In his specifications the inventor says of these figures: "A represents a wheel-hub, and B a hub-band. C is a band-shell, preferably of annealed brass, adapted to take over and closely embrace the band. The shell has an inturned flange, c, adapted to take over and into the point of the band, and a groove or depression, c', adapted to take into a corresponding groove or depression, b', in the band." He describes his shell as secured to the band "by pressing it thereón until the depression in the shell takes into the depression in the band, the shell having sufficient spring to insure its closing tightly over the band." He adds: "The joint thus made locks the shell in position, and affords a simple and efficient means of securing it in position, without requiring the use of special tools or machinery." In respect to the grooves in the band necessary to secure this sort of locking, he says: "The bands may be manufactured with the grooves ready cut, or the grooves may be made in bands, not thus provided, by simple and inexpensive tools," etc. Only the first and second claims are in issue. A demurrer for want of patentable novelty was sustained, and the bill dismissed. This decree was reversed by this court upon the ground that "the presumptions of validity front the issuing of the patent were not so clearly overcome by the application of common knowledge as to warrant us in refusing to allow the complainant to go to the issue on the proof." 40 C. C. A. 491, 100 Fed. 459. The case came on again to be heard upon pleadings and evidence, whereupon the court held the claims in issue invalid, and dismissed the bill. Henry W. Faber, George B. Parkinson, and Parkinson & Richards, for appellants. Jones & James (Rankin D. Jones and Francis B. James, of counsel), for appellee. Before LURTON, SEVERENS, and RICHARDS, Circuit Judges. LURTON, Circuit Judge, after making the foregoing statement of the case, delivered the opinion of the court. The third and fourth claims of the patent are limited to the use of the shell-band of the patent with hub-bands provided with a groove adapted to take in the corresponding depression in the shell-band when driven down, and the patentee mentions no other method of using his shell-band than in connection with hub-bands provided with a groove into which the annular groove of his shell-band might lock. The first and second claims cover the shell-band, with its annular groove, as an article of manufacture; the second claim including also a corrugated. portion above the groove. Though it is quite possible that the patentee only contemplated the use of his annular groove as a means of locking the shell in place when applied to a hub-band having a corresponding groove into which this annular rib might fit, yet if he has devised a means of holding such shell-bands in place upon hub-bands solely by reason of the gripping effect of such a rib, irrespective of an annular depression in the hub-band into which it might spring, he may maintain his first and second claims, which do not include as an element a hubband having a depression adapted to receive such annular groove. This presents a question of utility first, and of patentable invention next. The learned trial judge thought, upon the evidence, that there was no important advantage in a band shell having an annular depression over one without it which closely fit the hub-band, and required some force to drive it down to its place. He also thought that if such an annular groove was a superior means of holding such shells in place, by reason of the gripping effect of such a rib, this means of holding did not involve patentable invention. We find no reason to differ with the learned court upon either ground. A hub-band is an iron ferrule attached to the ends of a vehicle axle for the protection of the ends, and shielding the nut which holds the wheel on the axle. Shell-bands are thin metal cylinders, intended to be placed around the outer end of the hub-band for the purpose of ornamentation, and also to keep out moisture and prevent rusting of the iron parts. The use of such shell-bands is very old. Very many patents, some for the hub-band and shell, some for the band alone, and many for such metal shells, are in evidence. They differ mainly in the mode of holding the shell-band in place, and many ways of doing this are shown to have been in common use, or are taught by one or other of the numerous patents in evidence. In some cases the shellband is secured by the ancient method of brazing or soldering; in others, by self-securing devices, such as spurs, spring clips, interlocking lugs, screw threads, bayonet locks, etc.; in still others, the shell is held in place by screws or rivets. * * * Mr. See, a learned expert, who testified for the complainant concerning the well-known methods of holding such ornamental shells in place, after referring to the methods above referred to, says that "shells could be pressed directly upon the iron hub-band." This, he says, was "the cheapest and nicest plan, if it could be done satisfactorily." The objections he points out are that "the hub-bands could not be depended upon for accuracy of size, and the shells are required to fit with extreme niceness, and to be put on under heavy pressure." But these objections seem, on the evidence in this case, to apply with about equal force to shell-bands having an annular depression as a means of fastening. Exact uniformity in size or smoothness of surface of cast-iron hub-bands is no more to be expected when shell-bands are provided with annular grooves than when they are not. While it is true that hub-bands are generally of certain well-known standard sizes, yet the examples of such articles exhibited in this case show more or less irregularity in diameter, in taper, and in smoothness of surface, due to careless casting. Shell-bands are made, adapted to fit various standard sizes of hub-bands. If these shell-bands be exact cylinders, the place and extent of engagement when driven down over the hub-band necessarily depends upon the closeness of the fit of the one upon the other. If the hub-band tapers too much, the contact between the lower portion of the shell and the hub-band may prevent any contact above at the point of the annular groove. It must fit closely enough to require some force to drive it on, and secure an engagement which will hold it fast in place. The metal, being ductile and having some resilience, will give slightly where the pressure is greatest; and this in itself furnishes a gripping or holding effect, which, according to the expert evidence, as well as the evidence of practical observers, is sufficient to hold such a shell in place, whether supplied with a gripping rib or not. The defendant says he does not rely upon his annular groove as a means of holding at all, and that its presence in his device to an extent sufficient to constitute an annular groove is accidental, and that the very slight depression found in the shell-bands which he makes and puts upon the market is a mere ornament. To show that his annular groove does not grip, he has used certain exhibits which plainly indicate that in the particular instance there is no contact between his depressed groove and the hub-band; the shell-band being held tightly in place by close contact below the annular groove. But his exhibits, as well as the figures found in the brief, alike show that the taper in the hub-shell used was so great that a shell-band fairly close-fitting at the top was so tight when forced down to the shoulder as to prevent any possible contact between the depressed rib above and the surface of the hub-band. But given a case where the point of contact is the depressed groove, and there can be no doubt of the gripping effect of such a rib. To secure engagement by means of this gripping rib plainly requires a degree of adaptation of the shell-band to the particular hubband which we are persuaded is not often found. Neither is it made out to our satisfaction that the gripping effect resulting from the contact of the lower wall of such a shell, though perfectly smooth, with the surface of an ordinary cast-iron hub-band, painted or not, is not for all practical purposes quite as efficient as if the engagement was only between a depressed groove and the surface of such a hub-band. In both cases care in the amount of force applied is essential to prevent buckling or cracking, and in both cases the tightness of the fit necessary to bring into play the gripping or holding effect will be such as to require some pressure to drive the shell into place. But if we err in thinking complainant's annular groove to have no patentable utility, irrespective of the character of the hub-band upon which it is used, we cannot find reason for saying that the court below erred in holding that the use of such an annular groove as the sole means of fastening such shell-band in place involved invention. It may be conceded that the use of such a gripping rib as a means for attaching shell-bands prior to Higgin is not shown. But it was an old and well-known means of attachment, and required no adaptation or special skill to use it for this particular purpose. The same principle is exhibited in the lead pencil with a rubber tip enclosed within a thin metal cylinder, the latter having several annular depressions which grip the rubber and hold it in place. The common iron ferrule for canes, umbrellas, and jointed fishing rods afford other examples of the holding effect of such an annular groove. Decree affirmed. (131 Fed. 712.) CHICAGO GREAT WESTERN RY. CO. v. RODDY. 1. TRIAL-DIRECTION OF Verdict. No. 2,000. When the evidence leaves the material facts admitted or undisputed, and when the evidence leaves the material facts and the deductions from them of such a conclusive character that the exercise of a sound judicial discretion would permit the court to give effect to but one verdict, it is its duty to instruct the jury to return it. When there is a substantial conflict in the evidence relating to the material facts, and when fair and rational minds may well draw different conclusions from established facts, the court should submit the issues to the jury. 2. INJURY TO RAILROAD EMPLOYÉ-DIRECTING VERDICT. A rainstorm of extraordinary severity prevailed at Elma from 6 to 7 in the evening, and washed out the roadbed three-quarters of a mile south of that station. The sectionmen in charge of the section south from Elma and a telegraph operator were there. The heaviest portion of the storm ceased about 7, but lighter rain followed. The plaintiff, an engineer, was running north from Oelwein to Elma. He left Oelwein at 5. There was no storm south of New Hampton 15 miles from Elma. He passed that station at 7:30. Culverts and creeks were full of water, and low grounds were flooded at New Hampton and Alta Vista, a station four miles south of Elma. About 800 feet south of the washout a band of Italian trackmen attempted to warn the plaintiff of his danger, which they had discovered. But he did not observe their signals, or did not understand them. Neither the sectionmen nor the telegraph operator took any steps to patrol the track to discover its condition or to warn the enginemen of their danger before the plaintiff ran into the washout a few minutes past 8 in the evening, although they were at Elma, an hour had passed after the heaviest rain had ceased, and the washout was within a mile of the station. Held, neither the absence of negligence of the sectionmen and telegraph operator, nor the contributory negligence of the plaintiff, was so clear that it was the duty of the court to give a peremptory instruction for the defendant. 3. CHARGE-REFUSAL OF REQUEST EMBODIED IN CHARGE. Where a rule or principle of law is clearly declared by the court in its general charge, it is not error to refuse to repeat it in the words of counsel. 4. CHARGE-REFUSAL OF REQUEST CONTAINING SOUND AND UNSOUND PROPOSI TIONS. Where a request for an instruction contains several propositions of law, any one of which is unsound, it is not error to refuse it. (Syllabus by the Court.) In Error to the Circuit Court of the United States for the District of Minnesota. John L. Erdall (A. G. Briggs and F. B. Kellogg, on the brief), for plaintiff in error. Daniel W. Lawler (Frank Arnold, on the brief), for defendant in error. Before SANBORN, VAN DEVANTER, and HOOK, Circuit Judges. 1. See Trial, vol. 46, Cent. Dig. § 377. SANBORN, Circuit Judge. This is an action for damages for a personal injury which the plaintiff below, John J. Roddy, alleged was inflicted upon him by the negligent failure of the Chicago Great Western Railway Company to give him timely warning of a washout of the roadbed, which was caused by an unusual storm of rain. The railway company denied the alleged negligence, and averred that the plaintiff was guilty of negligence which contributed to his injury. At the close of the evidence a motion was made by the defendant, and denied by the court, to instruct the jury to return a verdict for the railway company, and a judgment for the plaintiff followed. The denial of this motion is the alleged error in which counsel for the company seem to place the most confidence, and it presents the usual question whether the evidence so conclusively failed to show causal negligence on the part of the railway company, or so clearly disclosed negligence on the part of the plaintiff which contributed to the injury, that it was the duty of the court, in the exercise of a sound judicial discretion, to withdraw the issues in the case from the jury. There is always a preliminary question for the judge before a case can be properly submitted to the jury, and it is, not whether or not there is any evidence, but whether or not there is any substantial evidence, upon which a jury may properly render a verdict in favor of one of the parties to the action. If there is no such evidence to sustain a verdict in favor of one of the parties, it is the duty of the court to direct the jury to return a verdict against him. This duty is imposed upon the court in every case where the evidence and the rational deductions from it are undisputed, or of such a conclusive character that the exercise of a sound judicial discretion would compel a refusal to give effect to a contrary verdict. Southern Pacific Co. v. Pool, 160 Ŭ. S. 438, 440, 16 Sup. Ct. 338, 40 L. Ed. 485; Patton v. Texas & Pacific Railway Company, 179 U. S. 658, 660, 21 Sup. Ct. 275, 45 L. Ed. 361, and cases there cited. The exercise of this judicial discretion requires the direction of a verdict in every case in which the substantial evidence leaves the material facts and the just deductions from them admitted, undisputed, or so conclusively established that all reasonable men, in the exercise of an honest and impartial judgment, may fairly draw but one conclusion from them. On the other hand, if the facts are in dispute, and there is a conflict in the substantial evidence relative to their existence, or if from the established facts the minds of rational men might well draw different conclusions, it is the duty of the court to submit the disputed issues to the jury. Chicago Great Western Ry. Co. v. Price, 38 C. C. A. 239, 243, 97 Fed. 423, 427, 428, and cases there cited. At the close of the trial of this case there was evidence tending to establish these facts and circumstances: Roddy was the engineer on a freight train of the defendant which was running north from Oelwein, in the state of Iowa, toward St. Paul, in the state of Minnesota. He left Oelwein at about 5 in the afternoon of May 19, 1902. He stopped at New Hampton, a station 15 miles south of Elma. He left New Hampton about 7:30 in the afternoon. He passed through Alta Vista, a station four miles south of Elma, about 8 in the |