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Opinion of the Court.

That reason may not apply to passengers but other reasons do, which arise from the conditions which exist in and surround modern railroad transportation, and which may be considered as strongly justifying a rule of responsibility for injury to passengers which makes sure, as the cominon law rule does, that responsibility be not avoided by excuses which do not exist, or the disproof of which might be impossible.

We might extend the discussion and illustrate it by other cases, but however interesting such discussion might be we do not think it is necessarily demanded by this record. We think plaintiff in error is precluded from objecting to the rule of liability expressed in section 3. That rule of liability was accepted by plaintiff in error as a part and as a condition of its charter. “It was incorporated under the laws of the State of Nebraska,” is the allegation of the petitioner. “It is . domestic corporation of the State of Nebraska,” is the allegation of the answer. It was incorporated, therefore, under the railroad incorporation act of 1867, andithe liability which has been enforced upon it by the decision of the Supreme Court of the State is the liability declared by section 3 of that act. That liability, we repeat, plaintiff in error accepted with its incorporation, and cannot now complain of it. Waters Pierce Oil Co. v. Texas, 177 U. S. 28. We need not repeat the reasoning of Waters Pierce Oil Co. v. Texas. The case followed and applied the doctrine of many prior cases.

Judgment afirmed.

a

MR. JUSTICE GRAY did not hear the argument and took no part in the decision.

Opinion of the Court.

CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY

CO. v. EATON.

ERROR TO THE SUPREME COURT OF THE STATE OF NEBRASKA.

No. 57. Argued October 25, 1901.-Decided January 9, 1802.

Chicago, Rakk Island and Pacific Railway Co. v. Zernecke, ante, 682, af

firmed and followed.

The case is stated in the opinion of the court.

Mr. M. A. Low was

Mr. W. F. Evans for plaintiff in error. on his brief.

Mr. Thomas C. Munger for defendant in error. Mr. John M. Stewart and Mr. A. E. Harvey were on his brief.

MR. JUSTICE McKenna delivered the opinion of the court.

This action was brought in the district court of Thayer County, Nebraska, by the defendant in error as the administrator of the estate of John R. Mathews, deceased, against the plaintiff in error, for damages, under a statute of the State, for the death of Mathews, caused by the derailment of the train of plaintiff in error upon which Mathews was a passenger.

The record presents the same questions which were presented and passed on in the case of the plaintiff in error herein against Zernecke, Administratrix, No. 58 of this term, just decided. As in the latter case the ground of action in the case at bar was negligence in the railroad company and its servants. The answer of the company denied negligence, and alleged that the derailinent was caused by some person or persons unknown to the company, and not in its employment or under its control, who willfully, maliciously and feloniously removed and displaced from the track certain spikes, nuts, angle-bars, fishplates, bolts and rails, and otherwise tore up and destroyed the track.

Opinion of the Court.

The company also alleged care in the maintenance of its track and the management of its train.

The petition alleged that the plaintiff in error “was a corporation, duly incorporated under the laws of the State of Nebraska," and the admission of the answer was that defendant in error, " at all times mentioned in said petition, was a corporation organized and existing under and by virtue of the laws of the States of Illinois and Iowa, and a domestic corporation of the State of Nebraska."

The case was tried before a jury. The évidence of defendant in error (petitioner) was that at the time Mathews was killed he was being transported as a passenger over the railway of plaintiff in error, and that the train upon which he was riding was thrown from the track, resulting in his death and the death of ten other persons. The plaintiff in error then offered witnesses and depositions to sustain the allegations of its answer. The testimony, upon the objection of defendant in error, was rejected, and at the close of the evidence, on motion of defendant in error, the court instructed the jury as follows:

“ The jury is instructed that if you find from the evidence that John R. Mathews was a passenger, being carried on the train of the defendant railway company that was derailed and wrecked near Lincoln, Nebraska, on August 9, 1894, thereby causing the death of said Mathews, and that plaintiff is the administrator of the estate of said Mathews, then you should find for the plaintiff if you find a pecuniary loss from such death has resulted to the next of kin, in this case the father.”

The jury returned a verdict for defendant in error for $1500, upon which judgment was entered. The judgment was affirmed by the Supreme Court of the State, upon the decision in Chicago, Rock Island & Pacific Railway Company v. Zernecke, Administratrix, 59 Neb, 689, and this writ of error was then allowed.

The facts, contentions and questions being the same as those presented in the Zernecke case, supra, for the reasons stated in the opinion in that case the judgment is

Affirmed.

Opinion of the Court.

UNITED STATES REPAIR AND GUARANTEE COM

PANY V. ASSYRIAN ASPHALT COMPANY.

CERTIORARI TO THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT.

No. 61. Argued October 28, 29, 1901.-Decided January 6, 1902.

Patent No. 501,537, for an improved method of repairing asphalt pavements,

which forms the subject of controversy in this suit in this court, was antici. pated in invention, by a patent issued in France to Paul Crochet June 11, 1880.

The case is stated in the opinion of the court.

Mr. Lysander Hill for petitioner. Mr. Ernest Wilkinson and Mr. William R. Omohundro were on his brief.

No appearance for the Asphalt Company.

MR. JUSTICE McKenna delivered the opinion of the court.

This suit was originally brought for the infringements of three letters patent issued to the petitioner as assignee of Amos Perkins. The patents were respectively numbered 501,537, 542,349 and 560,599, and were dated respectively 18th July, 1893, 9th July, 1895, and the 19th of May, 1896. The first, 501,537, was for an improved “Method of repairing asphalt pavements;” the oth

" the other numbers were for “ Improvement in apparatus for repairing asphalt pavements.”

The bill contained the usual allegations of invention and infringement, and prayed an injunction.

The answer admitted the issue of the patents, but denied that Perkins was the original and first inventor of the subject matter or that the improvements therein disclosed constituted new and useful inventions within the meaning of the patent laws, or that said improvements were not known or used in this country, or had not been patented or described in any printed publication in this or in foreign countries before the alleged invention thereof by Perkins.

Opinion of the Court.

The petitioner dismissed the bill as to patent number 542,349. Upon the hearing the Circuit Court sustained the apparatus patent number 560,599, finding that the Assyrian Asphalt Company had infringed upon that apparatus, and ordered an injunction and a reference for an accounting. The Method patent number 501,537 was adjudged invalid, and the court said :

“From the evidence in this suit regarding the prior state of the art, and the argument before me, I find that the term 'asphalt' is not limited in its meaning to the Trinidad deposit, or the so-called 'American mixture,' but includes as well the bituminous paving material used in France and elsewhere, comprising natural rock asphalt and compositions of bitumen and lime or sand particles, and that the claims of the Perkins Method patent are so broad with reference to the application of heat to the repair of asphalt pavements, that they are anticipated by the Crochet patent, and are invalid.”

The petitioner took an appeal to the Court of Appeals, and that court affirmed the judgment of the Circuit Court. The case was then brought here by a certiorari.

The proceedings here are only concerned with the Method patent number 501,537. The letters patent describe the invention as follows:

“My invention is designed to produce a method whereby the repairing of asphalt pavements may be quickly and cheaply accomplished and a neater appearing pavement be obtained after repairing than has beretofore been the case.

“Heretofore in the repairing it has been customary to dig out with a pick or other instruinent the surface material around the spot to be repaired, sometimes applying heat to the spot to soften the material so that it may be more easily removed. When the material has been removed the depression thus made is thoroughly cleaned and given a coat or dressing of tar: New material in a heated state has then been placed in the depression and been ironed down and smoothed off in the usual manner of finishing, the tar acting as a solder to hold the new material in place. When completed, however, the line or joint be tween the old hardened material and the new material has been plainly discernible and more often there has been more or less of

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