KNOWLES, District Judge. This is a suit in equity, brought for the alleged infringement of United States letters patent No. 203,249, issued May ,7, 18'(8, to, T. R Dayfor rope tramway l:\:uq apparatus. 'l'he patent was assigned to the, complainant. The defendant is charged with infringing the second' and third claims of the patent. 'l'h!?Re Iclaims relate the constru:ction of the conduit, and are in the !qllow,d.ngwords: ,'"
. "(2) 1noombination wIth the rope channel or tube, C, buflt upon the surface'oftbe ties,asshown,the gutter, B; beneath the tube and ties, substantially as herein described. (3) The rope channel or tube, C, built upon the SWfll-PEl' 0:1; the, ties, A, 8fld provided with the gutter, B, beneath, in combination'With tHe pulleys, T, having their journal boxes secured beneath the timbers, 0; '$UbstaI1tially: as ,herein
The court is of the opinion. that the conduit or tube of the Day patent cannot be said to disclose invention, and that it was not patand the bill therefore dismissed.
',!>":;' . : ' ,
THE WASOO. v. THE WASOO et
(District Court, D. Wushington, N. D. Dec. 9, 1892.)
l;CAltnmllll-WHo ARE PASSENG.Il:Rs-NEGLIGENCE. One who, after boarlllng astoomer, learns that a certain landing where he. int!lUds to stop is off the steam<>r's route, and that b.e must pay extra fare in order to sfOp thel'e, and who declines to do so,but does not change his purpose of taking passage, is a passenger from the time he goes on IDld as such can hold the steamer responsible for negligence wherebY he is injun,'Il, although he does not prepay his fare or purchase a ticket, it being the cqstom for the purser to collect fares on board. 2. SAMlll-DEFECTIVE ApPLIANCES-NEGLIGENCE OF EMPLOYES. A pMSenger on a steamer, while on the stairway from the main deck to the 'cabin deck, was injured by the fall of a heavy lantern, ,caused by the ,breaking of a halyard by which it was being hoisted to its place. The, cause of SUQh breaking did not appear. Held, that the injury was caused by a in the appliances, or by the negligence of the men in charge of the lantern, and that the steamer was liable therefor in an action in rem.
Damage!il. should not be awarded to the claimants of a vessel for an injury to her business by an arrest at a point on her. route far from her owner's residence, and at a time when her detention over Slmday necessarily follows, unless there is proof of malice or bad faith on the part of the libelant. The Ad')lph, 5 Fed. Rep. 114; Kemp v. Brown, 43 Fed. Rep. 3p1i '.I:he Alex ,Gibson, 44 Fed. Rep. 374, followed.'
The proof of suc1).an arrest, Without any foundation in the pleadings for a crossdemand or set-off, should. not decrease the amount of the libelaAt's. recovery.
In Admiralty. Suit in rem by J. A. Mellquist against the passenger steamer Wasco, to recover damages for a personal injury to libelant while a passenger, caused by negligence. Findings and decree for the .libelaut. '
PI P.Carroll and J. C. McFadden, for libelant. E. M. Carr and Harold Preston, for claimants. HANFORD, District Judge. The eVidence shows that the libelant, a traveling salesman, went on board of the Wasco at New Whatcom the morning of December 30, 1891. The steamer was then run· ning as a carrier of p3.$engers and frefght, on the route from Seattle to New Whatcom via Anacortes and other intermediate places, and was about to depart on her regular trip from New Whatcom via said intermediate places to Seattle. The libelant's intention was to visit SaOOsh, Anacortes, and· La Conner during his trip, and, upon going on board, inquired if he could be landed at Samish, and was informed that SaOOsh was off the steamer's route, and that she would go there only under a special arrangement whereby the additional cost to her would be paid. He declined to pay extra fare, but did not change his purpose of taking passage on said trip. Prepayment of fare or the purchase of a passage ticket was not exacted, it being the custom for the purser to collect fare from those on board during the time of making pagsages. From these facts I conclude that the libelant, from the time of going on board the steamer, was a passenger, and entitled to hold the steamer responsible for the due fulfillment of its obligations as a common carrier of passengers for hire. The steamer has a stairway leading from the forward part of her main· deck to her cabin deck, and, immediately after going on board, the libelant was upon said stairway, going either from the main deck to the cabin or in the opposite direction, and while he was there the steamer's masthead light, a lantern weighing between 9 and 10 pounds, was being hoisted to its position on the mast, and, by the breaking of the halyard, it fell, striking the libelant on the scapula of his left shoulder. The blow caused severe pain, and produced a con· tused wound, in consequence of which the libelant was for a time disabled from attending to his business, and incurred expense for medical treatment. The injury, however, was not dangerous in character, nor permanent. The testimony fails to disclose the cause of the accident, but it could not have happened if the halyard and appliances for suspending. the light had been sound, of sufficient strength and proper construction, and there had been no negligence on the part of the officers and men employed on the steamer in the performance of their duties in connection with said light. A carrier of passengers is, in law, bound to exercise a high degree of care for the safety of travelers, and any failure to provide sound equipments and appliances of sufficient strength and proper construction, or to exercise due care in the use thereof, is such negligence as will entitle a passenger who may suffer an injury in consequence thereof to damages; and an injury to a passenger on board a passenger shiP.. happening in consequence· of negligence on the part of the owner, officers, or mariners of the vessel, is both a breach of the contract for transportation, and a tort, entitling the injured passenger to compensation and to a lien therefor upon the vessel. The City of Panama, 101 U. S. 462. The question in the case most difficult to decide is as to the amount which will be fair compensation to the
libelant. He complains of severe and protracted suffering, and pretends that his injury is permanent. The only evidence in the case to corroborate the libelant's testimony is that of his Wife, physicians employed by him, and a few of his friends, whose testimony, however, is in most respects a mere repetition of his own complainings and statements regarding his sufferings and injuries, with the addition of thew opinions 8B to the genuineness and truth of the statements which he haS made to them of his suffering and consequent disability to work since the happening of the injury. His attempt has been to show to .the court that in consequence of the injury his body is deformed, .so that his shoulders are not of the same height; that he has lost entirely the use of his left arm and hand; that he constantly suffers severe. pain in his left shoulder and chest; that his lungs are affected; and that he is so entirely disabled as to be unable to remove his coat or change his clothing without 8Bsistance. In my opinion, thisattem,pt is a failure. .There are many indications that the case h8B been overdone, and that. the libelant is trying to magnify a comparatively trifling injury .into a serious and permanent disability, for the pur:pose of unjustly extorting a large sum as his damages. The evidence was taken six months after the happening of the injury, and if the libelant had during that time been wholly deprived of the use of his arm, as he pretends, the fact could be proved by more reliable evidenqe than his own statements. The softening of the muscles and the arm itself would, if the facts are as the libelant represents, pl;1.ysical and positiveeyidence of such facts. The appearancel:l,8B shown the testlIDony of three reputable physiCIans, who exami.:n,e.d the libelant in the month of July, are as follows: 'rhereiS but a slight difference in the measurements of the libelant's byo 'The musclesotthe left arm are firm, having no appearance of atrophy. That the libelant can raise, extend, and bend his left arm, and inake all the movements of which a left arm in its normal I conditionis ordinarily. capable., His right and left lungs are equally sound, and there is no indication of any localized ailment about his shoulder, spine, or chest, and no apparent cause or necessity for the drooping position in which he carries his left shoulder, as testified to by his witnesses. Two of the physicians who examined him testified that, in their opinion, the libelant has at times'since the injury feigned 'pains and dieabilities, in the presence of others, for the mere purpose .of manufactnring evidence to enhance his damages in this case, and in that opinioJ) I concur. It is now nearly six months since the evi.dence W8B taken, and a physical examination of the libelant at this time would go far towards confirming or contradicting his assertions 'in regard to his injuries and disabilities made in July; and if he can show, by submitting to such examination, that my opinion is erroneous, an opportunity will be afforded him for so doing, before I sign the decree. As the facts now appear. from the evidence, I consider that the sum of $150 will reasonably and sufficiently compensate the libelant for the injury actually sustained, and award him that sum, with costs. On the part of the claimants, evidence was introduced to prove that the libelant caused the steamer to be arrested at the Whatcom end of
OREGON CITY TRANSP. CO. V. COLUMBIA ST. BRIDGE CO.
her route, instead of at Seattle, where her owners reside, after busi· ness hours on Saturday evening, whereby she was detained over Sun· day; that by said detention she sustained a considerable loss; and that, in making the alTest at said time and place, the process of the court WaB used to unnecessarily and vexatiously interfere with the business of the vessel. On this ground it is urged that no damages should be awarded to the libelant. This claim I cannot allow, for the reason that there is no foundation in the pleadings to support a cross demand or set-off; and I will say further that the authorities seem to have settled this to be the rule: that, even with proper pleadings, damagE'iJ will not be awarded for an injury to the business of a vessel in consequence of a suit in rem, without proof of malice or bad faith. Henry, Adm. Jur. & Proc. p. 337; The Adolph, 5 Fed. Rep. 11.4; Kemp v. Brown, 43 Fed. Rep. 391; The Alex Gibson, 44 Fed. Rep. 374.
OREGON CITY TRANSP. CO. v. COLUMBIA ST. BRIDGE CO. (District Court, D. Oregon. December 10, ·1892.) (No. 2,093.)
CONSTITUTIONAL LAW-NAVIGABLE WATERS-POWERS OF STATES.
In the absence of legislation by congress a state may authorize theerection of a bridge of any character across a navigable water within its burders, subject to the power of congress to abate or regulate the same. Bridge Co. v. Hatch, 8 Sup. Ct Rep. 811, 125 U. S. 1, followed.
NAVIGABLE RIVERS'- UNAUTHORIZED OBSTRUC-
2. ADMIRALTY JURISDICTION TION-COLLISION.
The owner of a vessel injured by a collision with an unauthorized obstruction in a navigable water may maintain a suit in personam in admiralty to recover damages from the person who placed or maintains such obstruction therein; and a bridge built under the sanction of an act of the legislature, in so far as it fails to comply with the same, is such unauthorized obstruction, but in such suit it must be alleged and proved that such obstruction was the cause of the collision.
8. NAVIGABLE WATERS TION-JURISDICTION. UNAUTHORIZED OBSTRUCTIONS -
The act of congress of September 19, 1890, (26 St. 453,) only gives this court jurisdiction of a criminal action against the owner of a bridge to recover a fine of $5,000 at the suit of the district attorney, when the secretary of war shall find that such bridge as constructed or maintained is an unreasonable obstruction to free navigation of the water which it crosses, and when said owner shall fail or neglect to obey the order of the secretary thereabout. (Syllabus by the Court.)
In Admiralty. Libel in personam for collision of a steamboat with a bridge. On exceptions to the libel. Sustained. Zera Snow, for libelant. H. H. Northup, for respondent. DEADY, District Judge. The Oregon City Transportation Company, a corporation formed under the laws of Oregon, brings this suit against the Columbia Street Bridge Company, a corporation formed under the same laws, to recover damages for an injury sus·