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fied that the ice came there from the water dripping from the product carried on the trucks and that the ridges were made by the trucks.
The theory upon which the plaintiff sought to recover in this case was that the defendant was negligent, in that it had failed to use reasonable care to provide him with a reasonably safe place in which to work, and it is contended by counsel in their brief that this duty of the master extends to a reasonably safe mode of entrance to and exit from the place where the servant was employed. Conceding, for the purposes of this case, that the rule in regard to the master's duty to his servant is as broad as contended for by counsel, yet we think there can be no recovery upon the facts as they are presented by this record. Both the platform and stairway were open and exposed. No one knew better than the plaintiff the manner in which the business was carried on there. He knew that this platform was used daily by men trucking the product of the plant from the beef house to the tank room, and that the drippings fell from the trucks upon the platform. He had been coming and going back and forth to his work almost daily over this platform for about three years, as had the other workmen, and that it was, as one of the witnesses described it, “one of the most traveled ways in the establishment.”
It is not contended that there was any defect in the platform itself, but it is sought to charge the defendant with liability upon the sole ground that drippings from the product carried on the trucks on that particular day were permitted to freeze upon the platform, thus making it slippery. The plaintiff must have known the weather conditions before reaching the platform, because he had descended the stairway, which was open and exposed, from the third story of the building, down to the platform, and, if the weather was cold enough to form ice, he must have known that he would necessarily find that portion of the platform, over which the trucking was done, to some degree in a slippery condition, and that it devolved upon him to use more care than at other times when the weather conditions were more favorable.
The mere fact that an accident happened does not of itself create a presumption of negligence on the part of the defendant. Where negligence is charged as a basis of recovery, the burden is upon the plaintiff to show that by some act or omission the defendant has violated some duty which he owed to the plaintiff and which caused the injury complained of. The rule is stated by this court in Northern Pac. Rý. Co. v. Dixon, 139 Fed. 737, 71 C. C. A. 555, as follows:
“The mere happening of an accident which injures a servant fails to indicate whether it resulted from one of the causes the risk of which is the servant's, or from one of those the risk of which is the master's; and for this reason it raises no presumption that it was caused by the negligence of the latter. In such cases the burden of proof is always upon him who avers that the negligence of the master caused the accident to establish that fact, and a naked finding, as in this case, that the accident occurred and that the serrant was guilty of no negligence which contributed to cause his injury, is insufficient to sustain this burden, for there are many other causes than the negligence of the master and that of the servant, such as the negligence of fellow servants and latent and undiscoverable defects in place or machinery, which may have produced it.” Chicago & N. W. Ry. Co. v. O'Brien, 132 Fed. 593, 67: C. C. A: 421, and cases there cited.
Neither is the rule which makes it the positive duty of the master to provide the servant a reasonably safe place in which to work, even if it extends to providing a reasonably safe mode of entrance to and exit from the place where the workmen are employed, applicable to a case where the place becomes dangerous in the progress of the work, either necessarily or from the manner in which the work is done. In this case, if this platform became dangerous during the day, it was by reason of this trucking carried on in the progress of the work, either necessarily or from the manner in which the work was done by other employés, fellow servants of the plaintiff, engaged in the same general business, and, if the platform became dangerous through their negligence, that was one of the risks which the plaintiff assumed when he entered the defendant's employment. In Deye v. Lodge & Shipley Mach. Tool Co., 137 Fed. 480, 70 C. C. A. 64, the court said:
“Unless the business be of such a complex and dangerous character as to require that it shall be conducted upon a system or scheme, in order to secure the orderly conduct of the business and the safety of those engaged in it, the master's obligation to supply a safe place for his work to be done, and to keep it safe, does not impose the duty of always keeping it in a safe condition so far as its safety depends upon the proper performance of the very work which his servants have there undertaken to do. If a negligent manner of doing the work makes the place less safe, that is one of the risks which all engaged in the work have assumed as a risk of the occupation." American Bridge Company v. Seeds, 144 Fed. 605, 75 C. C. A. 407; City of Minneapolis V. Lundin, 58 Fed. 525, 7 C. C. A. 344.
In any aspect, therefore, in which the case may be viewed, on the facts disclosed by this record, we think the plaintiff was not entitled to recover.
The judgment of the Circuit Court is reversed, with directions to grant a new trial.
LIBERTY MFG. CO. V. AMERICAN BREWING CO.
(Circuit Court, W. D. Pennsylvania, September 9, 1907.)
The Elliott patent, No. 641,092, for a rotary boiler tube cleaner, was not anticipated, and discloses invention; also held valid as against the claim of prior use, and infringed.
In Equity. On final hearing.
BUFFINGTON, Circuit Judge. This bill in equity brought by the Liberty Manufacturing Company against the American Brewing Company charges infringement of claims 1, 2, 5, and 6 of patent No. 641,092, issued January 9, 1900, to W. S. Elliott for a boiler tube cleaner. The respondent is a mere user, and the case is defended by the maker of the device in question, the Lagonda Manufacturing Company.
Prior to the patent in question, the use of water tube boilers had developed a serious trouble in the formation of a stone-like crust on the inner surface of the tubes, due to the action of heat on the mineral salts contained in the water. This layer reduced steam space and capacity, and increased fuel consumption. So serious was this trouble owing to the difficulty in removing the crust that the Stirling Company, one of the largest makers of such boilers, was threatened with disuse of their boilers on that account; its tubes, owing to end curves, being especially hard to clean. Elliott, the patentee, who had charge of the Pittsburgh agency of that company, being aware of this trouble, set about to solve it, and as early as February 12, 1897, drew a sketch which disclosed the device subsequently embodied in the patent in suit. With his device is used a turbine, of smaller diameter than the tube to be cleaned, which is attached to a hose. To the shaft of the turbine, which shaft may be provided with a universal joint to allow the device to follow the end curvature of tubes, is attached a head which constitutes the Elliott device. This head is provided with four longitudinally extending arms pivoted at their rear ends in inset openings at four equidistant points on the periphery of the head. A set of two arms of longer length and a set of two of shorter length are mounted at right angles. On the forward, free end of each arm a toothed movable cutting wheel is mounted on a shaft extending lengthwise the arm. When the turbine shaft is rotated at high speed, the forward extending arms on the head by centrifugal force fly outward bring the cutters in contact with the scale, and deliver a rapid succession of blows of both a revolving and striking character. This blow is variously described in the proofs as a “sidewise" or "swiping” blow, and the process is styled a “picking" action. By these blows the crust is broken into small pieces, which are washed out ahead of the device by the exhaust of the turbine. The claims in controversy are as follows:
"A rotary tube-cleaner having freely swinging arms, the planes of movement of the arms being longitudinal of the axis of the tool, and cutting-disks secured to the arms and lying in planes transverse to the axes of said arms; substantially as described."
“2. A rotary tube-cleaner, having freely swinging arms moving in planes longitudinal of the axis of the tool, each arm carrying a series of toothed disks lying in planes transverse to the axes of said arms; substantially as de scribed."
“5. A rotary tube-cleaner, having freely swinging arms moving in planes longitudinal of the axis of the tool, said arms carrying cutting disks lying in planes transverse to the axes of the arms, the cutters upon one arm being in advance of those upon the other; substantially as described."
“6. A rotary tube-cleaner, having pivoted thereto freely swinging arms with free outer ends, said arms moving in planes longitudinal of the axes of the tool, and cutting-disks rotably mounted upon the arms near their outer ends and lying in planes transverse of said arms; substantially as described.”
The device was successful, supplied a recognized need in boiler practice, and met with prompt commercial success. It is sought to invalidate the patent on the ground it was a joint invention of Elliott and Faber. The uncontradicted evidence afforded by Elliott's sketch of February, 1897, however, carries the conception of the device by Elliott back of any alleged suggestion by Faber. Much testimony has been taken. Narrowed down, it discloses no patent which so resembles Elliott's device as to warrant present discussion. It is sought, however, to show two prior uses, viz., that of Bradley and those of Weinland.
As to the former, we are clear that the device, if a subsequent use, would not infringe Elliott's claims, and as a prior use did not anticipate. While Bradley had forward pointed arms, yet they were provided with stationary slanting cutting knives which served to scrape the tube. It lacked the revoluble cutters of the Elliott device. The Bradley device left no impress on the art, and the reason for this we find in the testimony of respondent's witness Kennedy, the manager of the Isabella Furnace where Bradley used the cleaner, who says he "objected to the use of this cutter on the boilers for fear that the cutters being revolved at great speed in the tube would cut the tube. *
I considered they were cleaning them too well.” As to the numerous Weinland devices, we are convinced by the proofs that a clear and satisfactory case of prior use, such as the law requires, is not made out. Indeed, the statements made by Weinland himself in 1901 to Swartz, a friendly witness, in commenting on their conversation and views on the boiler cleaner problem in 1898, are wholly at variance with the contention now made by the respondent. It may be conceded that some of the contended for devices of Weinland were along the line of development which Elliott successfully perfected, but none of them went to the full extent Elliott did, and it required that full extent of development to make the device, such as is now made by the complainant and defending company, a success.
On the whole, we are satisfied that a prior use is not established, either by the proofs or the character of Weinland's devices. The patent being adjudged valid, we are of opinion infringement is established. The main difference between the two devices is in the fact that in the Lagonda device the two sets of arms, instead of being of different lengths pivoted on the same plane, are of the same length, but pivoted from two different planes. This, however, is a mere mechanical alternative, which still serves to answer the element of the fifth claim, which reads: “One arm being in advance of those upon the other.'
Let a decree be drawn.
THE ALGERIA. THE ELLEN S. JENNINGS. THE BAILEY. THE
COLLISION-STEAMSHIP AND CROSSING Tow-MUTUAL FAULT.
A tug with four barges in tow, the entire tow being 1,250 feet in length, was passing up near the east side of the Delaware river in the daytime on a flood tide, and, it being necessary to cross to leave some of the barges on the west side, the tug signaled the tow her intention to shorten up the hawsers as was customary and proper to lessen the danger of collisions with other vessels in crossing, but she did not then shorten the hawsers, but proceeded out to the middle of the channel, and then stopped for that purpose. Meantime the steamship Algeria was coming slowly down the river, being about a half mile distant, when the tow started to cross. No signals were exchanged, but, seeing the tow turn to cross, the Algeria starboarded her helm, and slowed still more, but did not reverse until the tug stopped, when it was too late, and she came into collision with the second barge from the rear. Held, that the tug and the Algeria were both in fault, the former for not stopping and shortening her tow before crossing in the usual manner, and for stopping when halfway across, and thus obstructing the channel with her long and cumbersome tow in front of the coming steamship; and the latter for not stopping at once when such dangerous maneuver was seen; and that the barges were not in fault for casting off their hawsers when the collision was imminent.
[Ed. Note.--For cases in point, see Cent. Dig. vol. 10, Collision, $ 79.) In Admiralty. Suit for collision.
John F. Lewis and Francis C. Adler, for the Ellen S. Jennings and the Bailey
Howard H. Yocum and N. Dubois Miller, for the Algeria.
J. B. McPHERSON, District Judge. This is an action in rem brought by the owners of two barges, the Ellen S. Jennings and the Bailey, to recover damages for a collision in the Delaware river, whereby both barges suffered injury. The Algeria is a large steamship, belonging to the Anchor Line, and the Majestic is the tug that had the barges in tow; both vessels being charged with fault. The testimony presents the usual conflict, and I have therefore had the usual difficulty in arriving at what seems on the whole to be the truth of the occurrence. In my opinion, the following facts are established by the weight of the evidence, although there is scarcely one fact that is not denied by opposing witnesses. My conclusions have necessarily been reached in large part by weighing the probabilities of the various accounts, and in this I have fortunately had the assistance of some disinterested testimony, upon which I have felt justified in placing a good deal of reliance. The unexplained absence of some witnesses has also received consideration.
With this preface, I state the facts to be as follows:
On Sunday afternoon, June 28, 1903, about half past 3 or 4 o'clock, the tug Majestic was proceeding up the river, towing four barges in three tiers, tandem, the first tier composed of the Frank Bellville and the Thomas J. Naulty lashed together, the Bellville (which was a small vessel) being upon the port side of the Naulty, the second tier consisting of the Jennings, and the third of the Bailey. The Bellville was light, but the other three barges were loaded with railroad ties. The tug was about 100 feet long. The Naulty, the Jennings, and the Bailey were each about 150 feet in length. The hawsers between the tug and the first tier, and between the first and second tiers, were each from 200 to 250 feet long, and the hawser between the Jennings and the Bailey was somewhat longer. The length of the whole tow, therefore, was more than 1,250 feet. The tow was made up under the supervision of the tug, whose master had entire charge of the navigation. The tide was flood, the weather was clear, only a light breeze was blowing, which did not interfere with navigation, and the speed of the tug was from five to six miles an hour. The course of the tow was along the eastern, or New Jersey, side of the river, and this course was maintained until Gloucester ferry was reached, when the series of maneuvers took place that finally resulted in the collision.
Two of the barges, the Naulty and the Bailey, were to be landed at Point House wharf on the western, or Pennsylvania, shore not far be