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ROGERS, Circuit Judge. The libel' in this suit was filed to recover contribution from the steam tug Bern for damages which the libelant was compelled to pay by reason of a collision between the libelant's tug, P. R. R. No. 14, and the barge St. Gabriel, in charge of the Bern, at the Packer Dock, Jersey City, on the morning of March 14, 1913. In the District Court the Bern and No. 14 have been held jointly responsible for the damage sustained by the St. Gabriel and the libelant has been allowed to recover from the Bern one-half the amount paid the owner of the St. Gabriel in the suit of Kate Dougherty against tug P. R. R. No. 14. The amount paid under the final decree in the former suit was $3,038.39. The decree in that suit was entered on January 20, 1914, and on January 5, 1915, this libel for contribution was filed. The Bern was not impleaded in the original suit.
The trial of the present suit consisted in offering the record in the former suit and calling of one witness by the Reading Company, a deck hand from the Bern, who testified that he heard no whistles from No. 14. On the morning of the collision the Reading Company's tugs Wyomissing and Bern had tied up a tow at the Packer Dock for the purpose of distributing the several boats in the North and East Rivers. The two tugs left for this purpose. Later a dense fog set in, and the Bern, which had found her way back, was tied up at the dock, and her master had gone to telephone for instructions, leaving a deck hand in the pilot house in charge. The facts may be stated as follows:
The tug P. R. R. No. 14 had left Pier 4, North River, Manhattan, bound for Jersey City. The master of No. 14 was at the wheel, and a lookout was stationed on the bow. The tug proceeded sounding fog signals at intervals and keeping a lookout. When about midstream the fog became more dense; No. 14's engines were stopped, and she proceeded, alternately stopping and starting her engines. While so proceeding, the lookout made out a low-lying object in the water close under the tug's bow. The tug's engines were reversed full speed, but she came into collision with what afterwards proved to be the barge St. Gabriel at an angle of about 45 degrees. The St. Gabriel was damaged considerably and later sank.
In this thick fog the St. Gabriel and 17 or 18 other boats were hung up off the end of the dock. The tow was made up in 4 or 5 tiers of 4 boats in a tier, and extended down stream across the pier ends for 400 or 500 feet. The St. Gabriel was the starboard hawser boat, with 3 boats between her and the pier end, and was about 120 to 125 feet out in the river. The tug Bern was lying just inside the slip at the head tier of the tow, with her stern lapped about 10 feet on a Lehigh Valley boat, which was lying on the end of the pier. The deck hand, who was in the pilot house and in charge of the tug, admitted hearing several fog signals. He seems to have had no conception that it was incumbent upon him to give any warning of the presence of this obstructing flotilla. He admitted that the Bern was equipped with a fog bell, but he does not seem to have been aware that he was under any duty to use it in the fog conditions which prevailed.
There can be no doubt as to the obligation which rested on the Bern to protect this tow. This court in the Jersey Central, 221 Fed. 625, 137 C. C. A. 349 (1915), stated the law as follows:
"It is now established in this circuit that when such a situation exists-at least when there is more than a single vessel at the pier head-and fog signals indicate the approach of another vessel, there should be sounded some warning of the presence of the obstructing vessels; not navigating or anchored signals, but some other sound, to take the place of sight, whether it be given by beating a pan, or blowing a mouth horn, or ūsing a watchman's rattle or a megaphone. When the tug which had the tow in charge has been at hand, she has been held in fault for not giving such warning. When she is absent, reasonable care and prudence should be exercised by the master of a boat thus left tied up, when conditions indicate that danger threatens."
See, also, The Express, 212 Fed. 672, 129 C. C. A. 208 (1914).
In the instant case the Bern, which had the tow in charge and was bound to sound some warning of the presence of the obstructing tow, did nothing. Under these circumstances, the District Judge properly held the tug in fault, and that the libelant was entitled to contribution.
BURROUGHS ADDING MACH. CO. v. FELT & TARRANT MFG. CO. (Circuit Court of Appeals, Seventh Circuit. April 10, 1917.)
No. 2255. 1. PATENTS 167(1)–CONSTRUCTION OF CLAIMS-LIMITATION BY DRAWINGS AND SPECIFICATION.
The claims of a patent are to be construed in the light of the real invention as shown and described in the drawings and specifications. 2. PATENTS Om 167(1)–CONSTRUCTION OF CLAIMS-LIMITATION BY DRAWINGS AND SPECIFICATION.
While courts will always endeavor to distinguish the several claims of a patent, one from another and give a broadly stated claim a broader construction than one more narrowly stated, this rule is subject to the funCamental and controlling rule that a patentee's broadest claim caa be no broader than his actual invention as disclosed in his drawings and specifi
ca tion. 8. PATENTS 328_VALIDITY AND INFRINGEMENT-ADDING MACHINES.
The Felt patents, No. 762,520, No. 762,521, No. 767,107, and No. 960,528, all for improved mechanism for adding machines, construed, and held valid, but not infringed.
Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.
Suit in equity by the Felt & Tarrant Manufacturing Company against the Burroughs Adding Machine Company. Decree for complainant, and defendant appeals. Reversed.
Infringement suit on four patents issued to Dorr E. Felt on calculating machines. The patents are numbered 762,520, 762,521, 767,107, and 960,528, dated, respectively, June 14, 1904, June 14, 1904, August 29, 1904, and June 7, 1910. A reargument was directed by the court, and argument had June 9, 10, and 15, 1916. A rehearing was granted and argued March 10, 1916.
For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Edward Rector and Robert H. Parkinson, both of Chicago, Ill., for appellant. Henry Love Clarke, of Chicago, Ill., for appellee.
Before MACK and ALSCHULER, Circuit Judges, and SANBORN, District Judge.
SANBORN, District Judge. These patents are for improvements on adding machines, for which Felt had taken out earlier patents expiring before this suit was begun. The chief question is whether the mechanism employed by defendant, different from that illustrated by the patents in suit, is an infringement. The improvements covered by the patents are many of them meritorious and valuable, and give the machine much greater flexibility and rapidity of action than the earlier forms. As to most of the improvements the Burroughs Company has sufficiently departed from the patented form to escape infringement, but as to one of them, particularly, there is question.
The principle of action of an adding or calculating machine is not difficult to understand, but there is much complication in the actual machine. Aside from the recording of results on paper, and restoring the machine from one operation so that another may be begun, known as “clearing the machine" or canceling the former operation, an adding machine depends on three points. These are: (1) The use of the numeral-wheel and column-actuator; (2) the carrying mechanism, by which the turning of the units wheel beyond a full revolution carries one to the next wheel, and so on through a hundred, a thousand, ten thousand, etc.; and (3) the employment of stop mechanism to prevent the wheels from overrunning, and thus turning up a greater number than the one struck.
The Numeral-Wheel Mechanism. On the periphery of the numeralwheel the digits 1 to 9 and the cipher are printed, and there are nine keys, marked 1 to 9. When a key is depressed the wheel will turn up to view the number which the key bears. Thus if the 6 key is touched the number 6 will come up, and if then the 2 in the same bank or column is touched the number 8 will appear, each key having the ability to turn the wheel that many tenths of a revolution corresponding to its own value. Depressing the 3 key turns the wheel three-tenths around, the 8 four-fifths, etc. If the 9 is struck and then the 1 the wheel will complete one revolution, and turn up the cipher. All this is accomplished by the relation of the key bars to the column-actuator and the numeral wheel, as shown by the accompanying cut, being plaintiff's Comparative Drawing No. 22, which needs only the number keys to give a clear idea of the latest form of calculating machine. With a bank of keys over each column-actuator the picture would be complete; but it may readily be understood that if the keys are so placed that they can depress the column-actuator, number 1 key being nearest the wheel and number 9 farthest away, the same depression of the latter may be made to depress the actuator 9 times as far as the former, since 9 is near the fulcrum of the actuator and 1 is farthest away.
Carrying Mechanism. When a column of figures is added with paper and pencil the tens, hundreds, etc., are carried from the units, tens, etc., columns. The same thing must be done mechanically in an adding machine by turning the tens wheel one-tenth of a revolution every time the units wheel makes a full revolution, two-tenths when it makes two revolutions, etc. In this way the values of all the operated keys are added in one common sum or total upon the series of numeral-wheels. 'When the units wheel completes a revolution the tens wheel moves forward one step, two steps when it completes two revolutions, and there is the same result in respect to the tens and hundreds, hundreds and thousands, etc., for as many banks of keys as the machine has. This carrying operation is brought about in the Felt construction by a ratchet and pawl construction, and in defendant's by a planetary gear. This is the point at which the main question of infringement comes up, the defendant claiming that it makes use of different means and operation.
The following figures will serve to illustrate plaintiff's carrying devices. Figure 5 is taken from the Felt patent 366,945, and 5a from appellant's brief.
The snail cam shown in different positions in both figures is attached to the hub of all the numeral-wheels except that of the highest order. When a lower order wheel completes a full revolution its cam, turning counter-clockwise, pushes out the pawl M', registering with the next higher wheel, by means of its shoulder ma, into the position shown by Figure 5a, and when the tail of the cam clears the rear end of the