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The first contention of the plaintiff in error is that delay being of such origin comes within the exception of section 3 of the act, and the maximum period of 16 hours was thereby automatically extended 2 hours and 20 minutes. This position must be rejected upon the authority of San Pedro, Los Angeles & Salt Lake R. R. Co. v. United States, 220 Fed. 737, 136 C. C. A. 343; Atchison, Topeka & Santa Fe R. R. Co. v. United States, 220 Fed. 748, 136 C. C. A. 354; United States v. Atchison, Topeka & Santa Fé R. R. Co. (D. C.) 236 Fed. 154; Northern Pacific R. R. Co. v. United States, 213 Fed. 577, 136 C. C. A. 157; United States v. Southern Pacific Co., 220 Fed. 748, 136 C. C. A. 351; Chicago & Northwestern R. R. v. United States, 234 Fed. 268, 148 C. C. A. 170; Baltimore & Ohio R. R. Co. v. United States, 243 Fed. 153, — C. C. A. (decision of Circuit Court of Appeals, Sixth Circuit, decided May 8, 1917).

The defense of the carrier in a case like the present one is not complete by showing a delay which was “the result of a cause not known to the carrier or its officers or agents in charge of such employés at the time said employés left a terminal and which could not have been foreseen.” The carrier was required to show, in addition thereto, that it exercised a high degree of diligence to overcome the effect of the delay and relieve its employés from continuous service over 16 hours. See cases cited above.

[2] The second contention of the plaintiff in error is that the evidence showed affirmatively a high degree of diligence displayed on its part to prevent continuous service beyond 16 hours. The case was tried by the court without a jury upon stipulation of the parties. The record fails to show any effort on the part of the carrier to relieve its servants from employment upon the expiration of the maximum time limit during which they might be continuously in service. In fact, it was admitted on the trial that no effort was made by the train dispatcher or any other representative of the carrier to relieve the crew after it learned of the accident and resulting delay. The train dispatcher labored under the impression that the 16-hour limit was extended for a period of 2 hours and 20 minutes, due to excusable delay, and that no violation of the law would occur until the crew had been in continuous service for 18 hours and 20 minutes, and such misapprehension of the law explains, at least in part, the failure of the carrier to take any steps to relieve the crew. We conclude the evidence supports the finding of the learned trial judge.

This being the situation disclosed by the record, there is no need of considering the government's contention that the evidence utterly fails to disclose any such a delay as is defined in the exception appearing in section 3 of the act.

Judgment is affirmed.


(Circuit Court of Appeals, Seventh Circuit. July 12, 1917.)

No. 2447.



Switch tenders, who regularly conduct the movements of the trains in and through a yard, receiving the yardmaster's telephone orders in their shanties, and executing them by transmitting them verbally or by signal to the engine or train crews, and by manipulating switches, are within the proviso of Hours of Service Act March 4, 1907, c. 2939, $ 2, 34 Stat. 1416 (Comp. St. 1916, § 8678), § 2, limiting to nine hours the service of an employé who by use of the telephone receives orders pertaining to or affecting train movements.

In Error to the District Court of the United States for the Southern Division of the Southern District of Illinois.

Action by the United States against the Chicago & Alton Railroad Company. Judgment for the United States, and defendant brings error. Affirmed.

William L. Patton, of Springfield, Ill., for plaintiff in error.
Philip J. Doherty, of Washington, D. C., for the United States.
Before KOHLSAAT, ALSCHULER, and EVANS, Circuit Judges.

PER CURIAM. The action was for violation of the Hours of Service Act of March 4, 1907. The facts were stipulated, and the question here is whether the 16-hour limit applies, or the 9-hour limit of the proviso, which is applicable to “operator, train dispatcher, or other employé who by the use of the telegraph or telephone dispatches, reports, transmits, receives, or delivers orders pertaining to or affecting train movements." Section 2 (Comp. St. 1916, § 8678).

The employés involved are the so-called switch tenders in defendant’s 73/4-mile long Bloomington-Normal yard, who conduct the movement in and through that yard of all of defendant's trains, passenger and freight, and who were working 12 consecutive hours without emergency necessitating service beyond 9 hours. The train dispatchers and operators who direct the movement of the trains elsewhere on the road outside of the yard limit have no function within it. Therein the yardmaster has the general direction of all train movements ; his orders being communicated to and executed by his subordinates, the switch tenders, who are stationed at various switch shanties within the yard, each switch tender having special charge of certain switches in the immediate vicinity of his particular shanty, and the service being continuous night and day. The orders for the movement of the trains are transmitted by the yardmaster from his central office by tele

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244 F.-60


Edward Foster. Decree Affirmed in part.

By the decree of the Dist the infringement of claims 5. issued on November 7, 190 signee of the applicant, Tho other appellees are joint, e lant is the owner and user sold to him by the Cemen wbich is defending this su

Figures 1 and 3 of the d

phone to the various switch shanties, where the switch tenders, at phones therein, receive them, and execute them by transmitting them verbally or by signal to the engine or train crews, and by manipulating the switches, so that trains may take their proper tracks without coming in contact with each other or with the various switch engines and cars being switched and moved thereabout. Defendant had a rule requiring trains passing through the yard to reduce speed and proceed only after the way is seen or known to be clear. This use of the telephones by the switch tenders in connection with the movement of the trains was not occasional or exceptional, but was part of their general and usual duties; each train movement so communicated to the crews, or participated in by the switch tender, being preceded by his reception of a telephoned order directing it.

Our decision of August 6, 1915, in Chicago, Rock Island & Pacific Ry. Co. v. United States, reported in 226 Fed. 27, 141 C. C. A. 135, and followed by us in Chicago & Northwestern Ry. Co. v. United States, 226 Fed. 30, 141 C. C. A. 138, is against the proposition, advanced for plaintiff in error, that the 16-hour limit, and not the 9-hour limit, applies; and upon the authority of those cases the judgment of the District Court must be and is affirmed.


FOSTER v. T. L. SMITH CO. et al.

(Circuit Court of Appeals, Seventh Circuit. February 1, 1917. Rehearing

Denied July 26, 1917.)

No. 2360.


The Smith patent, No. 803,721, for a concrete mixing machine, while for a combination of old elements, covers a new and useful combination, not anticipated, and discloses invention; also held infringed as to a number of claims, but claim 5 held invalid, as a duplication of another


It is usually true that the observation and the imagination of the in

ventor are required to make adaptations from one art to another. 3. PATENTS 234INFRINGEMENT—FORMAL CHANGES.

Infringement is not avoided by changes in the mechanism of the patented device, so as not to literally conform to the language of the claims, if the defendant has appropriated the real substance of the invention.

Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.

Suit in equity by the T. L. Smith Company, the Jaeger Machine Company, and the Waterloo Cement Machinery Corporation against

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Edward Foster. Decree for complainants, and defendant appeals. Affirmed in part.

By the decree of the District Court appellant is enjoined from continuing the infringement of claims 5, 16, 17, 18, 28, 30, 31, and 32 of patent No. 803,721, issued on November 7, 1905, to appellee the T. L. Smith Company, as assignee of the applicant, Thomas L. Smith, for a machine to mix concrete. The other appellees are joint, exclusive licensees of the Smith Company. Appellant is the owner and user of a single machine, which was manufactured and sold to him by the Cement Tile Machinery Corporation of Waterloo, Iowa, which is defending this suit.

Figures 1 and 3 of the drawings are as follows:

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Smith's specific description of the form which is stated in the patent to be the preferred form discloses a polyhedric mixing receptacle and a tiltable supporting frame which is in a plane at right angles to the receptacle's axis of revolution. To the specific details of this preferred form many claims were addressed, of which claim 24 may be taken as illustrative:

“In a mixing machine, the combination of a polyhedric mixing receptacle, 9 tiltable frame supporting said receptacle, means for tilting said frame to any position in the entire circle of its revolution, à gear attached to the peripher of said receptacle, said gear having supporting surfaces and guiding surfaces wherehy said receptacle is completely centered and guided, and means for applying the power to said gear in any position of said receptacle and tiltable frame.”

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