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
COVELL tI. BOSTWICK.
sold, and caused others to make, use, and s!)ll, refrigerator cars supplied with the Zimmerman improvement. The alleged infringing device, in principleand mode of operation, is the same as the Zimmerman iruprovement. The real controversy in the case is one of fact. The evidence clearly shows that the defendant's licensees and others have appropriated the invention described in the plaintiffs' patent without right, and the only question is whether the defendant was a party to the trespasses. The defendant claims that since July, 1880, its sole business has been that of licensing others to use the improvements covered by its patents, which improvements relate to a refrigerator system, and have no connection whatever with the Zimmerman invention, or the running-gear, brakes, buffers, or car-couplings; and that, if any of the licensees have appropriated the Zimmerman device, they did it upon their own authority and responsibility, and that they alone are guilty as trespassers. The evidence, however, shows that, if the defendant did not own or use the refrigerator cars with the plaintiff's improvement attached to the doors, it furnished its licensees or car-builders with working plans and drawings of cars showing and requiring the Zimmerman device, and that this was done with no thought or expectation that the owner's consent would be obtained for such use. The usual decree will be entered in favor ot'the plaintiff.
(Oircuit Oourt, S. D. New York.
July 15, 1889.)
PATENTS FOR INVEl'i"TIOXS-LwENSEs-RIGllT TO ROYATHIES.
Plaintiff. the inventor of certain improvements in metal cans under patents dated in 1864 and ]866, and also a machine for manufacturing them, patented in ]867, granted to defendant the exclusive right to manufacture and sell cans embodying the inventions, which plaintiff agreed to defend, and also the right:" to use at defendant's risk the machine. and all improvements in such cans, machines, and appliances which plaintiff should invent, the defendant to pay a royalty for each can. Plaintiff, in IH69. obtained another patent for a machine, and in 1871 for fmther improvements in the cans. Defendant manufactured cans. using the machine of li'l69. and the invention of ]87]-. and embodying. as the parties supposed, tbe invention of 1864. Heports were made and royalties paid until 1877, when P., the owner of a pateut similar to the invention of 1866, sued defendant for infringement. Plaintiff took the defense of the suit, and also brought suit against P. for cancellation of his patent, on the ground that it interfered witb plaintiff's patent of 18114, The suits resulted in a decree against defendant for infringement of P.'s patent, and the dismissal of plaintiff's suit because the invention covered by plaintiff's patent of 1864 was for a different invention from tbat of P.'s, which defendant llsed. Afterwards defendant discovered that the device used by him. em' bodied in plaintiff's patents, was antieipated by an earlier patent. and P. 's suit was compromised for $6.000. which defendant paid. and charged to plaintiff. Held that. as tbe defendant bad had the use of all that the parties understood he was to bave, he was liable for the royalties on tbe cans manufactured.
The agreement also provided tbat. if plaintiff failed to maintain the validity of any of the inventions claimed, the defendant should pay an equitable proportion of the royalty for the parts remaining valid, to be fixed by arbi-