[h] (Ill. Sup. 1888) In an action for injuries to a child seven years of age, who was riding on an engine, contrary to the rules of the company, and, while the engine was in motion, was told by the engineer to get off, and did so, and was injured, it is proper to refuse to charge that if plaintiff went on the engine to ring the bell by request of the engineer, and under the engineer's promise to pay him therefor, without defendant's authority, and if plaintiff was injured by the negligence of the engineer or fireman, plaintiff, the engineer, and fireman were co-employés, and the company was not liable; the doctrine having no application to the case.-Railway Co. v. West, 17 N. E. 788, 125 Ill. 320, 8 Am. St. Rep. 380.

[i] (Ill. App. 1888) A complaint alleged that defendant railroad company sent its agent in charge of employés to remove a wreck; that such employés were required to pull on a rope for the purpose of moving a car, but, as they were unable to move it, the agent ordered plaintiff to lay hold and pull; that plaintiff did so, but because the rope furnished by defendant was unsound it broke, and plaintiff was thrown down and his leg broken, by reason of defendant's negligence. Held, that such agent had authority to employ plaintiff, and the complaint stated a cause of action.-Goff v. Railroad Co., 28 Ill. App. 529.

[j] (Ind. Sup. 1881) While plaintiff was casually passing near a railroad train he got upon a car that was moving slowly down a switch, and applied the brakes to stop it at the request of an employé on the train, and while so engaged other servants of the defendant carelessly caused other cars to collide with the car upon which plaintiff stood, by reason of which he was injured. Held, that plaintiff was a mere intermeddler to whom the defendant owed no duty as an employé.-Everhart v. Railroad Co., 78 Ind. 292, 41 Am. Rep. 567.

[k] (Iowa Sup. 1883) Where the regular brakeman is absent, and the proper and safe management of the train so requires, the conductor has authority to supply the place of the absent brakeman, and for the time being such person is an employé of the railroad, and entitled to recover for an injury caused by the negligence of a co-employé.-Sloan v. Railway Co., 16 N. W. 331, 62 Iowa, 728.

[1] (Kan. Sup. 1889) Where a shipper of stock over defendant's road at the request of the conductor voluntarily goes upon the top of a freight car to help signal, and is injured by a sudden motion of the train, defendant is not liable therefor.-Railroad Co. v. Lindley, 22 Pac. 703, 42 Kan. 714, 6 L. R. A. 646, 16 Am. St. Rep. 515.

[m] (Ky. App. 1885) Where a minor, while acting as brakeman on a train, is injured, his father can recover therefor from the railroad company, though the minor at the time was not in the employ of the company, but had been discharged therefrom, and was acting voluntarily at the request of the conductor of the train.-Railroad Co. v. Willis, 83 Ky. 57, 4 Am. St. Rep. 124. [n] (Ky. App. 1885) One who assists an employé of a railroad company at the request of such employé cannot recover for injuries received in the undertaking, on the ground that he thereby became a servant of the company, unless such employé had authority to make the request, or occupied such a position that authority would be implied.-Railroad Co. v. Gastineau's Adm'r, 83 Ky. 119.

[o] (Mass. Sup. 1880) In an action for personal injuries occasioned to the plaintiff by the negligence of the defendant's servant, it appeared that the plaintiff was a machinist in the employ of W., a builder of steam engines; that the defendant, a teamster, was employed to transport an engine from W.'s shop to the railroad station, and went with his truck and servants to do this work; that. after the engine was loaded upon the truck, he falsely represented to the plaintiff that W. had agreed to send two of his men to assist in loading the engine upon the car; that the plaintiff was thereby induced to go to the station and assist the defendant, and, while putting the engine upon the car, was injured. Held, that the plaintiff did not become the servant of the defendant, and that the action could be maintained.-Kelly v. Johnson. 128 Mass. 530, 35 Am. Rep. 398.

[p] (Mass. Sup. 1895) Plaintiff, a boy 14 years of age, to defendant's knowledge, had several times visited his sawmill, to amuse himself by assisting defendant's employés, and while assisting, at an employé's request, in saw

ing timbers, was injured by striking his arm against the saw. Held, that defendant was not liable, as he owed plaintiff no duty, except to abstain from injuring him by his active misconduct.-Shea v. Gurney, 39 N. E. 996, 163 Mass. 184, 47 Am. St. Rep. 446,

[q] (Minn. Sup. 1892) A construction train of defendant having pulled into a station, the conductor who was in charge temporarily left it, leaving the train men to do some switching, the "head brakeman" having charge of the switching. At his request, plaintiff, a bystander at the station, got on the cars to assist in switching, and sustained injuries from car trucks loaded on one of the cars, and which were not properly blocked. Held, that the brakeman had no implied authority to employ additional men to assist in switching, notwithstanding the existing force may have been insufficient to do the work, such authority, if in any one, being in the conductor, and plaintiff was a mere volunteer, and assumed all the risks; and the fact that he had at one time been in the employ of the company is immaterial.-Church v. Railway Co., 52 N. W. 647, 50 Minn. 218, 16 L. R. A. 861.

[r] (Mo. Sup. 1880) An infant rode upon a freight car in a freight train, without the consent of his parents, and without the knowledge of the conductor at first, though he afterwards discovered him, and allowed him to remain, without paying fare. A brakeman, without authority, set him at a dangerous service on the car, in trying to perform which he was injured. Held that, conceding that the infant was a passenger, the company was not liable. Sherman v. Railroad Co., 72 Mo. 62, 37 Am. Rep. 423.

[s] (N. Y. Sup. 1886) A special car was engaged to carry a military body. The car did not stand at the station, but a little way off, one end resting upon a bridge 12 feet above a street. After most of the men had taken their seats in the car, the conductor requested them to come out and shove the car. One of them, in alighting, fell through the bridge. Held, that he had

a right of action against the railroad company, as the conductor must be deemed to have been in charge of the car at the time.-Bellman v. Railroad Co., 42 Hun, 130.

[t] (N. Y. Sup. 1894) Where it becomes necessary for a street car driver to employ an assistant. he represents the street car company, which is therefore liable to such assistant for injuries resulting from the driver's negligence.--Marks v. Railway Co., 28 N. Y. Supp. 314, 77 Hun, 77, judgment reversed (App. 1895) 40 N. E. 782, 146 N. Y. 181.

[u] (N. Y. Sup. 1897) One who, at the request of the servants of another, voluntarily goes to their assistance in their work, without other relation with the master, and without expectation of pay, does not become their fellow servant.-Geibel v. Elwell, 46 N. Y. Supp. 76, 19 App. Div. 285.

[v] (Pa. Sup. 1872) The parents of a boy killed in climbing on the tender of an engine at the request of the fireman could not recover for his death from the railroad company, since it owed him no duty under the circumstances.-Flower v. Railroad Co., 69 Pa. 210, 8 Am. Rep. 251.

[w] (Pa. Sup. 1886) An employé engaged by the "roller boss" in a "spikemill," doing the work of the owners of the mill upon their machinery, the mill itself being operated by them, is to be treated as their employé, and not as a trespasser.-Rummell v. Dilworth, 2 Atl. 355, 363, 111 Pa. 343.

[x] (Tenn. Sup. 1897) Where a shipper's servant is engaged in loading a car on a side track, and at the invitation of a brakeman undertakes to assist in moving the car to a point where it will be more easy of access, because the shipper's interest and his own will thus be served by expediting the loading, and while so assisting is injured by the railroad company's negli gence, the company is liable, though it did not need the servant's assistance. -Ward v. Railroad Co., 38 S. W. 727, 98 Tenn. 123, 60 Am. St. Rep. 848. [xx] (Tenn. Sup. 1898) Cars detached from a train were running down a grade unattended, and at such speed that they were in danger of collision or derailment. The train crew were not near to assist, and the conductor requested G., who was passing, to stop the cars. Held, that since there was such an emergency as authorized the conductor to employ G., the company was liable for injuries received by him while rendering the assistance.-Railroad Co. v. Ginley, 45 S. W. 348, 100 Tenn. 472.

[y] (Tex. Sup. 1886) Plaintiff, an employé of a lumber company, while in the service of the said company, loading lumber on the freight cars of the

defendant company, was injured while attempting to couple cars, which was not a part of his duties to his employer, but which he was doing at the request of the conductor of the defendant railroad company. The railroad company did not have sufficient brakemen to perform the duty required for this occasion, and it was absolutely necessary for plaintiff to make the coupling, if it was made at all. Held, that plaintiff could not recover for injuries received while making the coupling owing to the negligence of the engineer.Eason v. Railway Co., 65 Tex. 577, 57 Am. Rep. 606.

[yy] (Tex. Civ. App. 1893) Plaintiff's son, a minor, was employed by defendant railway company, with plaintiff's consent. While on a train with a message, at the request of the defendant's yard foreman, he attempted to uncouple a car, and was injured. He was under no obligation to obey the foreman. Held, that he was a mere volunteer, and could not recover.-Railway Co. v. Skinner, 23 S. W. 1001, 4 Tex. Civ. App. 661.

[z] (Wis. Sup. 1860) An express agent, lawfully traveling on the road in care of express freight. was employed for hire by the superintendent of the company to act as brakeman during one trip. On that trip he was thrown from the cars and injured by the negligence of the engineer. In an action against the road for the injury, it was held that he was to be considered as a servant of the corporation.-Chamberlain v. Railroad Co., 11 Wis. 238.

[zz] (Wis. Sup. 1888) One who is engaged in defendant's work, at the request of the man in charge, though he expects no pay, and is employed for a mere temporary purpose, is, for the time being, a servant of defendant.Johnson v. Water Co., 37 N. W. 823, 71 Wis. 553, 5 Am. St. Rep. 243.

3. Contributory Negligence of Volunteer.

[a] (Mass. Sup. 1887) One who volunteers to perform service for a railroad company, and is killed in the performance of such service, cannot recover where the evidence shows a want of due care on his part.-Barstow v. Railroad Co., 10 N. E. 255, 143 Mass. 535.

4. Pleading.

[a] (Ky. App. 1892) In an action against a railroad company for death from negligence of employés, a petition averring that deceased was a transfer agent on defendant's line, but that he was not in defendant's employ, is not bad on demurrer, as showing that deceased was an employé of defendant. -Mefford's Adm'r v. Railroad Co., 20 S. W. 263.

[b] (N. J. Sup. 1895) A complaint for personal injuries alleged that two railroads were engaged in excavating a tunnel beneath their tracks at their intersection; that plaintiff, as the employé of a third person, was working in this tunnel, but contained no allegation that plaintiff or his employer were servants or employed by either one of the roads. Held, that plaintiff must be held to be working upon the excavation as a volunteer.-Wendell v. Railroad Co., 31 Atl. 720, 57 N. J. Law, 467.

[c] (Tex. Sup. 1891) In an action for damages for personal injury, the petition alleged that plaintiff was injured through the negligence of defendants' servants, while he was assisting said servants in moving defendants' cars, and that such assistance was necessary in order to expedite the business of plaintiff's master, who was loading said cars. Held that, in the absence of a special exception, the petition was good.-Bonner v. Bryant, 15 S. W. 491, 79 Tex. 540, 23 Am. St. Rep. 361.

[d] (Wis. Sup. 1893) The complaint alleged that defendant's electric car was in charge of a motorman, on the front platform, and a conductor; that the motormen had been used to permit young boys of plaintiff's age (11) to ride on the front platforms and steps to a certain switch, "for the purpose of inducing such boys to turn said switch" for said motormen; that, while the car was stopped at a corner, plaintiff, with the permission of the motorman, "in pursuance of the custom mentioned," stepped on the lower front step for the purpose of riding to said switch. Held, that the complaint alleged no purpose of plaintiff to aid in operating the railway, such as to make him a volunteer fellow servant of the conductor.-Hart v. Railroad Co., 57 N. W. 91, 86 Wis. 483.

51 C.C.A.-33

(113 Fed. 884.)

WESTINGHOUSE ELECTRIC & MFG. CO. v. SARANAC LAKE ELECTRIC LIGHT CO.

SARANAC LAKE ELECTRIC LIGHT CO. v. WESTINGHOUSE ELECTRIC & MFG. CO.

(Circuit Court of Appeals, Second Circuit. January 14, 1902.)

No. 63.

1. PATENTS-ANTICIPATION-ELECTRICAL DISTRIBUTION.

The Kennedy reissue patent, No. 11,031 (orginal No. 407,294), for an improvement in the method of distributing and regulating alternating electric currents by secondary generators, is void because the acts and omissions of the patentee, after the date of the alleged invention, worked an abandonment and dedication of the same to the public. 2. SAME-VALIDITY-INFRINGEMENT.

The Stanley patent, No. 469,809, for a system of electrical distribution by means of an alternating current generator and converters, or secondary generators, connected with the main-line conductors in multiple, includes, as a part of the invention shown, the so-called "Stanley rule" for ascertaining the proper length of primary coil, and so construed it was neither anticipated nor lacking in invention; nor is such patent void for prior use of the device at Great Barrington, Mass., which it appears was essentially for experimental purposes. Claims 1 and 3 also held infringed.

The fact that a charge is made for the product of a new device or combination where the price charged is not remunerative is not conclusive evidence of public use, although it raises a presumption against experimental use, which can be overcome only by clear and convincing evidence.

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

These are cross appeals from a decree of the circuit court, Northern district of New York. 108 Fed. 221. Suit was brought by complainant upon reissued letters patent No. 11,031 to Rankin Kennedy, September 24, 1889, and letters patent No. 469,809, to William Stanley, March 1, 1892. The circuit court held the Kennedy patent void, and the first and third claims of the Stanley patent to be valid and infringed. J. Edgar Bull and Fredk. P. Fish, for complainants. M. B. Phillipp and Chas. E. Mitchell, for defendants.

Before WALLACE and LACOMBE, Circuit Judges, and TOWNSEND, District Judge.

LACOMBE, Circuit Judge. The Kennedy patent is for an improvement in the method of distributing and regulating alternating electric currents by secondary generators. The patentee arranged secondary generators (transformers) in multiple. They had theretofore been arranged in series. When so arranged, they became selfregulating as to primary current and power; in other words, each transformer would take its proper share of current, varying according to the number of lights burning on it, so that the lights on one transformer were independent of the lights on another transformer. In the more technical language of the claim, the system "consists in producing in two or more derived circuits, constituting the primaries

of two or more secondary generators, a counter electro-motive force, which, when any secondary is open, is practically equal to the applied electro-motive force in its primary, and in controlling said electromotive force by the current flowing in the corresponding secondary, when the secondary is closed in such manner that the current in the primary shall vary with, and be approximately inversely proportional to, the resistance in the secondary.

The judge who heard the cause at circuit held, among other things, that certain acts and omissions of Kennedy, taken together, worked an abandonment and dedication of his alleged invention to the public. We fully concur in his discussion of this branch of the case, which will be found in his opinion, and deem it unnecessary to add anything further, affirming so much of the decree as disposes of the Kennedy patent upon such opinion.

The patent to Stanley deals with the same branch of the electric art, and is an improvement on Kennedy's. After Kennedy had arranged his transformers in multiple, the lights on one transformer were independent of those on another, but nevertheless the candle power on any given transformer changed as the number of lamps lighted on that transformer varied. When more lamps were turned on the candle power of all went down, and when lamps were turned off the candle power of those remaining increased. Stanley's improvement was directed toward overcoming this defect.

The specification says:

"The factors of the operation of my system of distribution are employment of an alternating current generator supplying currents of approximately constant potential, main lines extending throughout the system of distribution, converters or transformers connected thereto, and translating devices located in the secondary circuits of the transformers, by the em ployment of which a sympathetic relation exists between the different operations of the system, to the end of maintaining a simple and accurate selfregulation, so that the absorption of energy by the generator is proportional to the energy usefully consumed. The current developed by the dynamo may be of as high potential as desired. These converters may be

of any construction, but are preferably constructed to have the greatest magnetic conductivity in their magnetic circuits. There are certain principles of construction which must be adhered to in the proportioning of the parts of the converter in order to secure the desired results, and which I will now state. It is necessary, in the first place, that the conductivity for magnetic force of the magnetic circuit of the converter shall be of so great value that when subject to all degrees of magnetization accruing from the various amounts of energy transformed its conductivity for magnetic force would be approximately the same. This point of construction is important for two reasons: First, the greatest economy of conversion is obtained when the rise and fall of magnetism in the core is proportional, as nearly as possible, to the rise and fall of the current in the primary coil, and this condition is attainable only by keeping the core far below the saturation point; and, second, the same condition secures the largest possible counter electro-motive force in the primary coils of the converters. This is indispensable for regulation, as hereinafter set forth. It is impossible to state the exact relation between the weight of the core and the strength of the current. I have found the minimum amount of iron necessary to produce satisfactory results to be one pound of iron for every twenty-five watts, which amount is equivalent to two pounds of iron per lamp, with the lamps heretofore generally used by me. In the construction of the coils, P and S, the following principles are to be observed: The first thing to be determined is the length of the primary wire. This should be of such

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