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J. M. Boyd. HAY ELEVATOR AND CARRIER. PATENTED JUNE 17, 1884

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be found in some of the smaller, and per of the carrier, to force the catch down (if it haps less important, devices described and fails to fall by gravity) as it leaves the stop, claimed. Burns v. Meyer, 100 U. S. 671. and to permit the carrier to run past it

We find it useful to adopt the following when desired. The catch (or key), g, sliddescription of the Boyd invention, given in ing vertically in the carrier, baving lugs appellant's brief:

adapted to catch the inclines of the stop, "This carrier involves novel features, and be lifted thereby, and (being held up by which may be stated in a general way as the grapple) to engage the stop and prevent follows:

travel of the carrier on the track, and when "The stop, h (adapted to be secured to the released to 'drop' in front of and lock the coder side of a single track), having the con grapple. tinuous lugs, h3, inclined upwardly from “The combination of the vertically sliding each end of the stop to the center, and catch, g, with the stop aforesaid, and with therewith the downwardly inclined lugs or the tilting grapple, by which the catch or bearings, b4; the stop being adapted to lift key is lifted by the stop into locking enthe catch coming to it from either direction, gagement with said stop, and is locked to engage the catch and prevent the travel thereto by the grapple, and, being released,

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falls or is forced down by the stop into lock specific devices, or, rather, we do not find ing engagement with the grapple.”

them in the shape and with the functions We learn from this description that what claimed by Boyd. the counsel of the appellant regards as the The comparison made by the defendants' special features of the Boyd invention are expert, Powers, between the mechanism of the stop, h, the catch, g, and their combina the two inventions, in the particulars we are tion in the manner pointed out. And when now considering, was as follows: we turn to the evidence of the appellant's "I do not find the Boyd invention, as sumexpert, Cunningham, we find that in ana med up in the second claim of his patent, in lyzing the Boyd machine he dwells chiefly defendants' carrier, for these reasons: First. on the functions of the stop and of the catch, The stop enumerated in the second claim or as constituting its meritorious features, and Boyd has a peculiar construction, having that the effect and purpose of his testimony, lugs, h4, upon its upper outer ends, and lowas likewise that of Boyd himself, are to er inclined lugs, h3. Defendants' stop has show that there are a similar stop and catch no occasion for Boyd's lugs, h4, nor has it in the defendants' carrier.

any such lugs; neither are they necessary So, too, in the letters patent, we find for the operation of the catch block. De Boyd's second claim set forth as follows: fendants' catch block has only sufficient

"In a bay elevator and carrier, the combi space between its lugs and its opposite lownation, substantially as described and shown, er portion to allow it to play freely up and of the stop, h, constructed with the upper down the incline of its stop, and would, lugs, h4, and the lower inclined lugs, h3, therefore, work just the same upon its stop and the catch block, g, provided with the without the upper ledge as it would with it lugs, g3, and placed and sliding in a suita It will even be noticed that the portion of ble recess in the body of the carrier, sub the stop below the lugs is rounded, and stantially as and for the purposes set forth.” | adapted to coact with the lugs upon a single

When we examine the machine as made inclined or lower ledge, and independent of and sold by the defendants under the terms an upper ledge. This fact is fully demonof the Strickler patent, we do not find these strated by operating defendants' catch block

F. B. STRICKLER. HAI ELEVATOR AND CARRIER. PATENTED JUNE 19, 1883.

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upon the cam plate, upon which there is no

(158 U. S. 271) upper ledge. Thus the stop of Strickler is,

NORTHERN PAC. R. CO. v. URLIN. and may be, a differently constructed device from that of Boyd, and such a con

(May 20, 1895.)

No. 272. struction as leaves entirely out a leading essential element enumerated in the second

EXAMINATION OF WITNESS--DepositioYS-WAIVER claim of the Boyd patent.

OF OBJECTIONS-DECLARATIONS OF INJCRED PER

SON-INSTRUCTIONS-VERDICT-REVIEW. “A reference to Fig. 2 of the Strickler pat 1. The discretion of the trial court in per ent clearly shows that his catch block was mitting leading questions will not be reviewed, adapted to be governed by the lower ledge

unless clearly abused.

2. A question asked of a medical witness, as entirely, not to encounter the upper ledge of

to whether the examinations made by him were the stop at all; and this more fully con made in a careful or a superficial manner, is not firms me in the opinion that the Strickler objectionable as substituting the opinion of the stop is an entirely different device in prin

witness for the judgment of the jury on that

poiut. ciple and operation from that of Boyd with

3. A deposition will not be suppressed on the its upper lugs, h4.

ground that the witness was not cautioned and "I further find the Boyd catch block to be

sworn as required by statute, where the objectsubstantially different in the fact of the

ing party was represented by counsel, and took

part in the examination, as such irregularities largely increased space between its lugs and were thereby waived. base, rendered necessary in order to enable 4. Though a motion was made before the triit to engage lugs h4, which are considerably

al to suppress a deposition because of irregulari

ties in its taking, the objection will be waived it higher up from lugs h3, in order to enable

no objection is made or exception taken when it said catch-block to remain at its extreme is offered at the trial. height until it encounters stops h3 at either

5. On an issue as to whether plaintiff's in

juries were temporary or permanent, physicians end of the device, it being the operation of

may testify as to plaintiff's utterances and es. the Boyd machine not to stop the carrier clamations when undergoing physical examinacentrally to the stop h, but at either end of tion by them during the two years which had

elapsed between the happening of the accident it at stop h4. It is obvious that Boyd's

and the trial, and the fact that plaintiff is a comcatch-block could not be made operative up petent witness does not alter the rule. on a single ledge as can that of Strickler's; 6. In an action for personal injuries, where but, on the other hand, it is adapted to such

plaintiff alleged. by way of special damage, that

prior to the accident the business he was engaged a stop specifically as Boyd shows in all of

in yielded him a certain suin, but at the trial his figures in which it is shown, four in made no attempt to show the extent or value of number, to wit, in figures 2, 3, 5, and 6 of such business, the refusal to allow defendant to his drawings; and no modification of the

cross-examine on that subject was not error.

7. The refusal of an instruction correct in itstop is shown or described further than as self is not error where it appears from other seen in these four figures in his patent. The parts of the charge that the jury were fully insame is true of Boyd's catch-block; it being

structed on the subject, and in line with the re

quest refused. shown in all cases with a large space up 8. The objectior that the verdict was not and down to enable it to work practically signed by the foreman, as required by Code Civ. up just such a stop as be shows."

Proc. Mont. $ 270, is waired where, at the time

the verdict was rendered, the jury was polled, at •We regard and adopt this comparison as

defendant's request, and each of the jurors adcorrect; nor do we find anything in the evi swered that the verdict was theirs, whereupon dence or the argument of the appellant to plaintiff moved for judgment, which was ordered the contrary.

accordingly, and no objection or request that the

verdict should be signed was made at the time by Doubtless, if the Boyd patent contained an defendant. invention entirely new, and first adapted to 9. Errors not assigned in the record will not the end sought, such differences miglit be

be considered. regarded as formal and evasive. But, com In Error to the Circuit Court of the United ing as he did, in the train of the numerous States for the District of Montana. inventors that had preceded him, whose inven * This was an action brought by Alfred J. tions had been patented and put into prac Urlin, in the circuit court of the United States tical use, we must conclude that Boyd, if en for the district of Montana, against the titled to anything, is only entitled to the Northern Pacific Railroad Company, to reprecise devices described and claimed in his cover for personal injuries received by him patent. Of course, it follows that if the de when traveling as a passenger in one of its fendants' specific devices are different from trains. those of Boyd, no combination of such de The car in which the plaintiff was riding vices could be deemed an infringement of became derailed, and was thrown down a any combination claimed by Boyd.

bank, and overturned. The complaint charThese views of the case bring us to the ged that the accident was due to "the de conclusion reached by the court below, and fective, decayed, and rotten condition of the its decree dismissing the bill is accordingly cross-ties" in the road, and that the plaintiff affirmed.

received "severe and dangerous wounds and

internal injuries.” Mr. Justice GRAY did not hear the argu The case proceeded to trial before the ment, and took no part in the decision of the court and a jury, and resulted in a verdict case.

for the plaintiff in the sum of $7,500, and

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Shutte v. Thompson, 15 Wall. 159. More. over, although a motion was made to suppress the deposition before the trial, yet when it was offered at the trial no objection was made or exception taken, and thus the objection was waived. Ray v. Smith, 17 Wall. 117.

The third assignment is strenuously pressed on our attention in the brief of the plaintiff in error. It arises out of the refusal of the court below to suppress certain portions of the depositions of Drs. Mills and De Witt because of incompetency, and as mere. ly hearsay.

This objection is founded upon the witnesses having been permitted to testify to statements made by the defendant, at various times, to the physicians in respect to. his feelings, aches, and pains, and it is contended that such statements were made too long after the occurrence of the injury to be part of the res gestae, but were mereły narrations of past incidents; and it is further urged that, whatever reason there may have formerly been, when a party could not himself testify to his sensations, for liberality in admitting such statements, now that he is a competent witness, such reason no longer operates.

An inspection of the depositions shows that the statements objected to were mainly utterances and exclamations of the defendant when undergoing physical examinations by the medical witnesses. As one of the principal questions in the case whether the injuries of the defendant were of a permanent or of a temporary character, it was certainly competent to prove that, during the two years which had elapsed between the happening of the accident and the trial, there were several medical examinations into the condition of the plaintiff. Every one knows that when injuries are internal, and not obvious to visual inspection, the surgeon has to largely depend on the responses and exclamations of the patient when subjected to examination.

“Whenever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings, made at the time in question, are also original evidence. If they were the natural languages of the affection, whether of body or mind, they furnish satisfactory evidence, and often the only proof of its existence, and whether they were real or feigned is for the jury to determine. So, also, the representations by a sick person of the nature, symptoms, and effects of the malady under which he is suffering at the time are original evidence. If made to a medical attendant, they are of greater weight as evidenece, but, if made to any other person, they are not, on that account, rejected.” 1 Greenl. Ev. (14th Ed.) $ 102.

In Fleming v. City of Springfield, 154 Mass. 520, 28 N. E. 910, where such a question arose, it was said:

“The testimony of Dr. Rice was properly

Mr. Justice SHIRAS delivered the opinion of the court.

*The first assignment arers error in permitting the medical witnesses who testified in behalf of the plaintiff to be asked whether the examinations made by them “were made in a superficial, or in a careful and thorough, manner."

It is urged that this question was objectionable, both as leading, and as taking from the jury the determination of the inquiry whether the medical examination was thorough, or otherwise,

It cannot be safely said that in no case can a court of errors take notice of an exception to the conduct of the trial court in permitting leading questions. But such conduct must appear to be a plain case of abuse of discretion.

“We are not aware of any case in which 1 new trial has ever been granted for the reason that leading questions, though objected to, have been allowed to be put to a witness." Green v. Gould, 3 Allen, 466.

“The allowance of a leading question is within the discretion of the court, and is not ground for reversal.” Insurance Co. v. Groff, 87 Pa. St. 124.

“Circuit courts must be allowed the exercise of a large discretion on the subject of leading questions.” Parmelee v. Austin, 20 Ill. 35.

The second ground-that this question called for the opinion of the witnesses as to the manner in which the physical examinations were made, and thus supplanted the judgment of the jury in that particular-does not seem to us to be well founded. The obrious purpose of the question was to disclose whether the judgment of the physicians as to the plaintiff's condition was based on a Siinerficial, or on a thorough, examination: and we think it was competent for the witnesses, who were experts, to characterize the manner of the examination.

The refusal of the court to suppress the deposition of Dr. W. P. Mills because it did not disclose that the witness was cautioned and sworn before testifying, as required by the statute, is assigned for error. But it appears that the defendant company was represented by counsel, and took part in the examination, and this must be regarded as a waiver of any irregularity in the taking of the deposition. Bank v. Seton, 1 Pet. 307;

was

admitted. The statement made by the plain- | occurred, or any number of them, were de tiff purported to be a description of his cayed and rotten. If you find that they were, symptoms at the time it was made, and not then, second, you are called upon to detera narrative of something that was past, and mine whether or not the derailing of said cars it may be fairly inferred that it was made constituting a portion of the train occurred on for the purpose of medical advice and treat account of these rotten ties. ment. At any rate, although it was only a If you should find that sa id derailment ocday or two before, or possibly during the curred on account of said rotten and decayed trial, it does not appear that such was not ties, third, then you are called upon to dethe case.

termine whether or not defendant carelessly “The declarations of a party himself, to or negligently allowed or permitted said whomsoever made, are competent evidence, cross-ties to remain in, and constitute a porwhen confined strictly to such complaints, tion of, its track at said point. expressions, and exclamations as furnish ev “You will observe that you are to determine idence of a present, existing pain or malady, whether or not defendant carelessly or neglito prove his condition, ills, pains, and symp gently allowed said cross-ties to remain in, toms, whether arising from sickness, or from and constitute a portion of, its track at said an injury by accident or violence. If made point;. for, if it did not carelessly or neglito a medical attendant, they are of more gently permit this, it is not liable, although weight than if made to another person." the accident should have occurred on account

In the eighth assignment, complaint is of this." made because the counsel of defendant was Moreover, the court, at the request of the not permitted to cross-examine the plaintiff defendant, gave the following instruction: with reference to the details of the grocery "The court instructs the jury that if you business in which he had been engaged pri- should find from the evidence tha the accior to the occurrence of the accident.

dent by which plaintiff suffered tue injuries It is true that the plaintiff had alleged, by complained of by him resulted from the negli. way of special damage, that at the time he gence of the defendant, and from the dereceived the injury he was engaged in the cayed, defective, and rotten condition of the grocery business, and that his said business cross-ties in defendant's railroad at or near was yielding him a sum of $100 per month; the point where the train was derailed, then and, if tbe plaintiff had adduced any evi you will find for the plaintiff; and you will dence to support such allegation of special assess bis damages at such reasonable sum damage, it certainly would have been com as will compensate him for the injuries and petent for the defense to have cross-exam sufferings thus sustained, and no more." ined him as to the particulars of such busi Having so fully and repeatedly instructed

But the record discloses that at the the jury on this subject, and in the manner trial the plaintiff refrained from going into requested by the defendant, the court may evidence on the subject of the alleged spe well have refused the instruction prayed for, cial damage. All that was said was that as calculated to confuse the jury. prior to the accident the plaintiff was en The contention that the judgment below gaged in the lumber and grocery business, was invalid because the verdict of the jury but no attempt was made to show the ex was not signed by the foreman, as required tent or value of such business. There was by a section of the Code of Montana,i is, in therefore no error in not permittiag the de our opinion, without merit. The record disfendant to cross-examine on that subject. closes that when the verdict was rendered, at

The twelfth assignment alleges error in the the request of the defendant, the jury was then refusal of the court to give the following in and there polled by the clerk, and each of said struction:

jurors answered that the verdict, as read, was "The court instructs the jury that, even if theirs. Whereupon the plaintiff moved for you should believe from the evidence that judgment in acccordance with said verdict. there were rotten ties in the road or track at The motion was granted, and judgment was other points than at the particular point ordered accordingly. No objection, or request where the train left the track, this is uit that the verdict should be signed, was then sufficient to find that the defendant was legti. made by the defendant; and we think that gent in this case."

the court below was justified in treating the To have given this instruction would nou irregularity, if such it were, as baving been have been erroneous, but we cannot say that waived. its refusal was reversible error. It is obvious At all events, the record contains no assignfrom other parts of the charge and instruc ment of error in this particular, and we are tions given that the court fully instructed the not called upon to consider the subject. jury on the subject, and in the line of the de Our examination of the other specifications fendant's request. Thus the following in of error fails to disclose anything calling for structions were given:

formal consideration. “In considering this issue you are called up The judgment of the court below is accord. on to determine from the evidence, first, as ingly affirmed. to whether or not the cross-ties of the defendant's track at the point where the derailment 1 Code, Civ. Proc. $ 270.

ness.

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