Baltimore & O.R. Co. v. McCune

• Decision Date: 29 November 1909
• Docket Number: 16
• Citation: 174 F. 991
• Parties: BALTIMORE & O.R. CO. v. McCUNE.
• Court: U.S. Court of Appeals — Third Circuit

174 F. 991

BALTIMORE & O.R. CO. v. McCUNE.

No. 16

United States Court of Appeals, Third Circuit.

November 29, 1909

Robert J. Fisher, for plaintiff in error.

J. M Martin, for defendant in error.

Before GRAY, BUFFINGTON, and LANNING, Circuit Judges.

GRAY Circuit Judge.

This is an action on the case, brought in the court below against the Baltimore & Ohio Railroad Company, the plaintiff in error (hereinafter called the defendant), to recover damages for the alleged infringement of letters patent No. 341,930 granted May 18th, 1886, to James B. McCune, defendant in error (hereinafter called the plaintiff), for a locomotive ash pan. The suit was begun February 12th, 1906. The American patent expired May 18th, 1903. Under the provisions of section 4921 of the Revised Statutes, as amended by the Act of March 3d, 1897 (29 Stat. 692, c. 391, Sec. 6 (U.S. Comp St. 1901, p. 3395)), relating to the limitation of actions there was a period of only a little more than three years for which, in any event, recovery could be had.

The issue was, whether or not the defendant had infringed the plaintiff's patent within this period, the validity of or title to the patent not being contested.

At the close of the plaintiff's testimony in chief, a motion was made by the defendant for an involuntary nonsuit, upon the ground that the plaintiff had failed to prove infringement. This motion was refused by the court.

At the close of all the testimony, a motion was made on behalf of the defendant, for binding instructions to the jury to find a verdict for the defendant, which motion was also refused. The case was then submitted to the jury, after a charge by the court, and a verdict was rendered in favor of the plaintiff. A motion was then made by defendant for a new trial and also, under the act of Assembly of the state of Pennsylvania (P.L. 1905, 286), for a judgment non obstante veredicto. These motions were also refused, and judgment entered on the verdict, whereupon the writ of error, which brings the case before us, was sued out by the defendant. It has been urged in the oral argument that, inasmuch as no exception was taken to the refusal of the court below to enter judgment non obstante veredicto, no assignment of error could be based thereon. We think, however, that under the conformity act, section 914 of the Revised Statutes (U.S. comp. St. 1901, p. 684), the act of Assembly of the state of Pennsylvania of 1905 is applicable here. That act imposes upon the court refusing a motion for judgment non obstante veredicto, properly made under the act, the duty of certifying the evidence and granting an exception to the party against whom the decision is rendered. It is argued that no motion is necessary for the granting of such exception, the motion for judgment non obstante veredicto being made with the view of having, in the case of its refusal, the evidence certified and an exception granted for the purpose of furnishing ground for the suing out a writ of error, the office of an exception being thus supplied by the law. But, however this may be, this court is at liberty to take notice of a plain, palpable error appearing in the record, the correction of which is necessary to the administration of justice between the parties, even is necessary to the administration of justice between the parties, even though the same be not the subject of an assignment by the party aggrieved.

Without regard, however, to either of the foregoing propositions, we find that defendant's first request to the court to charge the jury was, 'that under the pleadings and the evidence in this case, the verdict of the jury must be in favor of the defendant,' and it is disclosed by the record that the trial judge 'did then and there refuse and decline to instruct the jury as therein requested; to which ruling and decision of the court, defendant's counsel did then and there except, and prayed that a bill of exceptions might be sealed for defendant, and at the instance of defendant's counsel, said bill of exceptions was sealed. ' All of the evidence is therefore brought up by the record and is before this court, for the purpose of considering whether there was any evidence that would warrant the jury in finding a verdict in favor of the plaintiff.

The specification of the plaintiff's patent thus speaks of his invention:

'My invention relates to locomotive and fire engine ash pans; and consists in the parts which will be hereinafter described, and pointed out in the claims.

'The invention consists in a sectional movable bottom, the abutting sectional ends being covered by a stationary bridge to prevent the coal and ashes from falling through the joint.

'The invention further consists in levers for operating the sliding sections.'

The drawings and specifications of the patent illustrate and describe a locomotive ash pan, hung underneath the grate bars of the fire box, consisting of a rectangular box-like structure, with vertical sides and ends, and a flat bottom, divided transversely into two equal sections. These two sections are closed and abut each other when in position for receiving the ashes from the grate. On either side of these sectional bottoms, are flanges, adapted to slide in grooved guides fitted for their reception, by means of which the two sections of the bottom may be drawn longitudinally in opposite directions, parallel with the tracks on which the locomotive is standing, for the removal of the ashes. When the sectional bottoms are closed and abut, they meet under an inverted V-shaped bridge, resting upon the upper surface of the grooved guide rails and secured to the fixed sides of the ash pan. This V-shaped arch extends entirely across the ash pan, immediately above the bottom thereof, and serves to prevent the ashes from falling through the joint of the abutting bottom sections. This bridge serves two purposes: First, that of preventing coal and ashes falling through the joint formed by the meeting ends of the bottom section; second, keeping these ends free from obstruction, so that they will not be prevented from closing tightly. The patentee thus speaks of this bridge in his testimony:

'That is a bridge, so that bottoms can pass underneath and they won't interfere from coming together, and there is no ashes or nothing can get there to do any harm. These bottoms have got to pass underneath that bridge; and when they are in there they can't get out of place and the ashes drop right over the top of this (bridge), so it don't interfere with the bottoms drawing at all and acts as a guard to keep the ashes from falling out when the locomotive is in motion.'

In order to operate the sliding bottom sections, levers may be used, with appropriate connections to be operated from the cab of the locomotive. The claims of the patent are as follows:

'1. An ash-pan having a sectional or two part bottom, said bottoms having side flanges, grooved side guide rails for the reception of said flanges, and levers

...