NORTBBRN PAC. R.

co.

fl. BEHLING.

1037

drawn in one form, as well as the other, if the other requisite jurisdictional facts appear. Another assignment which is argned at some length by the county is to the effect that the circuit court erred in holding that a snit could be maintained on these warrants in the United States eircnit court, notwithstanding the provision of a statute of Arkansas approved on February 27, 1879, which repealed all previous acts authorizing counties of the state to be sued, and re"uired all persons having demands against a county to present them for allowance to the county court. Mansf. Dig. p. 350, and notes. This proposition is met and overcome by a recent decision of the supreme court of the United States in Chicot Co. v. Sherwood, 148 U. S. 529, 13 Sup. Ct. Rep. 695, wherein it is held that the statute in question is not adequate to deprive nonresident creditors of a county of their rignt to sue the county in the national courts, when the amount is sufficient to invoke their jurisdiction. We have thus reviewed all of the important errors assigned by the county, and find them to be without merit, wherefore the action of the circuit court must be affirmed, with respect to all of those rulings as to which the county has excepted; but for errors prejudicial to the plaintiff, as heretofore indicated, the judgment of the circuit court is reversed, and the cause is remanded, with directions to grant a new trial.

=-NORTHERN PAC. R. 00. v. BEHLING. (Circuit Court of Appeals, Eighth Circuit. September 18, 1893.)
No. 276.

1.

MASTER AND SERVANT-N'EGI,IGENCffi OF COffiMl'I.OYE-STATUTORY LIABILITY OF RAILROAD

Under Gen. Laws MinJl. ltl87, c. 13, a railroad company is liable for injuries to an employe caused by negligence of a coemploye. A section foreman in charge of a hand car was informed by the crew that a train was approaching f['om behind, but he ordered the men to go on "pumping" until he told them to stop. He delayed giving the order until the train was so close that the car could not be removed from the track in the accustomed deliberate and safe manner, and in the haste and excitement of getting it out of the way one of the crew stumbled and lost his hold, by which the car was precipitated upon another of the crew. Held, in an action by the latter against the railroad company. that the question whether the injury was due to negligence of the foreman was for the jury, and the court properly refused to direct a verdict for defendant. Coyne v. Railway Co., 10 Sup. Ct. Rep. 382. 133 U. S. 370, distinguished.

2.

SAME-NEGLIGENCE-QUESTION FOR JURY.

In Error to the Circuit Court of the United States for the District of Minnesota. At Law. Action by Henry Behling against the Northern Pacific Railroad Company for damages for personal injury. Verdict and judgment for' plaintiff. Defendant brings error. Affirmed.

1088
,

F:8DE1U.L REPORTEH, vol.

57·.,' ·

F. D. Larrabee, for defendant in error. Before CALDWELL and SANBORN, Circuit Judges, and THAY· ER, District Judge. CALl/WELL, Circuit Judge. The defendant in error was a scctionhand in the employ of the plaintiff in error, the crew con· sisting pffour men and a foreman. On the 27th of September, 1889, while the crew, under the direction of the foreman, was opel" atinga hanq. car on the track going to their place of work, a freight train was seen approaching from the rear, and rapidly gaining on the hand car. The attention of the foreman was called to this fact, and the suggestion made that the hand car be stopped ,and removed from the track, to which he replied: "Never mind. Y()u keep on pumping until I tell ,yOU to stop." He delayedgiving the order to stop until th,e.train was dangerously near the hand car, when he ordered the mel!. to stop pumping, applied the bru¥:es, and said, "Now get her, off the track as quick as the deyil Wm let you." Whep. this ord.er was given, the train was so cl()se to the hand car that there was not time to remove the latter:gom the track in the accustomed orderly,deliberate, and "afe manner, and in the extraordinary haste, exertion, and excitement incident to its removal from the track in time to prevent :t collision one of the crew stumbled, and lost his hold upon the hand car, by which it was precipitated upon and injured the defendant in error. . ' . . , No exceptions are taken' to the charge of the court. It is assigned for error that the negligence complained of is the negligence of a fellow servant; but, under the provisions of the Minnesota statute, that fact constitutes no defense. Gen. Laws 1887, c. v. Railway Co., (Minn.) 55 N. W. Rep. 137; Steffenson v. Railway Co., 45 Minn. 355, 47 N. W. Rep. 1068. '<The ;only other error relied uponjn argument is tJ;1at the court erred in refusing to give . a peremptory instruction to the jury to fin" a verdict for the defendant. Whether the facts proved constituted negligence"and, if so, whether ,the defendant in error was injured as a result of such negligence, were questions of fact for the jury to . The plaintiff's testimony tended to support his, contention on of these said in the case of Railroad Co. v. Conger, 5 C. C. A. 410, 56Foo. Rep. 20:
"It wag'for' the jury to say whether' and how far the evidence was to be believed. If by giving credit to the plaintiff's evidence, and discrediting the counter evidence, the plaintiff's case Was made out, the court should not haV'e witlld'bwll the case from the jury."

.JiJhnH. Mitchell, Jr., and 'Tilden R. Selmes, for plaintifl'

The case of Coyne v. Railway Co., 133 U. So 370, 10 Sup. Ct. Rep. 382, is relied upon by the plaintiff, in error, but is not in point. In that case the court say that "the injury to the plaintiff was not caused by any negligence on the part of McCormick," the foreinan. In this case the jury found the foreman was guilty of negligence in not gi ving a timely order for the removal of the hand

BUCHANAN !I. GOODWIN.

1039

car: from ,the tracK, and that the injUry to the plaintiff resulted from that act of negligence. In the Coyne Case the court said, "It does not appear that the approaching freight train was so near as to render it unsafe for McCormick to start the construction train," and it was, therefore, held that an order to hasten the loading of the car was not a negligent act; bnt in the case at bar the jury found that the foreman was guilty of negligence, not in giving, but in delaying to give, the order for the removal of the hand car from the track until there was imminent danger that it would be run into by the train before it could be removed. The serious consequences of such a collision were barely averted by unusual .and extraordinary exertion on the part of the crew. The jury have found that this dangerous situation was brought about by the negligence of the foreman, and that as a result of such negligence: the plaintiff sustained the injury complained of. The. judgment of the court below is affirmed.

BUCHANAN et a1. v. GOODWIN et a1. (Circuit Court, D. IndLma. Sl'ptember 22, 1893.) No. 8,774.
PATENTS FOR INVENTIONS-CONS1'Ht:CTlON OF CLAIMS-S'l'RAW STACKER.

Letters patent No. 467,476, isslled January ID, 1892, for the combInation with a threshing machine of a pneuma tic stra \V elevator and stacker, consisting of a fan, a trunk through which the straw is discharged, and various devices by which these parts are adapted to perform their work, cover a. useful and valuable invention, and are entitled to a liberal construction.

In Equity. Suit by James Buchanan and the Indiana Manufaoturing Company against Thomas L. Goodwin and Andrew J. Hoffman for infringement of a patent. Decree for complainants. Chester Bradford, for complainants. A. L. }fason, for defendants. BAKER, District Judge. This is a bill in equity asking for an injunction and accounting on acconnt of the alleged infringement of letters patent of the United States No. 467,476, issued to .James Buchanan, January 19,1892, on pneumatic straw elevatO'l.. The defendants have admitted the character in which the complainants sue, and their title to the letters patent in suit, to be as stated in their bill of complaint. Evidence showing infringment and the character and value of the invention has been t:'1ken by the complainants, but no evidence was taken on behalf of the defendants. The cause was heard on the evidence taken on behalf of complainants, and was argued by their counsel, no evidence or argument having been submitted on behalf of the defendants. The character of the invention is well stated in the testimony of Mr. Oscar W. Bond, complainants' expert. It consists, speaking in general terms, in the combination, with a threshing machine, of a pneumatic straw elevator, consisting

FEDERA.L REPORTER,

vol. 57.

devjces ,by. which these parts are adapted to properly perform the work of taking the straw from the thresWng machine, and conveying the same to, and depositing it upon, a stack. So far as shown, the compla1D.ai1ltBuchanan is the first imenwr of a machine by means of which straw can be,successfully takeR from a threshing machine, and conve,yed to, and deposited upon, a stack. Under a familiar rule he is entitled to a liberal construction of his patent. Parker v. Hulme, 1 Fish. Pat. Cas. 44; Sewing Mach. 00. v. Lancaster, 129 U. S. 263,9 Sup. Ct. Rep. 299; Drill Co. v. Simpson, 29 Fed. Rep. 292; Parkerv.Haworth,4 McLean, 370; Sloat v. Patton, 1 Fish. Pat. CM. 154. The evidence on belhaJf of the complainants is clear and satisfactory touching the utility and value of the apparatus, and the infringement of the 1st, 6th, 7th, and 9th cliltims of complainantb-' patent by the defendants is shown. The remaining claims of the patent are not in issue. It follows that cOIDplainants are entitled to the usual decree for an accounting and an injunction, and it is so ordered.
[END OF

OASES

ot a faDI strunk through which:the straw is discharged, and various

IN VOL. 57.]