In applying this rule of reduced liability to the case in hand we are unable to see from the evidence on the part of the plaintiff that the defendant was guilty of such negligence as would permit the recovery of a judgment for the injury sustained by the deceased. The night was cold and stormy. Snow fell mixed with sleet, and the sidewalks were rendered very slippery. This the deceased knew, for he walked upon them from the saloon to the 34th Street station. The storm commenced about midnight and continued until nearly 4 o'clock in the morning, and this accident happened between half past 5 and 6 o'clock. The defendant had furnished a covered stairway with hand rails and pieces of rubber on each step to prevent slipping; and the failure to throw ashes or sawdust, or something of that character, upon the steps during the storm cannot be regarded as negligence, because the continuance of the storm would soon render the steps as slippery as before; and it seems to us that culpable negligence cannot be predicated upon the failure to clean off the steps between the time the storm ceased, which was between 3 and 4 o'clock in the morning, and the time when the accident happened. So brief a period as that, at such a time in the night, cannot, we think, be regarded as any evidence of a lack of that reasonable care which the defendant was bound to exercise.

Great reliance was placed on the argument upon the case of Weston v. New York Elevated Railroad Company, 73 N. Y. 595, but we think that case does not control this one.

In the Weston Case the plaintiff sustained injury by falling upon an uncovered platform between a waiting room and defendant's cars, and over which platform it was necessary to pass to reach the cars, and which platform the defendant had negligently suffered to become covered with snow and ice, rendering passage over it insecure and dangerous. The evidence showed that during the day, and before the accident happened, it had snowed, and the snow had been but partially removed from the platform. The plaintiff, while proceeding with caution, lost his footing, fell and was injured. The evidence showed that other passengers, at about the same time, slipped upon the platform. There was no difficulty in making the platform safe, and the accident happened in the daytime. A verdict for the plaintiff was upheld in the court below and sustained in this court. 3 L. R. A.

This case, we think, materially differs from that one. Here there was a continuous storm of sleet and snow from about 12 to 4 o'clock, and within two or three hours after the storm ceased, and in the very early morning, the accident occurred. The staircase was covered and the roof projected a foot on each side of it. There were rubber tips on each step and a hand rail on either side to aid passengers in going up and down the stairs. Under such circumstances the duty even of alertness on the part of the defendant was not omitted by a failure to render the stairs less slippery at such a time in the night and within the period named. We think the motion for a nonsuit should have been granted.

Again, the learned Judge, in his charge to the jury, fell into error when he stated the obligation of the defendant upon the facts in this case. Under the cases above cited, it was error to instruct the jury that it was the legal duty of the defendant to use all human care, caution and skill to make the ingress and egress to the defendant's station safe. This statement of the law was not in any manner explained or taken back. He also stated that the defendant "was required to use all the skill, all the diligence and all the care that the most cautious human being would use if he were looking after the protection of his own life and health." Upon exception being taken to that remark, he altered it by saying "a very cautious" instead of "the most cautious" human being. The charge in both forms was erroneous under the authorities already cited.

We think he also erred in his charge with reference to the condition of the stairs when he said: "If you come to the conclusion that they were slippery at that time, and that means might have been taken to prevent their being so, and that by reason of their slipperiness the plaintiff fell, as has been stated, then so far as this issue goes the jury would be justified in finding for the plaintiff." This charge practically made the company liable for the slipperiness of the steps, if by the exercise of the greatest care and skill which human foresight could think of, such condition could have been prevented. Of course such condition could have been prevented by stationing men at each stairway constantly engaged sweeping and cleaning the steps; or, if one man were not enough to do it, then under this ruling others should have been employed. And under this charge, if the storm were so severe as to require it, one man on each step should have been employed.

No such rigorous rule exists, in our judgment.

These views lead to a reversal of the judgment, and to the granting of a new trial, with costs to abide the event.

All concur, except Danforth, J., not voting.

Bernard REIN et al.

v.

John N. CLAYTON et al.

(.... Fed. Rep.....)

*A court of equity has no jurisdiction to enjoin the infringement of an invention before a patent has been issued, notwithstanding an application for the same has been made, and is still pending in the patent office.

(January 12, 1889.)

ILL in equity, to enjoin the use of an in

for which letters patent had not been issued.

Bill dismissed.

suit went down with surrender of the patent. See Peck v. Collins, 103 U. S. 660 (26 L. ed. 512).

Brown, J., delivered the following opinion: We are confronted upon the threshold of this case with the important question whether an inventor can maintain a bill for an injunction before the issue of a patent. The question has been directly decided in but a single case, viz., Butler v. Ball, 28 Fed. Rep. 754; and it is upon this case alone that plaintiffs rely for the maintenance of this suit. The learned

Judge who delivered the opinion in this case, not discuss the question

but cites two authorities as settling it in favor of the jurisdiction.

ber 11, 1888.

The point at issue is fully stated in the opinion. Mr. Alexander Brown, for plaintiffs: A competent court has jurisdiction to grant a preliminary or temporary injunction, prior to the issuance of a patent restraining a defendant from manufacturing or selling the invention of a complainant.

Butler v. Ball, 28 Fed. Rep. 754, and the cases therein cited.

the question was, whether he was liable as an infringer, for using the improvement after he iff's patent; and the court held that he was, had received notice of the granting of plaintnotwithstanding a proviso in the special Act that "No person who shall have used the said improvements, or erected the same for use, before the issuing of said patent, shall be liable

therefor."

In delivering the opinion Mr. Justice Washington observed that "The right to the patent belongs to him who is the first inventor, even before the patent is granted; and therefore any person who, knowing that another is the first

Mr. George W. Radford, for defendants: This court has no jurisdiction to entertain a bill praying for an injunction pending complainants' application for a patent. The case of Butler v. Ball, 28 Fed. Rep. 754, cited by complainants, is not conclusive in this court, and is not a well reasoned case.

Section 629 of the United States Revised the Patent Laws. Section 4921, which is a secStatutes vests the court with jurisdiction under tion of the Patent Laws, provides that that jurisdiction shall only be exercised when the right has been "secured by patent."

The statutes have provided for a thorough

and exhaustive examination of the invention sought to be patented.

Reckendorfer v. Faber, 92 U. S. 347 (23 L.

ed. 719).

It was the intention of Congress that before an inventor could proceed in a court of law or in chancery, to enforce his rights, he must first invest his invention with the prima facie respect accorded it by a patent; and it was not intended that the circuit courts should usurp the powers of the commissioner.

The Supreme Court of the United States in the case of Moffitt v. Garr, 66 U. S. 1 Black, 273 (17 L. ed. 207), held that where the plaintiff in a suit at law surrendered his patent pending the suit for the purpose of a reissue, the

*Head note by BROWN, J.

ever apply for a patent, proceeds to construct he is not the first inventor, acts at his peril, a machine of which it may afterwards appear and with a full knowledge of the law that, by relation back to the first invention, a subsequent patent may cut him out of the use of

the machine thus erected."

It is entirely clear that in saying that the right to the patent belongs to the first inventor, his right to a patent therefor, and not to his even before the patent is granted, he refers only to the plaintiff's property in his invention, and right to enjoin an infringer before the patent is issued. The real question was whether the decle before the patent was issued, and was then fendant, who had purchased the patented artiusing it, had the right to continue to use it after the patent was granted; and it was held that he had not. The principle of this case was subEvans v. Jordan, 13 U. S. 9 Cranch, 199 [3 L. sequently affirmed by the supreme court in ed. 704].

Fish. Pat. Cas. 343), suit was brought upon In the other case, also (Jones v. Sewall, 6 letters patent; and in opening his opinion Mr. Justice Clifford made the incidental remark that inventions lawfully secured by letters patent are the property of the inventors, and other species of property. "They are indeed as much entitled to legal protection as any property, even before they are patented, and continue to be such, even without that protection, until the inventor abandons the same to

He is evidently speaking here of the right of an inventor to a patent in case he makes his application within two years after 'his device has been made public; and this right is a species of property which remains unimpaired during the continuance of the two years. But there is no intimation here that the inventor may apply for an injunction before his right is lawfully secured by letters patent; indeed, the intimation is the other way. He is evidently speaking of the same right of property to which Mr. Justice Hunt alludes in Celluloid Manufacturing Company v. Goodyear Dental Vulcanite Company, 13 Blatchf. 375, 383.

"So far as the plaintiff's own use or manufacture is concerned, it needs no Act of Con gress to enable it to make, use and vend the article, and it obtains no such right from Congress. The benefit of the Patent Law is that the plaintiff may prevent others from making, using or vending its invention. To itself, to its own right to make, use or vend, no right or authority is added by those statutes."

We think that neither of these cases is authority for the proposition laid down in the case of Butler v. Ball.

Let us now examine the question upon principle. At common law there was no special property in an invention, because the policy of the law was opposed to this as to all other monopolies. Walk. Pat. 159.

Indeed, the inventive genius of the English speaking people did not begin to manifest itself to any considerable extent before the middle of the last century, and it is only within the past sixty years that the business of the patent office has been considered of any great importance. Patents for inventions were at first treated as a royal prerogative, and granted as a matter of favor, and never as a legal right. They were in fact a branch of that extensive system of monopolies which became so odious during the reign of Elizabeth and her successors, the Stuarts.

In the reign of James I. a statute known as the "Statute of Monopolies" was passed, declaring all monopolies contrary to law, and void, except as to patents, not exceeding the grant of fourteen years, to authors of new inventions, and some others not material to be noticed here. This was the earliest recognition of the right of an inventor to a monopoly of the manufacture, sale and use of his invention. It still remained, however, a royal prerogative, which was granted or refused at the pleasure of the Crown. This statute was followed by others, securing to the inventor a monopoly, as a matter of right, and providing the proper machinery for procuring and enforcing it.

In this country patents have been recognized as existing only by virtue of positive law. The Constitution of the United States conferred up on Congress the power "to promote the progress of science and useful art by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries." The adoption of the Constitution was followed the next year by the first

That the right of an inventor to a monopoly is purely a feature of the statute was recognized by the supreme court in Brown v. Duchesne, 60 U. S. 19 How. 183, 195 [15 L. ed. 595, 599], in which Mr. Chief Justice Taney observed:

"But the right of property which the patentee has in his invention, and his right to its exclusive use, is derived altogether from these statutory provisions; and this court has always held that an inventor has no right of property in his invention, upon which he can maintain a suit, unless he obtains a patent for it, according to the Acts of Congress; and that his rights are to be regulated and measured by these laws, and cannot go beyond them.'

Still stronger language is used by him in Gayler v. Wilder, 51 U. S. 10 How. 477, 493 [13 L. ed. 504], in which he says:

"The inventor of a new and useful improvement certainly has no exclusive right to it, until he obtains a patent. This right is created by the patent, and no suit can be maintained by the inventor against anyone for using it before the patent is issued. But the discoverer of a new and useful improvement is vested by law with an inchoate right to its exclusive use, which he may perfect and make absolute by proceeding in the manner the law requires.. The monopoly did not exist at common law, and the rights, therefore, which may be exercised under it, cannot be regulated by the rules of the common law. It is created by the Act of Congress; and no rights can be acquired in it unless authorized by statute, and in the manner the statute prescribes."

And in the recent unreported case of Marsh v. Nichols, 128 U. S. 612 [32 L. ed. 541], appealed from this court, in which the point decided was that a patent not signed by the secretary of the interior is absolutely void, it is said:

"The invention is the product of the inventor's brain, and, if made known, would be made subject to the use of anyone, if that use were not secured to him. Such security is afforded by the Act of Congress, when his priority of invention is established by the officers of the patent office, and the patent is issued. The patent is the evidence of his exclusive right to his use of the invention. It therefore may be said to create a property interest in that invention. Until the patent is issued, there is no property right in it; that is, no such right as the inventor can enforce. Until then there is no power over its use, which is one of the elements of a right of property in anything capable of ownership.”

A similar observation was made by Judge Shepley in American Machine Company v. American Tool & Machine Company, 4 Fish. Pat. Cas. 284, 294. "An inventor," says he, “has no right to his invention at common law. He has no right of property in it originally. The right which he derives is the creature of statute and of grant." See also Sargent v. Seagrave, 2 Curt. 553, 555.

The power of a court to deal with patents is now regulated by the 55th section of the Patent Act of 1870, incorporated into Rev. Stat

4921, which declares that "The several courts vested with jurisdiction of cases arising under

the Patent Laws shall have power to grant injunctions, according to the course and principles of the courts of equity, to prevent violation of any rights secured by patent, on such terms as the court may deem reasonable."

It is impossible to deduce from this language any recognition of a power to grant such injunction before the right has been "secured by patent." Indeed, if it does not absolutely inhibit that power, it points very strongly in that direction. While no court has decided that it would not grant an injunction after application for but prior to the issue of a patent, it has been frequently held that after a patent has been surrendered no action will lie upon it, and all actions founded upon it abate, notwithstanding an application for a reissue for the same be pending. Moffitt v. Garr, 66 U. S. 1 Black, 273 [17 L. ed. 207]; Peck v. Collins, 103 U. S. 664 [26 L. ed. 514].

This particular defect has since been remedied by the Act of 1870, declaring that the surrender shall take effect upon the issue of the amended patent; but the principle of these decisions is not affected. Now, if a bill will not lie upon a patent surrendered, though an application for a reissue be pending, it is impossible to see upon what ground it can be sustained before any patent whatever has been issued.

There are also certain practical difficulties in the way of assuming jurisdiction of a bill like the one under consideration. Courts of justice have no original cognizance of the subject of inventions. Congress has provided a commissioner of patents, has furnished him with a library of such scientific works and periodicals, both foreign and American, as may aid him in the discharge of his duties, with copies of models of all patents heretofore granted, together with a large corps of intelligent and experienced assistants, whose duty it is to examine every application; to compare it with patents previously issued (that two may not be issued for the same invention); to correct the specifications and claims; to give notice to the patentee of interferences; and to determine

questions of priority between rival inventors of the same device.

It is a matter of common knowledge that the commissioner is in the habit of limiting, altering and expunging claims, and that it is impossible to say, after the specifications and claims have been filed, in what shape, and with what limitations, they will emerge from the patent office. It is absolutely impossible for courts of justice to deal with questions of this description. We are asked in this case to assume that a patent will be issued covering five different claims, yet we have no assurance whatever that, if a patent be issued, any one of these claims will be allowed in the language in which it is couched. Besides, the effect of assuming cognizance of a patent before the patent is granted would be to extend the life of the patent beyond the statutory period of seventeen years, by the time, which may be months, and even years, during which the application is pending in the patent office.

The jurisdiction of courts to determine the validity of patents is purely appellate. It is conferred upon the theory that, application for patents being made ex parte, in the pressure of business, patents may be granted by inadvertence or mistake, or rival claimants may not have an opportunity of being heard; and because there is no other method provided by law of determining whether persons using similar devices are or are not infringers upon the rights of the patentee. It is obvious that when parties are represented by experienced counsel, and witnesses are examined with that care and deliberation which is only attainable in judicial proceedings, a correct result is much more likely to be reached than upon the hurried examination of an examiner in the patent office. These considerations, however, do not by any means justify us in anticipating his decision, or intermeddling in any way with his action before it has been consummated by the issuance or refusal of the patent.

A decree will therefore be entered denying the injunction, and dismissing the bill for want of jurisdiction.

senger.

The facts are fully stated in the opinion. Messrs. William Lindsay and W. Lisle for appellant.

J.

Messrs. Harrison & Belden for appellee.

Lewis, Ch. J., delivered the opinion of the

court:

Appellee, widow of R. V. Logan, brought this action to recover damages for the destruction of his life by the alleged willful neglect of the servants of appellant-the material facts of the case being as follows:

The deceased, about half past 10 o'clock at nigat, June 19, 1883, at Lebanon, got on a passenger train, bound from Louisville to Knoxville, Tenn., to go to a station where he resided fourteen miles distant. He was at the time intoxicated, stumbled or slipped and fell on the depot platform, was helped upon the car platform, and, in the opinion of two witnesses, was too drunk to take care of himself, though he was also boisterous, profane and disposed to be quarrelsome. Upon being requested by the conductor, soon after the train started, to pay his fare, he asserted he had paid it, which was untrue, and in reply to the statement of the conductor that he had not, he said, with an oath, he would not; that there were not men enough on the train to put him off, at the same time pulling out his knife; and did not pay until the conductor and brakeman had proceeded with him to the car platform for the purpose of putting him off.

After receiving his fare, the conductor left him in the smoking car, where his seat was, and proceeded to the ladies' car, to collect fare from those who had boarded the train at Lebanon; and, while he was so engaged, the deceased, leaving the smoking car, went behind him, having, as some of the witnesses testify, a knife opened in his pocket, and assuming a menacing attitude, applied to him in a loud tone of voice such profane, opprobrious and threatening language as to cause general excitement among the passengers-one lady being so much frightened that she implored the conductor to remove him from the car.

was found about twenty-five yards north of the private crossing mentioned, and his hat, a sack and bucket, which he had the night before, were near the place he was put off the train-his hat being nearest the body. Three trains passed the place where his body was after he was expelled from the passenger train, two going north-one of which passed within about one hour and a half, the other later in the night, and the third going south about daylight.

It is plain he was not killed by being struck or run over by the passenger train from which he was ejected; for not only was his body found nearly 200 yards north of where he was left by it, but a little more than twenty-five yards north of the place on the track where there was the first appearance of blood, showing conclusively that the train by which he was killed was going north.

Assuming, as the evidence seems to warrant, that he was killed by one of the north bound trains-though by which one of the two does not appear-the first inquiry is whether any legal liability has been fixed upon appellant on account of negligence of those in charge of it; and, as there is no evidence showing at what time of night, or why he went upon the track in front of a passing train, if he did so voluntarily, nor whether he was in such position at the time of being struck as to make it the duty of those in charge to stop the train, or as to enable them by the exercise of proper diligence to discover him in time to prevent a collision or at all, and consequently none whatever of any negligence or fault on their part, that question must be answered in the negative.

It thus results that whatever cause of action there may be in favor of appellee arises entirely from the conduct of the conductor of the pas senger train; and the liability of appellant therefor, if liable at all, is not dependent upon, nor increased by, the fact that the train by which he was subsequently killed was owned and operated by the same company; for if the act of the conductor was not itself wrongful, it could not be made so by referring it to, or connecting it with, the independent act of other employés, to whom no wrong can be attributed. Counsel argue, in effect, that when an intox

The place where it was done is about four miles from Lebanon, two from the nearest station south, about 150 yards from a private -crossing of the railroad north, and 200 from the nearest farm house. Early the next

as passenger the alternative is presented to the company either to refuse permission, or else, having received him, and accepted his fare, to answer in damages for whatever calamity to him may follow his expulsion, though justified by his improper conduct. Although it has been held that a railroad company is not bound to receive and carry a person who is so intoxicated as to be offensive, the power to exclude one from the right of traveling on a train, who offers to pay his fare, and though intoxicated, has not been guilty of any conduct as passenger forfeiting the right, is always subject to be called in question, and the company cannot therefore be fairly held to a strict exercise of it, except where the rights of others are involved. But, even conceding that the conductor could have forcibly, and without incurring any legal liability to him, kept the deceased off the train at Lebanon, and committed an error in failing to do it, we do not see how on that account the right was impaired, or the duty lessened, to put