'circumstanCes.' What would be moderate ringing under Bome circUplstancesmtghtbe immoderate;orrlolent under others. The charac.ter of the ringing upon this occasion, was,as before stated, for the jury to determine from the evidence. It was loud enough and continuous enough, according to the defendant's testimony, to increase the, p.orse's terror, render him ungovernable, and cause the accident. But even if the use of the term here would be objectionable in the absence of what the court subsequently said in closing its instructions on this subject, it is not so when read in that conJiection. The COlJrt there;'aaid:
'" "If from the facts there is reason to, !lay that In the act of ringing the bell, which ordinaWlY is a duty to give notice, there WaS any negligence, -that is, in the manner, and at the time, and under the circumstances, you maytl.nd negligence. With that explanation, and subject to that, I affirm this point."
The answerfwas as favorable as the defendant was entitled to: affirmed. ' The judgmetitls
OROOKS et al.
THE PUNBRITTON. KNUDSONet a1. v. SAME. SMAIL et a!. v. SAME. (DlstrlctOOui1:,!!l. D. New York. April 20, 1894.)
BJJIPPING-DAMiG1ll TO CAudo"":'STOWAGB-PLUMBAGO AND OIL-PERILS OF THE SEA-BURDlIlN!Q1l' PROOF;
The shiP Dunbrltton loaded certain barrels of plumbago at Ceylon, and stowed the.I\l the lower hold. l'ipes of oil were afterwards stowed in the betweendecks. The shil1ment ofo.il and plumbago in the same vessel Is customary. The shippers of cargo other than oil knew that all was to , betaken aboard. The deck upon which this oil was stowed was especially strong, tight, and secure; and the court found, as matter of fact, that the cargo was well stowed and dJ,IDnaged. Near Cape Horn'the ship exllerienced very bad weatb,er, and on one occasion shipped a heavy sea; and by l'eason of this heavy weather, and Without any fault of the ship, there was much from the oU. On arrival at New York, some of the plumbago and other ,goods were found to have been damaged by the oil, to reco\'Ell' for whic,h damage the shippers filed this libel. Held, that the damage having occurred by reason Qf perils of the sea, the burden of proof was upon the shippers to show some fault in the ship, in not protecting the goods against such and as, on the evld1!nce, the shippers had failed to show such fault by any preponderance of proof, they could not recover.
These were three libels against the ship Dunbritton,-the first, by R. Flemming Orooks and others; the second, by Morris F. Knud'eon and others;' and the third, by Henry Smail and others,-all to recover for damages, by leakage of oil, to plumbago and other goods, cargo of said ship. George A. Black, for libelants. Seward, Guthrie & Mor.a!Vetz, for claimant. BROWN, District Judge. The two libels first above named were tiled to recover ,for damages to plumbago; the last, for damage to
Reported byJl}. G. Benedict, Esq., of the New York bar.
certain light goods, which were shipped on board the ship Dunbritton, at the ports of Colombo (Ceylon), Cochin, and Aleppy in March, April and May, 1892, and damaged by cocoanut oil during the passage to this port. The plumbago, consisting of 1,359 barrels, was all taken on board at Colombo and put in the lower hold. It was well stowed and dunnaged, probably in not very unequal quantities forward and aft, as I infer from the testimony, leaving the middle of the hold for other cargo. Forty-five pipes of oil, also shipped at Colombo, were stowed in the betweendecks, aft of the after hatch, and immediately over the plumbago in the hold. These pipes were placed in the aft betweendecks partly for the purpose of trimming the ship, and also because more than enough oil was expected at the other ports to fill the hold amidships. Sailing from Colombo on March 23d, the ship reached Cochin after a voyage of 19 days, where the. rest of the oil, being less than expected, was received and stowed in the lower hold. After a short stay at Cochin, the ship proceeded to Aleppy, arriving there on the same day, where the cargo was completed by taking in tumeric, nux vomica, matting, bales of yarn, mats, and other light cargo, stowed partly amidships and forward in the betweendeckB, and partly in the hold on top of the barrels and oil. The Dunbritton left Aleppy on May 12, 1892, and arrived at this port on the 19th of October following. On the discharge of the cargo, 718 barrels of plumbago, and a considerable quantity of the other goods, were found more or less damaged by oil. The libelants claim that the damage to the plumbago was caused through bad stowage, in placing the pipes of oil in the betweendecks immediately over the plumbago aft, the damage being alleged to have been caused by the leaking of oil through the deck; and that the damage to the other goods arose from improper stowage, and lack of dunnage to separate them sufficiently from the oil. The defendant contends that the stowage was in all respects good and proper, and that the damage arose from sea perils alone. The case has been prosecuted on both sides with extremQ assiduity; nearly 100 witnesses having been examined, and some 1,500 pages of testimony taken. I shall attempt only to give my conclusions upon the chief points involved: 1. I find that all the heavy cargo throughov.t was well stowed and dunnaged; and that. the other cargo, which by the bill of lading was taken as ''broken stowage" or as "oil broken stowage," was well stowed in accordance with these provisions of the bill of lading, with the knowledge and approval of the libelants' agents on the spot, and by stevedores selected and nominated by them. 2. In approaching Cape Horn, the ship for several weeks experienced very bad weather, and on the 10th of July shipped a heavy sea, which did a good deal of damage to her upper works, filled the upper deck with water, and carried away two of the ventilators, through which the water poured down through the betweendecks, until the hold was found to have three feet of water. 3. That in consequence of the heavy weather, and without any fault of the ship, there was much leakage from the pipes of oil in
the hold, and C0fililiOel'ablefrom thOse in the betweendecksj that this leakage' waEi ltht'ough perils'of the seas, and the cause of all the oil damage here Elued for, and within the exceptiells of the, bill 'of lading; that there was also water damage to the barrels of pluni· bago,which has been partly cOlleeted;and that a large· number of thebai'rels shOwing oil damage,also showed rusty hoops as signs of 60ntact with water. ' 4 . ,That the ship was chartered to the libelants in the third libel above named; for tlie transportation of oil, as well as' other cargo; that the agents of the other shippers understood that oil was to be taken on board, and that the shipment of oil and, pl1lnibago on the same "ship from that port was customary (The GloamingJ 46 Fed. 671; The Titania, 19·Fed. 101, 107); that the stowage of oil in the betweeIidecks over the plumbago, though it would be bad stowage, if the,deck was not tight, was not in this instance bad or improper the reas6n that the deck was speciall:r, strong, tight and Eieeure, the smaUhatches aft of the main hatch, having been thorOUghly caulked before the oil was laden on board. 5. That no oil fromthe pipes in tMbetweendecks leaked through that dedk upon the plumba.go or other goods below, or through the smaU'h!ttches as the libelants have contended, except a slight stain in one place, which is of no account; that the damage by oil to the plumbago was not confined to the plumbago stowed aft of the after hatch, but W!;lB found also toa considerable extent in the plumbago stowed in the' forward part of the hold; that the 718 barrels of plumbago damaged, had the injury' all been sustained from leaks through the deck aft, would have comprised nearly all the plumbago that was stowed aft; and the damage, it come about in that way, would also. have shown most clearly upon the light goods 'stowed in the space 'of about 18 inches deep immediately below the betweendecks, and upon and' over the upper tier of the barrels there stowed; whereas, in fact, those light goods were not noticeably damaged, nor were the barrels injured until about half way to the bottom of the hold, whichwa'lil about 15 feet deep. 6. That somewhat more damage from oil astern than forward is to be reasonably accounted for by the fact that the vessel was loaded deeper by the stern than forward; and the oil taken up and fioated by the water w6uld, therefore, be ca:iTied more astern, and higher up there, than forward. That the leakage having occurred through a peril of the seas without the ship's fault, the burden of proof is upon the libelants to show some fault and insufficient in the ship, in not protecting the goods against damage from such leakage of oil (Clark v. Barnwell, 12 How. 272, 281; The Euripides, 52 Fed. 161), and that no such fault is shown by any preponderance of proof in.the testimony in fa'Vor of the libelantlit; but that the libelants' testimony is fully met a:ri'd answered by the defendant'lit witnesses,who in several essential particnlarlit had the best means of exact observation and information, and are for that reason most trustworthy. There sh()uld be a decree for the defendant, with costs.
BONNELL fl. STOLL.
BONNELL et a1. v. STOLL et
(Ctrcu1t Court ot Appeals, Third Circuit. No. 19. 1.
PATENTS-!NVENTION-SPRING BED BOTTOMS.
March 22, 1894.)
There is no invention in substituting a single hinge wire, passing coils of two sections of a folding wire bed bottom, for two or more hinge wires which previously served the same purpose; such change is an improvement in degree only. 67 Fed. 396, affirmed. The Bonnell & Lambing patent, No. 405,821, tor improvements In bed bottoms, is void, as to the second claim, for want of Invention. 67 Fed. 396, affirmed.
Appeal from the Circuit Court of the United States for the District of New Jersey. . This was a suit by Elliott M. Bonnell and John S. Lambing against Robert P. Stoll and others for infringement of a patent for improvementsin bed bottoms. The circuit court dismissed the bill (57 Fed. 396). Complainants appealed. Albert B. Osborne, for appellants.. Francis C. Lowthrop, for appellees. Before DALLAS, Circuit Judge, and WALES and GREEN, District Judges. WALES, District Judge. The appellants were complainants below, and brought suit for the infringement of letters patent Ko. 405,821, for improvemeDJts in bed bottoms, issued to them on June 25, 1889. Their bill was dismissed by the circuit court on the ground of anticipation and want of patentability. The specifications describe a bed bottom constructed of parallel rows of helical springs, united to each other by a spiral or coiled wire, passing through and connecting the adjacent portions of the upper whirls of the springs, while a similar spiral or coiled wire connects the bottom whirls of the springs. The bed bottom is made in two sections or halves, and the spiral or coiled wire which connects the tops of the adjacent rows of springs serves as a hinge, the bottom wire being omitted at the point where the two sections separate, thus allowing them to fold the one upon the other. There are two claims. The second claim only is alleged to be infringed, and reads as follows:
"2. A spring bed bottom formed in sections, and having the top whirls of springs at the adjacent ends of the sections united by a spiral wire wound loosely around them, so as to allow the sections to fold, and yet afford a yielding connection, substantially as specified."
The connecting spiral or coiled wire, mentioned in the second claim, also serves other purposes in the construction of the complain· ants' bed bottom, but the chief and only function attributed to it in this claim is its action as a hinge between the two sections, so that one can fold upon the other. Confining the consideration of patentability to this one feature, namely, the action or use of the coiled wire as a hinge, and in view of the prior state of the art, as proved by the