But as a trade-mark is designed to be placed on the goods, or on the package containing them, and may be placed on either the one or the other, I do not see that this fact invalidates complainant's trade-mark. Other manufacturers may adopt a trade-mark, and cut, impress, or engrave it on their horseshoe nails on the beveled face of the head, and thus give to their production a distinctive appearance, and so gain the exclusive right to make and vend nails of that particular appearance. In fact, if such were not the legitimate use and application of a trade-mark, in many cases it would fail of its purpose. Must the mark be applied to the back of the nail, or to some part of the article where it will not be seen, or must it be made so small that it will not give a distinctive appearance to the article? I know of no such requirement in the law.

The defendant also contends that as this alleged trade-mark, checkmark, consists of a design or ornamentation for a nail, and the complainant used the same in public for more than two years without applying for a design patent, it has abandoned such mark to the public, and cannot now register or claim it as a trade-mark. This checkmark was never adopted or used as a design for a horseshoe nail, or primarily for ornamentation. No design patent for the head of a horseshoe nail, however ornamental, could have been granted. Rowe v. Blodgett, 112 Fed. 61, 50 C. C. A. 120; Bradley v. Eccles, 126 Fed. 945. 919, 61 C. C. A. 669. However handsome and attractive this check-mark may have been and may be when imprinted on the nail, and however much it may have added or may add to the appearance of the nail when on the market, it was still capable of appropriation as a trade-mark. I know of no rule of law that requires a trademark to be nonattractive, ugly, or repulsive, or that prohibits the appropriation of a distinctive mark, otherwise proper for appropriation and use as such, as a trade-mark because beautiful and attractive. The defendant also insists that this check-mark is not a valid trademark for the reason it is cut or stamped into or onto the nail itself. and therefore "consists in part of the very goods to which the mark is applied." Does it destroy the validity of a trade-mark, or prevent the adoption of a symbol, etc., as such, that it is applied by being cut or cast into or impressed upon the very material of the article. the origin of which it is designed it shall designate? Said the court in Candee v. Deere, 54 Ill. 439, 5 Am. Rep. 125:

"That it must be attached to the article manufactured, in such a way as to be reasonably durable and visible, is also conceded. It must have a practical existence, not resting in the thought of the owner, but stamped or impressed, or attached in some way, to the article itself."

"Hero" and "Heroine" stamped on glass jars was held proper and sufficient. Rowley v. Houghton, 2 Brewst. (Pa.) 303. See, also, Robert v. Grandjean, 28 Annales, 145; Browne on Trade-Marks, § 89.

Advertising a mark as a trade-mark, or publishing or claiming it as such, however extensively this is done, or even registering it, does not make it a trade-mark. That is accomplished by the adoption and use of it as such. This inheres in the very definition of a trade-mark, and has been repeatedly decided. Browne on Trade-Marks, § 306, p. 312, and sections 52, 53, and 54, pp. 58, 59:

"A trade-mark. therefore, consists of the use in trade of such a mark. placed upon goods manufactured by a particular person, and placed in market with such marks, for sale and trade. Adams v. Heisel (C. C.) 31 Fed. 279.

"Symbols or devices used by a manufacturer or merchant to distinguish the products, manufactures, or merchandise which he produces, manufactures, or sells, from that of others, are called and known by the name of 'trade-marks.' Amoskeag Mfg. Co. v. Trainer, 101 U. S. 51-56, 25 L. Ed.

993."

In this case the complainant has very fully supplied the evidence. lacking in Capewell Horse Nail Company v. Putnam Nail Company (C. C.) 140 Fed. 670, in every aspect of the case, and it is not necessary to go further into the questions there discussed.

It is established to my satisfaction that this well-defined checkmark was first appropriated and adopted by the complainant as a trade-mark and its trade-mark, and that it was so adopted and appropriated and thereafter used primarily for the purpose of identifying and distinguishing the goods-horse nails-of complainant's manufacture from those of all other makers, and not as an incident of manufacture or primarily for ornamentation; that it was the proper subject of such appropriation and adoption and use, and that the fact of such adoption and appropriation was extensively and sufficiently made known to the public by actual and continued use by complainant as such, same being affixed to its nails, and also by publications and otherwise; that by such use thereof on the said goods of complainant's manufacture such check-mark came to be generally known to the public as complainant's trade-mark, and its goods bearing such mark on the nail came to be publicly known and distinguished as those of complainant's make, and such mark became its property; that complainant never abandoned it, and that it was not the proper subject of a design patent; that after such adoption and long-continued use by complainant, and after such check-mark had come to be such well-known, distinguishing mark of the goods of complainant's manufacture, the defendant commenced making horseshoe nails bearing this check-mark on the beveled face of the head, and that the making of such check-mark on defendant's nails was neither a necessary incident of manufacture nor a necessary result in the course of manufacture, but, on the contrary, the defendant adopted and designed or changed its machinery for use in the making of its nails so that it would place such check-mark thereon for the purpose of simulating complainant's nails and producing confusion in the mind of dealers and users and selling its nails as those of complainant's make. The complainant had a common-law right and title to this check-mark as its trade-mark, and was entitled to have it registered as its trade-mark irrespective of the so-called 10 years' clause of the act of February 20, 1905, c. 592, § 5, 33 Stat. 724 (U. S. Comp. St. Supp. 1907, p. 1010). I cannot find that this check-mark had been used exclusively by the complainant for more than 10 years next preceding the passage of the act of February 20, 1905, as there is evidence that others used it during some part of that 10 years but after its adoption and use as a trade-mark by complainant.

The complainant is not estopped in any sense from claiming this as its trade-mark and asserting its rights in this action on the ground that the person who made oath to the declaration made a false oath in obtaining the registration. At the time the oath was made by Williams it was not understood that "exclusive" would be held to mean that a person claiming a trade-mark would be excluded from registration under the 10 years' clause, should it appear that some person had infringed; that is, had used the same mark in violation of the alleged rights of the other person claiming it and claiming registration. See Worcester Brewing Co. v. Reunter & Co., 128 O. G. 1687; Id., 133 O. G. 1190 (March 31, 1908).

I think and hold that under the facts of the case the statement that "such use has been exclusive" was surplusage. It does not affect the registration, nor does it affect complainant's right to maintain. this action. The voluminous records and exhaustive briefs have been examined with care, and I am satisfied that defendant infringes the lawful trade-mark of the complainant.

There will be the usual decree accordingly.

DAILEY V. NEW YORK, N. H. & H. R. R. CO.

(Circuit Court, S. D. New York. February 19, 1909.)

1. MASTER AND SERVANT (§ 286*)-ACTION FOR INJURY TO SERVANT-QUESTIONS FOR JURY-NEGLIGENCE OF MASTER.

The question whether a railroad company was chargeable with negligence in failing to provide a reasonably safe place for employés to work, because of its making the doors of a roundhouse so narrow as to leave a space of only 11 inches between an engine passing in or out and the posts on either side, held one for the jury in an action by an employé to recover for a personal injury.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 1022; Dec. Dig. § 286.*]

2. MASTER AND SERVANT (§ 201*)—INJURY TO SERVANT-NEGLIGENCE OF FELLOW SERVANT.

A master is not relieved from liability for an injury to a servant on the ground that it was caused by the negligent act of a fellow servant, where the master's negligence was a concurring cause.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 515; Dec. Dig. § 201.*]

8. NEGLIGENCE (§ 136*)-ACTIONS-QUESTION FOR JURY.

Negligence becomes a question of law for the court only when the facts are such that fair-minded men can draw from them but one inference upon the issue.

[Ed. Note. For other cases, see Negligence, Cent. Dig. 293; Dec. Dig. § 136.*]

MASTER AND SERVANT (§ 101*)—Injury to ServanT-DUTY OF FORESIGHT. The rule that it is the duty of a master to exercise reasonable care to provide a reasonably safe place for servants to work applies to permanent structures as well as to movable ones and appliances, and as well to the location thereof as to their mode of construction, and, while he is not bound to provide against every possible danger, he is bound to foreFor other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

see and provide against all probable contingencies, even though they have not occurred in the past.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 172; Dec. Dig. § 101.*]

1. MASTER ANd Servant (§ 284*)—ACTION FOR INJURY TO SERVANT-QUESTIONS FOR JURY.

Plaintiff, who was a locomotive fireman in the employ of defendant railroad company, was assigned to work as a hostler at a roundhouse, and on the first night of such work was injured by being caught between the tender of an engine which was being taken into the house and the post at the side of the door, which was only 11 inches from the side of the tender. It was winter, the place was not well lighted, and when a door was opened the smoke and steam coming out further obstructed the view. It was plaintiff's duty to take engines from the turntable into the house, where they were usually run by their own steam; but plaintiff testified that there was not sufficient steam up in the one in question to move it, and that, while he was in the cab making more fire, the foreman caused another engine to be run against his and to kick it into the roundhouse with considerable force; that there was no bumper at the end of the track, and, as there was not enough steam to work the brake, he was compelled to get off the engine to block the wheels, and in doing so in the darkness was caught between the tender and the post. Held, that under the circumstances shown, whether defendant was negligent in making the doorways so narrow, and, if so, whether such negligence contributed, with that of the foreman, to cause the injury, and whether plaintiff assumed the risk or was guilty of contributory negligence, were all questions for the jury.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1000, 1001, 1022, 1067, 1070, 1122; Dec. Dig. § 284.*]

At Law. Motion to set aside verdict of jury and for a new trial on the grounds that there was no evidence of negligence sufficient to take the case to the jury; that plaintiff assumed the risks of the place, was guilty of contributory negligence, and that the accident and injury was caused by the negligence, if any negligence there was, of a fellow servant or co-employé.

Willet Hoysradt (Abram J. Rose, of counsel), for plaintiff.

Chas. M. Sheafe, Jr. (Nathaniel S. Corwin, of counsel), for defend

ant.

RAY, District Judge. The defendant is a Connecticut railroad corporation, owning and operating a line or lines of railroad in said state, and at East Hartford, Conn., has what is known in railroading as a "roundhouse," a building constructed on a circle, or the part of a circle, with an open space, or area, in the center of the circular space, having a turntable thereon used for turning engines so they may be forced or run in any desired direction. The roundhouse itself has what are called "stalls," that is, spaces for the placing therein or "stabling" of engines, one stall for each engine, when not in use, or while being cleaned, or while undergoing slight or ordinary repairs. On its outer side the building has solid walls with windows for the admission of light, and on the inner side, next the open space in the center, before mentioned, each stall has double doors, or a double door, hung by hin For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 167 F.-38

ges to posts, or stanchions, placed at the entrance of the stalls and on both sides thereof, and which doors swing from the center of the doorway or entrance and on such hinges, so that, when it is desired to take an engine in or out of its stall in the roundhouse, the doors of the stall may be swung open, leaving a clear space for the purpose. These posts or stanchions serve to support the roof of the roundhouse also. Tracks lead from outside this building to the turntable, and other tracks lead from the turntable to each stall. It is seen that when an engine is brought in from the outside it may be run directly onto the turntable. When that is turned, if it be desired to place the engine in a stall not exactly opposite the place of entrance, the engine is turned with it until the rails on the turntable on which the engine stands are brought in proper relation to those leading into the proper stall, whereupon, by putting on steam and properly manipulating the brakes, the engine may be slowly run into the stall and brought to a stop at the proper point. There is usually a man to operate the turntable, and the engines coming into the yard from a trip are usually taken in charge by an employé, called "the hostler," outside the roundhouse, and run then by their own steam in onto the turntable, and thence into their respective stalls. The hostler, or the one taking the engine from the turntable into the stall, when so engaged, usually, and almost invariably, occupies the cab on the engine. That, under all ordinary circumstances and on all ordinary occasions, is his place, as he cannot control, start, and stop the engine and regulate its speed, if under steam, unless he is there. It is obvious that, if the engine is in order, under sufficient steam to move, the air brakes, if air brakes are used, as was the case here, are in working order, and nothing out of the ordinary occurs and the hostler does his duty, the engine will be under perfect control, and may be started and stopped at will, and there will be no necessity or excuse for the hostler to leave the cab while stabling the engine. Hence, under such circumstances, so far as he is concerned, there is no danger, if the doorway or opening into the stall is of sufficient height and width to permit the ingress and egress of the engine. It is equally obvious that, if the engine is out of repair so as to interfere with its control, or the brakes are inoperative or fail, or the engine is pushed or shoved from the turntable into the stall by some outside force or power not controlled by the hostler, and which does not continue to properly control its movements, and the engine or its braking apparatus is in such condition that the hostler cannot control it when in motion from the cab, there might and probably would be necessity or necessary occasion for the hostler to leave the cab of the engine and the engine itself while in motion. Ordinarily, then, there will be no danger to the hostler arising from the narrowness of the entrance to the stall, but should circumstances arise, such as I have mentioned, and should there be necessity for him to leave the cab in the discharge of his duty and descend to the ground while the engine is on its way into the roundhouse, he will be exposed to great danger of injury if the entrance is so narrow that there is not room for his body between the side of the engine, or tank, and the posts or stanchions to which the doors are hung. In such case he will be in imme