BODMEB V. NEUMANN.
447
slatted door into two, and have the car used by the defendant, which is claimed to be an infringement. With the Crooker and Clark patents in view, and with a knowledge of the difficulties to be overcome, it is a plain process of reasoning, involving but moderate mechanical skill, to devise the defendant's car; and unless the complainant's combination embraces something more, it was not patentable. Indeed, it seems to me too clear almost for discussion that if the complainant's patent can be upheld upon any construction whatever, it must be restricted to the particular devices described, combined in the manner stated in his specification; and, so restricted, even thongh it be deemed to embrace the outside as well as inside door in the combination, it has not been infringed, because the inside doors nsed hy the defendant are held and moved in grooves, without the presence or aid of the rods and staples which are described as a part of the complainant's device, and expressly embodied in his claim. It may be that there is no 'essential difference, mechanically, between the grooves and the rods and staples; but, if so, the complainant is estopped from saying it. because he has expressly claimed one and disclaimed the other; and this alone is a sufficient ground to rest the decision of the case upon. By the terms of his specification and claim he has made the rods and staples a part of hia combination, and has expressly disavowed the use of grooves as an equivalent, and consequently may not now, whatever otherwise might have been his right. insist that the grooves are an equivalent of the rods, or that the rods and staples are not essential to his combination. This being so, the defendants have not used the entire combination, and consequently have not infringed. Bill dismissed.
ROEMER
v.
NEUMANN.
(aircuit Oou1't,8. D. New York.
March 29, 1885.)
PATENTS FOR INVENTIONS-VIOLATION OF INJUNCTION-SUIT FOR INFRINGEMENT.
Where a defendent has infringed a patent after the granting of an injunction in a suit by the patentee, the fact that the patentee might, if he chose, proceed against him for contempt in violating the injunction awarded in the former suit, will not affect his right to sue for such infringement.
In Equity. Briesen et Steele, for complainants. Betts, Atterbury et Betts, for defendant. WALLACE, J. The infringement of complainant's patent by the defendants, since the interlocutory decree in the suit between the same parties in the district of New Jersey,! creates a llew cause of action 119 FED. REP. 98.
448
FEDERAL REPORTER.
in favor of complainant, and he can proceed at law or in equity to enforce it. His right to do this is not impaired by the circumstance that he can also, if he chooses, proceed against defendants for contempt in violating the injunction awarded him by the decree in the former suit. The plea of another suit pending is bad.
THE NEREUS. 1 THE NASSAU FERRY METROPOLITAN
J AMAICA. I NEREUS,
Co. v. THE CO.
etc. l eto.l
S. S.
THE JAMAIOA,
(Di8trict (}ourt, S. D. New York. COLLIBTON - 8IMULTANEOUSWHISTLES PARTURES.
March 5, 1885.) INSPEOTOR'S RULES DE-
ANSWER -
S);eamers must be held to the same care and skill in the use of their whistles as in the use of the helm or engine. In the night-time, when the puffs of steam that accompany steam-whistles cannot be seen so as to correct any imperfections in the hearing of simultaneous signals, pilots have no right to rely upon simultaneous signals as an .. answer" to each other under the inspector's rules. They are not an equivalent to an" answer," because attended by uncertainties in hearing, to which an "answer" is not subject. Departures from the rules are at the risk of those who adopt them. 2. SAME-CROSSING COURSES-CONFUSION OF SIGNALS-CASE STATED.
As the steamer N. was coming down the East river, shortly- after dark, the ferry-boat J., about 400 yards ahead of her, left her slip, in a strong flood-tide, to cross from Brooklyn to Houston street, New York, and gave the N. a signal of two whistles in order to go ahead of the N. The N., at ahout the same instant, gave one whistle to the J., meaning that the J. should go astern. The court found that one blast from each boat was drowued by the other's whistle, 80 that the J. did not hear the N.'s oue whistle at all; and the N. heard only the J.'s last blast about a second after her own, and treated it as an assent to her one whistle to go astern. The N., a few seconds after, gave a signal of two whistles to some other boats much further down river, which the J. interpreted as an assent to her own previous signal of two whistles, and went ahead. Acollision ensued. Held, that the collision was due to the confusion and misunderstanding of signals; and, specially, to the N.'s last two whistles which induced the J. to go ahead; that the N.'s pi1r>t knew, or ought to have perceived, thllt the J. 's one whistle, heard by him about a second only after the N. 's one whistle. came too quick to be a possible answer to his own whistle, but must have heen a contemporaneous, original signal from the J. ; that the liability of simultaneous signals in the night-time to be imperfectly heard made it incumbent on the N. 's pilot to repeat his signal, and to " answer ,. the known original signal of the J., as required by the inspector's rules, and also bound him to take special caution not to mislead the J., as he did, by giving, unnecessarily, the two whistles to the other distant boats, at the moment when an answer to the J. was due; and that the N. was answerable for these faults in the use of her whistles. RULE 20-KEEPING OUT OF THE WAy-BUHDEN NOT SHIFTED BY ASSENTING WHISTLES-DANGEROUS MANEUVERS.
3.
Two whistles given in reply to a signal of two whistles from a steamer bound lReported by R. D. & Edward Benedict, Esqs., of the New York bar.
