was dangerous and securing from the defendant a promise of reparation. He claims that, while waiting a reasonable time for the fulfillment of that promise, he was relieved from the assumption of the risk of remaining in the obviously dangerous service. This will be conceded. Crookston Lumber Co. v. Boutin, 149 Fed. 680, 79 C. C. A. 368, and cases cited. But do the facts support the plaintiff's hypothesis? We think not. It is earnestly contended by defendant that the service in which plaintiff was engaged was simple manual labor like that involved in Gowen v. Harley, 56 Fed. 973, 6 C. C. A. 190, and that the doctrine of relief from assumption of ordinary risks of service. by a complaint of danger and promise of reparation has, on the authority of that case, no application. The difference in the pleadings and conceded facts of the two cases renders the doctrine of that case of uncertain application to this, and, by reason of the view we take of another question, we find it unnecessary to attempt to distinguish or assimilate the two cases.

Defendant throughout the trial contended that Bruce, to whom plaintiff made the complaint and from whom it is claimed promise of reparation was received, was a fellow servant of plaintiff, and that, on familiar principles, his negligence, if any, in failing to secure better facilities for plaintiff to work with was imputable to plaintiff, and created no liability against the defendant. The evidence conclusively shows that Bruce was ground foreman in charge of men performing mining operations for defendant, and that there was a general superintendent who represented the master and who had general supervision over all work above and below the surface of the ground to whom the ground foreman reported and from whom he took directions. The duties and representative capacity of a ground foreman in mining operations conducted under the supervision of a general superintendent or manager have been frequently considered by the courts, and in a general sense the rule is firmly fixed that he is a fellow servant with the gang of miners whose operations he is directing. Alaska Mining Co. v. Whelan, 168 U. S. 86, 88, 18 Sup. Ct. 40, 42 L. Ed. 390, and cases cited. Weeks v. Scharer, 111 Fed. 330, 334, 49 C. C. A. 372; Id., 129 Fed. 333, 64 C. C. A. 11; Davis v. Trade Dollar Consol. Min. Co., 117 Fed. 122, 54 C. C. A. 636.

But it is contended that Bruce, the ground foreman, had exceptional powers, and so stood for the master in his relation to the miners, that complaint made to him of inadequate and dangerous working appliances was a complaint to the master, and his promise of reparation the promise of the master. In other words, that he was in this particular a vice principal. The answer to this contention requires consideration of the proof. The evidence conclusively shows that the duties of Bruce as ground foreman were to direct the miners where to set up the drill, direct the shovelers where to shovel, direct the location of the underground tracks, and look after everything underground, and that it was a common practice for him at times to help the workmen who were laboring under him in the actual drilling of holes, laying of tracks, and other such work. He was subject to the general orders of the superintendent. He hired men to work in his department and discharged them but the superintendent always paid

them their wages. It was the foreman's duty to report to the superintendent when any new or different appliances or tools were needed, and it was the duty of the superintendent to supply them. He made no report of Wright's complaint to the superintendent, and, of course, the latter took no action thereon.

From the foregoing undisputed facts or from the evidence taken as a whole, all of which has been critically examined, it cannot be claimed that the ground foreman had any right or power to supply any desired working appliance. Neither can it be claimed that Wright, the plaintiff, had any reason to believe he had such right or power. The most that can be claimed is that it was the ground foreman's duty, if Wright or any other workman under him complained about appliances, to report such complaint to the superintendent for his action, and depend upon his judgment whether any appliances should be supplied, and, if so, when and under what conditions. As the foreman had no right or ability to supply the block and tackle in question, his promise to do so, if made, afforded no protection to Wright. His failure to repeat Wright's complaint to the superintendent was the real negligence, if any in the case, and that was a failure to perform one of the duties which devolved upon him as a servant and the risk of which was assumed by all the other servants.

The case is controlled by the principles announced in the Whelan and Scharer Cases, supra. Wright assumed the obvious danger and risk incident to carrying the drill machine up the stope as it had been done before, and he is not relieved of the consequences of that assumption by any promise imputable to the master. The Circuit Court. erred in not giving the instruction requested by defendant's counsel that plaintiff could not recover.

The judgment must be reversed and the cause remanded for a new trial.

(156 Fed. 574.)

ST. LOUIS STREET FLUSHING MACH. CO. et al. v. AMERICAN STREET FLUSHING MACH. CO.

(Circuit Court of Appeals, Eighth Circuit. October 22, 1907.)

No. 2,507.

1. PATENTS-INVENTION-NEW COMBINATION OF OLD ELEMENTS.

To accomplish a new and useful result within the meaning of the patent law (Rev. St. § 4886 [U. S. Comp. St. 1901, p. 3382]), it is not necessary that a result before unknown should be brought about, but it is sufficient if an old result is accomplished in a new and more effective way; and, if the value and effectiveness of a machine are substantially increased by a new combination of old elements, such combination is patentable. [Ed. Note. For cases in point, see Cent. Dig. vol. 38, Patents, §§ 2729.]

That a defendant charged with infringement of a patent for a machine abandoned the machine it was previously making, and adopted that of the patent, that its engineer claimed to be the inventor thereof, and himself applied for a patent, and that the patented machine has largely superseded others previously in use for the same purposes, are all facts entitled to weight on the question of invention.

[Ed. Note. For cases in point, see Cent. Dig. vol. 38, Patents, § 40.]

3. SAME SCOPE-LIMITATION BY PROCEEDINGS IN PATENT OFFICE.

Where an applicant for a patent repeatedly acquiesced in the rejection of broad claims and substituted therefor narrower ones until his application was granted, the owner of the patent cannot be heard to insist that the narrower claims allowed shall cover the same as the broader ones rejected.

[Ed. Note. For cases in point, see Cent. Dig. vol. 38, Patents, § 244.] 4. SAME-INFRINGEMENT-STREET FLUSHING CART.

The Ottofy patent, No. 795,059, for a street flushing cart, covers a device for scouring and flushing streets by forcing water under pressure from a tank located on a moving cart, connected by a pipe extending downward to near the surface of the street, forward of the rear wheels, to nozzles having narrow elongated delivery apertures, and so adjusted that the water is forced out of the apertures in a flat sheet nearly parallel with the surface of the street in a forward and lateral direction, so as to loosen up the dirt and force it away to the sides of the street, and into the gutters, without injury to the surface of the street. The combination of parts by which such result is effected was not anticipated, and discloses invention, but the patent is limited by the prior art to the combination and means shown for producing such flat stream nearly parallel to the street. As so construed held infringed.

Appeal from the Circuit Court of the United States for the Eastern District of Missouri.

James A. Carr (John D. Johnson and Charles Claflin Allen, on the brief), for appellants.

Mr. Clifton V. Edwards, for appellee.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

ADAMS, Circuit Judge. This was a suit to enjoin infringement of United States letters patent No. 795,059, granted July 18, 1905, to complainant, the American Street Flushing Machine Company, as assignee of L. F. Ottofy, the inventor. The decree below was for complainant, and defendants appeal.

The object of the invention, as stated in the specification, "is to devise a street flushing cart in which the discharge of the water is easily and accurately controlled by the driver, in which the delivery of the water shall be such as to secure the maximum washing effect without excessive use of water and without damage to the streets," etc. The narrowest claim of the patent and the one which best discloses the principle and means for producing the new result of the invention is the third, and is as follows:

"(3) In a traveling street washing machine, the combination with a tank adapted to contain water under pressure and mounted upon forward and rear supports, of a nozzle or nozzles located sufficiently near the plane of the points upon which the machine is supported to be substantially concealed from view, and having narrow elongated delivery apertures which open laterally toward the front of the machine and are substantially parallel to said plane, said nozzles being constructed and positioned to deliver water under pressure at the side or sides of the machine nearly parallel to said plane, forward and laterally of the rear support and avoiding the front support.”

The other broader claims of the patent, in the view we take of the case, need not be specially referred to.

The specification describes the invention as growing out of the necessity of localizing—

*

"the distribution of water so as to have it strike with considerable velocity at an angle depending upon the nature of the surface so as to have first a scouring and then a flushing effect to carry off before it the loosened material. * The nozzles are located close to the ground within a few inches and are directed outwardly and forwardly. They are also between the forward and rear wheels and substantially underneath and concealed by the tank. In operation, therefore, the water is delivered free of the wheels under easy observation by the driver and at the same time the stream is not readily noticeable by pedestrians or passing vehicles. At the same time the water is delivered in a flat sheet nearly parallel with the street and washes the dirt forward and outward without injuring the pavement."

Taking the claims and the specification together, we find the invention is for a device for scouring and flushing streets consisting of and resulting in forcing water under pressure from a tank located on a moving cart connected by pipe to a nozzle or nozzles having narrow elongated delivery apertures, extending downward from the tank and to a position near to the surface of the street forward of the rear wheels, and so adjusted that the water is forced out of the apertures in a flat sheet nearly parallel with the surface of the street in a forward and lateral direction, so as to loosen up the dirt and simultaneously force it away to the sides of the street and into the gutters, without injury to the surface of the street.

There is no claim that any of the elements of the patent are new. The tank, the water under pressure, the nozzle, the delivery apertures, and the means of adjustment are all old, but the contention is that the particular combination of these elements in the patent produces a new and useful result, and is patentable. The new and useful result claimed is the effective loosening up of dirt and material on the street and washing them off into the gutter by one action without injury to the street. To accomplish a new and useful result within the meaning of the patent law (section 4886, Rev. St. [U. S. Comp. St. 1901, p. 3382]), it is not necessary that a result before unknown should be brought about, but it is sufficient if an old result is accomplished in a new and more effective way. If the value and effectiveness of a machine are substantially increased, the new combination of old elements, which does it, is patentable. Loom Co. v. Higgins, 105 U. S. 580, 591, 26 L. Ed. 1177; Cantrell v. Wallick, 117 U. S. 689, 694, 6 Sup. Ct. 970, 29 L. Ed. 1017; Anderson v. Collins, 58 C. C. A. 669, 122 Fed. 451, and cases cited. The proof does not permit us to doubt that the machine of the patent does the work of scouring and flushing asphalt and other smooth streets in a more effective and satisfactory way than it was ever done before. The flat sheet of water operating nearly parallel to the surface of the street works like a shovel to loosen up the material on the street, and carry it along as the cart progresses, in a forward and lateral direction, so that it finds its way into the gutter on the side of the street. The very oblique angle to the plane of the street at which the nearly parallel stream operates protects the surface of the street from injury by the impact of the water under pressure which would necessarily be occasioned by a more vertically operating stream. The nozzles from which the stream emanates, being in front of the hind wheels, makes the operation easily observed by the driver of the cart and permits of little splashing of the wheels.

But it is contended that the device of the patent is only a mechanical

shifting of existing means which does not involve invention, and that, if it did, it was anticipated by several other patents. The new and beneficial result accomplished by the device of the patent already referred to consisting of the more effective and less injurious way of scouring and flushing streets might afford a sufficient answer to this first contention; but there is more. The defendant company as found by the learned trial court and shown by abundant proof, upon being advised of the features of the Ottofy invention, abandoned its old machine made. according to the Murphy patent hereafter to be considered, and adopted the device of the Ottofy patent. Murphy, defendant's patentee, upon being advised of the defects in his machine and the objections made to it which Ottofy later remedied, confessed his inability to obviate them. Pickles, the engineer of defendant company, upon hearing of Ottofy's invention, claimed to be the first and original inventor thereof, applied for a patent therefor, and assigned all rights to defendant. These are all significant admissions by experts, and that, too, against interest of patentable novelty in complainant's device. There is also evidence. of more or less cogency that that device has superseded other devices in the few cities which employ scouring and flushing machines in use upon smooth or asphalt streets. These facts are entitled to weight when the question is whether the machine exhibits patentable invention. Keystone Mfg. Co. v. Adams, 151 U. S. 139, 143, 14 Sup. Ct. 295, 38 L. Ed. 103; National Hollow Brake Beam Co. v. Interchangeable Brake Beam Co., 45 C. C. A. 544, 558, 106 Fed. 693, 707; Kinloch Tel. Co. v. Western Electric Co., 51 C. C. A. 362, 113 Fed. 652; Id., 51 C. C. A. 369, 113 Fed. 659, 665. In Krementz v. S. Cottle Co., 148 U. S. 556, 560, 13 Sup. Ct. 719, 720, 37 L. Ed. 558, Mr. Justice Shiras, in delivering the opinion of the court, after referring to the contention that the step taken by the patentee was one obvious to any skilled mechanic, says the contention is negatived by the conduct of defendant's president, which was in many respects like that of Murphy and Pickles. His language is:

"The view of the court below that Krementz's step in the art was one obvious to any skilled mechanic is negatived by the conduct of Cottle, the president of the defendant company. He was himself a patentee under letters granted April 16, 1878, for an improvement in the construction of collar and sleeve buttons, and put in evidence in this case. His improvement

was to form a button of two pieces, the post and base forming one piece and then soldering to the post the head of the button as the other piece. Yet skilled as he was, and with his attention specially turned to the subject, he failed to see what Krementz afterwards saw, that a button might be made of one continuous sheet of metal, wholly dispensing with solder, of an improved shape, of increased strength and requiring less material."

The chief contention of defendants is that Ottofy is anticipated by several United States patents granted before his application was filed. These will now be briefly considered.

The Van Gaasbeek patent, No. 296,488, dated April 8, 1884, is first claimed to constitute a complete anticipation. That was for an "improved street cleaning machine," and had many of the elements of the Ottofy claims, but one and the most important one it did not have, and that was "the narrow elongated delivery apertures." It delivered the water upon the street from a series of nipples or orifices, so that the