to that end, it was sought to control the market We have not deemed it necessary to consider [No. 296.] Argued Apr. 3, 1884. Decided Apr. 14, 1884. The history and facts of the case fully appear The negligence, if any, was that of a fellowservant with the plaintiff, of the same master, both engaged at the time in the same common object and was one of the risks incurred by the plaintiff when he entered the employment. Randall v. R.R. Co., 109 U. S.,478 (XXVII., 1003). The negligence of an adult,directly contributing to his injury and without which the misfortune would not have happened, will prevent a recovery. R. R. Co.v. Gladmon, 15 Wall., 401 (82 U. S., XXI., 114); R. R. Co. v. Stout, 17 Wall., 657 (84 U. S., XXI., 745); R. R. Co. v. Jones, 95 U. S., 439 (XXIV., 506). There was nothing to be left to the jury, and the trial Judge should have sustained the demurrer to evidence. It results, from these considerations, that, if [313] the claim of No. 4321 is to be construed so broadly as to cover the defendant's article, it is wider Improvement Co. v. Munson, 14 Wall., 442 in its scope than the original actual invention (81 U. S., XX., 867); Pleasants v. Fant, 22 of Graebe and Liebermann, and wider than any- Wall., 116 (89 U. S., XXII., 780); R. R. Co. v. thing indicated in the specification of the orig-Jones (supra); Bowditch v. Boston, 101 U. S., 16 inal patent, and that, if it is to be construed so (XXV., 980). as to cover only the product which the process described in it will produce, it is not shown that the defendant's article is that product or can be A demurrer to evidence is, under the Kansas practically produced by that process. In either Statute, similar to an instruction. And an inview, the decree of the Circuit Court must be re-struction that there is no evidence to entitle the versed and the case be remanded to that court, with direction to dismiss the bill of complaint. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. S. SIMEON B. ARMOUR, Piff. in Err., Ο. CHARLES F. HAHN. (See S. C., Reporter's ed., 813-319.) Master's obligation to servant for safety of struct 1. The obligation of a master to provide reason *Head notes by Mr. Justice GRAY. Messrs. Thomas P. Fenlon and Byron Sherry, for defendant in error: plaintiff to a recovery will not be given if any possible construction of the evidence will sustain a verdict. Bank v. Triplett, 1 Pet., 25; Parks v. Ross, 11 How., 362; Nutt v. Minor, 18 How., 286 (59 U. S., XV.,378); Spring Co. v. Edgar and Pence v. Langdon,99 U. S.,645,578 (XXV., 487, 420); Moulor v. Ins. Co., 101 U. S.,708 (XXV., 1077). The master is bound to provide his employés with a safe working place and machinery. Coombs v. Cord Co., 102 Mass., 572; Cayzer v. Taylor, 10 Gray, 274; Seaver v. R. R. Co., 14 Gray, 466; Snow v. H. R. R. Co., 8 Allen, 441; Gilman v. E. R. R. Co., 10 Allen, 233. In inviting them to use his structure and machinery, he must use proper care and diligence to make such structure and machinery fit for use. R. R. Co. v. Fort, 17 Wall., 553 (84 U. S., XXI., 739); Sullivan v. Mfg. Co., 113 Mass., 396; O'Connor v. Adams, 120 Mass., 427; Reedie v. R. Co., 4 Exch., 253; Dynen v. Leach, 26 L. J. Ex., 221; Lawler v. R. R. Co., 62 Me., 466; Fifield v. R. R. Co., 42 N. H., 225; Hard v. R. R. Co., 32 Vt., 473; Swords v. Edgar, 59 N. Y., 28; Plank v. R. R. Co., 60 N. Y., 607; Patter son v. R. R. Co., 76 Pa. St., 389; R. R. Co. v. Jackson, 55 Ill., 492; R. R. Co. Barber, 5 Ohio St., 541; R. R. Co.v. Flanigan, 77 Ill., 365; R. R. Co. v. Arnold, 31 Ind., 175; Muldowney v. R. R. Co., 36 Ia., 463; Wedgwood v. R. R. Co., 41 Wis., 478; LeClair v. R. R. Co., 20 Minn.,9; Whalen v. Church, 62 Mo., 326; R. R. Co. v. Thomas, 42 Ala., 673; Malone v. Hawley, 46 Cal., 409; Batterson v. Wallace, 1 Macq., H. L. Cas.,748; Toledo R. Co. v. Moore,77 Ill., 217. The agents who are charged with the duty of supplying safe machinery are not, in the true sense of the rule relied on, to be regarded as fellow-servants of those who are engaged in operating. They are charged with the master's duty to the servant. Ford v. R. R. Co., 110 Mass., 240. The rule is well settled that, if the negligence of the master combines with the negligence of a fellow servant, and the two contribute to the injury, the servant injured may recover damages of the master. Crutchfield v. R. R. Co., 76 N.C., 320; Booth v. R. R. Co., 73 N. Y., 38; Paulmier v. R. Co., 34 N. J. L., 151: Cayzer v. Taylor, 10 Gray, 274; Boyce v. Fitzpatrick, 80 Ind., 526; R. Co. v. Cummings, 106 U. S., 700 (XXVII., 206). Mr. Justice Gray delivered the opinion of the court: This is an action brought by Hahn against Armour and others, of whom Armour alone was served with process to recover damages for [314] injuries suffered by the plaintiff while employed as a carpenter in the erection of a building for the defendants. wall, and by placing on the outer ends of those timbers, and parallel to the wall, joists sixteen or eighteen feet long and two and a half inches wide. The plaintiff and another of the carpenters were directed by their foreman to take a joist and put it out in its proper place on the projecting timbers. They took it and laid it upon those timbers. The foreman told them to push the joist out to the end of the timbers, but did not tell them to go out. Each man pushed out his end of the joist. The plaintiff, in order to reach over and place the joist, set down with both feet on one of the projecting timbers, one foot on the part of it inside the wall, and the other foot on the part outside, when the timber tipped over, and caused the plaintiff to fall scme thirty-four feet to the platform below, and to suffer the injuries sued for. The wall had just been bricked up on each side of this timber to a level with its upper surface, but no bricks had been laid over it. The foreman stood eight or ten feet further in; there was a space for the bricklayers to build up the wall, and they were working upon it. The plaintiff testified that he helped to put some of the sticks of timber in the old wall, and spiked them to the girders; that he did not know who put this The petition alleged that the plaintiff was and stick of timber in the new wall; that it appeared long had been in the defendant's employ as a to be secure; that if it had been fastened he carpenter, and while at work, together with could have stepped out upon it without danger; others, in building an addition to a large pack-that if he had kept both feet inside the wall, he ing house owned and occupied by the defendants was directed by them and their agents to take a joist and place it on the outer ends of sticks of timber inserted in and projecting from the wall of the new building; that while arranging and adjusting the joist, in accordance with instructions of the defendants and their agents, it became necessary for him to step out upon one of the projecting timbers; that, immediately upon placing one foot upon the projecting timber and while stooping over to arrange the joist and without any notice, warning or reason to be lieve that the projecting timber was insecure or unsafe, and without any fault or neglect on his part, the timber gave way, precipitating him from the top of the wall, thirty-four feet, to the platform beneath; that the defendants, well knowing the danger, negligently and wrongfully directed him to go out upon the projecting timber to arrange the joist, without advising him of the danger; and that by reason of the negligence of the defendants, in not having secured the projecting timber to the wall and in not notifying him of its dangerous condition, he suffered great bodily injuries. The testimony introduced for the plaintiff at the trial, was in substance as follows: the plaintiff was engaged with twelve or thirteen other carpenters, all paid by the day, in the erection of the new building. Bricklayers and other laborers were also at work upon it. The plaintiff was employed and paid by one Alcutt, the superintendent of the packing house. One Fitzgerald was foreman of the carpenters but not of the other workmen. The plaintiff, who had been working on one end of the roof, went to the other end, and was there set to work by the foreman upon the cornice. The cornice was made by inserting in the brick wall, which was thirteen inches thick, at intervals of eight or nine feet and at right angles with it, sticks of timber projecting about sixteen inches from the could have pushed the joist out, but could not There At the close of the evidence for the plaintiff, a demurrer to that evidence, upon the ground that it proved no cause of action, was filed by the defendant, in accordance with the following provision of the statutes of Kansas: [315] The party on whom rests the burthen of the issues must first produce his evidence; after he has closed his evidence, the adverse party may interpose and file a demurrer thereto, upon the ground that no cause of action or defense is [316] proved. If the court shall sustain the demurrer, such judgment shall be rendered for the party demurring, as the state of the pleadings, or the proof, shall demand; if the demurrer be overruled, the adverse party will then produce his evidence." Laws, Kansas, 1872, ch. 162, sec. 1, cl. 3. The demurrer was argued and submitted to the court and overruled. The defendant excepted to the ruling. No further evidence was introduced by either party at the trial. The case was submitted, under instructions excepted to by the defendant and which it is unnecessary to state, to the jury, who returned a verdict for the plaintiff in the sum of $7,500. Judgment was rendered on the verdict, and the defendant sued out this writ of error. This court is of opinion that the circuit court erred in not rendering judgment for the defendant on his demurrer to the plaintiff's evidence. There was no evidence tending to prove any [319] negligence on the part of the firm of which the defendant was a member, or of their superintendent, or of the foreman of the gang of carpenters. The obligation of a master to provide reasonably safe places and structures for his servants to work upon does not impose upon him the duty, as towards them, of keeping a building, which they are employed in erecting, in a safe condition at every moment of their work, so far as its safety depends upon the due performance of that work by them and their fellows. The plaintiff was not a minor, employed in work which was strange to him, but was a man of full age, engaged in ordinary work of his trade as a carpenter. The evidence tended to show that he and one of his comrades were directed by their foreman to push the joist out on the projecting sticks of timber, not that he told them to go out themselves. The projecting timber upon which the plaintiff placed his foot was inserted in a wall which was in the course of being built and which at the time had been bricked up only so far as to be on a level with the upper surface of the timber. The usual course, as the plaintiff himself testified, was to put the timber in, and leave it in that way temporarily, and afterwards build the wall up over it. It is not pretended that the stick of timber was in itself unsound or unsuitable for its purpose. If it was at the time insecure, it was either by reason of the risks ordinarily incident to the state of things in the unfinished condition of the building; or else by reason of some negligence of one of the carpenters or bricklayers, all of whom were employed and paid by the same master and were working in the course of their employment at the same place and time, with an immediate common object, the erection of the building and, therefore, within the strictest limits of the rule of law upon the subject, fellow-servants, one of whom cannot maintain an action for injuries caused by the negligence of another against their common master. Hough v. R. Co., 100 U. S. 213 [XXV., 612]; Randall v. R. R. Co., 109 U. S. 478 [XXVII., 1003]. The judgment of the Circuit Court must, therefore, be reversed and the case remanded for further proceedings in conformity with this opinion. Judgment reversed. True copy. Test: The history and facts of the case fully appear in the opinion of the court. Messrs. John S. Beach and John K. Beach, Messrs. Thomas Wm. Clarke and Elias Mr. Justice Matthews delivered the opinion This is a bill in equity filed by the appellees as assignees of Timothy Earle, for an injunc tion and an account, against the appellants, as infringers of re-issued letters patent No. 6542, for an improvement in egg-beaters, dated July 13, 1875, for which the application was filed June 8, 1875, the original No. 39134 dated July 7, 1863. The bill was filed July 14, 1877, an interlocutory decree declaring the infringement and grantinga perpetual injunction was pronounced July 9, 1879, and a final decree in favor of the complainants confirming the master's report of the amount of profits made by defendants was entered April 26, 1881. From this decree the present appeal is prosecuted. The following is a copy of the re-issued letters patent, in which the parts in italics are not in the original, and the parts inclosed in [] are in the original, and excluded from the re-issue: "To all whom it may concern : Be it known that I, Timothy Earle, of Lincoln (formerly Smithfield), in the County of Providence and State of Rhode Island, have invented [a] certain new and useful improvements in egg-beaters; and I do hereby declare that the following specification, taken in connection with the drawing, making a part of the same, is a full, clear and exact description thereof. Figure 1 is a view of the beater. Fig. 2 is another view of the same, with the rack which works it shown. Fig. 3 is a top view of the same. Various devices have been employed for the purpose of beating eggs more expeditiously than by the familiar hand process. One of these devices consists of two wire frames, one within the other, and made to revolve in opposite directions; another consists of a propeller blade inside of a wire frame, the frame and blades being made to revolve in opposite direc James H. McKenney, Clerk, Sup. Court, U. 8. tions; and still another consists of a propeller (See S. C., Reporter's ed., 319-327.) Invalid re-issue of patent. blade, which is made to rotate, while a pair of All these machines, and all others with which [320] Now, as the albumen of an egg consists of a peculiar thick, glairy substance, it can be worked [321] more effectually with a cutting instrument than with one which has a blunt edge. In fact, so Where the claim of a re-issued patent has been well is this understood that housewives [unimade broader than that of the original, so as to em-versally] commonly make use of the blade of a brace the device used by the appellants, which was not previously an infringement, the re-issue is invalid. [No. 268.] knife for the purpose. My invention is designed to obviate the diffculty referred to; and consists in the use of a revolving frame, A, formed of thin strips of met al of the form shown, and mounted upon a spin dle, B. around which it can freely rotate; and also of an outer fixed frame, C, of the same gen [322] eral form as the inner one, but large enough to permit the inner frame to rotate within it. The outer frame is attached to the spindle B, and with it furnishes a support or frame for the operative parts of the machine [for it]. The inner frame is further provided with a series of cutters or blades [a a a a] a, a, etc., arranged in any manner suitable for cutting through the fluid in many different [planes] places. These cutters or blades are simply pieces of sheet-tin or other suitable metal of the width of the inner frame, and are attached to the same by their ends, as is shoon, and they are all so placed that their edges shall cut the material to be agitated when the frame A is rotated. The blades which form the outer fixed frame Care also placed in a similar position, and when the machine is in operation, cut through the current of material which is carried past them by the revolving frame,and thus aid in the operation in a similar manner. Upon the top of the frame A is attached a tooth wheel D, through which, by means of the rack, E, Fig. 3, worked by the hand, a rotary motion is given to the inner frame A in alternate directions. The frame Č, at its upper end, is so formed and arranged in relation to the pinion D as to leave the proper space between them, upon either side, to receive the rack E, and serve as a guide or dearing to keep the rack in gear with the pinion; and H is a circular flange attached to the lower side of the pinion to prevent the rack from falling doron. My invention also relates to the method of holding the machine in position while it is used. In the previous machines for this purpose the machine has been generally attached to or supported upon and in connection with the vessel which contained the materials to be operated upon, thus requiring a specific kind of vessel for the purpose, which, in effect, formed part of the machine; or the frame of the machine was fixed to some stationary object, with the revolving beater or beaters projecting downward below the machine into the vessel which contained the matters to be treated, the vessel being held below the machine, and entirely detached from it. But by my improvement the machine becomes a separate detached implement, which can be used in any vessel, and without any mechanical fastening of the machine to the vessel or to any other object. This part of my invention, therefore, consists in providing the bottom of the fired frame C of the machine with a foot, F, or other suitable support, to rest upon the bottom of the vessel to support the lower part of the machine and raise the revolving-beater frame A above the fixed frame C sufficiently to permit it to revolve freely; and also providing the top of the machine with a handle, G, by which the machine can be held upright upon the bottom of the vessel by one hand, while the beater-frame is operated by the other, as is described. When the machine is to be used it is placed with its foot F resting upon the bottom of the vessel containing the broken eggs. The left hand bears upon the handle G and holds the machine in position. The rack E, held by the handle in the right hand, is engaged with the pinion D, and the proper motion imparted to the frame A. cial effect of the blades or cutters [a a a] A, a, etc., would be obtained as well; but I prefer the method described of communicating motion to the frame A, for the reason that the machine is more easily cleaned and is more convenient for domestic use. [What I claim as my invention and desire to secure by letters patent is the use of a series of cutting edges a a a a when attached to a frame A, which is capable of being rotated substantially as described for the purpose specified.] What I claim is: 1. The revolving-beater frame formed of thin plain blades or cutters, arranged to cut edgewise through the material by their rotation, substantially as described. 2. The combination of the fixed frame, which contains and supports the operative machinery, provided with a foot or support at the bottom, the handle at the top, and suitable mechanism for rotating the beater, substantially as described." The following is a copy of Fig. 2 annexed [323] to the specifications and sufficiently illustrates them: The cutting portion of the appellant's beater consists of an outer frame and inner frame, each of which is made to revolve around a centralspindle by means of a cog-wheel and pinion. Each frame is composed of two curved pieces of tin joined together, or of onepiece joined at its two ends so as to make nearly a circle. These pieces are thin, plain, flat pieces of tin and are so arranged as to cut edgewise through the material by their rotation. In neither the inner nor the outer frame are there any addi tional blades or cutters like the blades a, a, a, a. It is represented in the following drawing: The controversy in the circuit court seemed to be mainly on the question of infringement; and that turned on the construction to be given to the first claim of the re-issued patent, no point being made as to the second claim. It was insisted by the defendants below that their device was not an infringement of the claim as contained in the original patent, and that a fair construction of the first claim in the re-issued patent would limit it substantially to the same thing. In deciding the point, the learned Judge, holding the circuit court, said: "The question of infringement of the first claim of the re-issued patent depends upon the construction of the claim. If it should be properly limited so as to be confined to the frame with the cutters or blades, which are described in the specification and in the drawings, to wit: a frame with the cutters a, a, a, a, then there is no infringement; but if the claim is to be con It is obvious that a continuous rotary motion may be easily imparted to the frame A by means of a crank and suitable gearing, and the benefi-strued so as to include a beater frame formed of [324] [325] thin, plain blades, then the invention which is recited in the first claim is found in the defendants' egg-beater. The devices which were in use prior to the invention of the plaintiffs' assignor were composed of round wire, which by their rotation, broke rather than cut the material. The part of the invention, which is the subject of the first claim, consisted in such an introduction of the kuife-blade of the housewife and the mechanism for operating the blade, into an egg-beater, that the egg could be rapidly cut and the egg matter could be aerated and be beaten into froth. The original, and also the re-issued specification, dwelt upon the particular form of the cutters of the inner frame, and the original claim limited the invention to the cutters a, a, etc., but the scope of the invention was larger, and the principle was embodied in any revolving frame composed of thin and plain, as distinguished from corrugated, cutting surfaces, so arranged as when rotated to cut edgewise through the material, provided the frame was constructed and arranged substantially in the manner described in the specification. It is not claimed that the re-issue is void, upon the ground that it is for a different invention from that shown or indicated in the original specification, but such a construction is attempted to be given to the re-issued claim, as would limit it to the precise language of the surrendered patent. The patent was surrendered because the grant was not co-extensive with the invention, and it would be an unnatural construction of the re-issued patent, which should cramp the claim within the limitation which had been discarded. In my opinion, the natural meaning of the words which were used is to be permitted and giving to the claim such a freedom of construction, the defendants' device is an infringement." We are quite satisfied that the difference between the original claim and the first claim of the re-issued patent, is substantial and not verbal. The former is necessarily limited to the particular device described as a frame, with a series of cutting edges attached, in the mode designated, and capable of rotation. The latter embraces every revolving beater frame, formed of thin plain blades or cutters, arranged to cut edgewise through the material by their rotation. It is immaterial whether or not the latter might have been covered, by the language of the specification, as included in the invention. We are dealing with the claims and nothing else. And it cannot be successfully contended that the original claim implicitly contained all that is [326] expressed in the claim of the re-issued patent. The original claim has been made broader by the re-issue, so as to embrace the device used by the appellants, which was not previously an infringement. And that raises the question, whether, under the circumstances disclosed by this record, the re-issue is valid. To avoid this question, it is, indeed, contended now by the appellees, that the two claims, under examination, are identical; that their apparent differences are merely literal; that their meaning is the same; and this conclusion is thought to be reached, not by restraining the re-issue, to the language of the original, but by a process of construction, by the use of supposed implications, to expand the words of the orig inal so as to cover everything embraced in the re-issue; the only alternative, indeed, that could be adopted, to escape the inconsistency of main taining that claims, which were diverse, upon the question of infringement, were identical, upon the question of the validity of the patent. But, as already intimated, this position is not tenable. There is nothing in the language or recitals of the original patent, nor are there any just and reasonable inferences of which they are susceptible, which justify a construction of the claim, that would embrace any device, other than that described in the specifications and represented in the drawings; much less to include every mechanical arrangement which embodies a cutting edge with a revolving frame, to cut instead of break the egg material upon which it is meant to operate. The question then recurs: what are the circumstances which affect the validity of the reissue, and how do they affect it? They are few, but decisive. The original patent was issued July 7, 1863. Eleven years after, in 1874, the competition of the appellants' device became apparent and was felt. In 1875, application was made for the re-issue; the original patent was surrendered and the re-issued patent granted, July 13, 1875. Here is a delay of nearly twelve years, without the offer of an explanation or excuse, without even the suggestion of inadvertence or mistake in the original application. The only inference that can be drawn is, that the discovery and experience of successful competition in 1874 suggested first and led to the discovery that the original claim did not cover everything that might have been embraced and was not broad enough to maintain the monopoly desired but not secured. This brings the case directly within the principle of Miller v. Brass Co., 104 U. S., 350 [XXVI., 783], and the numerous others which have followed it, including that of Clements v. Odorless Apparatus Co., 109 U. S.,641 [XXVII., 1060], all of which have been decided since the interlocutory decree in this case nounced. was pro For these reasons, the decree of the Circuit Court is reversed and the cause is remanded, with directions to dismiss the bill, and it is so ordered. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. S. WILLIAM IRVINE, Appt., ข. SUMNER T. DUNHAM. (See S. C., Reporter's ed., 327-335.) Trustee's duty to account-new trustee, when ap pointed. 1. Where one holds property in trust for another and sells the same, he is bound to account for its proceeds to the beneficiary of the trust according to the terms of the trust. 2. Where there is a failure of suitable trustees to perform a trust, either from accident or from the refusal of the old trustees to act,or from their original or supervenient incapacity to act, or from an other cause, courts of equity will appoint new trustees. [No. 243.] Argued Mar. 31 and Apr. 1, 1884. Decided Apr. 14, 1884. [327] |