Watch Co. v. Illinois Watch Case Co. 179 U. S. p. 665, 45 L. ed. 365, 21 Sup. Ct. Rep. 270; Delaware & H. Canal Co. v. Clark, 13 Wall. 311, 20 L. ed. 581; Lawrence Mfg. Co. v. Tennessee, 138 U. S. p. 537, 34 L. ed. 997, 11 Sup. Ct. Rep. 396; Goodyear's India Rubber Glove Mfg. Co. v. Goodyear Rubber Co. 128 U. S. 598, 32 L. ed. 535, 9 Sup. Ct. Rep. 166. Or they are cases where, on the hearing, it was found as a fact that the rival goods had been adequately distinguished, as in Coats v. Merrick Thread Co. 149 U. S. 562, 37 L. ed. 847, 13 Sup. Ct. Rep. 966; Blackwell v. Wright, 73 N. C. 310, a case which, it appears, was concerning the validity of a trademark. Tise v. Whitaker-Harvey Co. 144 N. C. 508-510, 57 S. E. 211, it is given. as the proper deduction from the cases on the subject "that in actions.

In

the main purpose of which is to obtain a permanent injunction, if the evidence raises serious question as to the existence of facts which make for plaintiff's right, and sufficient to establish it, a preliminary restraining order will be continued to the hearing."

And considering the record in

deference to this recognized principle, and in view of the opposing statements and positions presented, we are of opinion that the restraining order, in the instant case. should be continued to the hearing. As the cause goes back for an ultimate finding on the determinative facts, we do not deem it wise to refer in detail to numerous suggestions made in the evidence in behalf of either of the parties, and will only say that there is assuredly serious question as to a wrongful interference with plaintiff's rights, and that matters should be kept in the position that prevailed when the preliminary order was issued, and as affected by it, until the final hearing. This will be certified that, on giving adequate bond, the preliminary restraining order be continued, and the case tried on appropriate issues as to the existence of the rights claimed by plaintiff, and on the question whether the defendant, in the use of yellow cabs, has so distinguished them that plaintiff's patrons and the public generally are not likely to be misled under such observation as ordinarily prevails with the public in selecting this character of service. Reversed.

This annotation is supplemental to one on the same subject in 17 A.L.R. 784.

Place of business.

(Supplementing annotation in 17 A.L.R. 784.)

In Summerfield Co. v. Prime Furniture Co. (1922) 242 Mass. 149, 136 N. E. 396, affirming a decree granting a permanent injunction, the plaintiff had established a retail furniture store on the instalment plan, which had become well known through advertising and other means; the defendant, engaged in the same business, became a tenant of an adjoining store, and, as its general manager and

former salesmen testified, entered upon a course of conduct designed to make its store appear to be the store of the plaintiff; to that end, among other things, it altered the front of the building, dressed and adorned the show windows, arranged and displayed its goods for sale in imitation of the plaintiff's store and business, and arranged its signs in such a manner that they could not be observed by people on the adjacent walk, leaving nothing whatever to indicate that the defendant's store was not a part of the plaintiff's. The decree which was affirmed enjoined the defendant, inter alia, from maintaining an ap

pearance to its premises which would be likely to induce customers to enter in the belief that they were entering the plaintiff's store, and from dressing the windows in the manner and style in which, for the time being, the plaintiff was dressing its windows, and ordered it to place and maintain on the premises, in conspicuous places, signs readily legible and visible to persons approaching the store on the adjacent sidewalk, clearly indicating the ownership of the establishment. The court observed: "The underlying principle which is the foundation of equitable relief in this class of cases is that one trader shall not compete with another for public patronage, by adopting intentionally means adapted to deceiving the public to think it is trading with the latter, when in fact it is dealing with the former, and thus palming off his goods as those of another. The relief is based on the existence of an acquired reputation and good will in connection with business recognized as a property right, which will be protected against unfair methods of competition by rivals. The defendant has an equal right with the plaintiff to solicit the patronage of the public. But it has no right to intentionally mislead the public to the harm of the plaintiff, even in competition. Equity will use practicable precautions to prevent the defendant from deceitfully diverting the plaintiff's custom, while at the same time permitting the defendant to carry on its lawful business by any appropriate competitive methods."

Taxicabs.

(Supplementing annotation in 17 A.L.R. 787.)

YELLOW CAB Co. v. CREASMAN (reported herewith) ante, 109, reaffirms the established rule that a taxicab operator who has adopted cabs of a particular color and design, and has built up a business by their use, is entitled to be protected against the use, by a rival proprietor, of cabs of such closely similar design and color scheme as to mislead the patrons of the former, or the public, and divert patronage to the second proprietor.

Where a taxicab company, using cabs painted in a combination of yellow and black, has established a trade and good will based upon the distinctive color scheme and dress of its cabs, injunction will be granted at the instance of the company, restraining another person from using taxicabs painted in such a style and combination of colors as to imitate and impersonate the complainant's cabs, not only as a protection to the legal rights of the complainant from unfair methods of competition, to which he is entitled, but also as a matter of protection to the public and as a manner of preparing the way for a consistent, systematic policy in the use of the streets by taxicabs. Yellow Cab Corp. v. Korpick (1923) 120 Misc. 499, 198 N. Y. Supp. 864.

In American Yellow Taxi Operators v. Quinn (1922) 118 Misc. 499, 194 N. Y. Supp. 623, it was held that the plaintiff, the American Yellow Taxi Operators, who operated taxicabs of a distinctive color design of yellow and black, though not the original user of that color design, was entitled to the protection of the good will and reputation it had established in the use of its cabs, so that an injunction would be granted to restrain other taxicab operators, who had purchased their cabs from the same manufacturer as had the plaintiff, from operating taxicabs so similar in appearance to the plaintiff's as to create in the minds of the public the impression that they were in fact the plaintiff's cabs. The court said: "In the last analysis, that for which the plaintiff is entitled to protection is the good will and reputation which it has acquired by reason of its efficiency, enterprise, skill, and methods, when taken in conjunction with the cars which it operates. The cars alone have not won that good will, though they may be an essential element of it. The colors alone have not won it, although they may help to identify it. But both of these facts should be taken into account, in order to give that full measure of protection which shall not encroach upon the rights of others, and shall restrain those who

merely imitate in order to profit from stealing the success of the fruits thereof, built up by industry, skill, and enterprise." The court, however, refused to grant such a sweeping inJunction as would prohibit all others who owned or operated taxicabs for hire, from using in any form the colors orange and black, or yellow and black, as the plaintiff was unable to establish that it had originated that color combination, or had used it for such a length of time as to give it a proprietary right.

In American Yellow Taxi Operators v. Diamond (1922) 202 App. Div. 490, 195 N. Y. Supp. 140, where both the plaintiff and the defendant operated taxicabs of the same general color scheme and design, manufactured by the same concern, the plaintiff's cabs had on a panel of the door, in black letters, the words "American Yellow Taxi Operators Inc.," each word being on a separate line, the words "Yellow Taxi" being in large letters, while the words "American" and "Operators Inc." were in smaller letters, these words being respectively above and below the large-letter words; the defendants, with a view of imitating the marking on the plaintiff's cabs to deceive the public and divert plaintiff's patronage, had placed on a panel of the door of their cabs the words "At Your Service Yale Taxi Corporation," arranged in such a manner as to appear, at a short distance, identical with the panel on the plaintiff's cabs. The court held that inasmuch as the plaintiff was unable to show that it was entitled to the exclusive use of the color combination which it had adopted, it appearing that such color scheme had been used before, the order pendente lite, restraining the defendant from operating taxicabs alleged to be an imitation of the plaintiff's cabs, should be modified by striking therefrom the words, "finish, color, or combination of colors, get-up, style, or dress."

A taxicab manufacturer who manu

factures and sells taxicabs marked with a distinctive symbol in the form of a design of checkers of contrasting colors, arranged both in circles and a band running from end to end around the tonneau, which has been registered as a trademark, may enjoin a person from operating a taxicab not manufactured by the complainant, marked so similarly to those manufactured by the complainant as to create confusion in the minds of the riding public, for, notwithstanding that the parties are not actually competitors, inasmuch as one is a taxicab manufacturer and the other a taxicab operator, the manufacturer's business is bound to suffer if imitations of his cabs are used without restraint, and undeniable advantages will result to the defendant, in competition with operators who have purchased with plaintiff's cabs. Checker Cab Mfg. Corp. v. Sweeney (1922) 119 Misc. 780, 197 N. Y. Supp. 284.

But in YELLOW CAB Co. v. SACHS (reported herewith) ante, 105, it is held that the rights of a corporation. manufacturing yellow taxicabs of a distinctive design have not been infringed by the adoption and use in a particular city, by the defendant, of cabs of that same color and design, where the use of such cabs was begun before any attempt was made by the foreign corporation to use its cabs in such city, although the manufacturer had, subsequently to the defendant's use of the design of cabs which was claimed to infringe the design adopted by the manufacturer, attempted to license one of its customers to use this design of taxicabs in the city where the defendant operated his cabs. The decision is placed on the ground that the defendants, not being manufacturers, were not in competition with the company manufacturing taxicabs, so that the defendant was not engaging in unfair competition, and the manufacturer could not assert any rights, or transfer any rights which could be asserted, against the defendants. G. S. G.

434, 166 S. W. 506; Louisville & I. R. Co. v. Kirk, 175 Ky. 588, 194 S. W. 925; Louisville & N. R. Co. v. Payne, 177 Ky. 463, L.R.A.1918C, 376, 197 S. W. 928, 17 N. C. C. A. 887; Illinois C. R. Co. v. Pierce, 175 Ky. 488, 194 S. W. 534; Delaware, L. & W. R. Co. v. Hughes, 153 C. C. A. 627, 240 Fed. 941; Southern R. Co. v. Smith, 123 C. C. A. 488, 205 Fed. 360; Cincinnati, N. O. & T. P. R. Co. v. Cook, 113 Ky. 164, 67 S. W. 383; Illinois C. R. Co. v. Cane, 28 Ky. L. Rep. 1018, 90 S. W. 1061.

When inspection is a duty, it is a part of the work.

Louisville & N. R. Co. v. Stayton, 163 Ky. 761, 174 S. W. 1104.

The master is responsible for injuries sustained by the servant in the performance of his duties, even when the injuries were caused by the negligence of another.

Ligon v. Evansville R. Co. 165 Ky. 202, 176 S. W. 968; Evansville R. Co. v. Ligon, 172 Ky. 631, 189 S. W. 898; Clark v. Union Iron & Foundry Co. 234 Mo. 436, 45 L.R.A. (N.S.) 295, 137 S. W. 577.

Where two railroads use a common. track, each is under the same duty to take ordinary precautions for the protection of the public, and of the property and employees of each other. A breach of this duty constitutes actionable negligence.

33 Cyc. 735; Pridmore v. Chicago, R. I. & P. R. Co. 275 Ill. 386, 114 N. E. 177, 14 N. C. C. A. 313; Macon & A. R. Co. v. Mayes, 49 Ga. 355, 15 Am. Rep. 678; Ricketts v. Chesapeake & O. R. Co. 33 W. Va. 433, 7 L.R.A. 354, 25 Am. St. Rep. 901, 10 S. E. 801; Chesapeake & O. R. Co. v. Vaughan, 159 Ky. 433, 167 S. W. 141.

Failure to maintain the automatic couplers in such repair as to avoid the necessity of men going between cars is actionable negligence.

Atlantic City R. Co. v. Parker, 242 U. S. 56, 61 L. ed. 150, 37 Sup. Ct. Rep. 69; San Antonio & A. P. R. Co. v. Wagner, 241 U. S. 476, 60 L. ed. 1110, 36 Sup. Ct. Rep. 626; Texas & P. R. Co. v. Rigsby, 241 U. S. 33, 60 L. ed. 874, 36 Sup. Ct. Rep. 482; Erie R. Co. v. Russell, 106 C. C. A. 160, 183 Fed. 722.

The scintilla rule of evidence obtains in Kentucky courts and governs cases brought under the Employers' Liability Act.

Louisville & N. R. Co. v. Johnson, 161 Ky. 824, 171 S. W. 847; Chesa

peake & O. R. Co. v. Kelly, 160 Ky. 296, 169 S. W. 736.

Messrs. R. D. Davis and C. W. Dille also for appellant.

Messrs. Worthington, Cochran, & Browning and Prichard & Putnam for appellee.

Thomas, J., delivered the opinion of the court:

James A. Hunsaker was, and had been for a long while, in the employ of the appellee and defendant below, Chesapeake & Ohio Railway Company, hereinafter referred to as the Railway Company, in its yards. in Ashland, Kentucky, in the capacity of conductor of a switching crew. The Ashland Coal & Iron Railway Company, hereinafter referred to as the Ashland Company, a Kentucky corporation, owned and operated some of the tracks in the yards in Ashland in which Hunsaker operated his train, while the Railway Company owned other tracks in the same yards, with the joint privilege on the part of each company to use for certain purposes all of the tracks. Tracks Nos. 4 and 5, and the main track, were owned by the defendant Railway Company. Three other tracks, paralleling the ones mentioned, as well as some connecting with the ferry crossing the Ohio river, and others leading to different parts of the city of Ashland, were owned by the Ashland Company.

On March 25, 1915, the deceased, with his crew, was making up a train for the defendant, and had pushed about twenty-five cars upon the main track. They were going to pick up other cars from track No. 5 and put them into the train, which cars had been placed upon that track by the Ashland Company, it having brought them from other roads to be transported by the defendant Railway Company. There was space between two of the five cars and the other three, and for some cause unexplained in the record Hunsaker went into that space. Just as he did so the Ashland Company shoved a refrigerator car upon that track, which caused the two