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portance of using care to avoid it. It is the duty of the servant to exercise care proportionate to the danger of his situation as he understands it; and if he fails to do so, the fault is his, and not his master's. But where the work of a servant ex poses him to danger of which he is ignorant, and which, from youth or inexperience, he is manifestly incapable of com prehending without assistance, it is the duty of his master, if he knows or ought to know of it, to give him such warning and instruction as are necessary for his safety. In determining the master's duty in such a case, the inquiry is, What instruction does the servant appear to need? Is there reason to believe him ignorant of anything which, for his protection, he ought to know, or incapable of appreciating the risks from what he bees around him? In the absence of anything to show the contrary, the master has a right to assume that he knows those facts of common experience with which ordinary persons of his age and appearance are familiar. In hiring a boy twelve years of age, and apparently of average intelligence, an employer is not called upon to tell him that if he holds his hand in fire it will be burned, or strikes it with a sharp instrument it will be cut, or thrusts it between the teeth of revolving cogwheels in the gearing of a mill it will be crushed. From infancy and through childhood, as well as in later life, we are all making observations and experiments with material substances, and every person of ordinary faculties acquires knowledge at an early age of those familiar facts which force themselves on our attention through our senses.
There is nothing in this case to warrant a jury in finding the defendant negligent in omitting to tell the plaintiff that there were cog-wheels on the gig, or that the machinery would injure him if he allowed his hand or arm to get into the gearing, or in failing to repeat a warning which had once been given, or to inform him of risks which he understood himself: Williams v. Churchill, 137 Mass. 243; 50 Am. Rep. 304; Russell v. Tillotson, 140 Mass. 201; Crowley v. Pacific Mills, 148 Mass. 228; Buckley v. Gutta Percha and Rubber Mfg. Co., 113 N. Y. 540. But the case presents itself in an aspect somewhat different from that which it wore at the former bearing. Besides some difference in the details of the testimony at the last trial, evidence was introduced from numerous witnesses, which, though contradicted, would warrant a jury in finding that the plaintiff was a boy of less than the average intelligence of boys of his age, and that the defendant knew it, or
from his appearance ought to have known it, before the acci. dent. There was additional evidence that the place where he was injured was dimly lighted. The undisputed testimony at the former trial tended to show that he possessed at least the intelligence usual in boys of his age, and that fact was referred to in the opinion as one of the grounds of the decision.
It now appears that while he had worked for a considerable time in the room where the gearing was plainly visible, so that he was undoubtedly familiar with it in a general way, he had never worked so near it as to have occasion specially to consider the risk of getting his clothing caught in it, or the danger of being drawn into it and seriously injured, if some loose part of one of his garments should come in contact with it. There was evidence that a sleeve of his jacket was caught, and that his arm was thus drawn between the wheels. It seems to have been his duty to obey the overseer, who, as he testifies, told him to pick up the punch. The work took bim to a place where he never had occasion to work before; the order was imperative, calling for haste. He had had no instruction, and it is not clear that he had had any observation or experience which showed the danger that, in getting down and looking under the machine, and getting up again, some part of his clothing might come in contact with the gearing, and be caught, and draw his hand or arm between the wheels.
On the whole, we are of opinion that there was some evidence to submit to the jury on the question whether the plaintiff was not obviously in need of information as to this risk. On similar grounds the plaintiff was allowed to go to the jury and receive a verdict in Coombs v. New Bedford Cordage Co., 102 Mass. 572; 3 Am. Rep. 506. See also Wheeler v. Wason Mfg. Co., 135 Mass. 294; Glover y. Dwight Mfg. Co., 148 Mass. 22; 12 Am. St. Rep. 512; Swoboda v. Ward, 40 Mich. 420; Huizega v. Cutler and Savidge Lumber Co., 51 Mich. 272; Dowling v. Allen, 74 Mo. 13; 41 Am. Rep. 298.
There was evidence for the jury upon the question whether the plaintiff was in the exercise of due care.
Judgment on the verdict.
MASTER AND SERVANT - DUTY OF MASTER TO WARN SERVANT. - The master must inform his servant of any extra hazard or danger to which bo may be subjected: Missouri P. Riy etc. Co. v. While, 76 Tex. 102; 18 Am. St. Rep. 33, and note. For a servant assumes only such risks as are ordinarily incident to the employment, and such dangers or defects in machinery as are plainly obvious, and no others, concerning which he has not been fully ad. vised: Rummel v. Dilworth, 131 Pa. St. 509; 17 Am. St. Rep. 827, and noto; Galreston etc, Ry Co. v. Garrett, 73 Tex. 262; 15 Am. St. Rep. 781, and note; Louisville etc. R. R. Co. v. Hall, 87 Ala. 708; 13 Am. St. Rep. 84.
MASTER AND SERVANT - MINOR SERVANTS. As to the master's duty to waru and instruct young and inexperienced servants, see Rummel v. Dilworthy 131 Pa. St. 509; 17 Am. St. Rep. 827, and note.
CHADWICK V. Covell.
(151 MASSACHUSETTS, 190 ) PATENT MEDICINES. – THERE CAN BE No Exclusive Right to the use of
formulas for the manufacture of medicines, though there may be a right to prevent any one from obtaining or using them through breach of trust or of contract. Any one who honestly gets a knowledge of such formu. las has the right to make and sell medicines therefrom, and to publish
to the public that they are made according to such formulas. TRADE-MARKS, Right To RESTRAIN USE OF. - WHERE A PATENT Medi.
Cine is manufactured and sold by a physician, who dies, and another person becomes possessed of his formulas and acquires the right to his trade-mark, he cannot maintain a suit to restrain another person from making and selling medicines from the same formulas, nor from using the trade-mark, because the only use of a trade-mark, after the death of the original proprietor, is to indicate that the medicines sold are of the same class as those which he manufactured, and therefore one person has no right to enjoin another froin using them, where his use is not a fraud upon the public, nor an invasion of the exclusive right of any other person. E. L. Barney, for the plaintiff. E. Avery and T. F. Desmond, for the defendant.
HOLMES, J. This is a suit brought for an injunction and damages in respect to the defendant's manufacture and sale of certain medicines under the name of “Dr. Spencer's Queen of Pain,” and “Spinal Paste, or Salt Rheum Cure," and his use of alleged trade-marks for the saine. Issues were framed for the jury on the question whether the plaintiff was the owner of the formulas for the medicines and of the trade-marks used by Dr. Spencer, and these issues came on for trial. As the whole case was pending in the superior court, it is hardly to be supposed that it was understood that every question except those raised by the issues in their narrowest sense was left for trial at another time. It seems plain, at the least, that the rulings of the judge were made on the footing that the question before him was, whether the plaintiff had such an exclusive ownership as she alleged in her bill, and as entitled
her to an injunction, and that the judge was right in that understanding. If the issues were construed more narrowiy than that, the trial by jury was a waste of time.
The plaintiff's case, on her evidence, is as follows: Dr. Spencer of New Bedford made these medicines according to certain secret formulas of his own, and sold them under the names mentioned. The plaintiff became intimate with him, and after his death Mrs. Spencer, his administratrix, said to the plaintiff that it was the doctor's wish and her wish that the plaintiff should have the formulas of the Queen of Pain and the Spinal Paste, and the trade-marks, and the circulars and labels, and everything that went with the Queen of Pain and the Spinal Paste, and that was her reward for her kindness. These formulas were written on paper. Mrs. Spencer handed them to the plaintiff, and she took them. At that time the plaintiff took some of the Queen of Pain that was manufactured and on hand. There was not any Spinal Paste made then. She took none of the labels at that time. Three days later, Mrs. Spencer died, and a teamster carried the rest of the medicine to the plaintiff's house. After that, the plaintiff began to manufacture and sell the medicines. The sisters and next of kin of Dr. Spencer and his administrator de bonis non subsequently signed papers purporting to ratify Mrs. Spencer's dealings with the plaintiff; the administrator using words implying that the plaintiff had a right, but not necessarily an exclusive right. The administrator also sold the plaintiff two dies used by Spencer for stamping packages of the Spinal Paste. After these transactions the administrator de bonis non conveyed by deed to the defendant, for two hundred dollars, Spencer's recipes and trade-marks for these medicines, excepting rights, not specified, theretofore granted by Spencer, Mrs. Spencer, or himself, and it seems had sold him molds for bottles for the Queen of Pain at a much earlier time. The defendant made and sold the medicines with labels like those used by Dr. Spencer. The judge ruled that the evidence would not support a decree for the plaintiff, directed the jury to answer the questions in the negative, ordered the bill to be dismissed, and reported the case.
So far as the right to manufacture and sell the medicines goes, the plaintiff's case may be disposed of in a few words. Dr. Spencer had no exclusive right to the use of his formulas. His only right was to prevent any one from obtaining or using
them through a breach of trust or contract. Any one who came honestly to the knowledge of them could use them, without Dr. Spencer's permission and against his will: Peabody v. Norfolk, 98 Mass. 452, 458; 96 Am. Dec. 664; Morison v. Moat, 9 Hare, 241, 263; Williams v. Williams, 3 Mer. 157. The defendant got his knowledge honestly, and therefore bas a right to make and sell the medicines.
Having the right to make and sell the medicines, the de fendant has the right to signify to the public that the medicines are made according to the formulas used by Dr. Spencer. The only question is, whether the plaintiff has the right to restrain him from using Dr. Spencer's trade-marks. The de fendant argues that executor or administrator has no right to give away the estate coming to his hands, and therefore that the plaintiff got no title to any property of Dr. Spencer by Mrs. Spencer's dealings with her, since those dealings were, at most, a mere gift. But there has been no attempt to avoid the transaction on behalf of any one interested. The creditors of the estate have all been paid, and the next of kin assented to the gift. So far as this objection goes, we shall assume that even if the gift was a breach of duty on the part of Mrs. Spencer, it gave the plaintiff a title, as against third persons, to anything which it was otherwise competent to give her: Myers v. Meinrath, 101 Mass. 366; 3 Am. Rep. 368.
We assume for the purposes of our decision, but without expressing an opinion on either question, that what took place between Mrs. Spencer and the plaintiff purported to be a present gift of trade-marks, and that if the gift of a trade-mark in gross would have been good if by deed it would be equally good at common-law when made by parol. The old rule was, "Everything which is not given by delivery of hands must be passed by deed”: Noye's Maxims, 62, c. 33; Fairfax, J., in Year Book, 21 Hen. VII. 36, pl. 45; Shep. Touch. 229. But the formalities required by the early common law have been broken in upon a good deal, although more in England than in this state. It may be that later forms of property not ad. mitting of delivery, but unknown to the old law or not thep the subject of transfer, are free from the restraints of the ancient rule; just as, at Rome, later forms of property could be conveyed without the comparatively archaic ceremonies of mancipation. It may be that even an oral gift of incorpo real personal property would be sustained, although delivery is impossible from the nature of the case. But that question