tion an engine of the plaintiff in error, which had left its cars at the Y, was on the main line, and was running back towards the coal chute, and while running in this manner the engineer suddenly became aware of the approach of the dining car. He at once reversed his engine, but before he could start in the opposite direction the dining car struck the tender, which resulted in the injury to the defendant in error.

It is contended by the plaintiff in error that the court erred in using the following language in its instruction to the jury:

But under that testimony, if you believe that the yard master instructed him to move the engine in that way, the car being in front, although you might conclude that that was not the safest way to do it-it was clear that it was not the safest way-yet, if the yard master instructed him to use it that way, then no negligence can be imputed to him for using the engine in that manner; the yard master being superior in authority to the conductor.

There was evidence which tended to show that the defendant in error, in pushing the car in front of the engine, did so under the orders of the yard master. It was also in evidence that the movements of the car and engine were directly under his control and he had the right, if he chose to do so, to put the engine in front of the car, instead of pushing it. It does not appear that coercion was used by the yard master. Even if the yard master had directed the conductor to put the engine behind the car, and if such direction amounted to coercion, if at that time the defendant in error was aware of the risk which he assumed, he would be guilty of contributory negligence, and would assume any risk incident to carrying the car to and from the different points on the yard.

In the case of Reed v. Stockmeyer, 74 Fed. 194, 20 Č. C. A. 388, among other things, it is said:

"It is urged that Stockmeyer, in obeying the orders of Drehoble, acted under compulsion, and should not be, therefore, held to have assumed the risks of the work he was directed to perform. It is conceded that he made no objec tion to the order; that he did not protest any incapacity to comprehend the risk; but that he was coerced into compliance with the order through fear of discharge in case of disobedience. That, however, does not charge liability upon the master. In the absence of restrictive contract provisions, the master is at liberty to discharge the servant at any time. So, likewise, is the servant at liberty to abandon his service at will. The master has the right to demand other service than that for which the servant has engaged. The latter may accept or decline at will. Declining, he may lose employment. Accepting, he assumes the risks attending the service, if he knows or has been properly warned of them. The servant is not under guardianship. He is a free man, at liberty to make such contracts as he will. That through stress of circumstances he consents to the orders of the master, rather than be discharged from employment, does not impose liability upon the master because of such demand, if he has otherwise performed the duty which the law imposes upon him with respect to the servant. Leary v. R. Co., 139 Mass. 580, 2 N. E. 115, 52 Am. Rep. 733; Dougherty v. Steel Co., 88 Wis. 343, 350, 60 N. W. 274.”

While it appears from the evidence that it was the custom to push the car, it is conceded that it would have been much safer to have placed the engine in front, where the engineer could have had the benefit of the headlight; and the testimony shows that, if the engine had been in front, the headlight would have enabled him

to have discovered the approaching engine in time to have avoided the accident.

In this case there were two ways by which the defendant in error could have performed the services which were required of him. One of these was less hazardous than the other, but he chose to adopt the one which involved the greater risk, and in doing so he assumed all risks incident thereto. He was a man of mature years, and had been in the employment of the company for some time, and was thoroughly familiar with all the dangers with which he was surrounded while engaged in carrying the diner from the various points on the yard in the nighttime. He knew that after he passed the junction office the car was on a track which was frequently used by other engines and cars, and the manner in which he carried the diner over this particular portion of the track, with nothing but a lantern to indicate his approach, was attended with great hazard. Notwithstanding such knowledge on his part, he failed to report his arrival at the junction yard; and, after passing that point, instead of keeping his car under control, he signaled the engineer for a greater rate of speed, and although the engineer responded, and increased the rate at which they were going, he again signaled for more speed, and, as a result of such negligent conduct on his part, the car was moving so rapidly that it was a physical impossibility for the engineers to stop their engines in time to prevent the collision which occurred.

It has been repeatedly held that when one assumes employment at railroad yards, where there are many side tracks, and where trains and engines are constantly passing, he assumes the risk incident to the employment in which he is engaged. In the case of Randall v. B. & O. R. Co., 109 U. S. 482, 3 Sup. Ct. 325, 27 L. Ed. 1003, it is said:

"A railroad yard, where trains are made up, necessarily has a great number of tracks and switches close to one another; and any one who enters the service of a railroad corporation, connected with the moving of trains, assumes the risk of that condition of things."

In the case of Tuttle v. Milwaukee Railway, 122 U. S. 194, 195, 7 Sup. Ct. 1168, 30 L. Ed. 1114, it is also said:

"It is for those who enter into such employments to exercise all that care and caution which the perils of the business in each case demand. The perils in the present case, arising from the sharpness of the curve, were seen and known. They were not like the defects of unsafe machinery which the employer has neglected to repair, and which his employés have reason to suppose is in proper working condition. Everything was open and visible, and the deceased had only to use his senses and his faculties to avoid the dangers to which he was exposed."

Judge Cooley states the rule as follows:

"The rule is now well settled that, in general, when a servant, in the execution of his master's business, receives an injury which befalls him from one of the risks incident to the business, he cannot hold the master responsible, but must bear the consequences himself. The reason most generally assigned for this rule is that the servant, when he engages in the employment, does so in view of all the incidental hazards, and that he and his employer, when making their negotiations, fixing the terms and agreeing upon the compensa

tion that shall be paid to him, must have contemplated these as having an important bearing upon their stipulations. As the servant then knows that he will be exposed to the incidental risk, 'he must be supposed to have contracted that, as between himself and the master, he would run this risk.'"

In view of the law and evidence in this case, the instruction of the Circuit Court to the jury to the effect that, inasmuch as the yardmaster had directed the conductor to push the diner with the engine, no negligence could be imputed to him, was erroneous. The court should have told the jury that, even though the defendant in error was moving the diner under the directions of the yard master, if they found that at the time he had knowledge of the risks that were incident to his employment, and that he assumed the same, they should find in favor of the plaintiff in error, or, if they should find that there were two means by which he could have moved the car, and that he adopted the one which involved the greater risk, that the defendant in error would not be entitled to re

cover.

For the reason stated, the judgment of the Circuit Court is reversed, and the case is remanded for a trial de novo in accordance with the opinion of the court.

Reversed.

LAFFERTY MFG. CO. et al. v. ACME RY. SIGNAL & MFG. CO.

(Circuit Court of Appeals, Seventh Circuit. April 11, 1905.)

No. 1,127.

PATENTS-INVENTION-RAILWAY TORPEDOES.

The Bevington patent, No. 474,718, for a railway torpedo, is for a combination of elements all of which were old, and differs from prior structures only in the substitution of paper for tin or other metal as material for the dome-shaped cap, which does not constitute patentable invention, the only advantage shown being in the lessening of the cost.

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

The bill is to restrain infringement of letters patent No. 474,718, issued May 10, 1892, to J. H. Bevington, for improvement in torpedoes. The torpedoes meant are the detonating class used on metal rails as signals that there is danger ahead. The decree of the Circuit Court held the patent to be good and valid; appellee to be the sole and exclusive owner thereof; and that defendant had infringed claims one to five, inclusive; enjoining the defendants from further infringement, and ordering an accounting. The claims held to be infringed are as follows:

"1. A torpedo embodying in its construction, and in combination, substantially as hereinbefore described, a base or bottom part and a cover or top part of paper or other analogous material secured to each other to form a hollow shell, and a composition, explosible by concussion, contained in said case of shell."

"2. A torpedo embodying in its construction, and in combination, substantially as hereinbefore described, a base or bottom part of metal and a cover or top part of paper secured to each other to form a hollow case or shell, and a composition contained in said shell, which is explosible by concussion."

"3. A torpedo embodying in its construction and in combination, substantially as hereinbefore described, a metallic base or bottom and a waterproofed

paper cover or top part secured to each other to form a containing-case for the explosive composition.'

"4. A torpedo embodying in its construction, and in combination, substantially as hereinbefore described, a metallic base or bottom part, a water-proof cover or top part, and a lining or upper surface of water-proof paper, such as E, for the base part, all secured to each other to form a containing-case for the explosive composition.

"5. A torpedo embodying in its construction, and in combination, substantially as hereinbefore described, a metallic base or bottom part and a paper cover or top part secured to each other by an annular flange on the outer rim of said base part, which flange is turned over and onto the rim of the paper part to form a case or shell, and a composition explosible by concussion contained in said case or shell."

From this decree the appeal is prosecuted. Other patents cited are as follows:

No. 167,532, Sept. 7, 1875, F. Hickman.

No. 170,067, Nov. 16, 1875, H. J. Detwiller.
No. 257,761, May 9, 1882, J. H. Ridgway.
No. 279,992, June 26, 1883, A. R. Tiffany.
No. 375,254, Dec. 20, 1887, J. H. Bevington.
No. 441,830, Dec. 2, 1890, W. A. Dunlap.

No. 676,327, June 11, 1901, E. S. Lafferty.

British patent, No. 1,064, Mch. 21, 1873, to William E. Newlan.
The further facts are stated in the opinion.

Thomas F. Sheridan, for appellants.
De Witt C. Tanner, for appellee.

Before JENKINS, GROSSCUP, and BAKER, Circuit Judges.

GROSSCUP, Circuit Judge (after stating the facts). Bevington's device is a shell or case having a base part of metal, circular in form, over which is laid, almost, but not quite, to its circumferential edge or rim, paper or some analogous fabric, light, soft and flexible. Over this is placed a dome of paper, preferably water proofed, whose edges join the edge of the paper lying over the metal base, the whole being secured together, after the explosive is inserted, by means of an annular flange formed of the outer rim of the metal base turned over upon the outer edge or rim of the paper constituting the cover and the base layer. The torpedo thus formed is held to the rail by a metal strap, the ends of which reach around the edges of the rail.

Railroad torpedoes of this general description admittedly are old. Of the elements of Bevington's torpedo, the holding strap, the explosive compound, the metal base, and the paper lying over the metal base, are old. [Heckman and Detwiler patents]. The dome shaped cap is old. Clamping flanges are old [Detwiler]. The new thing done by Bevington in the matter of the cap, was to substitute paper for tin or other metal. So that, whatever merit Bevington's patent has, is to be found in his substitution of paper for tin or other metal, as material for the dome shaped cap.

A mere substitution of one material for another, does not constitute invention. Florsheim v. Schilling, 137 U. S. 64, 11 Sup. Ct. 20, 34 L. Ed. 574; Gardner v. Herz, 118 U. S. 180, 6 Sup. Ct. 1027, 30 L. Ed. 158; Celluloid Mfg. Co. v. Tower (C. C.) 26 Fed. 451. The mere fact that the cost of the article to the public is thereby

cheapened does not give to the substitution of one material for another the quality of patentable invention.

Two claims are made, however, to take the substitution of one material for another here shown out of the general rule. The first is, that danger in the manufacture and use of the torpedo is thereby lessened; and the second, that the use of the paper cap, by putting paper against paper in the crimping process that makes the joint, results in the making of a better joint.

The first of these claims is the one insisted upon most strongly by counsel for appellee. But to our minds, it is a claim not proven. We are unable to see, in the absence of proof of actual injury, that the one form of torpedo is more dangerous than the other. In the use of each, danger seems to be at a minimum. And the proof of actual injury offered is wholly inconclusive and unsatisfactory.

The second claim is the one that seems to have determined the judgment of the Circuit Court. It does not appear to have been, consciously, in the mind of the inventor, for no advantage in that respect is pointed out in the letters patent. The truth is, that as an element of better joinery, the feature of paper against paper does not, to any considerable extent, seem to have been carried out in the Bevington patent. In that patent, in the crimping for a joint, the paper is not turned up. The contact of paper against paper is only over a little horizontal portion not affected by the crimping. It was not until appellants' torpedo came into the market that the paper itself was turned up in the crimping process, so as to bring paper against paper throughout the joint made. We do not feel at liberty, under the case here disclosed, to hold, that a joint that thus finally and adequately utilizes the advantage of crimping paper on paper, is anticipated by a previous joint in which the contact was but partial and inadequate, and, so far as we can see, without any conscious design.

The decree of the Circuit Court will be Reversed, and the cause remanded with instructions to the Circuit Court to dismiss the bill for want of equity.