger, he was entitled to ride, is clear enough; but whether in going on the platform there was voluntary exposure to unnecessary danger cannot be ascertained except with knowledge of all the circumstances which influenced his conduct. If he was overcome by the heat of the car, Dr affected with nausea, which impelled him to seek the open air, it v.39F.no.5-21
cannot be sajd that there was voluntary exposure,or that the danger was unnecessarily incurred; arid so the jury was advisedlo consider whether under all the circumstances the case was within that condition of the policy. As to the condition exempting defendant from liability in case of death from violating a rule of a corporation, it is said that deceased was forbidden to ride on the platform by a rule of the railroad company, which was inscribed on a metal plate on the door of the ear. "Whether this can be taken to be a rule of a corporation, or what shall be a rule of a railroad corporatIon within the meaning of the condition, is not very" clear. By another condition some limitations are imposed upon policy-holders traveling by rail as follows: "Entering or trying to enter or leave a moving conveyance using steam as a motive power; walking or being on a railway bridge or road-bed." Having thus defined the acts which must be avoided by policy-holders in traveling on cars, I doubt very much whether another can be added under the generat designation of a "nlle of a corporation." If, however, it shall be conceded that" the railroad company had at some time prior to the death of Marx adopted a rule forbidding passengers to ride on the platform of a car, and that such rule was within the general condition of the policy referring to rules of a corporation, it was not then of force. The testimony of the trainmen was to the effect that it was not at all observed. All passengers on the road who were so inclined, and often by the invitation of the trainmen, rode on the platforms of the cars as freely and as commonly as elsewhere. Under such circumstances it cannot be said that there was any rule of the railroad company as to riding on the platform.The cases cited to show that the consent of a conductor of a train or otherf:l in authority shall not be effectual to set aside such a rule, in so far as it may affect the liability of the railroad company for any injuries received while in that position, are not controlling. An insurance company offering indemnity for injury or death in case of accident, as to its policy-holders, is not at all in the position of a carrier for hire as to its passengers. The latter is engaged ina special service of peculiar dangel', as to which some rules of conduct on the part of its patrons are highly necessary. The former assumes a guardianship of its patrons in respect to the casualties of life which beset men everywhere, and as to which it is not practicable to impose limitations 'which shall be constantly borne in mind by the insured. Will anyone say that on sea and land, at home and abroad, a policy-holder must constantly consider whether he is within aU the rules of all the corporations, public and private, which he may in any way encounter? Whatever the answer may be to any such question, it is plain enough that a rule ofa corporation, within the meaningof this pdlicy, must be one" which is known to "the policy-holder; and of force at the time of the alleged violation. The evidence at the trial did not establish this fact, and the policy cannot be avoided on the ground that deceased was not observing its terms at the time of the cident. The motion for new trial will be denied.
,'IIiREMEN!['Z t1. COTTLE CO.
KREM1!lNTZ t. COTTLE CO.
(Oircuit Oourt; S. IJ; New York. June 21, 1889.)
PATENTS FOR INVENTIONS-KREMEin'z COLLAR BUTTON.
The patent granted to complainant, May 6. 1884,l'or "a collar or sleeve but· ton having a hollow head aud stem, the sjiid head, steIl;l.,llnd the base-l>late or back of the said bntton being shaped and made of a single continuQus piece of sheet-metal," is void fon'vant of novelty. The Stokes patent, No. 171.882, Jannary4, 1876. covers 'a button composed of piece of'sheet·metal, the only difference being that the h,ead is flat and solid instead of round and hollow, like complainanfs; apd the Keats patent. ,No. 177,353, May 9. 1876, 'also covers a button madeof a single piece of sheet-metal, having a hollow head and hollow stem, of 'the same form as complainant's.
In Equity. , Bill for infringement of patent. Louis C. Roegener, for complainant.
Edwin H. Brown, for defendant.
On final hearing.
WALLACE, J. The patent in suit granted to complainant, May 6, 1884, is in the words of the claim, for "a collar or sleeve button having fl; hollow head and stem; the said head, stem, and the base-plate or back of the said button being shaped: and made of a single continuous piece of sheet-metal, substantially as shown and described." The specification and drawings describe and illustrate a button ill the form of a stud. It is made of a single piece of metal, without soldering or joints. By means of any suitable dies, a metal plate is pressed into the form of a cap, with a flange or rim at the bottom, and then the sides of the cap are pressed together about the middle in any suitable manner, to form the head and stem. The prior state of the art may be sufficiently understood by referring to only two of the several earlier patents in the record. The patent to Stokes, No. 171,882, granted January 4, 1876, describes a stud composed of one piece of sheet-metal, in which the head and stem are made by striking them up or raising them out of the metal baseplate by means of a punch and die. The stud is of substantially the same form as the stud of the complainant's patent, except that the head is flat instead of round; the stem is hollow; and the head is solid. The patent to Keats, No. 177,353, granted May 9, 1876, describes a button or stud made of a single piece of sheet-metal having a hollow head and hollow stem, and is of the same form as the stud of the complainant's patent. It has an entra shank or base-plate. In making it, the sheetmetal blank is formed in two sections, having the desired configuration, one of which is doubled over upon the other, and the edges are brought by lateral pressure. It thus appears by the two prior patents referred to that the complainant was not the first to make a hollow stud, or a hollow stud from a single piece of metal, or a stud from a single continuous piece of metal, or a partly hollow stud from a single continuous piece of metal. So far as appears, he was the first to make a stud from a single continuous piece of metal in which the head was hollow and round in shape. The stud of the Stokes patent would be