way furnished along this lacework. Under this method of construction, the main and auxiliary trolleys are operated over the entire length of their respective tracks. Moreover, this method furnishes the means of placing the bridge motor centrally on the principal outside girder instead of at its end. Much is said in the evidence and briefs in support of the respective claims that appellant's plan does and does not amount to infringement. Efforts are made through processes of most literal interpretation to differentiate appellant's design from the patent in suit. Ingenious as this method is, we think it fails in ascertaining the intent of either the inventor or the alleged infringer. It sacrifices substance to form. Indeed, after careful consideration of the evidence and comparison of the drawings and models, we are constrained to believe that the differences in design and operation of the infringing device are but colorable. It follows that the question urged under the doctrine of equivalents cannot arise. Subject to the qualification that claims 1 and 2 of the patent in suit are void, the decree must be affirmed, and it is so ordered. NOTE. On petition of appellant to modify decree and mandate of this court, its mandate was recalled, and modification allowed, affirming decree below except as to claims 1 and 2 of the patent in suit, but without costs in this court, and disallowing complainant costs in the Circuit Court. Disclaimer by the latter of said claims 1 and 2 was required to be filed in the Patent Office, and a certified copy thereof in the court below, before final decree entered. No direction given as to further costs, if accounting had. (176 Fed. 237.) CHICAGO GREAT WESTERN RY. CO. v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO. (Circuit Court of Appeals, Eighth Circuit. February 21, 1910.) No. 3,085. (Syllabus by the Court.) 1. NEGLIGENCE (§ 1*)—NATURE AND ELEMENTS—Test. An act or omission may be in itself clearly negligent, or clearly free of negligence, so that no evidence can change its character. But if its character is doubtful the best test of actionable negligence, where available, is the degree of care which persons of ordinary intelligence and prudence commonly exercise in the same circumstances. If the care exercised in such a case rises to or above that standard, there is no actionable negligence; if it falls below that standard, there is such negligence. [Ed. Note. For other cases, see Negligence, Cent. Dig. § 1; Dec. Dig. § 1.* For other definitions, see Words and Phrases, vol. 5, pp. 4743-4763; vol. 8, pp. 7729-7731.] 2. NEGLIGENCE (§ 124*)-EVIDENCE-PRACTICE OF ORDINARILY PRUdent Per SONS. In the case of a doubtful act, the evidence of the ordinary practice and of the usual custom, if any, of ordinarily prudent and intelligent persons in the performance under the same or like circumstances of the same or like acts, is ordinarily competent upon the issue of negligence in the performance or omission of the act. [Ed. Note. For other cases, see Negligence, Dec. Dig. § 124.*] 3. RAILROADS (§ 240*)-STATUTORY REGULATIONS "JUNCTION"-CROSSING. Section 2033, Rev. Laws Minn. 1905, which requires railroad companies to stop their trains before reaching junctions with or crossings by railroads, imposes no duty upon them to stop such trains before reaching connections of their own tracks with double tracks and connections of such tracks with side tracks which are all parts of one line of railroad, directed by the same management or controlled by the same operator. Such connections are not "junctions" within the meaning of this statute. [Ed. Note.-For other cases, see Railroads, Dec. Dig. § 240.* For other definitions, see Words and Phrases, vol. 4, pp. 3872, 3873.] 4. RAILROADS (§ 287*)-STATUTORY REGULATIONS-CROSSINGS. This statute imposes no duty on a railroad company in favor of those injured in a head-end collision between trains upon the same line of railroad who suffered neither danger nor injury from crossing trains, and such parties can maintain no action against it on the ground that the trains which collided did not stop at some crossing. [Ed. Note. For other cases, see Railroads, Dec. Dig. § 287.*] 5. APPEAL AND ERROR (§ 1008*)-REVIEW-FINDINGS BY COURT. A trial and finding by a court without a jury in an action at law is reviewable to the same extent and by the same procedure and not otherwise as a trial and verdict by a jury, with the single exception that when the finding is special the question, whether or not the facts found sustain the judgment, is open to consideration in the appellate court. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 39353969; Dec. Dig. § 1008.*] 6. APPEAL AND ERROR (§ 1010*)-RAILROADS (§ 297*)-COLLISION-EVIDENCESUFFICIENCY OF EVIDENCE NOT REVIEWABLE. On a motion for judgment at the close of a trial of an action at law by the court, the only question reviewable is the question of law: Was there any substantial evidence to sustain the finding of the court? The question of fact whether or not the finding is supported by the weight of the evidence, or by sufficient evidence, is not open to consideration in the appellate court. There was substantial evidence in this case that the plaintiff was not guilty of negligence which directly contributed to cause the accident, and a motion to dismiss the action upon the ground that it was was properly denied. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 39793982; Dec. Dig. § 1010;* Railroads, Dec. Dig. § 297.*] In Error to the Circuit Court of the United States for the District of Minnesota. Action between the Chicago Great Western Railway Company against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. From the judgment the Chicago Great Western Railway Company brings error. Affirmed. H. Loomis (A. G. Briggs, on the brief), for plaintiff in error. Before SANBORN, Circuit Judge, and RINER and WILLIAM H. MUNGER, District Judges. SANBORN, Circuit Judge. On October 1, 1905, in the railroad yards at St. Paul and on a single track of the Northern Pacific Railway Company about 450 feet long, which both parties were entitled to use, and over which the passenger train of the Minneapolis, St. Paul & Sault Ste. Marie Railway Company going north to Minneapolis had the right of way, there was a collision between that train and a stock train of the Chicago Great Western Railway Company which was coming south toward South St. Paul. Thereupon the companies entered into a written agreement that the question of liability for the collision and for all losses and expenses growing out of it should be settled by an action in the court below which should be tried by Judge Charles F. Amidon without a jury. The action was brought, it was tried by Judge Amidon, who made a special finding of facts the legal effect of which was that the Great Western Company alone was guilty of negligence which caused the collision, that the "Soo" Company was guilty of no negligence which contributed to cause it, and that the former company was liable for the losses and expenses which resulted from it. The judgment against the Great Western Company founded upon this finding is questioned by this writ of error. The first specification of error is that the court permitted the witness McGuire to answer the following question: "Q. What was the fact as to how the Chicago Great Western passenger trains were handled out of the Union Depot for the period of your service prior to this accident, as compared with the way the 'Soo' trains were handled this morning? "(That is objected to as immaterial.) "A. The Great Western the same as the 'Soo' line." Third street in St. Paul runs east and west, and the Union Depot is some distance south of it. The "Soo" train was going from the Union Depot to Minneapolis. It ran east on the southerly one of the double tracks of the Depot Company assigned to this service in a straight line about 1,000 feet and then along a curve to the north to a point about 100 feet south of a viaduct over the railroad tracks where the double track of the Depot Company connected with a single track of the Northern Pacific Company which ran north about 450 feet upon an ascending grade of 1.6 per cent. under the viaduct, across a single track of the Burlington Railroad Company which lay just north of the viaduct to a connection with the double tracks of the Northern Pacific Company which extended to Minneapolis. The "Soo" train was a heavy passenger train which had the right of way up this grade over the single track of the Northern Pacific Company, and it proceeded north until its engine entered upon the easterly one of the double tracks of the Northern Pacific Company, when a stock train of the Great Western Company which was coming south on the westerly one of these double tracks, ran into the "Soo" train. The rule of operation was that north-bound trains should go up the hill upon the east and south-bound trains should come down the hill on the west one of the double tracks of the Northern Pacific Company, and that all trains coming down on the west track should stop and wait until they received a signal from the switchman who was stationed at the north end of the single track before they entered upon that track. But the operators of the Great Western train, by their negligence, had lost control of it so that it did not stop until it ran upon the single track and into the side of the "Soo" train as it was passing to the double track. McGuire was the switchman stationed at the south end of the single track where it connected with the double track of the Depot Company. He testified that during the two years he had been employed there the trains of the Wisconsin Central, Minneapolis & St. Louis, Great Western, the "Soo," and the Northern Pacific Companies were operated over the same track that this "Soo" train passed over on the occasion of the collision; that there was a uniform custom of handling the passenger trains coming out of the Union Depot over these tracks; that they were handled by hand signals; that there was another switchman stationed between him and the depot who, when a train was ready to pull out over this Northern Pacific track, gave him a signal to that effect; that he then examined the Burlington track and crossing, the situation at Third street, and the switches at both ends of the single track to see that the crossing was free and the switches were properly set for the train to pass over the single track upon the easterly one of the double tracks of the Northern Pacific at its north end and then signaled back to the switchman between him and the depot to let the train come, and that as the engineer pulled up past that switchman he gave him a signal to come on. He testified that on the occasion of the collision this course was pursued. and he gave to the engineer of that train the signal to come on through his fireman, that ordinarily or frequently the firemen on trains of this character started to make their fires in the engines after this last signal was given, and that the firemen on the heavy passenger trains of the Great Western Company pursued that course. It was in this state of the case and after this testimony had been received that the court admitted the answer to the question of which complaint is here made. The question whether or not the "Soo" Company was guilty of negligence which directly contributed to the injury was an important issue in this case. There are cases in which an act or omission is in itself so clearly negligent that the fact that other persons in the same or like circumstances have been guilty of a similar act or omission is insufficient to modify its character or its effect. Dawson v. Chicago, Rock Island & Pacific Ry. Co., 52 C. C. A. 286, 288, 114 Fed. 870, 872; Gilbert v. Burlington, etc., Ry. Co., 128 Fed. 529, 534, 63 C. C. A. 27, 32. The act or omission of the "Soo" Company in this case, however, did not appear at the time this evidence was challenged to be of that character, and, where the nature of the act or omission is doubtful, the best test of actionable negligence, where available, is the degree of care which persons of ordinary intelligence and prudence commonly exercise under the same or like circumstances. If the care exercised in such a case rises to or above that standard, there is no such negligence, if it falls below it there is. The legal presumption was that the servants of the Great Western Company who had been operating its passenger trains upon the tracks leading out of St. Paul which were used by the "Soo" Company on the day of the accident were men of ordinary intelligence and prudence, and hence the fact that it had been their uniform practice to handle their trains under like circumstances in the same way that the "Soo" Company operated this train on that occasion was both competent and material evidence that it conducted it with reasonable care. Lake v. Shenango Furnace Company, 160 Fed. 887, 895, 88 C. C. A. 69, 77. The second complaint is that the court permitted McGuire to testify that those operating the Great Western passenger trains and other passenger trains over this single Northern Pacific track had not been and were not in the habit of stopping for the crossing of the Burlington track which lay just north of Third street as they ran up the grade unless there was something extraordinary, unless they were stopped. There was a statute of the state of Minnesota which required every company operating a railroad to cause its trains to come to a full stop not less than 10 nor more than 60 rods before they reached any railroad junction or crossing at grade (Rev. Laws Minn. 1905, § 2033), and counsel contend that the admission of this evidence was erroneous because the violation of the statute was negligence per se, so that evidence of reasonable care in its violation was immaterial, and because testimony of the habit or custom of operating trains over these tracks was generally inadmissible. But this statute was inapplicable to the case here presented and imposed no duty to the Great Western Company or to the operators of its stock train upon the "Soo" Company, or upon the crew upon its passenger train. The connection of the double track of the Great Northern Company with the north end of its single track was no "junction" within the meaning of this law. The junction to which this statute refers and to which it is limited is a junction of two or more railroads owned by different proprietors, or a junction of two or more |