Opinion of the Court.

244 U. S.

and it will not be heard in the courts to urge the inconsistent defense that its own tariff made unlawful this contract on which in the alternative it relies.

To this we add that passes for caretakers, not only to destination but returning to point of shipment, were formerly general (Cleveland, Painesville &c. R. R. Co. v. Curran, 19 Ohio St. 1), and in some parts of the country are still issued (Kirkendall v. Union Pacific R. R. Co., 200 Fed. Rep. 197, 200), and that, in our opinion, the language of the notice quoted, while obscurely worded, implies that such passes will be issued by the defendant to destination of the shipment and was intended as notice to shippers that return passes would not be allowed. The meaning now claimed for this notice would have been unmistakably expressed without the final clause "and such shippers or caretakers shall pay full fare returning." Why "returning" if full fare were also to be paid "going"? Tariffs must not be made cunningly devised nets in which to entangle unsuspicious or inexperienced shippers.

The second defense of the railroad company is in the alternative, and must be considered because its first defense has failed.

This claim is that under the Interstate Commerce Law payment for the transportation of passengers for hire could be made only in money, and at a rate stated in a tariff filed and published in the manner required by law; that no separate payment for plaintiff's transportation was made in money, and the consideration for it must be found, if at all, incorporated in the rate charged for the stock or in the service which he was to render in caring for it in transit, and that, as neither of these was separately stated in any filed and published tariff the plaintiff's presence upon the car was unlawful and he should not recover for injuries sustained.

In the consideration of this second claim of the defend

ant these facts appearing of record are decisive: The defendant relies for its defense upon the terms of the live stock contract entered into between its connecting carrier the Pennsylvania Company and the plaintiff and, averring in its answer that it received the shipment of horses “in accordance with the terms of the said contract," it claims immunity from liability for damages to the plaintiff under the declaration of that contract, that: "In consideration of the carriage of the undersigned [plaintiff] upon a freight train of the carrier or carriers named in the within contract without charge, other than the sum paid or to be paid for the carriage of the live stock" the plaintiff assumed the risk of accident and released said carrier or carriers from all liability to him for any injury which he might sustain.

While the record is not as clear as could be wished the excerpts which it contains from the filed tariffs of the Pennsylvania Company and the live stock contract, both introduced in evidence by the defendant, justify the conclusion, rtainly as against the defendant, that the contract was a part of the tariffs of the Pennsylvania Company filed and published according to law and that the defendant is bound by its terms.

Treating this live stock contract as a part of the lawfully published tariffs of the Pennsylvania Company, under which the contract for the carriage of the plaintiff was made, and by which the defendant confesses itself bound, it is clear that such tariffs show the two carriers declaring that for the published rate payable in money the plaintiff's carload of stock and the plaintiff himself, as a caretaker, would be carried on freight trains from Jersey City to the North Carolina destination, and as we have seen the law declares that a caretaker so carried is a passenger for hire against whom the release of liability on which the defendant relies must be treated as unreasonable and

Opinion of the Court.

244 U.S.

The objection that the published tariff of the Pennsylvania Company did not specify how much of the stipulated payment by the plaintiff should be treated as payment for the transportation of the stock and how much for the transportation of the caretaker, and that the payment for the carriage of the plaintiff was not separately stated in a passenger tariff, cannot be considered in this case for the reason that the Act to Regulate Commerce (§ 6, as amended June 29, 1906, June 18, 1910, and August 24, 1912) commits to the Interstate Commerce Commission the determining and prescribing of the form in which tariff schedules shall be prepared and arranged, and this is an obviously administrative function with which the courts will not interfere in advance of a prior application to the Interstate Commerce Commission. Atchison, Topeka & Santa Fe Ry. Co. v. United States, 232 U. S. 199, 221; Texas & Pacific Ry. Co. v. American Tie & Timber Co., 234 U. S. 138.

It results that the second claim of the defendant must be rejected because the fare of the plaintiff was paid in money pursuant to published tariffs, which clearly showed the terms of the shipment of the stock with transportation for the plaintiff included, in a form which in the state of this record must be considered as having been satisfactory to the Interstate Commerce Commission, to which the determination of such form was committed by law.

The claim that Charleston & Western Carolina Ry. Co. v. Thompson, 234 U. S. 576, rules this case cannot be allowed, for the sufficient reason that the plaintiff in that case was found to be traveling upon a gratuitous pass, issued without consideration to a member of the family of an employee. Behind such a pass there lay no such background of court decision and of railroad practice as we have here, giving definite interpretation to the statute as applied to "caretakers' passes" and therefore that case fell without the scope of the Lockwood decision and within

the principle of Northern Pacific Ry. Co. v. Adams, 192 U. S. 440, and Boering v. Chesapeake Beach Ry. Co., 193 U. S. 442.

The judgment of the Circuit Court of Appeals is

Affirmed.

RAILROAD SUPPLY COMPANY v. ELYRIA IRON & STEEL COMPANY.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT.

No. 95. Argued April 17, 18, 1917. Decided May 21, 1917.

The following patents, viz., No. 538,809, of May 7, 1895, No. 691,332, of January 14, 1902, and No. 721,644, of February 24, 1903, all granted to one Wolhaupter for alleged new and useful improvements in railroad tie plates, are here examined in respect of certain of their claims in comparison with the prior art, and are held invalid for want of novelty and invention.

Flanges and teeth projecting from the under surfaces of tie plates, for the purpose of holding them to the ties, and flanges or shoulders on the upper surfaces, designed to receive and resist the lateral thrust of the rails and thus preserve the gauge of the track, having been described in earlier patents and become well known, invention in the Wolhaupter plates is left to depend upon the method of combining strength with economy by providing flanges upon the upper surfaces for the rails to rest upon; but this feature also, besides having been in substance anticipated by earlier patents, is held to be no more than the product of ordinary mechanical skill, since resort to channels, grooves and corrugations was a familiar method of reducing the cost of iron plates by reducing their weight without decreasing their strength.

A patentee is presumed to have had all prior patents before him when he applied for his patent.

Mere carrying forward of the original thought, a change only in form, proportions or degree, doing the same thing in the same way, by

Opinion of the Court.

244 U.S.

substantially the same means, with better results, is not such invention as will sustain a patent.

Patents claiming merely improvements in devices already well exploited in the prior art must be limited strictly to the forms described in the claims.

213 Fed. Rep. 789, affirmed.

THE case is stated in the opinion.

Mr. Taylor E. Brown, with whom Mr. Clarence E. Mehlhope was on the brief, for petitioner.

Mr. Frederick P. Fish and Mr. Frank F. Reed, with whom Mr. Edward S. Rogers was on the briefs, for respondent.

MR. JUSTICE CLARKE delivered the opinion of the court.

On March 26, 1909, The Railroad Supply Company, petitioner, commenced this suit against The Elyria Iron & Steel Company in the Circuit (now District) Court for the Northern District of Ohio, claiming infringement of claim No. 8 of United States Letters Patent No. 538,809, granted May 7, 1895, of claims Nos. 1, 2 and 3 of Patent No. 691,332, granted January 14, 1902, and of claims Nos. 7 and 9 of Patent No. 721,644, granted February 24, 1903. All of these patents, granted to B. Wolhaupter, were acquired by the petitioner, and each of the three purported to describe a new and useful improvement in railroad tie-plates.

Such proceedings were had in the case that on March 4, 1912, the District Court decided that the petitioner's patents were not infringed by the device manufactured and sold by the defendant.

On appeal to the Circuit Court of Appeals for the Sixth Circuit, that court on April 7, 1914, affirmed the decree of the District Court dismissing the bill, and held in its