being so, she was guilty of contributory negligence, both at common. law and especially under section 39 of the New Jersey Act of 1903 (P. L. p. 666). The plaintiffs' evidence tended to prove that, when the train stopped at Morristown, they and their friends walked down the aisle while the train was at rest, their friends being in front; that the plaintiffs went upon the platform, the husband going across to the first car and descending its steps, while the wife started down the steps of the car in which they had been riding. While in these positions, the signal was given and the train began to move; the wife was warned not to get off, and turned to go back, but fell from the steps and was drawn under the train. The plaintiffs therefore contend that the train was at rest when they left their seats and went down the steps, and that the start was negligent, because they had not had a reasonable time to alight. An attentive examination of the record has satisfied us that each of these positions is supported by direct and positive testimony, and that the case presents a simple question of fact, which has been settled by the verdict in favor of the plaintiffs. We must assume, therefore, that the plaintiffs were in the act of alighting and were rightfully on the platform of a train at rest, and from this point of view the questions. sought to be raised by the company do not arise. The judge's instructions were clear and adequate, and we find no error to correct. THE HISPANIA. (Circuit Court of Appeals, Fifth Circuit. April 26, 1917.) No. 2888. SHIPPING 121(2)-CHARTERS-LIABILITY OF VESSEL FOR DAMAGE TO CARGO -UNSEAWORTHINESS. The temporary jamming of the steering gear of a steamship, not due to any defect or negligence of the officers or crew, causing a collision with another vessel, held not to constitute unseaworthiness, which under the charter party rendered the ship liable to the charterer for resulting damage to the cargo. [Ed. Note. For other cases, see Shipping, Cent. Dig. §§ 450, 451.] Appeal from the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge. Suit in admiralty by the Planters' Steamship Company against the steamship Hispania; the Rolf Seeberg Ship Chandlery Company, claimant. Decree for claimant, and libelant appeals. Affirmed. The opinion filed in the District Court is as follows: This is a libel for damages to a cargo of bananas. Libelants had chartered the steamship Hispania for one or more trips between New Orleans and For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Honduras. On January 2, 1906, while proceeding up the Mississippi river in charge of a pilot in a fog, she collided with the steamship Dalton, lying at anchor. The Hispania cleared herself and was run aground on the river bank. The cargo, consisting entirely of bananas, was transferred to barges and transported to New Orleans. The libel claims damages for a total loss of cargo, because of injury by water and delay, and for expenses in connection with reshipment. The libel alleges as a basis of the ship's liability that she was unseaworthy, in that she had no binnacle or binnacle light; that her two compasses varied more than 5 points; that she had no telltale to indicate the position of her helm; that her steering gear was defective; and that her ground tackle was insufficient and defective. The answer denies any unseaworthiness as alleged, and pleads staleness. Considering the friendly relations of the parties after the accident, the death of a material witness, and the great delay in taking testimony and bringing the case to trial, the plea of staleness is not without merit, but I do not consider it necessary to pass on it in the view I take of the merits. It is conclusively shown by the evidence of the captain, first officer, and the pilot of the Hispania that the accident was caused solely by the temporary jamming of the steering gear. This was unavoidable, was speedily corrected, and was not caused by any defect, nor by any negligence of the officers or crew of the vessel. This did not constitute unseaworthiness, and under the terms of the charter the ship is not liable for the resulting damage. The other allegations of unseaworthiness are not proved; but, had they existed, they would have had no bearing on the accident. The ship had two compasses-one correct and in good order and properly lighted; the other not adjusted, not in use and not lighted. Just prior to the accident the pilot was in the rigging, where he could not see either compass, and his orders were being properly executed by the officers of the ship. Whether there was a telltale or not made no difference, as there was no doubt as to the position of the helm. When the anchor was let go, it was too late to bring the ship up in time to avoid the collision. The libel will be dismissed. John D. Grace, of New Orleans, La., for appellant. William Grant and William B. Grant, both of New Orleans, La., for appellee. Before PARDEE, WALKER, and BATTS, Circuit Judges. PER CURIAM. We have well considered the evidence in this case, in the light of the briefs and additional briefs and supplemental briefs, and we find that the trial judge properly rendered a decree for the defendant. For the reasons given by him, the decree appealed from is affirmed. JUNG V. SOCIÉTÉ ANONYME DE LA DISTILLERIE DE LA LIQUEUR BENEDICTINE DE L'ABBAYE DE FECAMP et al. (Circuit Court of Appeals, Fifth Circuit. April 30, 1917.) No. 2941. TRADE-MARKS AND TRADE-NAMES 95(3)-UNFAIR COMPETITION-IMITATION OF LABELS-INJUNCTION. A preliminary injunction, restraining infringement of complainant's liquor label, should not be so broad as to prevent defendant from truthfully stating on this label the ingredients of his liquor; the statement being so made as not to constitute an imitation of complainant's label. [Ed. Note.-For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 108.] Appeal from the District Court of the United States for the Eastern District of Louisiana; Rufus E. Foster, Judge. Suit in equity by the Société Anonyme de la Distillerie de la Liqueur Benedictine de L'Abbaye de Fecamp and others against Louis Emanuel Jung. From an order granting a preliminary injunction, defendant appeals. Modified and affirmed. William C. Dufour, H. Generes Dufour, Charles J. Théard, and Delvaille H. Théard, all of New Orleans, La., for appellant. Irving R. Saal, of New Orleans, for appellees. Before PARDEE, WALKER, and BATTS, Circuit Judges. PER CURIAM. From our examination of the case we conclude that the preliminary injunction was properly issued, but as its language may be construed to restrain all use by the appellant of the words "Carduus Benedictus Herb," and as he has a right to make a truthful statement of the herbs from which his liquor is distilled, if the statement is not so made as to constitute an imitation of a label of appellees, the injunction will be amended by adding: "This injunction, however, is not to be construed as preventing defendant from truthfully stating on a label that his liquor is made from Carduus Benedictus herbs; the statement being so made as not to constitute an imitation of a label of appellees." The injunction issued in the case will be modified in this respect, and, as so modified, the decree is affirmed. GARLAND et al. v. QUINN. (Circuit Court of Appeals, Sixth Circuit. May 8, 1917.) No. 2991. 1. PATENTS 328-INFRINGEMENT-LIGHT CONTROLLER FOR AUTOMOBILES. The Myers patent, No. 1,099,715, for a light controller for automobiles, consisting of a light bulb having one-half its surface silvered to reflect For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes the light against the main reflector, thus increasing the intensity of the rays, with means for rotating the bulb from the driver's seat, so as to turn the rays so reflected in any desired direction, held not infringed by a device in which the bulb can only be manually turned or adjusted 2. PATENTS 168(2)-CONSTRUCTION-PROCEEDINGS IN PATENT OFFICE. A patentee, who has acquiesced in the ruling of the patent office limiting his claims by the inclusion of certain elements, is estopped to claim the broader construction, which he has abandoned. [Ed. Note. For other cases, see Patents, Cent. Dig. § 244.] 3. COURTS356-RECORD ON APPEAL-APPROVAL BY TRIAL JUDGE. The failure of an appellant to present his statement of the evidence to the trial judge for approval, as required by equity rule 75 (198 Fed. xi, 115 C. C. A. xi), will be disregarded (except as to costs), where it otherwise appears that the transcript is complete and accurate, and the decision on the merits would be the same, whether or not the testimony is considered. [Ed. Note.-For other cases, see Courts, Cent. Dig. § 937.] The failure of an appellant to state the evidence in the record on appeal in narrative form, as required by equity rule 75 (198 Fed. xi, 115 C. C. A. xi), does not affect the appeal, but subjects him to the imposition of costs. [Ed. Note. For other cases, see Courts, Cent. Dig. § 937.] Appeal from the District Court of the United States for the Northern District of Ohio; John M. Killits, Judge. Suit in equity by Nelson J. Quinn against Edward Garland and the Federal Sign System Electric Company. Decree for complainant, and defendants appeal. Reversed. O. C. Billman, of Cleveland, Ohio, for appellants. Before KNAPPEN and DENISON, Circuit Judges, and SATER, District Judge. KNAPPEN, Circuit Judge. Suit for infringement of United States patent No. 1,099,715 to Myers, June 19, 1914, on light controllers. The device of the patent is specially adapted to automobiles; its objects are to increase light intensity and decrease objectionable light dispersion. These objects are accomplished by silvering the lower portion (about one-half) of the ordinary electric light bulb seated in the usual spherical or parabolic reflector, whereby the light is projected from one side of the silvered part of the bulb, acting as a reflector, toward the opposite side of the main reflector, thus increasing the intensity of the rays which normally proceed from the light itself in the same direction. When the silvered portion of the bulb is in the usual lower position, the light is reflected therefrom upward to the main reflector and thence downward upon the road, and approaching drivers and pedestrians relieved from confusion due to blinding rays otherwise projected upward from the lower side of the main reflector. The patent also discloses a method whereby the lamp, having a rotatable stem mounted in the main reflector, may be rotated by the driver from the seat, and the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes silvered and reflecting portion of the bulb adjusted "for such finding position as desired, as in turning corners." The patent contains five claims. The District Court held the first, second, third, and fourth claims valid, and the second and third infringed, and as to the lastmentioned claims entered the usual interlocutory decree for injunction and accounting. Defendant alone appeals. The claims here in issue are printed in the margin.1 [1] The alleged infringing device consists of a white semispherical light-reflecting adjustable shell, adapted to use by being manually pressed into place upon the bulb, in such position as to shield its lower half. Claims 1 and 4 were held not infringed, because in the opinion of the District Judge each of those claims is limited to "the use of the silvered and immovable coating, as a nonreflecting surface on the incandescent bulbs." The second and third claims were thought to be infringed, because in the court's opinion broad enough to include the detachable shells, and because the shells were capable of adjustment on the bulbs, and when used in connection with parabolic reflectors were capable of downward reflection and forward projection, or lateral deflection, at the will of the operator. The alleged infringing device differs, however, from the disclosure of the patent in these respects: The electric light bulb is incapable of rotation in the socket of the main reflector except manually and after releasing a set screw which normally prevents rotation; and it has no means for adjusting, from the driver's seat, the bulb reflector and the main reflector relatively to each other, and thus for varying the direction of ray projection. As used in the bullet headlight, which is the alleged infringing use, this result can be accomplished only by manually opening the glass front of the headlight, manually releasing the set screw mentioned, and then manually turning the bulb in its socket; or, after releasing another series of set screws securing the main reflector to the rim of the glass front, manually detaching the adjustable shell from, or turning it upon, the glass bulb, and readjusting it manually in the desired position. Manifestly the method first stated would be the natural one. This adjustment thus cannot be effected from the driver's seat or while the automobile is in motion. The pivotal question is whether this capacity for manual adjustment responds to the call in the claims for "deflectable light-projecting means," "means for adjusting the reflectors relatively to each other," and "adjustment means for the light in varying the direction of ray projection." 1 "2. Deflectable light projecting means embodying the combination with a first projecting reflector of a light therein having fixed therewith a second reflector directed toward the first reflector, and means for adjusting the reflectors relatively to each other whereby a portion of the light field of the first reflector may be intensified at the sacrifice of other portions of the light field of the first reflector." "3. Deflectable light projecting means embodying the combination with a first projecting reflector, of a light centrally disposed therein having fixed therewith a reflector directed to reflect rays from the light toward one side of the first reflector, and adjusting means for the light for varying the direc tion of ray projection whereby a portion of the light field of the first reflector may be intensified at the sacrifice of other portions of the light field of the first reflector." |