Winsor, at the direction of the Wehr Company, procured its attorneys to apply for a patent in his name. The application was signed by Winsor, but not forwarded to the Patent Office, evidently because Winsor refused to sign a license agreement prepared by the Wehr Company, making it the exclusive licensee to manufacture and sell these graders or other road-working machinery constructed in accordance with his claimed invention. The parties being unable to agree upon a royalty or division of profits, Winsor left the employment of the Wehr Company, and later entered into the employment of the Hadfield-Penfield Steel Company, to which company he granted an exclusive license. After Winsor left the employ of the Wehr Company, that company procured an exclusive license from Myers under the patent in suit.

It is apparent that the device for a lumber or industrial truck to the rear of a tractor is an entirely different structure, serving a wholly different purpose than a road grader or other road-working device attached in front of and pushed by a tractor; nor does it appear how the use of the Myers frame, projecting to the rear of the tractor, and formed and shaped to carry the platform of a truck, could in any way suggest the use of a frame in front of the tractor of wholly different form and shape to which a road scraper or other road-working device may be attached and pushed by the tractor. The purposes to be accomplished are wholly different, and the respective combinations to produce these different results have no resemblance to each other, except in so far as each contains elements old in the automobile art, and the incidental use by each of the power plant of a tractor to furnish motor power. It is therefore contended that these structures are not in the same inventive field, and that the Winsor truck now being manufactured by the defendants, the Hadfield-Penfield Steel Company, does not infringe the Myers patent. [2] It is claimed, however, on behalf of the appellants, that the Myers patent is generic in its nature, and that, by reason of the allowance by the Patent Office of these broad claims in suit in connection with the narrower claims of the patent, they should be broadly construed to include any form of frame attached to the power plant of any tractor for any purpose. With this contention we cannot agree. Side frames are not new to the automobile or vehicle art, nor is there anything new or novel in a crossbar, nor does it constitute invention to utilize this crossbar as

a means of supporting the front end of the tractor in place of the front axle. Myers' invention consists of a combination and adjustment of elements old in the art, adapted to a new and useful purpose, but a patent covering a new and novel combination of old elements does not include a grant of a monopoly upon any of the old elements included in the combination. On the contrary, the inventor is entitled only to patent protection on the specific form and arrangement of old elements in their relation to each other in the patentable combination, and to a fair range of equivalents within the scope and purpose of his invention. To this end the claims of his patent may be broadly construed, but they cannot be so broadly construed as to deny the use of any or all of these old elements for uses and purposes not within the contemplation of his invention or the results to be accomplished thereby. [3] It is perhaps unnecessary to discuss the defense of prior invention. Upon this question the Patent Office has recently held that Winsor is prior to Myers, in an interference proceeding, the two counts of which substantially include the elements of the claims in suit. This court is also of the opinion that the defendant has fully sustained, by the evidence in this case, its defense of prior invention.

Decree affirmed.

BALTIMORE & O. R. Co. v. GOODMAN. (Circuit Court of Appeals, Sixth Circuit.

cert, granted January 5, 1926.) 204AW136 No. 4421. 4t sup t

1. Railroads 346(5)-Presumption decedent

looked and listened for train rebuttable.

There is a rebuttable presumption that decedent, struck by train at railroad crossing, both

looked and listened for it.

2. Railroads 327 (8)-Reasonable care required of truck driver.

Driver of truck, approaching railroad crossing, was required to exercise for his own safety degree of care that a reasonably prudent person ordinarily would exercise in like circumstances, which required him to look and listen, when he could do so effectively.

3. Railroads 350 (22)—Truck driver's negligence at obscured crossing held for jury.

In action for death of driver of truck, struck by train traveling 60 miles an hour at obscured crossing, whether decedent was negligent held for jury.

4. Railroads 314-Operatives, in exercising ordinary care, required to consider obstructions off right of way.

Duty of train operatives to exercise ordinary

care to avoid injuring persons about to use railroad crossing requires consideration of obstructions off right of way that render crossing more dangerous than it otherwise would be.

In Error to the District Court of the United States, for the Western Division of the Southern District of Ohio; Smith Hickenlooper, Judge.

Action by Dora Goodman, as administratrix of the estate of Nathan Goodman, deceased, against the Baltimore & Ohio Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

[1] The main contention here is that the trial court erred in refusing to direct the jury to return a verdict for defendant. It is not denied that the train was running at the rate of about 60 miles an hour, and Goodman was moving, immediately before the collision, at the rate of 5 or 6 miles an hour; consequently, when Goodman was 18 feet west of the track the engineer was approximately 216 feet north of the crossing, each in view of the other. The engineer said he was maintaining a lookout the width of the right of way, but did not see the truck until the moment of

Mattern, Brumbaugh & Mattern, and I. L. Jacobson, all of Dayton, Ohio, for defendant in error.

KNAPPEN, Circuit Judges.

MOORMAN, Circuit Judge. This is an action for damages for the death of Nathan Goodman resulting from the collision of a truck with a railroad train at a grade crossing in an unincorporated village in Montgomery county, Ohio. The collision occurred in the daytime. The truck was moving eastwardly on the public highway and the train was running in a southwesterly direction. Plaintiff's evidence tended to show that deceased reduced the speed of the truck, when about 40 feet from the crossing, from 10 or 12 miles an hour to 5 or 6 miles at which rate he was moving at the time of the collision; that the view of the tracks north of the crossing, as one approached it from the west, was obscured by buildings and other obstructions; that there was a tool shed on the right of way 243 feet north of the crossing, and 24 feet from the west track there was a store which obstructed the line of vision to the north; that deceased could not have seen the approaching train until he was within 24 feet of the west rail of the west track, and even then could not have seen it beyond the tool shed; and according to calculations put in evidence he had practically no view to the north, from his position on the truck until the front of it was less than 20 feet from the west rail. There was a dispate in the evidence as to whether adequate signals of the train's approach to the cross

from behind the store on the theory that the tool house obstructed his line of vision, which shows, as she contends, that the train was running faster than 60 miles an hour. That may or may not be true, or it may be that there was a momentary diversion of attention, as a glance in another direction would have sufficed to prevent effective action, and perhaps discovery, in the brief time that elapsed before the two vehicles came in contact at the crossing-as to Goodman, for example, the looking to the south before looking north. It is suggested, but not argued, that there was no proof of negligence on the part of defendant. We do not think it necessary to discuss that question, since what has been said of the evidence as to the crossing signals sufficiently disposes of it.

[2] It is, of course, true that Goodman was required to exercise, for his own safety, the degree of care that a reasonably prudent person ordinarily would exercise in the same or like circumstances, which included "the use of his faculties of sight and hearing." Flannelly v. D. & H. Co., 225 U. S. 597, 32 S. Ct. 783, 56 L. Ed. 1221, 44 L. R. A. (N. S.) 154. This imposed on him the duty of looking and listening when he could do so effectively. Schofield v. C., M. & St. P. Ry. Co., 114 U. S. 615, 5 S. Ct. 1125, 29 L. Ed. 224; Philadelphia & R. Ry. Co. v. Le Barr (C. C. A). 265 F. 129. Hence it is said that, as the evidence shows he could have seen the train when within 16 or 18 feet of the track

-whether he did or did not is immaterialhe was guilty of negligence as a matter of law, for, if he did not, he failed to look, or, if he looked, failed to stop before going on the crossing, and in either circumstance it was the duty of the court to direct the jury to return a verdict for defendant. [3] The cases cited by defendant, among which are Railroad Co. v. Houston, 95 U. S. 697, 24 L. Ed. 542, and Railroad Co. v. Freeman, 174 U. S. 379, 19 S. Ct. 763, 43 L. Ed. 1014, were decided on the particular facts under consideration, and are not in contravention of the general rule announced in the Flannelly Case, supra. N. Y. Cent. & H. R. R. Co. v. Maidment, 168 F. 21, 93 C. C. A. 413, 21 L. R. A. (N. S.) 794, cited as especially applicable, does not establish a standard of care for the driver of an automobile different from that required of the driver of horses, but recognizes, and rightly so, that the circumstances under which the former approaches a crossing are more favorable to the discovery of trains and to the stopping of his vehicle than those with which the latter must deal. That decision and others, including Bradley v. Mo. Pac. R. Co. (C. C. A.) 288 F. 484, apply the rule more rigidly against the user of the highway than this court has been willing to do. We prefer to adhere to the interpretation of Lake Erie & W. R. Co. v. Schneider, 257 F. 675, 168 C. C. A. 625 (6 C. C. A.) and. Beckham v. Hines, 279 F. 241 (6 C. C. A.) The seemingly less liberal cases of Kallmerten v. Cowen, 111 F. (6 C. C. A.) 297, 49 C. C. A. 346, Shatto v. Erie R. Co., 121 F. 678, 59 C. C. A. 1, and Fluckey et al. v. Southern Ry. Co., 242 F. 468, 155 C. C. A. 244, must be regarded as dealing with particular states of fact, and not as conflicting with the later opinions of the court, which allow-if not in terms, in the adaptation of the general rule -"for modifying circumstances, or for accidental diversion of the attention, to which the most prudent and careful are sometimes subject." Improvement Co. v. Stead, 95 U. S. 161, 24 L. Ed. 403. Under these decisions we cannot hold that Goodman was guilty of negligence as a matter of law.

[4] The other question assigned and argued relates to the refusal to charge the jury as requested, viz.: That the operatives of the train were not required, in approaching the crossing, to take into consideration obstructions not on the right of way of defendant. It would be too lax a rule to permit a railway company to ignore the dangers of a

of

125(43)—

Scheme, in furtherance of which mail was used, charged to be to defraud insurance order and not also policy holders.

Indictment for use of mail in furtherance

scheme to defraud held not duplicitous, as charging scheme to defraud, not only insurance order, but its members; it merely

showing, as incident to or part of scheme to defraud the order, that certain members were induced by false representations to surrender their policies. 3. Post office

49-Letters held shown by evidence, on prosecution for illegal use, to have been received through mails.

Though envelopes were not preserved, that letters were received through mail held sufficiently shown by evidence on prosecution for using mails in furtherance of scheme to defraud.

4. Criminal law 1169(11)—Admission of evidence, of prior scheme, if incompetent, held harmless.

Assuming evidence of prior similar scheme, devised and recently executed by defendants, to have been incompetent, its admission was

harmless, in view of its final exclusion and of

other proof.