TWITCBEbL tI. GRAND TRUNK RY" CO.
(Oircuit Oourt, D. New lIampshire.
MASTER AND SERVANT-INJURY TO EMPJ,OYE.
In a suit against a railroad cOmpany to damages for the death of an employe hy a car drifting from it side track, it I.s error to submit to the constructed., and with jury the question whether the side track .. . ordinary
At Law. Motion for new Aldrich & Remick, Ladd & Pletcher, .andMr. Prink, forpljlintiff. Ossinn Ray, Mr. Strout, and Drew & Jordan, for defemlant.
COLT, J. This is a motion for a new trial. The action was brought against the defendant railway company for negligence, which resulted in the death of the plaintili"s intestate, Henry F Kayes, who was at. the time a freight eonductorinthe employment of the company. 'l.'pe accident was caused by a ,collision of a freight train in charge of NOJfls with a freight-car which had drifted from a side track. For several years No);es had been in charge of the freight train which ran from Gorham, N. H., to Island Pond, Vt., a distance of about 48 miles, and the accident happened at a place called" Stratford Hollow." The question of negligence. on the part of the defendant company turned largely on two points, namely, the defective construction of the side track at Stratford Hollo\v, and the failure of the company to employ stop-blocks or proper means for blocking the cars when upon the side track. The presiding judge, against the objection of the defendant, permitted the evidence to go to the jury on both these points. The presiding judge also, in his charge to the jury, said: "Next, gentlemen, you will take Up the qupslion of whether the railroad cohlpany was negligent or not in the construction of the SIding at Stratford. Hollow, and in the instruments of protection which were employed. there. * * * You must say (in View, of course, that this happened in lSl:!3) whether the siding was constructed in accordance with scienlitlc railroad construction, and whether in its construction, with respect to stop-blocks, or to spcurities against a car being blown out onto the main track, the company exercised ordinary care." At the time of the trial the recent case of Tuttle v. Railway Co., 122 U. S. 189, 7 Sup. Ct. Rep. 1166, was not brought to the attention of the court. That was a suit brought by an employe against the railroad company for negligence in the construction of a curve in the track in the yard of the company. The court, speaking through Mr. JustIce BRADLEY, says: "",Ve have carefully read the evidence presented by the bill of exceptions, and, although it appears that the curve was a yeary sharp one at the place where the accident happened, yet we do not think that puLJlic policy requires the courts to lay down any rule of law to restrict a railroad company as to the curves it shall use in its freight depots and yards., where the safety of passengers and the public is not involved; much less that it f>hould be left to
FEDERAL REPORTER, vol.
the varying and uncertain opinions of juries to determineauch an engineering question. For analogous cases as to the right of a manUfacturer to choose the kind of machinery he will use in his business, see Richards. v. Rou.gh, 53 1)i:ich. 213, 18 N. W. Rep.785; Hayden v. Manuj'acturing Co., 29 Conn. 558. The interest of railroad companies themselves is so strongly in favor of easy curves as a means of facilitating the movement of their cars that it may well be left to the discretion of their officers and engineers in what ,manner to constrnct them for the proper transaction of their business in yards, E'tc. It must be a very extraordinary case, indeed, in which their discretion in this matter should be interfered with in determining their obligations to their employes. The brakemen and otbE'rs employed to work ill such situations must decide for. themselves whether they will encounter the hazards incidental thereLo,.and, if they decide to do so, they must be content to assume the risks." In the present case there was no question as to the siding having become defective after its construction, but the question, as submitted to the jury, was whether the compariy exercised ordinary care in its construction, and whether it was constructed according to scientific principles. Under the law as laid down by the supreme court in Tuttle v. Railway Co. it seemi3 to me clear that the court committed an error, and that the defendant company is entitled to a new trial. Motion granted.
et al. v.
TIFFANY REFRIGERATOR CAR Co.
COircuit Court, N. D. Illinois.
PATENTS FOR INVENTIONS-INFRINGEMENT.
August 3, 1889.)
If the owner of a patent-right whIch infringes another patent licenses others t,o usc ,his device, and furnishes to his licensees and those constructing his articles plans and drawings requiring the use of the prior device, without procuring, or intending to procure, the consent of the owner of such prior patent, he is an infringer, and liable in damages .
In Equity. Bill for infringement of patent. Bill by James S. Toppan and others against The Tiff!lllY Refrigerator Car Company, to restrain the infringement of letters patent and for an accounting. W. Zimmerman, for complainants. F. A. lVoQdbury, for defe l1dant.
GRl<::SHAM, J. This suit was brought by the plaintiffs as assignees 01 letters patent No. 228,241, granted to Arnold W. Zimmerman on June 1, 1880, against the defendant as an infringer. The patent describes and claims a device or mechanism for, securely bolting or closing car and other doors, and for opening the same. The validity of the patent is not displ1ted, and the' invention need not be more particularly described. The defendant is the owner of a number of patents for improvements in erator cars, and the bill charges that the defendant has made, used, and