484
FEDERAL REPORTER,
vol. 39·.
versy between them, or either of them, and the other defendants, which may be proceeded with jointly by them in the state court, or separately after partition is made. The result is that the demurrer npon the part of the railroad company mnst be sustained, and the bill dismissed as to it, but the bill will be retained for further proceedings between the complainants and other defendants.
HAYDNVILLE MIN.
&
MANUI!"G
Co. v.
ART INSTITUTE.
(Cinuit Court, No D. Illinois. July 22,1889.) 1. BUILDING CONTRACTS-CONSTRUCTION-ExTRA WORK.
Plaintiff agreed in writing to do all the fire-proofing work to be done on defendant's building, according to the drawings and specifications made by the architects, "which said drawings and specifications shall be considered a part of and equally binding with the contract." The price stated was $13,000, the defendant reserving" the right to throw out any part of the work called for on the' bill of quantities: and from the above amount to deduct at the rate of charge in said' bill of quantities: and extra work shall be charged in accordance with the figures on said' bill of quantities:" "For the several dimensions, the arrangement, and construction of said building reference will be had by tlJe contractor to the accompanying design, * * * which desig'n consists of the following drawings, to-wit,all necessary plans and specifications, and the hereto attached bid and bill of quantities." It appeared that plaintiff's bid had been larger, but he reduced it; it being understood that any deductions or extras were to be charged for at the rate mentioned in the bid, and for convenience the figures which accompanied the bid were attached to the contract. Held, that the "bill of quantities" was not intended to be a limitation upon or express the amount of work to be done for $13,000, but merely to furnish a basis for computing deductions or extras.
2.
SA)IE-COMPENSATION FOR DELAY.
The contract also provided: "Should delay be caused by other contractors to the positive hindrance of the contractor hereto, a just and proper amount of extra time shall be allowed by the architects. provided it shall have given written notice to said architects at the time of such hindrance or delay." The specifications stated that" the first two and three stories are ready for their floors. and the contractor may enter at once upon said work; arches in these three stories to be completed on or before Sept. 30. The fourth (attic story's roof and partition) shall be completed in 30 days after the contractor has received notice that these stories are in readiness for his material." Held, that these stipulations for further time imply that there was to be no pecuniary compensation for delay to plaintiff caused by the other contractors.
At Law. On final hearing. lflillard & Evans, for plaintiff. Wallace Heckman, for defendant. BLODGETT, J. This is a suit to recover an alleged balance claimed to be due the plaintiff for doing the fire-proofing work upon the building in the city of Chicago known as the" Art Institute;" the balance in suit being for extras, or extra work, claimed to have been furnished by the plaintiff over and above that called for by the contract; plaintiff's claim
HAYDNVIJ,LE MIN. & MAXUF'G CO.
v.
485
aggregating $3,263, and defendant admitting that there is a balance of $648 due the plaintiff. . The main contention in the case is over the construction to be given the contract. The contract under which the plaintiff' did the fire-proofing work upon the building in question was in writing, and bears date August 30, 1886, in which the plaintiff agrees to do all the fire-proofing work to be done in the building in question, according to the drawings and specifications made by Burnham & Root, architects, bearing even date with the contract, "which said drawings and specifications shall be considered a part of and equally binding with the contract; the work to be done under the supervision of Burnham & Root, architects, and to be approved and certified by a certificate in writing under the hand of said architects." The contract price to be paid the plaintiff for doing this fire-proofing work upon this building was $13,000, with a reservation written into the contmct in the following words: "The party of the first part [defendant] reserves the right to throw out aIlY part of the work called for on the' bill of quantities,' and from the above amount to deduct at the rate of charge in said' bill of quantities,' and extra work shall be charged in accordance with the figures on said' bill of quantities.' " And in the specifications, which are made a part of the contract, is the following clause: "For the several dimensions, the arrangement and construction of said building, reference will be had by the contractor to the accompanying design for the work. as made by Burnham &; Ho"t, architects, which design consists of the followi ng dra Wings, to-wit, all necessary plans and specil1cations, and the hereto attached bid and bill of quantities." It appears from the proof that bids were solicited for doing the work in question, and that the plaintiff submitted a bid, giving its estimated quantity of the work and the price therefor in detail, and proposed to do the entire work for $13,522.62. After some negotiation the plaintiff deducted from its bid the $522.62, making the contrnct price for the entire work the $13,000 mentioned in the written contract, and ns there was an understanding that any extra work which might be ordered under this contract should be done at the same rates mentioned in the bid, and any work which the defendant might afterwards decide to have omitted, w!;ich was called for by the specifications, should be deducted at the rates figured in the bid, it was deemed convenient to attach these figures, which accompanied the bid, to the contract, and make them a part of the same, which was done by the clause which I have quoted from the' contract and specifications. It is now contended on the part of the plain-· tiff that the bilI of quantities wm: referred to in the contract and specifi- . cations as a limitation to the amount of work to be done under the con-· tract, and that all work not mentioned in this bill of quantities is extra work, and that plaintiff' is to be paid therefor in addition to the contract I do not think the con-' price. In the light of the testimony in the tract should be so as it is very evident to me that this aUu-' sion in the contract and specifications to the bill of quantities is onlv
486
vol. 39.
done for the purpose of furnishing a basis upon which the price for tra work, or work which plaintiff should afterwards decide to. omit from the building, should be computed, and that it was not intended that this bill of quantities should he a limitation upon or express the exact amount of work which the plaintiff intended or agreed to do for the $13.000. The terms of the contract are explicit. The plaintiff agrees to do all the fire-proofing work upon the building as called for by the drawings and specifications. The proof shows that before this contract was signed, and before the plaintiff made its bid for the work, the drawings and specifications were examined by the plaintiff's agent fully, and the plaintiff had full opportunity to estimate the entire quantity of work to be . done; plaintiff's agent at the time he signed the contract having signed all the drawings and specifications, thereby making them specifically a part of the contract. This disposes of all the items involved in the plaintiff's claim except the items for damage to plaintiff occasioned by the delay on the part of the other contractors in the construction of the building, whereby the plaintiff was delayed in his work; and it is claimed it took a longer time because of items for reconstructing floors, arches, and partitions, which fell, and had to be rebuilt. In regard to the claim for rebuilding the arches and partitions which fell, I am satisfied that this necessity arose from the defective construction of this work on the part of the plaintiff, as the theory of the plaintiff's witnesses, that the upheaval of the columns supporting the building was caused by frost, is, I think, wholly overthrown by the proof. With regard to the items for delay occasioned by the want of dispatch on the part of other contractors, the contract contains this clause: "Should delay be caused by other contractors to the positive hindrance of the contractor hereto. a just and proper amount of extra time shall be allowf'd by the architects, provided it shall have given written notice to said architects at the time of such hindrance or delay." The specifications state: "That the first two and three stories are ready for their floors, and the contractor may enter at once upon said work; arches in thAse three stories to be completed on or before September 30th. The fourth (attic story's roof and partition) shall be completed in 30 days after the contractor has received notice that these stories are in readiness for his material." Taking this clause of the contract and the specifications together, I construe them to mean this: that, if the plaintiff was delayed by reason of the tardiness or want of dispatch on the part of the contractors doing the other classes of work upon the building, it should be entitled to such further time for the completion of the work as the architects should allow him; but I do not see that there is any provision that it is entitled to pecuniary damages by reason of said delay. Evidently the parties anticipated that this contractor, doing only a part of the work, and that which was largely dependent upon the completion of other classes· of the work by other contractors, must await the movements of these other contractors; and it seems to me that the stipulation for further
BEESE V. NORTHERN PAC. R. CO.
487
time to complete the work in case of delay by other contractors implies that there is to be no pecuniary compensation for such delay. . The defendant admits a balance due the plaintiff of $648, but claims that there are some deductions to be made from that for a fire-place, and wire-cloth for ceiling of the attic, which were omitted. The proof, howeverf does not furnish me with any standard for the price of these articles omitted, and, as the defendant has not paid this money into court, there will be a finding in Javor of the plaintiff for the sum of $648, balance admitted to be due, and interest from the commencement of the suit, and each party will pay its own costs .
.SEESE
NORTHERN PAC.
R.
CO.
(Oi1'cuit Court, D. Minnesota. 1.
July 16,1889.)
Jl,1AsTER AND SERVANT-INJURY TO EMPLOYE-RISKS OF EMPLOYMENT,
Wbere in a suit by a brakeman to recover damages from a railroad company by which he was employed, for an injury received by au alleged defective draw-head on a car. the law as to tbe obligations of defendant, and the acceptance of risks and the degree of care required of plaintiff, is clearly set forth in the charge, tbe vcrdict of tbe jury will not be set aside on the ground tbat no negligence on the part of defendant was shown, wbere tbere was evidence tbat the draW-head was sunk four inches, and that the defect was old and plaintiff did not know of it. In such case expert testimony of a yard-master that the method of coupling adopted by plaintiff was careless. dangerous, and not the usual or best way of coupling, was properly excludtd. The defendant introduced in evidence certain rules adopted by it in relation to tbe coupling of cars, prohibiting the lise of the hands for such purpose, and ordering the use of a stick or pin. The superiutendent of defendant testified that such rules were in use when plaintiff was injured, but could not testify that they had been sent to the "beads of tbe management of the yards" where the accident happened. Plaintiff testified that no such rules were enforced in tbe yards while he was there, and he knew notbing about them. Held, that it was for the jury to decide whether plaintiff was bound by such rules, and that they were known to him and violated by him.
EVIDENCE-EXPERT TESTUIO::'Y. .
3.
MASTER A'ND SERVANT-NEGLIGENCE OF SERVANT.
At Law. Motion for new trial. P. D. Larabee and J. C. Bnllit, Jr., for the motion. E. P. Lane, contra. NELSON, J. The action is to recover damages for a personal injury. The plaintiff was employed as a brakeman in the defendant's yard at Minneapolis, in this district, and while in the act of coupling cars sustained an injury to his hand, caused by the alleged defective condition of the draft timber which holds up the draw-head on one of the cars. There was evidence tending to show that the bolts that go into the dead-wood were sunk down into the timber and let the draw-head down four inches or more lower than it should be. There was also evidence tending to
488
FEDER,.\.L REPORTER,
show the defect was old and not recent, and that the brakeman did not know of it. The plaintiff was ordered by the foreman in charge of the gang of yardmen to which he bfllonged to couplea car to the defective one. There was sufficient evidence of defendant's negligence to be submitted to the jury. The law given in the charge of C1e court on the trial defined clearly the obligation of the defendant, and the acceptance of risks and degree of care to be exercised by the plaintiff. The jury found for the plaintiff, and the verdict cannot be disturbed, for the reason urged by counsel that no negligence of the defendant which caused the injury is proved. King v. Railroad Co., 14 Fed. Rep. 28l. It is urged, however, that it was error for the court to exclude expert testimony in regard to the manner in which the evidence showed the plaintiff attempted to make the coupling. A yard-master, who had been in the service of switching and coupling cars for 19 years, was called as an expert, and the defendant's counsel offered "to prove by the witness that the method of making a coupling of freight-cars with link and pin, as were used on this occasion, when the plaintiff was injured, at the time of day or night when this coupling was attempted to be made by him, was extremely dangerous and careless and injudicious, and not the usual or ordinary way or the best way of making a coupling under the circumstances." Also, "to prove that the manner in which he (plaintiff) undertook to make it at the time he received his injury was an improper way, and a very negligent and careless one, and one that a man might very naturally expect to receive an injury from; and that it was not a way in which an expert or careful and judicious person would undertake to make a coupling at that time." An objection was sustained to such evidence. I think there was no error in excluding it. Upon subjects requiring medical knowledge and skill evidence of this character is given, and the United States supreme court hold that it is not limited to that class of cases either, but is competent upon subjects on which a jury are not as well able to judge for themselves as is the witness. See Transportation Line v. Hope, 95 U. S. 298. The rule as laid down by the United States supreme court was elaborated in the supreme court of Iowa, in a car-coupling case, and is well stated, as follows: "It does not appear to liS that the qpinion called for pertained to a matter of skill, science, trade, or the like, upon which experts are permitted to give opinions. The thing required of plaintiff was care. That it was not exercised, was the very point which defendants attempted to establish. * * * Every employment requires a degree of skill, and there is none in which a degree of proficiency may not be obtained by practice. This fact is no ground for the admission in evidence of the opinions of men engaged in every pursuit in regard to matters pertaining thereto. * ... * 'fhe pursuit itself must be considered in determining who may be examined as experts, and we do not think that the occnpation of brakemen is of such a character as to authorizethem to express opinions upon matters pertaining thereto." Hamilton v. Railway Co., 36 Iowa, 36. Also MUldowney v. Uail1·oad Co., Id. 472. The cases cited by defendant's counsel (Propst v. Railway Co., 3 South. Rep. 764, and Railway Co .. v. Frawley, 9 N. E. Rep. 594) are not in ,conflict with the opinion announced in the Iowa cases.
BEEBE tI. NORTHERN PAC. R. CO.
489
Again: The following rule adopted by the defendant company was offered in evidence, and received: "Caution as to personal safety. 25. Great care must be exercised by all persons when coupling cars. Inasmuch as the coupling apparatus of cars or engines cannot be uniform in style. size, or strength, and is liable to be broken, and as from various causes it is dangerous to expose between the same the hands, arms, or persons of those engaged in coupling, all employtis are enjoined, before coupling cars or engint's, to examine so as to know the kind and condition of the draw-heads, draw-bars, links. and coupling apparatus, and are prohibited from placing in the train any cal' with a defective coupling until they have first reported its defective condition to the yard-master or conductor. Sufficient time is allowed, and may be taken byemployljs in all cases, to make the examination required. Coupling by hand is st1'ictly prohibited. Use for guiding the link a stick or pin. Each person having to make couplings is required to provide a proper implement for the purpose, as above specified. All persons entering into or remaining in the service of the company are warned that the business is hazardous, and that in acclJpting or retaining employment they must assume the ordinary risks attt'nding it. Each employe is expected and required to look aftlJr and be responsible for his own safety, as well as to exercise the utmost caution to avoid injury to his fellows, especially in the switching of cars, and in all movements of trains. Stepping upon the front and rear of approaching engines, jumping on or off trains and f'ngines moving at a high rate of speed, getting between cars in motion to uncouple them, and all similar imprudencies, are dangerous and in violation of duty, and a1'e strictly prohibited. Employes are warned that, if they com· mit them, it will be at their own peril and risk. Employes of every rank and grade are required to see for themselves, before using them, that the machineryor tools which they are expected to use are in proper condition for the service required, and, if not, to put them in proper condition, or see that they are so put, before using them. All will be held resJlonsible accordingly." The defendant then introduced as a witness the assistant superintendent, who testified that the rules were in force at the time that plaintiff received his injury, and that they were made for the information of the employes in the operating department, and that they were sent and distributed to the different heads, but could not testify that they were sent to the "heads of the management of the yards at Minneapolis." The plaintiff, in rebuttal, testified that the rule with regard to the coupling of cars in that yard with a stick or pin had never been enforced while he was there, and that he "never knew anything about the rules whatever." It was properly submitted to the jury whether upon the evidence the plaintiff was bound by the rules, and that they were known to him and violated. Motion for new trial denied.
-490
)fEDERAL REPORTER,
ELECTRICAL ACCUMULATOR , .
'D. JULIEN EmCTRIC CO. .
(Oircuit Oourt, 8. D. New York. .July 22, 188!J.) 1. PATENTS' FOR INVENTIONS-PRACTICE-REHEARING.
.
et ale /
In an action for the infringement of a patent, an unusually faIl and explfcit notice was given that a disclaimer would in certain contingencies be insisted upon.. It was.suggested by the proof, and on the hearing even went so far as to suggest the form of the disclaimer. It was never intimated that the record did not sufficiently present the' question. Held, that a rehear' ing would not be granted defendants to enable them to take additional teg· timony and contest the complainant's right tQflle a disclaimer up om grounds not mentioned at the trial. 2. SAME.
A rehearing was also asked for on the ground that the court erred in holding that the patent, as limited by the disclaimer, disclosed invention. for the reason that the patented device had no advantage over similar devices produced by other means. Several affidavits were presented. none of which stated any new facts except one. and that was controverted by two affidavits produced by complainant. He!d that. in view of the conflict, and of the facts that the point had been carefully considered on the trial, and that defendants strenuously insisted on the right to use complainant's structures. a rehearing would be denied.
In Equity. On petition for rehearing and demurrer thereto. former opinion, see 38 Fed. Rep. 117. Frederic H. Betts, for complainant. Thomas W. Osborn and Edmund Wetmore, for defendants.
For
COXE, J. A rehearing is asked upon"the following principal grounds: First. The court was in error in holding that the patent, as limited by the disclaimer, discloses invention; for the reason that an electrode to which the active material is applied in the form of a paint, paste, or cement has no advantages over electrodes otherwise mechanically coated. This proposition the defendants seek to establish by further experiments, and by the opinions of experts. Second. On the ground of newly-dis{lovered. evidence. Third. Because the complainant should not have been permitted to file a disclaimer. When this enormous record was taken up for examination the court confidently entertained the conviction that it presented a controversy in which nothing relevant to the art in question, which human ingenuity and diligence could supply, had been ·omitted, and that no proposition of law or fact, actual or contingent, which was germane to the subject, had been neglected or unexplained. Where time and labor have been so lavishly expended, where the pres-entation of the cause has been so thorough, and where every opportunity has been offered counsel to present their views, the court should be unusually reluctant to reconsider a conclusion deliberately reached. The administration of the law will become vexatious and intolerable if, upon slight pretexts or unsubstantial grounds, parties are permitted, because the decision changes to some extent the status of the controversy, to try again and again issues which were, or which might have been, disposed of at the hearing. The notice that a disclaimer