Nerney v. New York, NH & HR Co.

• Decision Date: 04 May 1936
• Docket Number: No. 345.,345.
• Citation: 83 F.2d 409
• Parties: NERNEY v. NEW YORK, N. H. & H. R. CO.
• Court: U.S. Court of Appeals — Second Circuit

83 F.2d 409 (1936)

NERNEY v. NEW YORK, N. H. & H. R. CO.

No. 345.

Circuit Court of Appeals, Second Circuit.

May 4, 1936.

W. L. Barnett, of New Haven, Conn., and J. Carter Fort, of Washington, D. C., for appellant.

Edwin D. Nerney (John B. Hayward and Robert S. Blair, both of New York City, of counsel), for appellee.

Before MANTON, L. HAND, and CHASE, Circuit Judges.

MANTON, Circuit Judge.

The patent in suit No. 1,665,862 relates to a hand brake used on railroad cars. Heretofore a decree had been entered after a defense conducted by the Ajax Handbrake Company, enjoining the appellant from the infringement of this patent. The appellant then had fifteen thousand cars equipped with the Ajax brakes, and the court found these infringed. An appeal was taken from the original decree, but was dismissed upon a licensing agreement reached by the patentee, the Ajax manufacturer, and the railroad. The permanent injunction issued restrained the appellant "from further infringing said Letters Patent, and from, directly or indirectly, making or causing to be made, or using or causing to be used, or selling or causing to be sold, or offering for sale, or advertising for sale, or contributing to the manufacture, use or sale by others, of any brake or apparatus embodying the invention specified in the said claims of the said Letters Patent No. 1,665,862 and particularly the aforesaid Ajax brake, and from, directly or indirectly, infringing said Letters Patent in any way or manner whatsoever; exempting from said injunction, however, all the aforesaid Ajax brakes heretofore purchased by defendant, and all Ajax brakes licensed under the said Sauvage patent. * * *"

Thereafter, in the ordinary course of its business, the appellant was called upon to handle cars of other railroads coming to its line for transportation which were equipped with Equipco brakes. It is conceded that the Equipco brake infringes and also that the only use of it by appellant is on those connecting cars fitted with it. This type of brake was not on its own freight cars. Appellee thereupon brought on a motion asking for a supplemental injunction to restrain appellant from infringing the patent by the use of the Equipco hand brake. After a hearing, on affidavits, the court granted the application and entered a supplemental injunction, first announcing, however, that the Equipco brake was structurally equivalent to the Ajax brake and that the original injunction covered this type of brake. The supplemental injunction in the phrases of the original injunction restrained the use of Equipco hand brakes specifically and directed appellant to notify all class 1 railroads of the United States, and particularly the Pennsylvania Railroad Company, from which it received cars equipped with such Equipco brakes, to refrain from sending or delivering to it or onto its trackage any railroad cars equipped with such hand brakes, and it further ordered that appellant should refuse to accept or receive or move on its trackage any cars of the other railroads equipped with such brakes unless and until noninfringing hand brakes were substituted therefor on such cars.

The affidavits submitted on the motion show that appellant had fifty-three interchange points at which it received cars from other railroads, a total of two or three thousand cars daily at such points. The affidavits make clear the hardship to which appellant would be subjected by the injunction issued. It would be a very serious and exacting task to detect cars so equipped and to eliminate them. It would require extra inspectors at these points, cause loss and delay in emptying and reloading cars found to be equipped with the offending device, and there would be a loss of traffic because of routing around appellant's line. There is a conflict as to the number of cars so received equipped with the Equipco brake. Appellee argues that the injury and inconvenience would be slight, stating that only five cars monthly would be found to infringe. If this be true, the appellee would obtain very little benefit from the injunction. It does appear, however, that a greater number of infringing cars are presented for interchange; sixty having been noted as arriving at the Cedar Hill yards in one week.

The practice of picking up a connecting carrier's car and hauling it over the railroad's own lines for a specific per diem rental to the railroad owning the car is recognized as a necessity to practical shipment of freight. St. Louis Southwestern R. Co. v. Arkansas, 217 U.S. 136, 145, 30 S.Ct. 476, 54 L.Ed. 698, 29 L.R.A. (N.S.) 802; Chicago, Rock Island & Pacific Ry. Co. v. United States, 284 U.S. 80, 90, 52 S.Ct. 87, 76 L.Ed. 177; In re Car Shortage and Other Insufficient Transportation Facilities, 12 I.C.C. 561, 573. The railroads sending cars over appellant's lines cannot be expected to select those which do not infringe. Appellee suggests that appellant can install noninfringing brakes on the incoming cars. This they would have no lawful right to do, as the cars are owned by other companies, and, moreover, they should not be expected to bear this expense when the car may be on their lines only for a short time.

If the...