(after stating the facts as above). Tlie patent in suit, so- far as claims 2, 6, and 9 are concerned, was examined by this court in the case of the present complainant against the Union Railway Company (31 C. C. A. 391, 88 Fed. 82), and the subject of the described improvement was fully considered by the circuit court of appeals for the Eighth circuit in Adams Electric Ry. Co. v. Lindell Ry. Co., 40 U. S. App. 482, 23 C. C. A. 223, 77 Fed. 432. Upon an appeal from an order for a preliminary injunction in favor of the present complainant, restraining the present defendant from the infringement of claims 2 and 6, and a cross appeal from an order denying .a -motion for an injunction against infringement of claim 4, this court was of opinion that claim 4 had never been adjudicated, and that the affidavits did not sufficiently manifest an infringement of the other claims. 37 C. C. A. 286, 95 Fed. 821. The alleged infringement in the present case is by means of a different construction from the one in the last-mentioned case. In the opinion of this court in the Union Case, 31 C. C. A. 391, 88 Fed. 82, the patented invention then and now in suit was described as follows:
“As soon as the use of an electric motor for the propulsion of cars upon a street railway was thought to be attainable, divers methods were invented which were intended to enable the motor to act efficiently, economically, and *763iTi't;tinly upon tlie car axle. At first the motor was supported l)y or on the car hotly, and afterwards it was upheld upon a separate platform. The state of the art upon the subject is so fully stated by Judge Sanborn in Adams Electric Ry. Co. v. Lindell Ry. Co., 23 C. C. A. 223, 77 Fed. 432, 40 U. S. App. 482, that it need not be restated here. Sprague hung the motor under the car body, directly upon the axle of one of tlie pairs of wheels, by an extension or solid bearing attached directly to tlie motor. He used a magnet having a yoke and pole pieces, and by sleeving one end upon tlie axle ho caused rhe armature, which was carried between the poles of the magnet, to be held with dimness, and the ami ature shaft to be held in alignment, with tlie car axle. T1k> opposite end of the motor was upheld by springs extending to a crossbar on the truck frame. He also relieved tlie weight upon the axle by a spring support fnom tlie truck of the vehicle. The motor was thus hung below the car, one end being centered upon tlie axle, and the other end being flexibly attached by firings to tlie truck frame. The effect of tlie mode of const met ion Is explained in the specification as follows: ‘The armature being carried rigidly by the field magnet, these two parts must always maintain precisely the same relative position under every vertical or lateral movement of the wheels or of the car body; and, as the wheel magnet which carries the armature is itself centered by the axle of the wheels to which the armature shaft is geared, the engaging gears also must always maintain precisely the same relative position. At, the same time Hie connection of the entire motor with the truck is through springs, so that its position is not affected by the movements of tlie truck on its springs.’ Tlie simplicity and comparative lightness of the general plan upon which this motor was constructed, and the adaptability of the means to the required result, made the motor successful, and other pre-existing methods of construction disappeared to a great extent. Tlie question of anticipation by a pre-existing electric railway motor may be laid out of the case, for it is not asserted that any patent prior to tlie date of the patent in suit described an electric motor geared to a,nd propelling a vehicle, and supported at one end by sleeving extension pieces from tlie field magnet upon the driven axle, and at the other end by a flexible connection with the truck or body of tlie vehicle. ⅞ s ⅜ The Sprague invention was not a pioneer, and was not of a broad character, but it was a distinct and clearly-defined invention in the method of hanging electric motors for vehicles, and its gist consisted in the utilization of the frame of the motor itself with tlie necessary extension, and the centering of the motor on the driven axle by extension pieces from tlie field magnet at one end, and in its flexible suspension at tlie other end to the car truck, the armature being carried rigidly by the field magnet.”
No objection was apparently relied upon in addition to those heretofore urged against the validity of the patent or the soundness of the paíentable character of the invention as- thus described. The point; of the defense which is pressed is that the defendant's motor as mounted upon its railway car does not infringe oil her of the three claims, because it is not flexibly supported at its off end from the body of the vehicle or from the truck. If claim 4 does not necessarily include such support, its validity is denied. The proposition in regard to infringement is that the Sprague invention is limited to a combina (ion in which the ear body or car truck which supports the nose end of the motor is itself supported upon the car springs of the vehicle, and that a substantial portion of the Invention consisted in supporting the nose end of the motor directly from the spring-supported car body or spring-supported car track, whereas the defendant does not thus suspend its motor. It sleeves the other end of its motor upon the driven axle, in accordance with the Sprague invention.
It is conceded that the structure in the Union Railway Case, which *764was held to infringe claims 2 and 6, wras substantially the same in principle of construction, though not in detail, as the defendant’s structure in the present suit, .and it is a fact that the able solicitors of the Union Railway Company did not make the present defendant’s point of noninfringement, while they vigorously defended themselves against the charge of infringement, and attacked in like manner the validity of the patent. The present defendant takes up a defense which was disregarded by its energetic predecessor in the litigation. Sprague says that the yoke of his field magnet was hung from a crosspiece of the truck by heavy springs, and the truck was evidently the old form which was in use on ordinary cars in 1885. The defendant uses what is known as the “Dupont Truck,” one of the forms of modern trucks which consists of two parts. The lower part of this compound truck, which the defendant calls a “motor truck frame,” consists, in general, of the equalizing bars and cross frame which carry the wheel bearings and wheels, and the upper part, resting upon the lower part by springs, consists of two longitudinal plates, while springs resting upon these plates uphold the car body. The lower part is a part of the car truck. The nose end of the motor is spring-supported from a crossbar which connects the opposite sides of the lower part of the truck. The Sprague motor- was hung from the crosspiece of the truck by springs, if a truck existed, and in the Dupont truck the off end of the motor is not incorporated with or fastened into a frame, but is flexibly connected by springs with the crossbar of the lower part of the truck, which, in its turn, flexibly supports the car-body. That a spring in the defendant’s structure intervenes between the off end of the motor and what is called the motor truck frame, and that the motor is not fastened to this frame, as in the Finney patent, are not denied, but the spring is styled a “cushioning spring,” connected with a rigid frame, which gives a degree of independent vertical movement to the motor, but without the Sprague flexibility between the motor and the car truck. It is manifest that in the Dupont truck there is not the degree of flexibility which is apparent in the Sprague specification and drawings, but an intentional flexibility was imparted to the spring-supported motor which was denied in the Finney invention, and which the Dupont truck preserved.
In view of the fact that the invention was the hanging of the motor below the car, one end being centered upon the axle, and the other end being flexibly attached by springs to the truck frame, it cannot be subdivided, and claim 4 must be construed to include the flexible support of the off end of the motor from an independent structure which is the truck frame, or from the independently mounted body of the vehicle.
The decree of the circuit court is affirmed, without costs of this court, as the appeal of neither party is sustained.