ASSANTE fl. CHARLESTON BRIDGE
frame may be sprung apart sufficiently" to allow repair or substitution of the zincs." The claim in suit is not for a "plate," but for "plates," connected at the bottom as already described, and the plate of the patent is not found in the alleged infringing board. The defendants do not use the screw-rod "to clamp more or less tightly" their frame, which is not flexible, and is not, therefore, capable of being sprung apart for the purpose described in the patent. Their riveted or upset rod is not intended to be removed; it cannot be removed without breaking; the two rods do not perform the same function j and they are not mechanical equivalents. The single claim in the George patent reads: "In a w.ash-board, the corrugated metallic plate, B, formed of a single piece of sheet metal, and provided at its lower end with a tubular enlargement, substantially as specified." The Krebs patent of 1873 describes a corrugated metallic plate formed of a single piece of sheet metal, supported by a backing board, with a tubular enlargement at the upper end of the sheet to receive a rod, for the purpose of holding the plate in position. The slight difference between the Krebs board and the George board is purely mechanical. In Pfanschmidt v. Mercantile 00., 32 Fed. Rep. 667, J udge NELSON held that the George patent was void for want of patentable invention, and I concur in that ruling. The bill is dismissed for want of equity.
CHARLESTON BRIDGE Co. et al.
(Dtstrlet Court, D. South Carolina. December 10, 1889.)
The witnesses for libelant were contradicted by those for respondent. The credo ibilityof none of them was impeached, and all seemed equally worthy ofcredit. The libel was dismissed, and the costs were divided.
There can bll no doubt that a libel in personam will lie agaiDst the owners of a draw-bridge across a navigable stream if injury be done loa vessel passing through the draw. (SVZZabus b1J the Court.)
S.um-J"URISDICTION-BRIDGES OVER NAVIGABLE STRB.uL
In Admiralty. Libel for damages. Bryan & Bryan, for libelant. Mitchell & Smith, for Thomas Young. John Po Ji1icken, for the bridge company. SmONToN, J. The brig Emanuele was in tow of the tug up the Ashley river, an estuary of the Atlantic ocean. The Charleston Bridge Company have their bridge across the Ashley, about a mile and a half from its mouth. The bridge runs about east and west, and has a draw-bridge with two each about 76 feet wide, divided by
a center pier, ,on tug took the tow up on the side,of river,and, opening the western dra,w, steered directly for it. , rhetow.linewasabout 300 feepong. The brig, acting under instrUctions given to her when the t9wage began, followed in 4erwake. Just as the brig entered the draw, heiJ1g within the fenders, she came into collision with the fenders on the western side of the draw, atrikingon her port bow, near the stern. "She glanced off, and struck on the pivot pier on the east side of this ,draw·. , Her starboard anchor, hanging fromtha cat-head" became entangled in the bridge, and the brig, hanging onto the anchor chain, swung with tide, then three-quarter flood. She was disengaged,and pursued her courlle up the river. The port anchor of the brig .was hanging by its chain from the hawse-pipe. Libelant charges that the collision was due to two causes acting together. The one was that the bridge is built not directly across, but obliquely to, the current of the river; that the tide flows through the draw not parallel to, but at an angle with, the pivot pier; that vessels going through the draw are thus, drawn against its sides by the tide. This is a defect in the construction of the bridge, unnecesarily obstructipg stream, and so unlawful. .The other cause of the accident is said to be the unskillful or negligent management of the tug in of the tide, and so its impetus, drawnot allowing for this ing the brig upon the fenders. The master and crew of the bri.g and the master ahd crew of the tug have been examined, each witness apart from the others. The testimony is directly contradictory. The people on the brig. including au interpreter, confirm the allegations of the libel, and fix the accident upon the action of the tide within the draw, aided by the negligent and unskillful management of the tug. On the other hand, the master and engineer of the tug,and a mariner who was a passenger on'board of her, himself a tug-master, all said that when the tug was nearly through the draw, proceeding carefully, and the brig was be. tween the fenders, the latter took a sudden, unexpected, and unaccountable sheer to" port, and went right on the fenders, bows on. That UClth.;. ing was done by the tug to cause this. They attribute it to unseamanlike conduct on the brig, and a suddqn shifting of her helm. The crew ,of the brig deny that she made this sheer. They also say that the helm was not shifted until she struck. It was then put a-starboard. Here we have a direct contradiction by witnesses against whom there is no attack, and who seem to be telling the truth. Like Judge MORRIS in The Levers07UJ, 10 Fed. Rep. 754. I have found the attempt to discover the cause of the collision attended with more than the usual embarrassment. There are two considerations which may lead to a conclusion. One is that the brig made just such a sheer. unexcepted, sudden, and unaccountable, a short time after the towage began, near the mouth of the of the tug, and the master of the brig ,river. At least so was examined in reply, and no attempt was made to contradict The proctor for libelant is most accurate and watc;hful, showing always full possession of his case. The, omission is significant. So, also, the witnesses Jor the tug live. in this community· They have acquired a
THE S. O.
general character, good or bad. Their credibility has not been assailed. Without doubt it would have been assailed if the attack were profitable. The case being thus nicely balanced, I will follow the course of Mr. Justice NElLSON under similar circumstanoes, (The SamplMm,4 Blatchf. 28,) and let things stand as they are. :B'or this reason, also, no rUling is made upon the construction of the bridge. If the collision arose from the sheer, it cannot be attributed to the bridge. I am not prepared to say that it did not arise from the sheer. There can be no doubt as to the jurisdiction. Railroad 00. v. Tow-Boot 00., 23 How. 209; Atlee v. Packet 00., 21 Wall. 389; The ArkanBa8, 17 Fed. Rep. 383. I will there· fore dismiss the libel; the costs to be equally divided between the libelant and both respondents.
THE S. O. PIERCE.1
PmRCBo 19, 1889.,
(DImict CO'Un't, 8. D. New York.
BLow...DEUT IN BUINe-OLD BOATS·. The ;lil!elant'. while lying at a dock, was hit by another boat 111 tow at thetugB. O. P.; but it appeared that the blow was not a hard one; that libelant's boat was very old; that nothing was found broken in he1'at the time; that she continued to run for several months without repairs, and was then only caulked a little; that the impinging boat was not even scratched by the contact; and that the libel in this suit was not filed until 21 months after the occurrence. Held, that under such circumstances there was too much doubt of any substantial damage to warrant a decree, and that the suit should be dismissed, but without costs.
In Admiralty. Action for damage by collision. T. O. Campbell, for libelant. R. D. Benedict, (E. G. Benedict, of counsel,) for claimant.
BROWN, J. The evidence leaves no doubt that while the libelant's canal-boat S. A. Derrick, loaded with ice, was lying moored alongside the bulk-head at Whitbeck's Ice-House dock, North river, August 23, 1887, she received something of a blow, or contact, from another canalboat, the Hummel, which had been towed to that dock by the tug S. O. Pierce, and was cast oft' there by the tug. There is great contradiction as to all the details of the occurrences at the dock,-as to the tidej the object oflanding the Hummel; the manner and kind of contact or blow; the number of other boats in tow of the Pierce; the time of landing; the length of the stop; and when the Hummel was removed. These contradictions are such as to make difficult any satisfactory decision as to these details. There are other undisputed circumstances, however, which bring the libelant's claim to any substantial damage under so much
Reported by Edward G. Benediot, Esq., of the New York bar.