carelessness or negligence of any other employé while in the discharge of, or failure to discharge his duty as such, provided that such injury shall arise from a risk or hazard peculiar to the operation of railroads," abolishes the fellow servant doctrine only in case of injuries to employés of common carriers while engaged in the line of their duty "as such," and the statute has no application to the case of an injury to one of the crew operating an engine used solely in moving slag cars on the premises of a steel company from a blast furnace to the dumping grounds, although the crew were employés of a railroad company which hired them and the engine to the steel company. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 363; Dec. Dig. § 180.*] In Error to the Circuit Court of the United States for the Eastern District of Wisconsin. Action by Frank Knitter against the Chicago, Lake Shore & Eastern Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed. The facts are stated in the opinion. Hugh Ryan, for plaintiff in error. Clarke M. Rosecrantz, for defendant in error. Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges. GROSSCUP, Circuit Judge, delivered the opinion: The plaintiff in error (plaintiff below) brought this action to recover for personal injuries received by him under the following circumstances: Defendant in error is a common carrier, operating a railroad, a portion of which is in the State of Wisconsin. The Illinois Steel Company has a blast furnace in the City of Milwaukee, in that State, adjacent to the railroad, and connected therewith by the necessary switches. A track leads from this blast furnace, over the grounds of the steel company, to some dumping grounds on the lake shore, also within the grounds of the steel company; said track being used exclusively to remove the waste product of the steel company, known as "slag, from the furnace to the dumping grounds. Incidentally, this track is connected with the defendant in error's tracks by a switch. The only cars used on the track are what are known as "rubbish buggies," peculiarly constructed for the removal of slag. The defendant in error, for a certain stipulated price per day, furnished the locomotive and crew that hauled these rubbish buggies back and forth between the furnace and the dumping grounds; and at the time of the accident, the plaintiff in error was one of this crew. The accident was due to the fact that the engineer of the locomotive, without notice, started his engine while plaintiff in error was engaged in cleaning some slag off the track in front of the engine. Except for a statute of the State of Wisconsin, the relation of plaintiff in error and the engineer was admittedly that of fellow servants. The statute (section 1816, St. Wis. 1898, as amended by chapter 48, Laws 1903) is as follows: For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes "Every railroad company operating any railroad which is in whole or in part within this state shall be liable for all damages sustained within the same by any of its employés without contributory negligence on his part: "1. * * "2. When such injury is sustained by an officer, agent, servant or employé of such company, while engaged in the line of his duty as such, and which shall have been caused by the carelessness or negligence of any other officer, agent, servant or employé while in the discharge of or for failure to discharge his duty as such, provided, that such injury shall arise from a risk or hazard peculiar to the operation of railroads." The statute, when analyzed, clearly shows that it was the intention of the legislature to confine the abolition of the fellow servant doctrine to injuries sustained by employés of a common carrier, only while engaged in the line of their duty "as such," and when caused by the negligence of other fellow servants while engaged in the discharge of their duty "as such," the particular injury itself to arise from a risk or hazard "peculiar to the operation of railroads" as common carriers. Indeed, it was necessary to thus limit the application of the statute to save it from being unconstitutional. Kiley v. C., M. & St. P. Ry. Co., 138 Wis. 215, 120 N. W. 756; McKivergan v. Lumber Company, 124 Wis. 60, 102 N. W. 332. The furnishing of a locomotive and a crew to move these slag buggies between the furnace and the dumping grounds involves, in our judgment, no risk or hazard "peculiar to the operation of a railroad," and the crew engaged therein are not, for the time being, engaged in the line of their duty as employés of a common carrier "as such." Such work is not, in any sense, the operation of a railroad. A team of horses, or a road engine, hauling these buggies, would be just as much the operation of a railroad as was the matter under consideration; and the mere fact that the motive power furnished was the property of the railroad company, and that the crew operating it were employés of the railroad, no more makes it the operation of a railroad, within the meaning of the statute-differentiating a railroad in its relation to the public from other enterprises in this respect-than would the fact that the horses or the road engine belonged to the railroad, make the hauling of the buggies by the horses or the road engine the operation of a railroad; or the fact that any other labor done by railroad employés, not connected with its operation as a common carrier, would make the matter of which the employment was a part, an operation peculiar to railroads, or the employment one in line of the employé's duty to a common carrier as such. McKivergan v. Lumber Company, supra. The case presented, therefore, was not one coming within the statute. The judgment will be affirmed. RIPPER v. UNITED STATES. (Circuit Court of Appeals, Eighth Circuit. June 10, 1910.) No. 2,868. 1. CRIMINAL LAW (§ 824*)—INSTRUCTIONS-NECESSITY OF REQUEST. An accused cannot object to the court's failure to charge on a legal issue, in the absence of a request therefor. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1996–2004; Dec. Dig. 824.*] 2 CRIMINAL LAW (§ 827*)-INSTRUCTIONS-REQUESTS TO CIENCY. CHARGE-SUFFI A bare exception to a charge given is not equivalent to a request to charge. [Ed. Note. For other cases, see Criminal Law, Dec. Dig. § 827.*] 8. CRIMINAL LAW (§ 1186*)—APPEAL-REVERSAL. Where the record fails to disclose proof of all the essential elements of an offense, or evidence from which the jury might have found them, the Circuit Court of Appeals may set aside the conviction, though the appropriate objection has not been made. [Ed. Note. For other cases, see Criminal Law, Dec. Dig. § 1186.*] On petition for rehearing. Denied. For former opinion, see 178 Fed. 24. P. H. Cullen, Thomas T. Fauntleroy, and Shepard Barclay, for plaintiff in error. 178 HOOK, Circuit Judge. The conviction and sentence of Ripper for violations of the oleomargarine act (Act Aug. 2, 1886, c. 840, 24 Stat. 209 [U. S. Comp. St. 1901, p. 2228]), was affirmed by this court. Fed. 24. A petition for rehearing has been presented. Some of the grounds set forth have already been fully considered and we do not think the conclusions reached should be disturbed. Of the others there is but one that need be noticed. One of the counts in the indictment charged a violation of section 13 of the act, which provides that whenever any stamped package containing oleomargarine is emptied it shall be the duty of the person in whose hands the same is to destroy utterly the stamps thereon, and imposes a penalty for the willful neglect or refusal to do so. Complaint is now made that the trial court refused to instruct the jury that in order to convict it was necessary they should find the neglect to destroy the stamps was willful, and that this matter was assigned as error, but was not considered in our former opinion. It is said in the petition for rehearing that counsel for the accused requested such an instruction, and it was refused. The record does not disclose that any requests whatever were made of the trial court. At the conclusion of the charge counsel merely excepted to it upon a number of grounds, among which was one that the court failed to instruct that the neglect to cancel the stamps must have been willful. This exception is the sole basis for the statement that a request was made and refused. It is the settled rule that if a party desires an instruction upon the law 'For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 179 F.-32 he must ask for it. Texas & Pacific Railway v. Volk, 151 U. S. 73, 14 Sup. Ct. 239, 38 L. Ed. 78; Isaacs v. United States, 159 U. S. 487, 16 Sup. Ct. 51, 40 L. Ed. 229; Goldsby v. United States, 160 U. S. 70, 16 Sup. Ct. 216, 40 L. Ed. 343; Backus v. Depot Co., 169 U. S. 557, 575, 18 Sup. Ct. 445, 42 L. Ed. 853; Humes v. United States, 170 U. S. 210, 18 Sup. Ct. 602, 42 L. Ed. 1011. A bare exception to a charge is not equivalent to a request. If the record before us had failed to disclose proof of all the essential elements of the offense or evidence from which the jury might have found them, we might very properly set aside the conviction, though the objection was not raised in the appropriate way. Wiborg v. United States, 163 U. S. 632, 16 Sup. Ct. 1127, 1197, 41 L. Ed. 289; Clyatt v. United States, 197 U. S. 207, 25 Sup. Ct. 429, 49 L. Ed. 726; Williamson v. United States, 207 U. S. 425, 28 Sup. Ct. 163, 52 L. Ed. 278; Crawford v. United States, 212 U. S. 183, 29 Sup. Ct. 260, 53 L. Ed. 465; Williams v. United States, 88 C. C. A. 296, 158 Fed. 30. But that was not the case. There was substantial proof of all of the elements of the offense and of the guilt of the accused. The petition for rehearing is denied. CAMPBELL v. AMERICAN SHIPBUILDING CO. (Circuit Court of Appeals, Sixth Circuit. April 5, 1910.) 1. PATENTS (§ 168*)-CONSTRUCTION-PROCEEDINGS IN PATENT OFFICE. [Ed. Note. For other cases, see Patents, Cent. Dig. § 244; Dec. Dig. § 168.*] 2. PATENTS (§ 328*)-INFRINGEMENT-CARGO VESSEL. The Campbell patent, No. 675,812, for a cargo vessel, as limited by the proceedings in the Patent Office, held not infringed. Appeal from the Circuit Court of the United States for the Northern District of Ohio. Suit in equity by James Campbell against the American Shipbuilding Company. Decree for defendant, and complainant appeals. Affirmed. W. L. Pierce, for appellant. Charles Neave, for appellee. Before SEVERENS, WARRINGTON, and KNAPPEN, Circuit Judges.. WARRINGTON, Circuit Judge. This is a suit for infringement of patent issued to James Campbell under date of June 4, 1901, No. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 675,812, for improvement in navigable vessels. The answer comprises denials of utility, infringement, and the quality of invention, and averments of anticipation through various patents of the United States, Great Britain, and France, and also averments of amendments made of the application while pending in the Patent Office, whereby Campbell is estopped from claiming that defendant's vessels are within the scope of the patent. The latter defense was sustained in the court below, and the cause is pending here on appeal. If the conclusion reached by the learned trial judge shall prove to be correct, it will be unnecessary to determine any of the other issues made in the pleadings. The patentee states in his specification: "This invention relates to navigable vessels, its object being the construction at a moderate cost of a strong vessel capable of carrying heavy cargoes, and in particular iron ore, in such a manner that no part of the cargo shall be screened from the action of the discharging apparatus by any part of the hull. According to this invention a trunk or hopper is constructed in the vessel exfending from the stoke-hold bulkhead of the machinery space, which preferably should be situated in the stern, or where a cross-bunker bulkhead is fitted from the forward cross-bunker bulkhead forward to the collision bulkhead, or as far forward as the form of the ship will permit. Where the engines are amidships, two or more longitudinal trunks or hoppers may be provided. To obviate the loss of strength which otherwise this construction would involve, owing to the absence of hold and deck beams, it is proposed to make the trunk or hopper bulkheads of substantial construction, by introducing into them heavy plating and numerous stiffeners, and also to connect these bulkheads to the main frames of the vessel and to the side plating by beams of heavy stantling and by thick deck-plating and stringers. There may be weather and partial 'tween-decks. It is preferred that the two sides of the ship alongside the trunk or hopper should be of sufficient strength in themselves and independently of the strength of the trunk to sustain all local stresses likely to be brought upon them. The spaces in the wings between the side of the trunk and the inner face of the skin-plating, being bounded by strong structures, can conveniently be utilized to contain water ballast, which may be placed above the partial 'tween-decks where desired. Hatch tie-beams of great depth securely, but in most cases removably, connected to the hatch coamings, which are of appropriate strength and connected to the weather deck, are provided at frequent intervals along the trunk to prevent it from separating or panting under the longitudinal stresses likely to be set up on the loaded vessel in a seaway. Plate hatch covers extending over the whole length of the trunk may also be employed to contribute to this end. In certain cases the interior of the trunk will be altogether unobstructed; but, if necessary, strong tie-bcams or girders can extend across it say about amidships at the ievel of the partial 'tween-decks; these being protected from the action of the discharging gear or from the cargo during loading by sloping transverse bulkheads or dedectors." It was plainly the object of the inventor so to design and construct a vessel as to avoid the need of stanchions, beams, and the like within the cargo hold and also of permanent hatch tie-beams. The loss of strength, which the omission of these supports would engender, was to be made up by strong trunk bulkheads, and by making the two sides along the trunk of substantial construction. In short, the idea was to construct one vessel of a given size within another of larger size, and so to strengthen the connections between them as to compensate for the omission of supports within the hold itself, and further to strengthen the whole structure by hatch tie-beams, in most cases removable, and by plate hatch covers when necessary. In the original specification the inventor included five claims, as follows: |