Opinion of the Court. with two satchels, one in each hand, across the track to go to the eating-house or hotel, and just at that time the southbound train moved up, and ran upon and injured him. In reference to the foregoing facts there was no dispute. Further than that, there was testimony tending to show that, as deceased was leaving the train, a man with his wife and two children, five and seven years of age, started to get off the car; that deceased, putting down his satchels, stopped to help them off; that there was no conductor, brakeman or other officer of the company present to render any assistance; that, after they were safely off the car, deceased took up his satchels, and they all started nearly together in the direction of the eating-house, at an angle across the inner track; that while thus walking the southbound train came along, without ringing a bell, at a rapid speed; that the engineer, being on the right hand of the engine, could not see any one on the left side of the track for quite a distance in front of the engine, and the fireman was so occupied that he could not see the track at all; that, just as the engine neared the party, somebody called out, and the man who had been helped off the train by the deceased jumped, with his wife, pushing the children over, and barely landing on the platform as the engine passed by, while deceased, who was at the side but a trifle in the rear of the others, was caught by it and run over. It did not appear that any of the party had ever been at Lula before, or knew of the existence of an inner track or the situation or surroundings, although, it did appear that the deceased had been travelling on the railroad. The man and his wife who thus narrowly escaped testified that they did not know there was a track upon which they were walking; that no bell was rung; and that they had no thought of an approaching train until the outcry, upon which they jumped and barely saved themselves. What the deceased heard and saw and knew is not affirmatively shown, but the entire circumstances of the injury tend to show that he was as ignorant as they in respect to these matters. They had moved but a few steps from the car towards the eating-house before the deceased was struck. Upon such facts as these, is it not a question, upon which minds might differ, Opinion of the Court. as to whether the deceased was guilty of contributory negligence? Do not these facts tend, at least, to show that he was exercising due care? His tarrying behind the other passengers was owing simply to his effort to help those who needed help, and in discharging a duty resting upon the officers of the company, and neglected by them. After they had all alighted from the car, they started together in the direction of the eating-house, as disclosed by the bonfire, without knowledge of an intervening track, or without thought of an approaching train. No bell was rung, no warning given until the moment of the accident, and then too late for all of the party to save themselves. It seems as though there could be but one answer to these questions. If these facts do not establish due care on his part, they at least tend very strongly to prove it. It is true that there was testimony tending to show a different state of facts; that the bell of the engine was rung as it moved down the track in front of the station-house; that it was moving at a very slow rate of speed-not faster than a man would walk; that the deceased on alighting put down his satchels, waiting for some one from the hotel to come and help him carry them; and that he was there some minutes before he started for the hotel. And, indeed, there was some testimony tending to show that there were no such persons present as the family who claimed that they were helped off the train by deceased. But, of course, all conflict in the testimony was settled by the jury, and could not be determined by the court, and unless it were affirmatively shown that the deceased when he left the car and started towards the eating-house knew that he was walking along a track, and that there was danger from another train, and with such knowledge neither looked nor took precautions to satisfy himself whether there was present danger therefrom, it surely cannot be held that there was, as a matter of law, contributory negligence on his part. There was no error in refusing the instruction, and the judgment is Affirmed. Opinion of the Court. NATIONAL METER COMPANY v. YONKERS APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 192. Argued March 29, 1893.- -Decided April 17, 1893. Claims 3, 4, 5 and 6 of reissued letters patent No. 10,806, granted February 8. 1887, to the National Meter Company, as assignee of Lewis Hallock Nash, for improvements in water-meters, on the surrender of original letters patent No. 211,582, granted to said Nash, January 21, 1879, are not infringed by water-meters constructed according to letters patent reissued to the Hersey Meter Company, No. 10,778, November 2, 1886, as assignees of James A. Tilden, and to letters patent No. 357,159, granted to James A. Tilden, February 1, 1887, and to letters patent granted to said company, as assignee of said Tilden, No. 385,970, July 10, 1888. The Nash piston has a side-rocking movement across the centre of the cylinder, upon successive bearing points made by the contact of a projection on the piston with the recess in the cylinder, or conversely, and the piston rotates upon its own axis, so that each projection comes successively into each recess of the cylinder. But in the defendant's structure, there is no side-rocking, nor any rotary motion, and each projection in the piston always operates in connection with one particular corresponding recess in the cylinder, and never leaves that recess. IN EQUITY. The case is stated in the opinion. Mr. J. Edgar Bull and Mr. Edmund Wetmore for appellant. Mr. Frederick P. Fish and Mr. Frederick H. Betts, (with whom was Mr. George L. Roberts on the brief,) for appellee. MR. JUSTICE BLATCHFORD delivered the opinion of the court. This is a suit in equity, brought in the Circuit Court of the United States for the Southern District of New York, by the National Meter Company, a New York corporation, against the Board of Water Commissioners of the city of Yonkers, another New York corporation, founded on reissued letters Opinion of the Court. patent of the United States No. 10,806, granted February 8, 1887, to the plaintiff as assignee of Lewis Hallock Nash, for improvements in water-meters. The application for the reissue was filed December 18, 1886, on the surrender of original letters patent No. 211,582, granted to said Nash, January 21, 1879, for improvements in water-meters, the application therefor having been filed September 4, 1878. The claims of the reissue alleged to have been infringed are claims 3, 4, 5 and 6, which are as follows: "3. A piston for water-meters, pumps, and motors provided with internal water passages, and having alternate bearing points or projections and recesses adapted, by means of a cylinder-chamber having alternate bearing points or projections and recesses, to have an eccentric or side-rocking movement within and upon continually-changing lines across the centre of said chamber to effect its division at two or more points on its sides into receiving and discharging spaces cc, which communicate with the inlet and outlet. "4. A piston for water-meters, pumps, and motors having alternate bearing points or projections and recesses adapted, by means of a cylinder-chamber having alternate bearing points or projections and recesses, to have an eccentric or siderocking movement within and upon continually-changing lines across the centre of said chamber to effect its division at two or more points on its sides into receiving and discharging spaces cc, which communicate with the inlet aud outlet, said piston having a free movement within said cylinder, controlled only by the shape of the cylinder, the shape of the piston and the flow of water through the meter. "5. A piston for water-meters, pumps, and motors having alternate bearing points or projections and recesses adapted, by means of a cylinder-chamber having alternate bearing points or projections and recesses, to have an eccentric or siderocking motion within and upon continually-changing lines across the centre of said chamber to effect its division at two or more points on its sides into receiving and discharging spaces ce, which communicate with the inlet and outlet, said piston being formed of hard rubber and having a free move VOL. CXLIX-4 Opinion of the Court. ment within said cylinder controlled by the shape of the piston, the shape of the cylinder, and the flow of the water through the meter. "6. A piston for water-meters, pumps, and motors having alternate bearing points or projections and recesses adapted, by means of a cylinder-chamber having alternate bearing points or projections and recesses, to have an eccentric or siderocking movement within and upon continually changing lines across the centre of said chamber to effect its division at two or more points on its sides into receiving and discharging spaces cc, which communicate with the inlet and outlet, combined with ports controlled by said piston itself in its motion within said chamber." The defences set up in the answer are (1) that the reissue is invalid as to the said four claims, because it was applied for and secured eight years after the grant of the original patent, not for the purpose contemplated by the statute, of correcting any error that arose from inadvertence, accident or mistake, but for the purpose of changing the patent so that it would claim combinations of devices which were not the subject of the claims of the original patent, nor described therein as being the inventions of Nash for which he obtained said original patent, in order that, by means of the reissue, the plaintiff might prevent the Hersey Meter Company, which manufactured the meters used by the defendant, and had assumed the defence of the suit, from carrying on its business; and, further, on the ground that Nash and the plaintiff unreasonably and fraudulently delayed undertaking to correct the alleged defects by a reissue, and did not make application for the reissue until the Hersey company had made and sold large numbers of meters of the type in question; and that the reissue was applied for and obtained for the sole purpose of procuring a new patent for other and different inventions from those forming the subject-matter of the claims of the original patent; and, further, that the reissue was procured by deceiving the Patent Office, and by fraudulent and untrue representations to that office, and that any right to the reissue was forfeited by the plaintiff's delay and laches, in not apply |