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be found in some of the smaller, and perhaps less important, devices described and claimed. Burns v. Meyer, 100 U. S. 671.

We find it useful to adopt the following description of the Boyd invention, given in appellant's brief:

"This carrier involves novel features, which may be stated in a general way as follows:

"The stop, h (adapted to be secured to the nder side of a single track), having the continuous lugs, h3, inclined upwardly from each end of the stop to the center, and therewith the downwardly inclined lugs or bearings, h4; the stop being adapted to lift the catch coming to it from either direction, to engage the catch and prevent the travel

of the carrier, to force the catch down (if it fails to fall by gravity) as it leaves the stop, and to permit the carrier to run past it when desired. The catch (or key), g, sliding vertically in the carrier, having lugs adapted to catch the inclines of the stop, and be lifted thereby, and (being held up by the grapple) to engage the stop and prevent travel of the carrier on the track, and when released to 'drop' in front of and lock the grapple.

"The combination of the vertically sliding catch, g, with the stop aforesaid, and with the tilting grapple, by which the catch or key is lifted by the stop into locking engagement with said stop, and is locked thereto by the grapple, and, being released,

falls or is forced down by the stop into locking engagement with the grapple."

We learn from this description that what the counsel of the appellant regards as the special features of the Boyd invention are the stop, h, the catch, g, and their combination in the manner pointed out. And when we turn to the evidence of the appellant's expert, Cunningham, we find that in analyzing the Boyd machine he dwells chiefly on the functions of the stop and of the catch, as constituting its meritorious features, and that the effect and purpose of his testimony, as likewise that of Boyd himself, are to show that there are a similar stop and catch in the defendants' carrier.

So, too, in the letters patent, we find Boyd's second claim set forth as follows:

"In a hay elevator and carrier, the combination, substantially as described and shown, of the stop, h, constructed with the upper lugs, h4, and the lower inclined lugs, h3, and the catch block, g, provided with the lugs, g3, and placed and sliding in a suitable recess in the body of the carrier, substantially as and for the purposes set forth." When we examine the machine as made and sold by the defendants under the terms of the Strickler patent, we do not find these

specific devices, or, rather, we do not find them in the shape and with the functions claimed by Boyd.

The comparison made by the defendants' expert, Powers, between the mechanism of the two inventions, in the particulars we are now considering, was as follows:

"I do not find the Boyd invention, as summed up in the second claim of his patent, in defendants' carrier, for these reasons: First. The stop enumerated in the second claim of Boyd has a peculiar construction, having lugs, h4, upon its upper outer ends, and lower inclined lugs, h3. Defendants' stop has no occasion for Boyd's lugs, h4, nor has it any such lugs; neither are they necessary for the operation of the catch block. Defendants' catch block has only sufficient space between its lugs and its opposite lower portion to allow it to play freely up and down the incline of its stop, and would, therefore, work just the same upon its stop without the upper ledge as it would with it. It will even be noticed that the portion of the stop below the lugs is rounded, and adapted to coact with the lugs upon a single inclined or lower ledge, and independent of an upper ledge. This fact is fully demonstrated by operating defendants' catch block

F. B. STRICKLER. HAY ELEVATOR AND CARRIER. PATENTED JUNE 19, 1883.

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upon the cam plate, upon which there is no upper ledge. Thus the stop of Strickler is, and may be, a differently constructed device from that of Boyd, and such a construction as leaves entirely out a leading essential element enumerated in the second claim of the Boyd patent.

"A reference to Fig. 2 of the Strickler patent clearly shows that his catch block was adapted to be governed by the lower ledge entirely, not to encounter the upper ledge of the stop at all; and this more fully confirms me in the opinion that the Strickler stop is an entirely different device in principle and operation from that of Boyd with its upper lugs, h1.

"I further find the Boyd catch block to be substantially different in the fact of the largely increased space between its lugs and base, rendered necessary in order to enable it to engage lugs h4, which are considerably higher up from lugs h3, in order to enable said catch-block to remain at its extreme height until it encounters stops h3 at either end of the device, it being the operation of the Boyd machine not to stop the carrier centrally to the stop h, but at either end of it at stop h1. It is obvious that Boyd's catch-block could not be made operative upon a single ledge as can that of Strickler's; but, on the other hand, it is adapted to such a stop specifically as Boyd shows in all of his figures in which it is shown, four in number, to wit, in figures 2, 3, 5, and 6 of his drawings; and no modification of the stop is shown or described further than as seen in these four figures in his patent. The same is true of Boyd's catch-block; it being shown in all cases with a large space up and down to enable it to work practically up just such a stop as he shows."

We regard and adopt this comparison as correct; nor do we find anything in the evidence or the argument of the appellant to the contrary.

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Doubtless, if the Boyd patent contained an invention entirely new, and first adapted to the end sought, such differences might be regarded as formal and evasive. But, coming as he did, in the train of the numerous inventors that had preceded him, whose inventions had been patented and put into practical use, we must conclude that Boyd, if entitled to anything, is only entitled to the precise devices described and claimed in his patent. Of course, it follows that if the defendants' specific devices are different from those of Boyd, no combination of such devices could be deemed an infringement of any combination claimed by Boyd.

These views of the case bring us to the conclusion reached by the court below, and its decree dismissing the bill is accordingly affirmed.

Mr. Justice GRAY did not hear the argument, and took no part in the decision of the

case.

(158 U. S. 271) NORTHERN PAC. R. CO. v. URLIN. (May 20, 1895.)

No. 272.

EXAMINATION OF WITNESS-DEPOSITIONS-WAIVER OF OBJECTIONS-DECLARATIONS OF INJURED PER

SON-INSTRUCTIONS-VERDICT-REVIEW.

1. The discretion of the trial court in permitting leading questions will not be reviewed, unless clearly abused.

2. A question asked of a medical witness, as to whether the examinations made by him were made in a careful or a superficial manner, is not objectionable as substituting the opinion of the witness for the judgment of the jury on that point.

3. A deposition will not be suppressed on the ground that the witness was not cautioned and sworn as required by statute, where the objecting party was represented by counsel, and took part in the examination, as such irregularities were thereby waived.

4. Though a motion was made before the trial to suppress a deposition because of irregularities in its taking, the objection will be waived if no objection is made or exception taken when it is offered at the trial.

5. On an issue as to whether plaintiff's injuries were temporary or permanent, physicians may testify as to plaintiff's utterances and exclamations when undergoing physical examination by them during the two years which had elapsed between the happening of the accident and the trial, and the fact that plaintiff is a competent witness does not alter the rule.

6. In an action for personal injuries, where plaintiff alleged. by way of special damage, that prior to the accident the business he was engaged in yielded him a certain sum, but at the trial made no attempt to show the extent or value of such business, the refusal to allow defendant to cross-examine on that subject was not error.

7. The refusal of an instruction correct in itself is not error where it appears from other parts of the charge that the jury were fully instructed on the subject, and in line with the request refused.

8. The objection that the verdict was not signed by the foreman, as required by Code Civ. Proc. Mont. § 270, is waived where, at the time the verdict was rendered, the jury was polled, at defendant's request, and each of the jurors answered that the verdict was theirs, whereupon plaintiff moved for judgment, which was ordered accordingly, and no objection or request that the verdict should be signed was made at the time by defendant.

9. Errors not assigned in the record will not be considered.

In Error to the Circuit Court of the United States for the District of Montana. *This was an action brought by Alfred J. Urlin, in the circuit court of the United States for the district of Montana, against the Northern Pacific Railroad Company, to recover for personal injuries received by him when traveling as a passenger in one of its trains.

The car in which the plaintiff was riding became derailed, and was thrown down a bank, and overturned. The complaint charged that the accident was due to "the defective, decayed, and rotten condition of the cross-ties" in the road, and that the plaintiff received "severe and dangerous wounds and internal injuries."

The case proceeded to trial before the court and a jury, and resulted in a verdict for the plaintiff in the sum of $7,500, and

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Mr. Justice SHIRAS delivered the opinion of the court.

"The first assignment avers error in permitting the medical witnesses who testified in behalf of the plaintiff to be asked whether the examinations made by them "were made in a superficial, or in a careful and thorough, manner."

It is urged that this question was objectionable, both as leading, and as taking from the jury the determination of the inquiry whether the medical examination was thorough, or otherwise.

It cannot be safely said that in no case can a court of errors take notice of an exception to the conduct of the trial court in permitting leading questions. But such conduct must appear to be a plain case of abuse of discretion.

"We are not aware of any case in which 1 new trial has ever been granted for the reason that leading questions, though objected to, have been allowed to be put to a witness." Green v. Gould, 3 Allen, 466. "The allowance of a leading question is within the discretion of the court, and is not ground for reversal." Insurance Co. v. Groff, 87 Pa. St. 124.

"Circuit courts must be allowed the exercise of a large discretion on the subject of leading questions." Parmelee v. Austin, 20 Ill. 35.

The ob

The second ground-that this question called for the opinion of the witnesses as to the manner in which the physical examinations were made, and thus supplanted the judgment of the jury in that particular-does not seem to us to be well founded. rious purpose of the question was to disclose whether the judgment of the physicians as to the plaintiff's condition was based on a superficial, or on a thorough, examination; and we think it was competent for the witnesses, who were experts, to characterize the manner of the examination.

The refusal of the court to suppress the deposition of Dr. W. P. Mills because it did not disclose that the witness was cautioned and sworn before testifying, as required by But it the statute, is assigned for error. appears that the defendant company was represented by counsel, and took part in the examination, and this must be regarded as a waiver of any irregularity in the taking of the deposition. Bank v. Seton, 1 Pet. 307;

Shutte v. Thompson, 15 Wall. 159. Moreover, although a motion was made to suppress the deposition before the trial, yet when it was offered at the trial no objection was made or exception taken, and thus the objection was waived. Ray v. Smith, 17 Wall. 117.

The third assignment is strenuously pressed on our attention in the brief of the plaintiff in error. It arises out of the refusal of the court below to suppress certain portions of the depositions of Drs. Mills and De Witt because of incompetency, and as mere ly hearsay.

This objection is founded upon the witnesses having been permitted to testify to statements made by the defendant, at various times, to the physicians in respect to his feelings, aches, and pains, and it is contended that such statements were made too long after the occurrence of the injury to be part of the res gestae, but were merely narrations of past incidents; and it is further urged that, whatever reason there may have formerly been, when a party could not himself testify to his sensations, for liberality in admitting such statements, now that he is a competent witness, such reason no longer operates.

was

An inspection of the depositions shows that the statements objected to were mainly utterances and exclamations of the defendant when undergoing physical examinations by the medical witnesses. As one of the principal questions in the case whether the injuries of the defendant were of a permanent or of a temporary character, it was certainly competent to prove that, during the two years which had elapsed between the happening of the accident and the trial, there were several medical examinations into the condition of the plaintiff. Every one knows that when injuries are internal, and not obvious to visual inspection, the surgeon has to largely depend on the responses and exclamations of the patient when subjected to examination.

"Whenever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings, made at the time in question, are also original evidence. If they were the natural language of the affection, whether of body or mind, they furnish satisfactory evidence, and often the only proof of its existence, and whether they were real or feigned is for the jury to determine. So, also, the representations by a sick person of the nature, symptoms, and effects of the malady under which he is suffering at the time are original evidence. If made to a medical attendant, they are of greater weight as evidenece, but, if made to any other person, they are not, on that account, rejected." 1 Greenl. Ev. (14th Ed.) § 102.

In Fleming v. City of Springfield, 154 Mass. 520, 28 N. E. 910, where such a question arose, it was said:

"The testimony of Dr. Rice was properly

276

admitted. The statement made by the plaintiff purported to be a description of his symptoms at the time it was made, and not a narrative of something that was past, and it may be fairly inferred that it was made for the purpose of medical advice and treatment. At any rate, although it was only a day or two before, or possibly during the trial, it does not appear that such was not the case.

"The declarations of a party himself, to whomsoever made, are competent evidence, when confined strictly to such complaints, expressions, and exclamations as furnish evidence of a present, existing pain or malady, to prove his condition, ills, pains, and symptoms, whether arising from sickness, or from an injury by accident or violence. If made to a medical attendant, they are of more weight than if made to another person."

In the eighth assignment, complaint is made because the counsel of defendant was not permitted to cross-examine the plaintiff with reference to the details of the grocery business in which he had been engaged prior to the occurrence of the accident.

It is true that the plaintiff had alleged, by way of special damage, that at the time he received the injury he was engaged in the grocery business, and that his said business was yielding him a sum of $100 per month; and, if the plaintiff had adduced any evidence to support such allegation of special damage, it certainly would have been competent for the defense to have cross-examined him as to the particulars of such business. But the record discloses that at the trial the plaintiff refrained from going into evidence on the subject of the alleged special damage. All that was said was that prior to the accident the plaintiff was engaged in the lumber and grocery business, but no attempt was made to show the extent or value of such business. There was therefore no error in not permitting the defendant to cross-examine on that subject.

The twelfth assignment alleges error in the refusal of the court to give the following instruction:

"The court instructs the jury that, even if you should believe from the evidence that there were rotten ties in the road or track at other points than at the particular point where the train left the track. this is uot sufficient to find that the defendant was negli gent in this case."

To have given this instruction would not have been erroneous, but we cannot say that its refusal was reversible error. It is obvious from other parts of the charge and instructions given that the court fully instructed the jury on the subject, and in the line of the defendant's request. Thus the following instructions were given:

"In considering this issue you are called upon to determine from the evidence, first, as to whether or not the cross-ties of the defendant's track at the point where the derailment

occurred, or any number of them, were de cayed and rotten. If you find that they were, then, second, you are called upon to determine whether or not the derailing of said cars constituting a portion of the train occurred on account of these rotten ties.

"If you should find that said derailment occurred on account of said rotten and decayed ties, third, then you are called upon to determine whether or not defendant carelessly or negligently allowed or permitted said cross-ties to remain in, and constitute a portion of, its track at said point.

"You will observe that you are to determine whether or not defendant carelessly or negligently allowed said cross-ties to remain in, and constitute a portion of, its track at said point; for, if it did not carelessly or negli gently permit this, it is not liable, although the accident should have occurred on account of this."

Moreover, the court, at the request of the defendant, gave the following instruction:

"The court instructs the jury that if you should find from the evidence tha the accident by which plaintiff suffered the injuries complained of by him resulted from the negligence of the defendant, and from the decayed, defective, and rotten condition of the cross-ties in defendant's railroad at or near the point where the train was derailed, then you will find for the plaintiff; and you will assess his damages at such reasonable sum as will compensate him for the injuries and sufferings thus sustained, and no more."

Having so fully and repeatedly instructed the jury on this subject, and in the manner requested by the defendant, the court may well have refused the instruction prayed for, as calculated to confuse the jury.

The contention that the judgment below was invalid because the verdict of the jury was not signed by the foreman, as required by a section of the Code of Montana,1 is, in our opinion, without merit. The record discloses that when the verdict was rendered, at the request of the defendant, the jury was then and there polled by the clerk, and each of said jurors answered that the verdict, as read, was theirs. Whereupon the plaintiff moved for judgment in acccordance with said verdict. The motion was granted, and judgment was ordered accordingly. No objection, or request that the verdict should be signed, was then made by the defendant; and we think that the court below was justified in treating the irregularity, if such it were, as having been waived.

At all events, the record contains no assignment of error in this particular, and we are not called upon to consider the subject.

Our examination of the other specifications of error fails to disclose anything calling for formal consideration.

The judgment of the court below is accord. ingly affirmed.

1 Code, Civ. Proc. § 270.

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