Transcript of Record — St. Anthony Church v. PENNA. RR

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SUPREME COURT OF THE UNITHD STATES.

OCTOBER TERM, 1913.

No. 739.

‘THE ROMAN CATHOLIC CHURCH OF SAINT ANTHONY

OF PADUA, JERSEY CITY, APPELLANT,

, vs.

THE PENNSYLVANIA RAILROAD COMPANY.

“APPEAL FROM THE UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE THIRD CIRCUIT.

INDEX.

Page

ascript from the district court of the United States for the district

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SOO oS sak as avons db ccedene ae ou 160

> & DeTweiter (INc.), Painters, Wasnincoton, D. C., Octroper 15, 1913.

INDEX.

Page

Testimony of Rev. Boloslaw Kwiatkowski (continued)......... 136

I lS coc esne wb oe bbws wos 158

ak ab mi nhen eee re eres re oe 159

PE: bas pevekewrss dv sen sbeeebdeos 160

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Sister Mary Hortulana .....................00- 182

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Lie 6d body pee eeu end prose ood oe 201

cE chs hice coke erecew sabe dsne ase 211

Ra EN vote con kc a rieecd ee devi’ 213

Rev. B. Kwiatkowski (resumed) .............. 222

Dr. Philomen E. Hammel] ............-222-2200 236

i ee si ceeeuseken sheen edo 242

Se SE, ce sles ceca esd othe he eebeb eee Soennhe been 46

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i ee nc car esa eh hae rae Sa web bob ee 280

William H. Pk over cr ke sarah rear eee 284

Beart Ts Seeeer (PORTO) 2. soo cce sc ccnneceds 289

EE oie asin bai W bre oe.d ciee DR Ree ee 290

SEs, EE cas sC habe re eriey os rboteser as 208

i i PoC kal bbek Sheree r bows 000.506 d5 313

Martin L. Gardner (recalled) ..........sccee0- 314

ee ee Pee EP r eT eee eT ee TTe TT TTrTerrr rr 317

ee ee ee ne sab cb rbsor crews seusverbs oboe 319

Negrete pe ieieges eee oer a ae ee ee aes 319

Ss Coot Ja rch s cule gb vole db Sere U NEOs er ebaee 320

SES eT CEE OCCULT TEE E TTY CP Ore ey 327

re se brea icc pub ers ses ck eie bed Poe ess 55 HUE 328

EES SS EE a ene ee eee 330

Order denying motion for leave to amend bill of complaint........ 331

Objection to form of proposed decree ............ 0. cece eee eee 331

nn) voccers ehha bs hs cree Ree ees Roe en an ese 2b e a5 3A5

Record showing movement of east and west bound trains over

Harsimus Cove branch, January, 1905, to May, 1911....... 3A5

C 17—Deed, McLaughlin et ux. to church, April 8, 1902....... 345

C 18—Deed, McLaughlin et ur. to church. May 10, 1893...... 348

C 19—Deed, Mathews ct ur. to church, June 11, 1898........ 352

Certificate of incorporation of the church.................... 355

I ose ie das xDiee oe hb PRs Vee RSS TS OTD pdr e os Oe OKO 363

D 1—Award and report as to lands under water in Harsimus

DT ae case ae kes tek DE Sls 6 ae av ed evi ese baee 363

D 2—ILease, N. J. R. R. & Trans. Co. to Penna. R. R. Co. and

er ee SN ee cabin rs swevvasensiowenrn seers 367

D 3—Instructions to enginemen and firemen. March 17, 1910.. 397

D 4—Instructions to enginemen and firemen. June 1, 1908...... 399

D 5—Instructions to enginemen and firemen. July 24, 1902.... 401

Stipulation as to record on appeal

Submission

Appeal and allowance

INDEX.

D 6—Instructions to enginemen and firemen, July 23, 1890..:.

D 11—Deed, Coles, executor, to N. J. R. R. & Trans. Co.,

ee Me ES SS oes cin bn's bd oe BP dco ebebbewkecdau sc

D 12—Deed, Morris, trustee, to N. J. R. R. & Trans. Co.,

Ee Be ED Custos abeeudn ety be wade Shous bs ocabae

D 13—Deed, Coles et ur. to N. J. R. R. & Trans. Co., De-

CE UR EE ee pce es Wo a 0ih yo bso vak oboe is eke dete

I) 14—Deed, Neilson to N. J. R. R. & Trans. Co., Oct. 1, 1868. .

D 15—Deed, Neilson et ur. to N. J. R. R. & Trans. Co., October

Re EE silence uid ar uaa aee Phe bo s0ue aes Ob bebe edsnoeoe

1) 16—Deed, Clark to N. J. R. R. & Trans. Co., June 15, 1877..

TD 17—Deed, Bacot ct uz. to N. J. R. R. & Trans. Co., Decem-

Pe a Ee a Av ese Seabury tbe seae habeas oreieceosas

D 18—Deed, Bacot et ur. to N. J. R. R. & Trans. Co., October

5, 1868

Ce ee es

D 19—Deed Ramsdell ef ur. to Carson, February 17, 1868....

D 20—Deed. Tappan et al. to Doyle, May 12, 1868

1) 21—Deed, Carson to McLaughlin, May 19, 1884............

D 22—Deed, Neilson et al. to Mathews, June 5, 1895

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Bond on appeal

Citation

and service

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United States District Court, District of New Jersey.

THe Roman CaTHoitic CHURCH OF

St. ANTHONY oF PADUA

/On Bill, &.

VS.

Tue PENNSYLVANIA RatLroap Co. |

1910,

July

Mar.

Apr.

June

July

Docket Entries.

3ill filed.

Subpcena issued, returnable Sept. 5, 1910

Affidavit of service of Bill of Complaint, filed.

Subpeena returned, served, and filed.

. New subpceena issued, returnable Sept. 5, 1910.

od oe

returned, served, and filed.

Appearance of Vredenburg, Wall & Carey, for

Defendant, filed.

Demurrer filed.

Order setting down demurrer for argument

filed.

Notice of argument of Demurrer filed.

Hearing on Demurrer; Decision reserved.

Order for amendment to bill of complaint filed.

Memorandum filed.

Order overruling Demurrer with costs.

Complainant’s costs on demurrer taxed $2.40

and filed.

Answer filed.

Replication filed.

Order appointing examiner filed.

Order extending time for taking proofs, filed.

Notice of Final Hearing filed.

Complainant’s proofs filed.

Defendant's ” .

Notice of Final Hearing filed.

. Stipulation that cause may be marked ready for _

hearing filed.

Final hearing; Decision reserved.

Consent and order substituting Frank M. Har-

denbrook for Complainant, filed.

Order denying motion for leave to amend bill

of complaint, filed.

1913, Feb. 4,

Judge Rellstab announced in open court that he

found for defendant.

Final Decree dismissing bill with costs, filed.

Objections to form of decree, filed.

Assignment of Errors filed.

Appeal and Allowance filed.

Bond on Appeal filed.

Citation issued. Copy filed.

BILL OF COMPLAINT. I

The Circuit Court of the United States, District of New Jersey.

THe Roman Catuoric Cuurcu or Saint

ANTHONY OF PADUA,

AGAINST

THe PENNSYLVANIA RAILROAD CoMPANY.

In Equity.

Bill of Complaint.

(Filed July 27, 1910.)

To the Honorable William M. Lanning, Judge of the Circuit

Court of the United States, District of New Jersey:

The Roman Catholic Church of Saint Anthony of Padua of

the city of Jersey City, Hudson county, New Jersey, a religious

corporation organized and existing under the laws of the State

of New Jersey, and an inhabitant of the State of New Jersey,

brings this, its bill against The Pennsylvania Railroad Company,

a corporation organized and existing under and by virtue of the

laws of the State of Pennsylvania, and having its principal office

at the city of Philadelphia, in the State of Pennsylvania, and

an inhabitant of the State of Pennsylvania.

And your orator shows unto your Honor:

I. That your orator is a religious corporation engaged in

religious, educational and charitable work since the year one thou-

sand eight hundred and eighty-four, upon the lands and premises

hereinafter described and owned by it.

II. That the defendant was duly incorporated under the laws

of the State of Pennsylvania on the thirteenth day of April, in

the year eighteen hundred and forty-six, as a common carrier,

with authority to lease, hoid and operate a line of railway in the

States of Pennsylvania and New Jersey, and as such at all the

times hereinafter mentioned has maintained and operated and still

maintains and operates a railroad, with its main and side tracks,

locomotives, freight and passenger cars upon what ts known as

Sixth street, in the city of Jersey City, Hudson county, New

Jersey.

III. That on the twentieth day of December, in the year eigh-

teen hundred and eighty-four, your orator became, and from

* thence hitherto has been, and now is, the owner in fee simple

. I ROM

2 BILL, OF COMPLAINT.

absolute of those three certain lots in the city of Jersey City,

county of Hudson, and State of New Jersey, which on a certain

map of that part of the Town of Jersey, commonly called Ahar-

simus, made by Joseph F. Margin and filed in the clerk’s office

of the county of Bergen, A. D. eighteen hundred and four, are

known and distinguished as lots numbered five, six and seven,

in block numbered two hundred and fifty ; said lots are also num-

bered five, six and seven in block numbered three hundred and

ninety on Bacot’s Map of Jersey City, made in eighteen hundred

and sixty-one, and which is now on file in the office of the

twenty-five feet wide in front and rear and one hundred feet in

depth throughout, and front on the westerly side of Monmouth

street, and immediately thereafter your orator caused to be

erected thereon, at a large cost, a church edifice and since which

time your orator has held continuously religious services therein.

IV. That on the tenth day of May, in the year eighteen hun-

dred and ninety-three your orator became, and from thence

hitherto has been, and now is, the owner in fee simple absolute

of that certain lot of land in the city of Jersey City, Hudson

county, New Jersey, and known and designated as lot nine, in

black two hundred and fifty, now city block three hundred and.

ninety, being on the north side of Sixth street, one hundred feet

west from the northwest corner of Sixth and Monmouth streets,

twenty-five feet by one hundred feet; on Map of Town of Ahra-

simus, made by Joseph Margin and filed in the office of the

county of Bergen, eighteen hundred and four, and your orator

caused to be erected thereon at a large cost a residence for the

officiating priests attached to and connected with said church so

erected by your orator, as aforesaid, and since which time said

residence has been continuously occupied as a home by the said

priests.

V. That on the eleventh day of June, in the year eighteen

hundred and ninety-eight, your orator became, and from thence —

hitherto has been, and now is, the owner in fee simple absolute

of those four certain lots of land in the city of Jersey City, Hud-

son county, ‘New Jersey, and known and designated as lots seven-~

teen, eighteen, nineteen and twenty, in block two hundred and —

fifty, on Map of the heirs of J. B. Coles and Bagot Map; run-—

ning along Brunswick street one hundred feet; thence easterly ©

parallel with Sixth street, one hundred feet; thence southerly

one hundred feet; thence westerly one hundred feet, and imme-

diately thereafter your orator caused to be erected thereon a

a. |r

BILL OF COMPLAINT. 3

parochial school for educational purposes, and since which time

the said school building has been continuously used as a school

for upwards of eleven hundred children.

VI. That on the eight day of August, in the year nineteen

hundred and two, your orator became, and from thence hitherto

has been, and now is, the owner in fee simple absolute of that

certain lot of land on the northerly side of Sixth street, in the

city of Jersey City, Hudson county, and State of New Jersey,

and being twenty-five feet wide in front and rear by one hundred

feet in depth and known and designated as lot ten, in block three

hundred and ninety upon a map of Jersey City filed in the office

of the register of the county of Hudson, in the year eighteen

hundred and sixty-one, and known as the Bacot Map, and im-

mediately thereafter your orator caused to be erected thereon

an addition to the residence of the officiating priests connected

with your orator’s said church as set forth in paragraph IV of

this bill.

VII. That on the twentieth day of March, in the year nineteen

hundred and five, your orator became, and from thence hitherto

has been, the owner in fee simple absolute of that certain lot

of land on the southerly side of Seventh street, in the city of

Jersey City, Hudson county, New Jersey, and being twenty-five

feet in width in front and rear and one hundred feet in depth, and

known and designated as lot thirty-one, in block two hundred

and fifty, as the same appears on a certain map of lands of the

heirs of J. B. Coles on file in the office of the register of Hudson

county, New Jersey.

VIIL. And that immediately after becoming the owner of the

lands described in paragraph VII of this bill your orator caused

to be erected thereon at large expense a home aid residence for

the sisters and female teachers connected with the said church

and school so erected by your orator, as aforesaid, and since

which time said residence has been continuously used and occu-

pied as a home by the said sisters and female teachers.

IX. And your orator further shows that the said buildings so

erected by your orator are of substantial and costly construction

and which are, except for the acts of the defendant, hereinafter

complained of, convenient, pleasant and healthful, and only

adapted and used for the respective purposes aforesaid, and that

the immediate neighborhood of the same has long been, and now

is, thickly populated and exclusively a residential district.

X. That the said defendant for upwards of the six years last

past in the operation of its said railroad has maintained and

4 BILL, OF COMPLAINT.

operated upon said Sixth street, and immediately to the south

of the said lands, premises and structures of your orator, a line

of railroad track upon which it operates a great number of

freight and passenger trains, cars, switch engines and loco-

motives, which continuously at all hours of the day and night

pass upon said tracks the lands, premises and structures cf

your orator as aforesaid, each making its characteristic noises

and which locomotives attached to said trains and engines con-

nected therewith are now burning, and for upwards of the past

six years have continuously burned, vast quantities of what is

known as soft or bituminous coal, and from the burning and

_ partial combustion of which there arises and continuously for

upwards of the past six years has arisen from the smoke stacks

connected with said locomotives and engines large and dense

volumes of black smioke, soot, cinders, carbon, ashes, particles of

unconsumed coal, coal dust and noxious, unwholesome gases,

offensive odors and vapors, which are carried to, over, into, upon

and ‘through the lands, premises and structures of your orator

so owned, used and occupied by it as aforesaid, discoloring the

glasses, thereby seriously interfering with light, and causing

annoying and irritating flashes as the sun strikes the said smoke,

soot and gases so in the air as aforesaid ; injuring, damaging and

destroying the carpets, curtains, furnishings, pictures and deco-

rations contained therein; blackening, discoloring, damaging and

destroying the roofs of said structures and the paint upon the

inside and outside thereof, and clogging, corroding, perforating

and damaging the leaders and gutters leading from said roofs

and depriving your orator of the use of the outside of some of

said structures for laundry purposes, thereby causing your orator

great damage and expense, and which now are and at all the times

aforesaid have impregnated, contaminated and rendered impure,

corrupt, offensive, unwholesome and unhealthful the air in and

around the premises and structures of your said orator, depriving

it and the congregation and members of said church, and the

visitors thereto and the priests connected therewith, as well as

the scholars, pupils and teachers connected with and attending

said school of the use and comfortable enjoyment of the same

to which they are legally entitled, injuring, damaging and de-

stroying their clething, and the said premises and structures of

your orator have been, and are now being, seriously injured and

rendered uncomfortable and less desirable for church, school or

residence purposes and the health, comfort and rest of said

BILL OF COMPLAINT. 5

priests, pupils, teachers and members of said church seriously

impaired, threatened and injured and the reasonable use of the

same interfered with and impaired, to the damage of your orator

in the sum of fifty thousand dollars.

XI. That the said acts of the defendant have taken from your

orator property consisting of the easement of light and air to

which your orator is legally entitled, and deprives it of the same

without due process of the law, and without just compensation,

or any compensation whatever, and that such acts of the defend-

ant in such interference with and appropriation of said property

of your orator has been, and now is, a violation of the provisions

of the Constitution of the United States.

XII. That the aforesaid acts, use, occupation of and appro-

priation by the defendant as aforesaid constitute and are a nuis-

ance to and one of special injury to your orator, and are un-

necessary, avoidable and unreasonable, and not necessarily con-

nected with the construction or a reasonable operation of the

said railroad, and which acts are continuous, and which will

cause great and irreparable loss to your orator and subject vour

orator to the prosecution of a multiplicity of suits for damages

unless the defendant be restrained by injunction from the com-

mission thereof.

XIII. All of which acts and doings of the said defendant are

contrary to equity and good conscience, and tend to the manifest

injury and oppression of your orator in the premise>

In Consideration Whereof and for as much as your orator is

remediless in the premises at and by the strict rules of the com-

nion law can only have relief in a court of equity where matters

of this nature are properly cognizable and relievable.

To the end therefore your orator prays that the said defendant

may deem to pay to your orator the sum of fifty thousand dollars

damages as your orator has suffered by reason of the premises,

and that your Honor grant unto your orator a writ of injunction

commanding the said defendant, its agents, servants and em-

ployees to absolutely desist and refrain from so operating its said

railroad, locomotives and engines as to cause or permit black

smoke, particles of unconsumed carbon, soot, cinders, ashes, coal

dust and noxious and unwholesome gases and offensive odors

and vapors from its said engines and locomotives to fall upon

or enter into the premises and structures of your said orator in

such appreciable quantities as to interfere with the reasonable

| use thereof and render uncomfortable the reasonable enjoyment

"3 of the same by your orator and the priests connected therewith

6 BILL OF COMPLAINT.

and persons using the said respective structures of your orator;

and that a writ of subpeena issue against the defendant, The

Pennsylvania Railroad Company, requiring it to appear in this

Court and answer this bill of complaint, but without oath, all

answer under oath being expressly waived, and to stand by such

orders and decrees as the court may from time to time adjudge

and enter in the premises, and that your orator have such other

and further relief as to the court may seem proper and as may

be necessary to fully protect and enforce the right and equities

of your orator.

GEORGE J. McEWAN,

Solicitor for Complainant and of Counsel.

STATE OF Nw JERSEY, ss

County of Hudson, }s

BoLEsLAW KwIATHKOWSKI, being duty sworn on his oath

says that he is the Pastor and Secretary of the Roman Catholic

Church of Saint Anthony of Padua, the foregoing complainant ;

that the matters and things therein set forth, so far as they relate

to the acts and deeds of the said complainant are true, and so far

as they relate to the acts and deeds of any other person or persons,

corporation or corporations, he believes them to be true.

BOLESLAW KWIATHKOWSKI,

: Pastor.

Sworn and subscribed to before me this 26th day of July,

A. D., 1910.

FRANK M. HARDENBROOK,

Master in Chancery of New Jersey.

ANSWER.

Circuit Court of the United States, District of New Jersey.

THE Roman CaTHo.Lic CHURCH OF SAINT

ANTHONY OF Papbva,

Complainant,

In Equity.

=e >in Equity

THE PENNSYLVANIA RAILROAD COMPANY,

Defendants.

Answer.

(Filed May 23, 1911.)

The answer of THE PENNSYLVANIA RAILROAD CoMPANY, the

above named defendants to the bill of complaint exihibited against

them by the above named complainant.

These defendants now, and at all times hereafter, saving and

reserving to themselves all and all manner of benefits and ad-

vantages of exception which may be had or taken to the many

errors, uncertainties, imperfections and insufficiencies in the com-

plainant’s said bill of complaint contained, for anwer thereunto,

or unto so much or such parts thereof as these defendants are

advised that it is material or necessary for them to make answer

unto, answering, say :

1. These defendants, answering paragraphs one, three, four,

five, six, seven, eight and nine of said bill of complaint, say:

That they do not know and cannot set forth as their belief

or otherwise, whether the statements of facts set forth in said

paragraphs of said bill of complaint are true; but that they have

no reason to doubt that the complainant is, and, since eighteen

hundred and eighty-four, has been, engaged in religious and

educational work upon a portion of the land described in the bill

of complaint, and has erected thereon buildings of a substantial

construction.

2. These defendants, answering paragraph two of the bill of

of complaint, say: That they admit the statement as to the in-

corporation of these defendants as a common carrier; and their

authority to lease, hold and operate a line of railroad in the

States of Pennsylvania and New Jersey. But they deny that they

as such, or in any other capacity, and at all the times or at any of

the times mentioned in the bill of complaint, or at any other

time, have maintained or operated, or that they still maintain

__ and operate a railroad with its main or side tracks, locomotives,

8 ANSWER.

freight and passenger cars, upon what is known as Sixth Street

in Jersey City, Hudson County, New Jersey.

3. These defendants, answering paragraphs ten, aiid and

twelve of the said bill of complaint, say: That they deny the

truth of the statements set forth in said paragraphs, and of each

aml every one of said statements; and they say that they never

have maintained or operated, and do not now maintain or operate

any railroad upon Sixth Street, in Jersey City, and that they

have not for upwards of six years last past, in the operation of

their railroad, maintained or operated upon said Sixth Street a

line of railroad tracks, or any railroad tracks, or any freight or

passenger trains or cars or switch engines or locomotives of any

kind or character.

These defendants say that, under their charter- rights and in

the execution of their powers, and by force and virtue of the

several acts hereinafter mentioned, they did survey, lay out and

locate their railroad on the several courses set down in such

survey, and did construct a railroad between the points in the

said Acts set forth; and that after the construction of said

elevated railroad, these defendants, in order to carry into effect

the objects of the incorporation of the united companies herein-

after mentioned, did use the said railroad so constructed on its

surveyed route, in the prosecution of their said business as a:

common carrier of passengers and freight, and continued the

same during the times mentioned in the said declaration, and a

long time prior thereto, as hereinafter mentioned, as they law-

fully might do, for the causes aforesaid; and did necessarily

operate thereon a great number of freight and passenger trains,

switch engines and locomotives, and did thereby necessarily

create some smell and some noise, and did necessarily shift and

distribute their cars, and did necessarily blow the whistles of

their locomotives, and did necessari!» start and stop with trains

of cars and back them and start them again, and that each did

necessarily make its characteristic noises; and did necessarily

cause noise, smoke and vibrations, as they lawfully might do for

the causes aforesaid.

4. These defendants, further answering, say: That the Legis-

lature of the State of New Jersey, by an act entitled “An Act to

incorporate the New Jersey Railroad and Transportation Com- —

pany,” passed March 7th, 1832 (P. L. page 96), created the New =

Jersey Railroad and Transportation Company, a body politic and a

corporate, to exercise all the powers and privileges pertaining to ~

corporate bodies and necessary for the purposes of said Act; and —

ANSWER. 9

with all the rights and powers necessary to the construction of a

railroad with as many sets of tracks as they may deem necessary,

from a point in the City of New Brunswick to a point on the

Hudson River, opposite the City of New York, and to take pos-

session of any land needed for the site of the said road, and to

acquire the same by purchase or condemnation in fee simple, with

power, when said railroad was constructed, to charge tolls and

rates for the passage of all carriages upon said railroad, and to

make regulations for the collection and levying of the same; and

to regulate the time and manner for transporting goods and 10

passengers and for collecting tolls on the said railroad; and also

to use thereon engines and carriages of their own for the trans-

portation of persons or any species of property; but, at the end

of thirty years, the State might take the said railroad at an ap-

praised value.

That, immediately after the passage of the said act, the said

New Jersey Railroad and Transportation Company surveyed

and filed the route of their railroad from the City of New Bruns-

wick to Jersey City, opposite the City of New York, and ac-

quired the land and constructed a railroad thereon, in accord- 20

ance with the terms of the above-mentioned Act; and, in the

month of September, eighteen hundred and thirty-four, opened

said railroad as a public highway for the transportation of prop-

erty and persons between the said termini, and have since main-

tained and operated said railroad up to the time of the execution

of the lease hereinafter mentioned.

5. These defendants, further answering, say: That the State

of New Jersey, by an act entitled. “An Act to enable the United

Railroad and Canal Companies to increase their depot and ter-

minal facilities at Jersey City,” approved March 30th, 1868 (P. 30

L. page 551), empowered the said New Jersey Railroad and

Transportation Company, and the United Delaware & Raritan

Canal Company, and the Camden & Amboy Railroad and Trans-

portation Company to acquire from the State the land under

water in Harsimus Cove in Jersey City, lying between high

water mark on the west, the deep water of the Hudson River on

the east, the center of South Second Street on the north, and the

center of South Seventh Street on the south, in the name of the

New Jersey Railroad and Transportation Company, and to fill

up and improve the same, and erect wharves, piers, store-houses 49

and other buildings and sheds and car and engine houses and ap-

pendages, and to build a branch railroad not exceeding one hun-

dred feet in width, from said property so purchased as aforesaid,

2 ROM

10 ANSWER.

to some point in the present line of the New Jersey Railroad,

eastward of the deep cut in Bergen Hill, with as many separate

tracks and rails as the directors shall deem necessary; with

power to procure the right of way for such branch railroad,

either by purchase or by appraisement, in the manner prescribed

by the original charter, and to make such branch railroad elevated

so as to-_pass over the streets of said city, at least twelve feet in

the clear above said streets, in consideration of a sum of money

to be paid by said companies to the State of New Jersey, the

19 amount of which was to be ascertained by the Attorney General

and three commissioners to be appointed by the Supreme Court.

That subsequently the Attorney General and said three com-

missioners did ascertain that the amount which the said com-

panies should pay to the State of New Jersey for the land and

powers granted by the said last mentioned Act, was the sum of

five hundred thousand dollars; and thereupon the said the New

Jersey Railroad and Transportation Company and the other

companies paid to the State of New Jersey the said sum of five

hundred thousand dollars, and thereafter made a survey of said

branch line and filed the route thereof in accordance with law,

20 and, at great expense, acquired from the owners thereof, for the

purposes of such branch railroad, as provided by said act, a route

one hundred feet wide, from a point on the New Jersey Railroad

in the deep cut in Bergen Hill, to said lands in Harsimus Cove,

and constructed and built on said route an elevated branch rail-

road; and thereafter erected on the said lands in Harsimus Cove

a terminal-yard in connection with said branch railroad, with

wharves, sheds, and a grain elevator, warehouses and tracks,—

all at great expense; and these defendants commenced to operate

the said branch railroad and said terminal yard on or about the

30 first day of May, eighteen hundred and seventy-two, which work

/ was done and expenditure made with the full knowledge of, and

ao without objection from the owners of all the lands set forth in

the said bill of complaint. :

6. And these defendants, further answering, say: That on or

about the thirtieth day of June, eighteen hundred and seventy-

one, the Delaware and Raritan Canal Company, the Camden &

Amboy Railroad and Transportation Company, and the New

Jersey Railroad and Transportation Company, (commonly called

the United Railroad and Canal Companies), by indenture bear- _

40 ing date that day, did grant, demise and to farm let unto The

Penfsylvania Railroad Company the above named defendant, all

their railroads and appurtenances and real and personal property,

ANSWER. II

including the said Harsimus Cove property and the said branch

line leading thereto, for the full term of nine hundred and ninety-

nine years, unless sooner terminated by default in the payment

of the rent or taxes.

That by an act entitled “An act to validate and confirm a

certain lease and contract between the companies now known

as the United New Jersey Railroad and Canal Company, and

the Pennsylvania Railroad Company, the said lease was validated,

ratified and confirmed; which act was approved March 27th,

1873 (Laws, page 1298).

That these defendants have been in possession of the property

of the New Jersey Railroad and Transportation Company and

of the United New Jersey Railroad and Canal Company, includ-

ing the said land at Harsimus Cove and the said branch line

from Harsimus Cove to the main line in the Bergen cut, under

said lease, as lessees thereof, since the year eighteen hundred

and seventy-one, and are now in such possession under said lease,

and have been during all that time and still are using and operat-

ing the same for the transportation of goods and passengers in

and across the State of New Jersey, from the city of Philadelphia

to the city of New York. That the transportation of goods over

the said branch line, since said lease, has been very large and

has required the constant use of the same.

7. And these defendants, further answering, say: That the

New Jersey Railroad and Transportation Company acquired the

land for said route to Harsimus Cove, as filed in the office of the

Secretary of State, prior to the year eighteen hundred and

seventy-three, in accordance with the terms of their said charter;

that some of the persons from whom they acquired said land

were at that time also the owners of the lands set forth in the

bill of complaint, and that said owners granted to the New Jersey

Railroad and Transportation Company the lands in the said route,

for use by them and by these defendants as a railroad company

in operating and maintaining a railroad thereon in the way and

in the manner in which said railroad is now maintained and

operated; and that prior to the year eighteen hundred and

seventy-three these defendants operated said railroad on said

route as filed in the office of the Secretary of State, as said

railroad is now operated, and they have, ever since the year

eighteen hundred and seventy-three, in the same way and man-

ner, maintained and operated said railroad over said land within

said route; and that, from the year eighteen hundred and

seventy-three, up to the present time, these defendants have, by

i2 ANSWER,

force of the franchises of the New Jersey Railroad and Trans-

portation Company above mentioned, derived from the above-

mentioned public grants, maintained and operated their railroad

and run their trains, carrying merchandise and freight within

said route, doing no more damage to the lands adjacent to said

route than that which necessarily results from the transaction

of such acts and business.

8. And these defendants, further answering, say: That by an

act entitled ‘“‘An act concerning public utilities, to create a Board

of Public Utility Commissioners and to prescribe its duties and

powers,” approved April 21st, 1911, it was, among other things,

enacted that the Board provided for by said act should have

general supervision and regulation of, and jurisdiction and con-

trol of all public utilities, and also over their property, property

rights, equipments, facilities and franchises, so far as might be

necessary for the purpose of carrying out the provisions of said

act, and should, among other things, have power to investigate,

upon its own initiative, or upon complaint in writing, any matter

concerning any public utility as herein defined, and that the

public utility as defined by said act included every corporation

which operated or maintained or controlled within the State of

New Jersey any steam railroad.

g. And these defendants aver, in addition to the foregoing

answer, that they have, for over thirty years, and since the said

legislative grant, had actual possession of the lands in said route

uninterruptedly, and have uninterruptedly continued to operate

their trains, cars, switch engines and locomotives over the said

railroad on said route in the same way and manner as they now

maintain and operate the same; and aver that they have acquired,

hoth by statute and by prescription, the right so to do; and

pray that they may have the same benefit therefrom as if they

had formally pleaded the same.

nao. These defendants deny that they have in anywise in-

fringed upon the rights of the complainant as alleged in the

said bill of complaint, or otherwise, and deny that the complain-

ant is entitled to any relief whatever, or to any part of the

relief in said bill of complaint demanded; and allege that ihe

complainant has no standing in this Court or in any court of

equity.

And these defendants pray in all things the same benefit and

advantage of this their answer, as if they had pleaded to said

bill of complaint.

And these defendants deny all and all manner of unlawful

REPLICATION. 13

of complaint charged.

acts whatsoever, whereof they are in anywise by the said bill

All which matters and things these defendants are ready and

willing to prove, as this Honorable Court shall direct; and

pray to be hence discharged with their reasonable costs and

charges in this behalf most wrongfully sustained.

THE PENNSYLVANIA RAILROAD COMPANY,

by VREDENBURGH, WALL & CAREY,

Circuit Court of the United States, District of New Jersey.

THe Roman Catuotic Cuurcu oF

St. ANTHONY oF PADUA,

Complainant,

vs. pIn Equity.

THe PENNSYLVANIA RatLroap Com-

PANY,

Defendant.

Replication.

(Filed June 3, 1911.)

This repliant saving and reserving to itself all and all manner

of advantage of exception, which may be had and taken to the

manifold errors, uncertainties and insufficiencies of the answer

of the said defendant, for replication thereunto, saith, that it

doth and will aver, maintain and prove its said bill to be true,

certain and sufficient in the law to be answered unto by the said

defendant, and that the answer of the said defendant is very

uncertain, evasive, and insufficient in law to be replied unto by

this replication; without that, that any other matter or thing in

the said answer contained material or effectual in the law to be

replied unto, confessed or avoided, traversed or denied, is true;

all which matters and things this repliant is ready to aver main-

tain and prove as this Honorable Court shall direct and humbly

prays as in and by its said bill it hath already prayed.

GEORGE J. McEWAN,

Solicitor and of Counsel with Complainant.

their Solicitors and Counsel.

14 COMPLAINANT'S PROOFS.

United States District Court, District of New Jersey,

RoMAN Catuoitic CHuurCH oF ST. )

ANTHONY or PAbua,

Complainant,

VS. >

THe PENNSYLVANIA RAILROAD Com-

PANY, .

Defendant. |

Complainant’s Proofs.

(Filed December 26, 1911.)

It is hereby stipulated and agreed that the signatures of the

various witnesses called on behalf of the complainant and de-

fendant to their respective testimony, be and the same hereby is

waived.

GEORGE J. McEWAN,

Of Counsel for Complainant.

\LBERT C. WALL,

Of Counsel for Defendant.

Testimony taken in the above-entitled matter at hearing before

Hon. Geo. R. Beach, Examiner, appointed by virtue of the

order of Judge Joseph Cross, dated the 1th day of June,

1911, said hearing held at the office of Mr. Beach, 75 Mont-

gomery Street, Jersey City, June 26th, at ten o'clock A. M.

Appearances—Grorce J. McEwan, Esg., Solicitor for Com-

plainant; F. M. Harpensrook, of Counsel; Atpert C. WALL,

Esg., of Counsel for Pennsylvania Railroad Company, defendant.

It is stipulated that the testimony of the witnesses herein may

be taken stenographically, and the signatures of the witnesses

waived. .

By Mr. Wall—Counsel for the defendant states in answer to

letter of counsel for complainant of June 19, 1911, wherein you

request the defendant to furnish you with (1) a statement of the

kind of coal used for the past six years; and (2) a tabulated

statement showing the number of trains passing the church each

month for the past six years; Defendant says, in answer to the

first question, the grades of coal used are the Greenberg, Avon-

more and Lloyd Ell. In answer to the second question, defend-

STANISLAUS KARLOSKY. 15

ant produces a statement entitled “Record sliowing movement

of East and West bound trains over Harsimus Cove Branch,

January, 1905, to May, 1911.

Said statement offered in evidence by the plaintiff, and marked

“Ex. C. 1, J. H. C., June 26, 1911.”

By Mr. Hardenbrook—Does the Harsimus Branch lie between

Monmouth Street and Brunswick Street, on Sixth Street, for the

entire length of the block ?

By Mr. Wal!i—No, the Harsimus Branch is that part of the

Pennsylvania Railroad which is the subject of complaint in the 10

bill herein.

By Mr. Hardenbrook—Does the line of the railroad operated

by the defendant extend along Sixth Street in an easterly and

westerly direction for the entire length of the block between

Brunswick Street and Monmouth Street ?

By Mr. Wall—The railroad in question is located in the block

opposite the block in which the church is located, and extends

from Monmouth Street to Brunswick Street, and is called by the

defendant the Harsimus Cove Branch.

By Mr. Hardenbrook—I offer in evidence Warranty Deed, 20

Stanley Gollick and Stanislaus Gollick, his wife, to St. Anthony

of Padua Roman Catholic Church of Jersey City, New Jersey,

dated March 20, 1905, recorded in the Register’s office of Hud-

son County, on the 31st day of March 1905, in liber 899, page

377. Received and marked “Ex. C 2, J. H. C., June 26, 1911.”

I also offer in evidence deed from Dennis McCartie, dated

March 20, 1884, to the complainant, recorded in the Register’s

office of Hudson County, New Jersey, on the oth day of January,

1885, in liber 397 of deeds, page 687, for the premises described

in paragraph 3 of the complainant's complaint. Received and 39

marked “Ex. C3, J. H. C., June 26, 1911.”

STANISLAUS KARLOSKY, called as a witness by the

plaintiff, having been duly sworn, on oath testified as follows :

DIRECT EXAMINATION, by Mr. HARDENBROOK :

. Where do you live? A. 217 Erie Street.

. How long have you lived there? A. Five years.

. And what is your business? A. Machinist.

. Where? A. Over in the subway, New York.

. And how long have you been engaged in that business? 49

. Seven years, now.

. Are you.a member of the church known as the Roman

Catholic Church of St. Anthony of Padua? A. Yes, sir.

OAOCAS

the

COMPLAINANT'S PROOFS.

Where is that church located?

. Between Monmouth and Brunswick Streets.

What street is it on? A. It is on Seventh St., no.

Don't you know where it is?

. I go there to church, but just the street—

That church is located on Monmouth Street, next door to

corner of Sixth, isn’t it? A. Yes, sir.

Q. How long have you been a member of that church?

A. Since 1890.

10 Q. And how frequently during that time have you attended

church; the Sunday service ?

A. Every Sunday, except when | am sick or working; that

don't happen very often.

you

20 4

ship

. About how often?

. About an average once every three months or so.

. What services on Sundays have you usually attended or do

usually attend? A, Eleven o'clock.

Eleven o'clock in the morning? A. Yes, sir.

. ‘And have you attended any other services on Sunday?

. Once in awhile the 7:30 service.

. In the evening? A. Yes, sir.

You say once in awhile, how often would that be?

. Two or three times a month,

. And that has been continuous during your entire member-

of the church? A. Yes, sir.

By Mr. Wall—lI ask that that question be stricken

out as leading.

Q. Do you attend any services, or have you attended during

that

30) A

time, services during the week days?

. Not unless it is a church holiday ; comes a few times a year;

I can’t say exactly what days, but once in awhile we have Forty

Hours, that is once a year, and th «1 it happens some Church

holic

lays in between, I can’t tell what months,

Q. How many Church holidays a year have you attended the

Church on week days?

. I could not just say how many; in the month of May wa

have services every night; September we have service every

nigh

Q. I asked you what service you personally attended ?

40 A

. I attend the evening service sometimes.

Q. How often would you attend the services during the weeks

—th

at is the church holidays during week days?

A. Whenever there is a holiday I go.

STANISLAUS KARLOSKY. 17

Q. And about how many of those would there be in a month?

A. Some months there isn’t any; other months we have one;

I could not say just how many.

Q. You couldn't remember or tell about how many in the

course of a year, could you?

A. Not exactly; I think about twelve, anyway.

Q, Have you attended vespers in the evening during week

days during that time at all? A. No, I have not got the time.

©. You are familiar with the location of the Pennsylvania

Railroad, which is operated along Sixth Street? A. Yes, sir.

Mr. Wall—Objected to as containing a false assump-

tion of fact.

Q. You are familiar with the location of the Pennsylvania

Railroad there? A. Yes, sir.

Q. State where the Pennsylvania Railroad is with reference

to this church which you attend ?

A. Yes, sir; the railroad runs right along the street alongside

the church.

Mr. Wall—I ask that that question be stricken out

as the witness is not qualified to testify as to the loca-

tion of the railroad with reference to street lines; he

can give the general location of the railroad as he sees

it, but he is not qualified as a surveyor, or otherwise,

to make any such answer as he has just mace.

Q. Do you know where the railroad is with reference to the

church? A. Yes, sir, I certainly do.

QO. State where it is with reference to the church?

A. It runs right along the street where the church stands.

Q. What street does the church stand on?

A. On Brunswick—I don’t know exactly, I go there, but I

don’t know the street.

Q. Does the railroad pass the church ?

A. It runs along the street by the church.

Q. State what you have observed at the times you have been

there in reference to the operation of this railroad—what have

you seen? A. That railroad is a nuisance there.

(Answer stricken out.)

Q. State what you have observed in relation to the operation

of the railroad, what you have seen?

A. I don’t know just what you mean?

Q. What have you seen? A. I see a lot of dirt in there.

Q. Well, that is what I am asking you, tell us what you saw?

3 ROM

18 COMPLAINANT'S PROOFS.

A. Nothing else but dirt; you go in there with your clothes

clean and come out looking like a man from a coal mine; that is

what I did see.

Q. Have you ever seen locomotive engines standing on this

_track between Monmouth and Brunswick Streets?

Mr. Wall—Objected to as incompetent and irrele-

vant and—

Question withdrawn.

Q. You have seen the railroad operated in that locality, haven't

you? A. Yes, sir.

Q. Now, I want you to state so that the stenographer can make

a record of it, I want you to state what you have seen in relation

to the operation of that railroad?

A. I just said a minute ago I didn’t see nothing but a lot of

dirt in it.

Q. In connection with the operation of the railroad?

A. Yes, sir. The church has only been painted a couple of

years and now it is all dirty, looks like a coal mine; we have to

pay for all those improvements all the time in the church; we

stand for all the improvements and expenses, we have to pay ‘for

the painting and stuff, and the church is all dirty now.

Q. I ask again, what have you seen in connection with the

running of the railroad ?

Mr. Wall—Objected to, he is not qualified to pass

on the running of the railroad.

Mr. Hardenbrook—The question was, what has he

seen?

Q. Can’t you describe what you have seen?

A. I don't exactly understand what you are trying to get at.

Q. Can you describe what you have seen with relation to the

running of that railroad?

A. 1 seen the engines, see them shifting cars all day long

from morning till night, and all night, too; nothing else on the

railroad but the engines; nothing else you could see on the rail-

road but the engines.

Q. Cars, aren’t there?

A. Yes, cars; couldn’t have cars without the engines.

Q. Could have cars without engines, couldn’t they?

A. Yes, sir, on electric roads, not steam roads.

Q. Well, what have you seen in connection with the operation

of these engines? 4. Shifting cars.

Q. That is all you have seen?

A. Shifting cars and coal, nothing else I can describe.

STANISLAUS KARLOSKY. 19

Q. What have you noticed in the church in any particular, in-

side the church? A. I noticed a lot of dirt.

What kind of dirt? A. Stuff from the engine.

What kind of dirt? A. Dirt from the engine.

Can you describe it? A. Stuff come out of the chimney.

Can you describe it ?

. It is like the dirt comes out of the chimney of an engine.

Where have you seen this?

. On the seats and walls, posts and all over.

And what is the general character of that dirt which you

have seen in the church, can you describe it?

A. No, I couldn’t exactly describe it.

Q. Is it green, or red, or yellow, or what? A. It is black.

Q. What else is it besides black? A. It is black, that’s all.

Q. What quantities of it have you seen in the church, about—

very little, or very much?

A. Sometimes you see more than others on account of which

way the wind blows; if the wind blows north you get more; if

the wind blows the other way you get less.

Q. Could you give any idea as to the quantities you have seen

in there.

A. Well, some Sundays you can run finger along in there like

that and your finger is all black, all dirty.

Q. On the seats, you mean? A. Yes, sir.

Q. How about the floors, carpets ?

A. I don’t know about the floors; when you kneel down you

can see it on your pants.

Q. Have you ever observed any of this substance coming in

through the windows of the church A. Yes, sir.

Q. The windows facing the railroad? A. Yes, sir.

Q. How many windows are there there about, facing the rail-

road? A. Nine or ten windows on one side.

Q., How frequently have you observed this substance coming

in through those windows, how often have you noticed that?

A. Every time an engine passes there.

Q. And for what length of time have you observed that, for

how many years? A. Driving cars there?

Q. For how many years? A. I only noticed that for the last

five years back; didn’t have that before.

Q. Did you notice where this substance that came through the

windows, did you see where it came from?

A. You could see it came from the railroad; the windows is

just about as high as the railroad.

OQAOAOCOO

20 COMPLAINANT'S PROOFS.

Q. You say it came from the railroad d. Yes, sir.

Q. Have you ever noticed the engines standing there for any

particular length of time?

Mr. Wall—Objected to as before on the ground of

leading.

Question stricken out.

Q. Have you ever been in the rectory, the house occupied by

the priest, connected with the church, on Sixth Street?

A. Yes, sir.

Q. How frequently have you been in there?

A. I don’t go in there very often.

Q. Answer my question; how frequently have you been in

there?

A. 1 don’t know what you mean by that; I can’t tell you,

I don’t go there very often.

Q. Would it be once a day, once a week or once a year?

A. Whenever I have any business, about once or twice a year.

Q. For about how many years?

A. Ever since 1890, I am connected with that church.

Q. What have you observed while in the rectory as to this

substance which you saw coming into the church?

A. 1 didn’t exactly take any notice in the rectory, because

when [ go in there I do my business and come out; I don't

look around.

Q. What effect, if any, has this substance, such as you found

on the seats and on the carpet, had upon your clothing; have

you noticed any effect it had upon your clothing?

A. It eats the clothes right up, just like gas or something;

like you put acid on your clothes.

Q. How frequently have you got it on your clothing?

A. Yes, sir.

Q. I said how frequently? A. I don’t know just know.

Q. You don’t have to state exactly; about, I said? «

A. Every Sunday you get that.

Q. What have you observed, if anything, as to the noise while

in the church?

A. The engines shift the cars there and make such a noise

that sometimes you can’t hear what the pastor says; if you

happen to be back in the church you can’t hear anything; the

engine is shifting cars all the time about the time the service

is going on, and unless you are very near the pastor you cau’t

hear.

Q. And that noise you hear is due to what so far as you J

er wie

STANISLAUS KARLOSKY. 21

A. Yes, sir; shifting cars there all the time.

Q. Can you describe this noise due to the shifting of cars?

A. Bumping cars, one against the other, and the engines ex-

hausting the steam, and you can’t hear nothing, and running the

cars on the tracks bumping over the switches and frogs.

Q. What noises other than the exhausting of steam and the

Lamping of cars have you heard?

A. Why, running over the frogs and switches makes more

noise than running over the smooth rails.

Q. Have you heard any other noises than those you have

designated? A. No, sir.

Q. How frequently, during the past six years, has the noise

been so excessive, the noise which you have described, been so

excessive as to prevent your hearing the priest ?

A. That has been every Sunday. When I work nights and

come in about ten o’clock I got to hurry to get to 11 o'clock

mass, and I have to be back at the door, and can’t hear a thing.

Q. You testified that you have attended church service in the

evening, have you not? A. Yes, sir.

Q. What have you noticed as to this noise in the evening?

A. It is not so much on Sunday evening as in the morning, but

there is just as much or more during the week in the evening as

on Sunday, and more if ariything.

Q. What have you noticed as to this dirt which you have

described ?

A. Just as much or more during the week than on Sunday ;

there is more work going on in the week.

Q. Now, aside from this dirt, which you have described, have

you noticed anything else coming in through the windows?

A. Yes, sir; white stuff comes in there, just like paper .been

burned to powder; it comes through too.

Q. Have you noticed anything else come in there in addition

to this dirt, this cinders? A. No.

CROSS-EXAMINATION, by Mr. Wat:

. Have you been employed as a blacksmith all these years?

. Yes, sir.

Where? A. In the subway of New York.

Where were you employed by them, where do you work?

. Down in the subway. 40

Whereabouts in the subway?

. The 148th street yard.

And how long have you been there?

OROAwROO RAS

22 COMPLAINANT'S PROOFS.

A. Since the last five years; been working on the Erie Rail-

road before that; before that I worked on the ‘New Jersey Cen-

tral.

. What work did you do for the Erie? A. On the signals.

. Whereabouts? A. In the Jersey City terminal there.

. And what work did you do for the New Jersey Central ?

. Same thing.

. Were you in the signal tower?

. No, installing new signals, from Jersey City to Mauch

10 Chunk; been working on construction work, installing new sig-

nals.

Q. Now, you don’t mean to say, Mr. Karlosky, that you

noticed that same substance come in through the windows every

time an engine passed within the last five years, did you?

A. Yes, sir.

Q. You meant to say that? A. Yes, sir.

QO. You do? A. The dirt has been there.

Q. Now, think about that question, are you quite sure that you

meant to say that that substance came in through the windows

every time an engine passed during the last five years, is that

true or not? A. Yes, sir.

Q. You say that is true?

A. Yes, sir; it is a fact that dirt is coming through those win-

dows ever since the church was there and the railroad there, but

there was not so much of it because there was not so much busi-

ness. The business is increasing every year, and more dirt at-

tached to it; every time there are more engines put there there is

more dirt; I remember when they only had a wooden trestle there

and they only had one engine going there then.

QO. How long ago? A. Eighteen or 20 years ago.

OQ. More than that?

A. I remember 20 years ago; I don’t remember nothing back

of that. I belong to that church since 1890, and I know what it

was then and what it is now.

Q. Same old thing, except there are more engines?

A. More engines, more business, more dirt.

Q. But, except for the number of engines, the whole thing is

just the same? A. Just the same thing.

Q. Now, let us go back to that question—you don’t mean that

every time an engine passed within the past five years the dirt

came in the window, do you? A. I certainly do mean it.

Q. Does this dirt sail against the wind?

A. I say it just depends upon which way the wind is blowing.

STANISLAUS KARLOSKY. 23

Q. Then if the wind is blowing in the other direction ?

A. We are bound to get some anyway because the wind strikes

the building.

Q. If the wind is blowing away from the windows then no

dirt comes in?

A. You don’t get so much but you will get some anyway.

Q. Then your answer is that when the wind is blowing dead

away from the church some dirt comes against the windows

from the engine into the church—that is your answer?

A. Yes, sir, when the wind blows against the church you get

more dirt, but the other way you don’t get so much.

Q. Some goes against the wind anyway?

A. Yes, sir, some goes there just the same.

Q. How many suits of clothes did you buy last year?

A. I don’t know; I buy one every time it gets dirty; throw it

away.

Q. You don’t know how many suits of clothes you bought?

A. Yes, four or five.

Q. You can remember that ?

A. Yes, four or five suits I bought: don’t exactly buy them for 20

the church every time only you know.

QO. What kind of suits were those ? ,

A. I buy a suit of clothes for working and a suit of clothes

for church.

Q. I am asking what kinds they are.

A. Some years I buy four, some two or three; some years I

don’t buy any.

. What kind of clothes are those you buy?

A. I generally get them made, $18 or $20.

. I am asking what kind of clothes they are?

. Same as I got on now.

All clothes look alike to you? A. No.

. Do you wear the same clothes working down in the sub-

way that you wear when you go to church?

A. No, sir, I don’t.

Q. You wear your best clothes when you got to church?

A. I certainly do, yes, sir.

Q. How many of those suits you bought were your best clothes

and how many were your working clothes?

A. I bought two suits for Sunday this year. 40

Q. You bought two suits this year? A. Last year I mean.

Q. In 1910 you bought two suits? A. Yes, sir.

24 COMPLAINANT'S PROOFS.

Q. Now, do you recollect how many suits of church clothes

you bought during 1909?

A. I don’t know just how many, couldn’t say, probably one.

Q. I am asking you if you remember? A. No.

Q. Nor do you remember any other time in the last five years,

do you? A. No, sir.

Q. Have you bought any best suits of clothes this year to go

to church in? A. No, not yet.

Q. And you always have your Sunday suits made, do you?

A. Yes, sir.

Q. Made to order? A. Yes, sir.

Q. Who made them?

A. The fellow used to make them for me died; I don’t know

who is going to make them for me now.

Q. How many years did he make them?

A. The last ten years back.

Q. What was his name? A. His name was Talinsky.

Q. Where was he, what number was he at ?

A. 1 don’t know exactly what number, something I never

bothered my head about; I knew where he lived, but I didn’t

look at the number of the house.

Q. You say he made you two good suits of clothes in the year

1910? A. Yes, sir.

Q. Same time? A. No, one before and one after.

Q. Are those the clothes you have on?

A. No, sir, | bought this last year; these clothes I wear to

work in.

Q. What do you mean by saying that to kneel on the floors

there in church eats up your clothes just as acid would do it,

you didn’t mean that?

A. There is something in that dust when you get down on

your knees and kneel, you can’t take it off with your handker-

chief, you have to wash it off.

Q. Can you wash it off?

A. Sometimes you can, but it makes a spot like that (indicat-

ing).

Q. You never have had any clothes mended in the knees, have

you? A. No.

Q. You don’t mean then that it eats the clothing ?

A. No, sir; it puts the clothes so it makes a big mark there.

Q. But it does not eat them like acid? A. No, sir.

HUBERT DE BALLIEL. 25

HUBERT DE BALLIEL, called as a witness by the plaintiff,

being duly sworn, on oath, testified as follows:

DIRECT EXAMINATION, by Mr. HarpEenBROOK :

Q. What is your business?

A. I am reporter for the Polish newspaper and advertising

manager.

Q. How long are you in that business? A. Five years.

Q. Where do you live? A. 253 Ogden Avenue, Jersey City

Heights. :

Q. Are you a member of the Roman Catholic Church of St.

Anthony of Padua? A. Yes, sir.

Q. How long have you been a member of that church?

A. Since 1888.

Q. And during that time how frequently have you gone to

church?

A. I generally go there every Sunday high mass, except some-

times it happens three or four Sundays in the year I miss the high

mass.

Q. What services do you usually attend on Sunday ?

A. High Mass, eleven o'clock.

Q. Do you attend any other services on Sunday ?

A. Vespers, I generally go with my wife and children; that

is half past seven in the evening.

Q. In the evening? A. Yes, sir.

Q. And about how long does that last? 4A. Two hours.

Q. And how frequently during this period that you have de-

scribed have you attended vespers ?

A. Vespers I attend about twice in the month on Sundays.

Q. And has that been your custom for a number of years?

A. No, not exactly; J] remember now since about eleven years

I am steadier, I am getting old.

Q. You are familiar with the location of the church in con-

nection with this railroad? A. Yes, sir.

Q. Describe it.

A. The church is located on Monmouth corner of Sixth Street

and reaches with the school and buildings as far as Brunswick

Street.

Q. You say it is on the corner of Sixth and Monmouth

Streets? A. Yes, sir.

Q. On the immediate corner? A. Not exactly.

Q. What do you say it is on the corner for if it isn’t?

A. On the corner is a saloon.

4 ROM

COMPLAINANT'S PROOFS.

Q. And the church is not on the corner, the saloon is on the

corner? A. Yes, sir, | made a mistake.

Q. Well, don’t make mistakes, you will save time and trouble;

have you observed the operation of the railroad on Sundays and

on these occasions when you have attended services at the

church? A. Yes, sir.

Q. I want you to describe now in detail what you have seen

yourself in connection therewith ?

A. The first thirig 1 see is when I sit down on the bench I

spoil my new suit, full of black dirt and little splints like cinders ;

then the next thing when we are singing I get my throat full of

dust it be choking me almost; we sing together sometimes; the

next thing when the father was saying the gospel we could not

hear him many times with the engines stopping and puffing.

Q. One thing at a time, you say when the engine is puffing—

tell what noise you would hear?

A. The noise was enough so that you couldn’t hear.

Q. What noise?

A. The cars bumping one against the other, the whistles blow-

ing, the cars shifting from one track to another and one against

another would be a terrible noise.

Q. What of this puffing?

A. I can't explain whether it is steam or what; snioke comes

up in big clouds, black clouds.

Q. What is the color of that smoke that you have seen?

A. It is dark, terrible dark, black.

Q. What quantities have you seen come out ?

A. Terrible black smoke, a little like pebbles blown up: you

could hear them dropping on the seats and against the windows.

30 Q. How frequently have you noticed that?

A. I noticed that quite a long time, but lately, about five or

six years, it is something fierce; I tell you the truth many times

I feel like not going to church; that is a fact; it is true.

Q. Has it increased in extent or decreased ?

A. It seems to me that it is increasing instead of decreasing.

Q. When you say increasing, do you mean the number of

engines ?

A. 1 think it must be more engines, because we get more

smoke and dirt all the time.

Q. How frequently have you ever noticed the windows of the

church open?

A. We have the windows open half way, perhaps; small panes

come half way up, open on a string, pull them up and down; we

HUBERT DE BALLIEL. 27

have to get a little fresh air, so many people in the church, especi-

ally for the children and women, they could faint; we got to have

fresh air.

Q. Have you noticed where these particles come from such as

you say you have noticed on the seats?

A. They come through the windows with the smoke, and they

drop and settle.

Q. How frequently have you noticed this substance on the

seats and chairs?

A. Every time I go to church | see it.

Q. Have you noticed it anywhere else except on the seats?

A. Yes; the last time we had our Bishop there, I was right up

at the altar, where I had my seat; my eyes and my collar and my

hands were all black, and the vover on the altar was dirty; I

could write on it.

Q. What was the kind and character of the dirt on the altar?

A. Kind of brownish and it shines; shiny brown stuff.

Q. Outside of that one occasion, have you ever noticed these

particles on any other portion of the church?

A. We have a flag, our flag was full of it: we have a Holy

Name flag, and that was full of it.

Q. Inside the church ?

A. Even the confessional was full of it; I kneel down with a

light suit and my knees was all black.

Q. This noise which you say you have noticed from the rail-

road, what effect has it had on the ability to hear in the church

as far as you personally have observed ?

A. lf you are right up in front you can distinguish what the

father said, but a little further back you could strain yourself to

hear a little, but you could not do it.

QO. Why?

A. The noise would stop it ; this whistling and bumping of the

cars and then stop right in front of the church and make more

noise, the engines.

QO. How frequently have you noticed the engines stop?

A. Every time I go to church I see the engines there; in fact

I pass there near every day and every time I just watch for

purpose.

Q. How often have you noticed the engines stopping there ?

A. Every time I pass there I see them stopping there.

Q. How often have you seen them stopping there, standing

there?

A. Every time I pass, about twenty minutes.

28 COMPLAINANT'S PROOFS.

OQ. How often have you noticed them stopping there?

A. Always, every time; that is the only way I can explain;

every time I am in the church and when I pass there.

What were they doing?

. Some of them shoving coal in, some of them backing up.

Have you ever noticed them standing still there?

. Yes, sir.

How often have you noticed them standing still there?

About three or four times I remember.

Three or four times in the last five or six years?

. I don’t say that.

How often have you seen them standing there, can’t you

understand me?

A. I pass the place pretty near every morning and I see them

every day standing there.

Q. You pass there every day?

A. Yes, sir; that is my way.

Q. For what length of time have you seen them standing there?

A. I stopped once, I stood there and talked to a gentleman,

20 I think he is in here; I noticed that the engine was there; I

talked to him about half an hour and I noticed the engine was

still there.

Q. What was the engine doing during that time?

A. A man was cleaning up, raking up the fire, and another

fellow was shoving in coal.

What did you notice as to the smoke at that time?

. I see a great big cloud of smoke coming out.

That continued for how long?

. I don’t know, I got out, | was choking.

About how long did that continue while you were there?

. About half an hour.

. You say you were accompanied by your wife and children

to church? A. Yes, sir.

Q. Have you noticed what effect this substance had upon the

clothing of your wife and children? A. Yes, sir.

Q. What?

A. It ruined my wife's clothes; she had to go and have them

cleaned.

Q. How frequently have you noticed your wife and children’s

40 clothing? "

A. Every time they go to church they get this done to the

clothes.

Q. Do they go to church with you every Sunday? A. Yes, sir.

OAS AGAOAS

OADOAOAS

HUBERT DE BALLIEL. 29

Q. Have you ever been in the rectory or building used by the

priest for his residence? A. Yes, sir.

Q. How frequently ?

A. Once a week I take some reports for my paper, and the

different holidays.

Q. And you have been going in there once a week for what

length of time?

A. That is ‘since I knew father; about 18 years.

Q. What have you noticed in the rectory as to these things?

A. I notice the walls is dirty, black. I take my pad out to

write and I put my hand on his desk to write and I get my

clothes full of that stuff.

Q. Do you refer to the same substance as you found in the

church? A. Yes, sir. Get my hands all dirty.

Q. Can you describe what that substance is?

A. It is browninsh dirt that is shiny like, just as if you would

take isinglass and burn it up; 1 even make remark that the father

did not keep it clean, and the housekeeper—

QY. Have you noticed this substance in any other portion of

the rectory ?

A. | was in the dining room when the bishop was there and I

seen the same thing; of course, there was a clean table cloth;

but the pastor had the window up and had to hurry up and shut

the window, and it settled on the soup.

Q. What did you personally see at the time the window was

open? A. I see the smoke blowing right in.

Q. Where was this smoke coming from that you saw blowing

or coming in the window ?

A. From the engine on the top of the trestle.

Q. How frequently have you seen that ?

A. I was there that time.

Q. Did you ever see it more than this once?

A. Yes, very often since 1 have been there in the rectory, I

have seen it about six times a month.

Q. For about how long? A. For about five years.

Q. Have you ever been in the school on the corner of Bruns-

wick and Sixth street ?

Yes, sir; I go there to visit the children.

How frequently have you been in the school ?

I wasn't this week, but last week.

In the last six or seven years, how often?

Once a week, and that is on Friday.

You usually go there on Friday? A. Yes, sir.

30 COMPLAINANT'S PROOFS.

And have been doing that for what length of time?

. Five years.

How long do you stay in the school when you visit there?

. Three quarters of an hour or an hour.

What have you observed in connection with this matter

while in the school ?

A. | see the same thing as | see in the church; I see the poor

little children’s dresses dusty and dirty; I see even the pads

covered with dirt.

19 Q. The what? :

A. The pads they write on; I was simply wondering how the

poor little children can stand it.

Q. Have you ever noticed the windows of the school open?

A. Yes, and then the sisters would have to close them because

of the smoke; I even scold the sisters that they ought to have

them open.

Q. Did you personally see any smoke coming in the windows

while there? A. Yes, sir.

Q. About how often?

20 =A. Last Friday when I was there it was pretty fair, but the

week before that it was full of it.

Q. About how often have you noticed the smoke come 1n the

windows in the past five years?

A. In fact every time I go there I feel the smell of the smoke

and sometimes I see more and sometimes less.

Q. How often have you actually seen it coming in the open

windows—often? ‘A. Quite often. ,

Q. What would you say was quite often?

A. What do you mean, I beg your pardon.

30 ©Q. How often or about how often have you observed the

smoke from these engines coming in the open windows of the

SAaACAS

schools ?

A. Every time I was there pretty near; that is, if the engines

were standing on the trestle, I see the smoke coming in.

Q. About how often would you notice that?

A. About every second time I visit the school.

Q. Have you noticed the engines standing on the trestle for

any length of time opposite the school ?

A. They generally have the engine stand between the middle

40 of the block, between Monmouth and Brunswick.

Q. Have you observed the kind or character of the coal which

is in the tenders connected with the locomotives?

Mr. Wall—Objected to——

HUBERT DE BALLIEL. 31

A. I couldn't say; 1 don’t know the first thing about it.

Q. Aside from the members of your family whose clothes you

have seen soiled by coming in contact with this substance in the

church, have you personally seen or observed the clothing of any

other members of the congregation of the church affected in the

same way? A. Yes, sir.

Q. About hcw many, how often or frequently ?

A. Many times I look around and I see a lady put her hand

for her handkerchief to rub it off, or | see a lady with a fine bow

of ribbon on her hat, she touch it with her finger and there was

a big spot on it.

Q. These spots were what color? A. Brownish color.

CROSS-EXAMINATION, by Mr. WALL:

Q. Are you the editor of your paper? A. No, sir; reporter.

Q. Has your paper been very active in denouncing this smoke

trouble? A. Very little; we did not do much writing about it.

. When did you begin to write about it?

A. A few years ago.

. When did you begin to write about it?

. Two years ago, we give the people this advice—

. I am not asking what you wrote about it; I am asking

when you first wrote or sent anything into your paper about this ?

A. About two years ago.

Q. And how long had you been going to that church.

A. Since 1888.

Q. And it was your business to report everything in connec

tion with that church? A. | am with the paper only five years.

Q. What did you do before that ?

A. | was electro-finisher for the Star Electric Co., on Center

Street; and I was foreman for the Knickerbocker Press, in New

Rochelle; then, my eyes got weak and I had education and I

went with this paper and am still with it.

O. Now, Mr. Karlosky has stated that the trouble now, as

compared with the trouble in past years, was that there were

simply more engines, more business, do you agree with that?

A. | agree with that.

Q. That is correct? A. Yes, sir.

O. You are pretty close to the priest there ?

A. No, sir; Iam far away; I am on Ogden Ave., Jersey City 49

Heights.

Q. | mean your relations with the priest ?

A. My relations are just-simply business relations.

32 COMPLAINANT'S PROOFS.

Q. Just simple business relations? A. That’s all.

Q. Your paper didn’t have anything to do with starting’ up this

lawsuit? A. No, sir.

Q. You don’t remember much trouble about this trouble with

the smoke back of five years ago?

A. Yes, I went to a meeting one time; we had a meeting here

in Jersey City, and of course, I wrote something about it, that

is true, about the smoke; that it is terrible, ought to be a stop

to it, the way it ruins the buildings, etc., in fact, the city was

10 all dirty; we wrote a few lines.

Q. I am not asking you what you wrote; you didn’t talk about

the smoke just from the railroad, it was soft coal smoke from

everywhere, factories, railroads?

A. Yes, the soft coal business.

Q. The whole thing you were talking about? A. Yes, sir.

Q. And have you had any trouble with your throat at all?

A. No, sir.

Q. Your throat is sensitive, isn’t it?

A. | guess my throat is pretty fair; I do a little smoking.

20 2. I notice, as you sit here, you get hoarse, and every little

while you have to clear your throat; you have a cigar, and you

have the throat that we all have who smoke a good deal?

A. I smoke a good deal; I got to smoke.

Q. That is nothing against you?

A. No, sir; not a bit; I am healthy.

Q. Have you ever been in a cigar factory?

A. No, I have never been there.

Q. Never been in a factory? A. No.

Q. Don’t you know that the atmosphere of a cigar factory is

30 impregnated with dust? A. I don’t know; never was there,

Q. As an educated man, don’t you know it?

A. Well, I don’t know, but to m: knowledge that dust comes

from tobacco don’t hurt you.

Q. You know that the air in the places where cigars are made

is impregnated with fine particles of tobacco?

A. Yes, that is true.

Q. You know, also, that the man who smokes a good many

cigars draws the dust that is in the leaves back into his throat?

A. I beg your pardon for a minute—

40- Q. You know that? A. No, I blow it out.

Q. Oh, you generally blow it out? A. Yes, sir.

Q. But sometimes you forget, don’t you, like the rest of us?

A. Nothing that goes against my health, you can watch me for

hours.

HUBERT DE BALLIEL. 33.

Q. You never forget that? A. No, I blow it out.

Q. You don’t experience any greater trouble then when you

smoke a good deal more than usual, or when you smoke a little,

the same thing? A. The same thing with me.

Q. You don’t have any more trouble when you sit up till one

o'clock in the morning, and smoke all evening as well as all day,

you don’t have any different feeling?

A. No, unless I drink some Wurtsburger.

Q. You ca nsmoke 18 hours out of 24 and never have any feel-

ing in your throat? A. Yes, you get a funny feeling, a funny

head.

. And that doesn’t come from the dust?

. The strain of the tobacco.

. I guess sometimes you forget to blow out those cigars?

. Well, we all make a mistake some times.

. How do you know the flag was full of dirt?

. Because we took it down for the parade, the Holy Name,

and we shook it out and the dirt came all over us, our hands and

face got full of dirt. .

. Did you see that? A. Yes, sir.

. You saw the dirt fall out of the flag? A. Yes, sir.

. What made the dirt fall out of the flag?

. When we took it out, the shaking of the flag.

. That flag had been shaking in the wind there?

. No, sir, it don’t blow in the wind; it hangs down like that,

and there is no wind.

. This is a plumbline flag?

A. This is inside the church, the banner.

. Oh, I didn’t understand; when did you spoil that new suit?

. I spoiled a new suit—five days ago I spoiled a suit.

. When was the time you spoiled the other suit?

. About six months ago.

. And the other suit?

. You take a black suit, dark suit, don’t notice it so much,

but a light suit shows; I don’t wear no more white vests to

church, because after it is washed it gets some yellow color on it.

Q. I am not asking you that; you said in your answer in

answer to Mr. Hardenbergh’s question that you spoiled one new

suit? A. I spoiled more than one new suit.

Q. A great many? A. You bet.

Q. How many?

A. I can spoil a suit in a day if I don’t take care.

5 ROM

.? oo COMPLAINANT'S PROOFS.

Q. I am asking you how many suits you spoiled in the last

year?

A. As regards the church, I get a suit every two months gen-

erally.

Q. You do?

A. Yes, sir, and my tailor is Witte by Montgomery Street and

the next one is on Seventh Street. .

Q. How long have you done that ?

A. I do that ever since I remember; I have to have a good ap-

10 pearance, because that is all you got in this world.

Q. That is your idea? A. Yes, sir.

Q. The tailor makes the man?

A. No, not exactly, but always a man supposed to dress ac-

cording.

Q. Do you mean to say that in the last five years you have

bought thirty suits of clothes?

A. For business and to go out, yes, about that.

Q. And you got those thirty suits of clothes from the same

tailor? A. No, not the same.

20 6«=s-« D.:_ You said one, didn’t you?

A. Yes, and I got a man in New York, he is on 125th Street.

Q. You don’t mean to say—

A. 1 buy some of them ready made, | generally go to Hack-

ett’s.

Q. When did you buy that suit you have on?

A. A couple of weeks ago—I tell you, last Friday.

Q. Do you mean to state— A. This suit, last Friday.

Q. Do you mean to swear that you bought thirty suits of

clothes in the last five years? A. I got to swear to it, yes.

300 s« OD..~ Weel, if you swear to it, will it be true?

A. Certainly it will be true.

Q. How much do you pay for a suit of clothes?

A. | get a suit for $18; get a suit for Sunday, $24; that is

the highest.

Q. How many suits of Sunday clothes have you bought ?

A. | got about fifteen.

O. You have fifteen now?

A. No, I give them to a second hand dealer when they get

soiled; I let the people come in and get them; lots of clothes

40 | give to the Holy Name Society or charity; I don’t keep

clothes home.

JOHN GUTOVSKY. 35

JOHN GUTOVSKY, being duly sworn according to law,

on oath testified as follows:

DIRECT EXAMINATION, by Mr. HaRDENBROOK :

Q. Where do you live? A. 279 Pavonia Avenue, Jersey City.

. What is your business? A. “Machinist.

. Hiow long have you been in the machinery business?

A. Thirteen years.

. Who are you connected with? 4. Our own company.

. Where are they? A. 504 Grand St., New York.

QO. When you say you afe in the machinery business, what do 10

you mean? A. Manufacturing printing presses.

Q. Are you a member of the Roman Catholic Church of St.

Anthony of Padua? A. Yes, sir.

Q. And how long have you been a member of that church?

A. I have been a member of that church about fifteen years.

Q. And how frequently, in that time, have you gone to church ;

what is your custom?

A. I go there every Sunday and every holiday we have in

the week.

O. You refer to the church holidays? A. Yes, sir. 20

Q. And about how many church holidays are there in the year?

A. Well, the month of May and October, and the others, about

seventy-five holidays during the year.

Q. 75 in the whole year? A. Those I attended.

Q. One every day in the month of May, and in October?

A. Yes, sir.

Q. And the others are scattered through the other months of

the year? A. Yes, sir.

. What services do you attend in the morning, Sundays?

A. Two, the first mass and the high mass.

. What time? A. Half past eight and eleven.

O. The half past eight extends how long?

A. A little after ten.

QO. And then you go to the high mass at eleven?

A. Yes, sir; I stay there till about half past twelve or one

o'clock.

Q. Then you are in the church from about half past eight till

ene o'clock?

A. Yes, sir; from half past eight till one o’clock.

Q. That is your rule every Sunday? A. Every Sunday.

Q. And devote that many hours to church service?

A. Yes, sir.

. How about vespers in the evening? A. I go every Sunday.

COMPLAINANT'S PROOFS.

. What time? A. Half past seven.

. And how long’ does the vespers continue?

. From half past eight till nine o'clock.

. I thought you said you went at half past seven?

. From half past seven to*nine o’clock, I mean.

. What is the average number of services you attend on

Sunday?

A. Every Sunday_and every holiday, as I said there is about

75 holidays.

10 Q. You goevery Sunday? A. Yes, sir.

Q. And have for this length of time you have testified to?

A. Yes, sir.

Q. You know where the church is situated, do you, in connec-

tion with the railroad ?

A. It is situated on Monmouth and Sixth Street.

Q. Why do you say that, do you mean immediately on the

corner ?

. On the corner right by Sixth Street.

. Is it on the corner or not? A. It is—

. There is a saloon building on the corner—

. There is a saloon on the corner, yes, next to the corner.

. Have you noticed the railroad on Sixth Street?

Mr. Wall—Objected to if designed to elicit the loca-

tion of the railroad, as being incompetent, and this wit-

ness not qualified to testify.

. Yes, sir.

That railroad is on a trestle? <A. Yes, sir.

About how high is the trestle?

About thirty feet; thirty or thirty-five feet.

The railroad is on top of that? A. Yes, sir.

It is a stone trestle? A. Yes, sir.

And that extends from Monmouth Street how far?

. From Monmouth Street up to the street above Brunswick.

Have you ever been in the rectory, the priests’ residence ?

; Yes, gir.

How frequently have you been there?

. Generally go there four or five times a month.

About how long do you stay each time?

. Sometimes an hour, hour and a half, two hours.

For about how many years have you been doing that?

. About seven years.

Ever been in the school on the corner? A. Yes, sir.

How frequently you been in there? A. Once a month.

OOaROROAROAOROOOAOCOA

JOHN GUTOVSKY. 37

Q. For this number of years about once a month?

A. Not so much now; I have not been there for about four

months now.

Q. Before that time you went more frequently ?

A. About once a month.

Q. For how many years back? A. Six years.

Q. And how long would you stay in the school? About how

long? A. About two hours.

Q. What have you noticed while in the church in connection

with the operation of this railroad, make a detailed statement, see

if you can get at it without wasting a lot of time on questions.

A. Every time I go to Sunday Mass when the engine comes

along there is a lot of smoke, and the steam exhausting while

the sermon is going on you couldn’t hear what the priests say,

and the smoke comes right into the church when the wind is

blowing south.

Q. Have you observed it coming through the open windows?

. Yes, sir.

. How frequently ?

A. Every time I go to Church, every Sunday.

. Every Sunday through the windows of the Church?

A. Yes, sir, every Sunday.

And how frequently have you noticed it coming in through

the winillews of the Parish house?

A. Every time I go there I find a lot of dirt.

Q. I am asking you if it comes in through the windows.

A. Every time I am there.

Q. And through the school do you recall ?

A. Every time I went there engines were coming along; I see

the smoke coming through the windows also.

Q. When the windows would be open? A. Yes, sir.

Q. Describe in a general way what this smoke consists of—

what it looks like?

A. It looks black, kind of shiny like, regular cinders.

Q. Have you noticed the quantity of this stuff?

A. Sometimes you could see the seats all covered up.

Q. I have asked what quantities you have seen coming in

through these windows?

. I see a whole lot come in through the windows.

. I ask what you see coming from the engines?

. It is black specks.

. About what quantity—much or little?

. A whole lot, a dark cloud.

ce a ea

38 COMPLAINANT'S PROOFS.

Mr. Wall—Objected to as being suggestive and I

ask that it be stricken out.

Q. Have you ever noticed the engines standing on this track

opposite this school or the church rectory or the church itself for

any length of time?

Mr. Wall—Objected to as irrelevant and immaterial ;

we have a perfect right under the charter of the com-

pany to stand on the track.

Q. Answer the questidn ?

A. I notice engines standing on the track every time I go to

church.

Q. For what length of time, I mean standing still ?

A. Sometimes stand there for an hour or hour and a half.

Q. Have you noticed whether any smoke emitted from them

while standing there?

A. Yes, sir: while they put the coal on, soft coal on.

Q. You say soft coal, have you observed the kind and char-

acter of coal which the firemen put in the engines? A. Yes, sir.

Q. Describe it?

Mr. Wall—Objected to; he is not qualified to testify

as to the grade of coal or quality.

Q. When you say soft coal, will you describe the general

appearance ?

A. It is black coal and very soft—that is all I can explain.

Q. In your place of business, where you work, do they use coal

there in the furnaces? A. Yes, sir.

Q. What kind of coal do they use there? A. Hard coal.

Mr. Wall—Objected to; immaterial what they use

in New York City.

Q. You are familiar with the different kinds of coal, the differ-

ence between hard and soft coal ?

Mr. Wall—Objected to as not qualified to testify

as to the grades of coal.

Q. Do you know the difference between hard and soft coal ?

A. Yes, sir.

Q. Describe the difference so far as you personally know ?

A. Soft coal, all I can describe, soft coal is soft, breaks to

pieces ; hard coal is hard, hard, that is all I can describe.

Q. And which of these kinds of coal have you noticed and seen

in the engines and put in the engines of this railroad? Which

kind of coal?

A. I have seen soft coal put in the engines.

JOHN GUTOVSKY. 39

Q. What have you noticed in the church in reference to the

operation of this railroad as to noise?

A. When I go to church on Sunday while the engines are

standing there or passing, sometimes the father is saying the

gospel, we can’t hear anything, he has got to stop until the noise

stops.

QO. What does that noise consist of ?

A. Exhausting steam and smoke coming out of the chimney.

Q. Does the smoke make noise?

A. It is steam and smoke coming out, puffs, makes noise, and

the cars bumping and passing the switches.

Q. How frequently has that noise been so excessive or to such

an extent as you have been unable to hear the father preaching

or conduct the services ?

A. Every Sunday I am there; Sundays and holidays: every

time I am there I hear that noise.

Q. How frequently has it been so excessive as to interfere

with your hearing distinctly what the father says?

A. for the last past six years.

O. How frequently, every Sunday, or once every ten Sun-

days?

A. I said every Sunday, four or five times a month I go to

church, and all the holidays.

Q. What have you noticed in the church in regard to this

smoke which you say you see coming in the windows.

A. I see the smoke and dirt there on the seats and on the

banners, all over the church, and also over the organ.

. Can you describe what that looks like ?

. Like cinders from the soft coal.

. Anything else there besides cinders that you noticed?

. Black substance.

. What is it you have seen besides cinders in it?

A. I see black dust from the coal, soft coal.

. Black dust, does that dust there have any effect at all on

your clothing? A. I spoiled a couple of suits.

Q. In what way?

A. By sitting in the seat—get up out of the seat they are all

stained.

Q. Have you noticed anybody else’s clothing in the church?

A. 1 see my wife’s clothes the same way.

OQ. Have you noticed anybody else’s clothing in addition to

your wife’s? ;

A. I have seen people sitting in the seats, and their clothes all

40 COMPLAINANT'S PROOFS.

stained when they get up; some lady wearing a white skirt, when

she get up you can see the stain all over it.

Q. What conditions have you noticed in the rectory, the priests’

residence, in connection with the smoke which you have seen

coming in there—the same thing?

A. Exactly the same thing. Same thing as in the church.

Q. And how about the school, have you noticed it in there ?

A. The same way.

Q. Notice the children’s clothing ?

A. I couldn’t explain that; I didn’t go there much to see the

children.

QO. While you were in the rectory, did you notice the extent of

the noise, whether it interfered with the conversation or not?

A. Yes, sir.

Q. And how frequently have you noticed the noise so exces-

sive as to interfere with conversation, in the rectory ?

A. About every time I was there.

Q. And that noise was the same noise you noticed in the

church? A. Yes, sir.

Q. Same thing? A. Exactly the same.

Q. How about the school ?

A. Exactly the same thing as in the church.

Q. Have you noticed anything else in the church which this

smoke would affect there other than the accumulation of this

substance on the seats and the organ as you spoke of ?

A. Sometimes when you try to sing you can’t sing from the

dust comes down your throat; you get sick; many times I have

been in the church and when I get home I feel sick from that

smoke.

Q. Is there any particular smell from this smoke?

A. Yes, it is like the smell from soft coal smoke, that is all I

can explain.

Q. Does that extend throughout the church, or just over—

A. Yes, sir; that smoke goes from one side of the church to

the other; windows all over the church.

. And how is that in the rectory ?

A. Same thing, exactly the same.

And the school? A. All the same.

. In your business as a machinist, have you become familiar

with the smell attached to the burning of soft coal? A. No, sir.

CROSS-EXAMINATION, by Mr. Wat:

Q. You don’t mean to say that the smoke comes in through

JOHN GUTOVSKY. 41

the church windows when the wind is blowing dead away from

the church?

A. Sometimes heavy pieces come against the church, no matter

how heavy the wind blows, they come right against the church.

Q. You did mean to say it, did you? A. Yes, sir.

Q. And that has been so, that there never has been a Sunday,

for how long, that the smoke has not come in the windows?

A. Every time I am there I see when the heavy smoke comes

out of the engine it comes into the church.

Q. Just what you swear to is, that every Sunday you have been

in that church for the last five or six years—

A. I belong to that church for fifteen years.

Q. Then your testimony is that every Sunday for the last

fifteen years that you have been in the church—and you have been

in the church nearly every Sunday, that cinders have come in

through the windows even when the wind was blowing directly

against the cinders? A. Yes, sir.

QO. That is your testimony? A. Yes, sir.

Q. You understand the nature of an oath, don’t you?

A. Yes, sir.

. You don’t have any feeling that you are not under oath?

. No, sir.

O. Do you understand that the testimony you are giving—do

you understand that what you tell us here is the same as if you

had put your hand on the Catholic Bible and sworn it was true?

A. Yes, sir; I understand it; I am to tell everything true;

it is true.

Q. And when Mr. Beach comes in here he is going to swear

you? A. Yes, sir.

Q. Now, do you mean to say that you saw an engine stand

there for an hour and during that whole time send out a lot of

smoke? A. Yes, sir.

QO. You mean to say that?

A. Sometime it stood for an hour and smoke came out of the

engine.

QO. For a whole hour an engine stood still and for that whole

hour smoke was coming out of the engine.

A. Smoke comes out of the engine, yes.

QO. Is it yes or no? A. Yes.

Q. Now then, you know that that coal burned there is worth

money, don’t you? A. Yes.

Q. And if the engine is standing still and the coal smoke is

¢ <n‘ng out of it for a whole hour, you know that a lot of money

6 ROM

42° COMPLAINANT'S PROOFS.

is being wasted for which nothing is being got by the railroad

company? A. Yes, sir.

Q. And yet you say that the engine stands still for a whole

hour, burns up coal and gets nothing out of it? A. Yes, sir.

Q. That is what you say? A. Yes, sir.

Q. And you say more than that—

A. I say he has got to keep burning the coal.

Q. You say more than that; you say as the smoke comes out

of the engine the sméke makes a noise? A. I said steam.

Q. Did you say, didn’t you say the smoke makes a noise?

A. 1 said smoke and steam.

Q. Didn’t you say the smoke makes a noise as it comes out of

the ongine; did you say it or not?

A. | said so; yes, sir.

CG. Now, as a machinist, will you explain how smoke makes

any noise coming out of the engine? A. Exhausting.

QO. Does the smoke exhaust ?

A. No, the steam exhausts; the smoke, when it is coming out

of the engine, it is puffing.

Q. Does the smoke make any noise?

A. The smoke, when it comes out of the engine—

Q. Do you say, as a machinist, that the smoke makes any noise

when it comes out of the chimney of the engine? A. Yes, sir.

O. The smoke makes a noise as it comes up?

A. I said the steam and the smoke make noise.

Q. You know the smoke doesn’t make any noise, don’t you?

A. The smoke makes noise while it is puffing; the steam is

exhausting, the steam makes noise.

Q. Does the smoke make noise? (No answer.)

Q. Does the smoke make a noise ?

A. When the engine starts up——

Q. Don’t you understand my question, do you swear that it

makes a noise for the smoke to come out of the engine, out of

the chimney of the engine, do you swear that or not?

A. When the engine starting up, that is all I can swear, when

it starts to move.

Q. You answer my question, does the smoke make a noise

coming out of the chimney? A. Not when it is coming out itself.

Q. Why do you keep dodging me, why do you keep trying to

40 &¢t away from my question, why don’t you tell the truth?

A. I am telling the truth; yes, sir, the steam is exhausting

and it makes a noise.

Q. Does the smoke make the noise?

JOHN GUTOVSKY.

A. Not the smoke when it comes out itself.

Q. Now, take it up as to the cinders going against the wind,

do you still say that the cinders go against the wind?

A. The heavy cinders, yes.

Q. Do you still say that you have ever seen the cinders from

the engine come in through the windows of that church in quan-

tities against the wind?

A. Yes, sir, right through in through the windows, I say

that.

Q. You can say what you please, but is it true, why do you say

that? A. Yes, sir; I have seen that.

Q: Against the wind, right into the church? Why don’t you

tell the truth? A. I got to tell just what I seen.

Q. I ask you this question—have you seen the cinders come

against the wind into the windows of that church?

A. I have seen them, yes sir.

Q. When did you see that? A. I couldn't explain.

Q. When did you ever see such a thing?

A. I see the wind blowing against the smoke, say we had a

North wind, against the railroad, still the cinders come into the

window.

Q. That is what you say? A. Yes, sir.

Q. You say you have seen those cinders travel against the

wind into the windows of the church? A. Heavy cinders.

Q. I am not asking you whether they are heavy or not—you

have seen cinders from the railroad travel against the wind and

come into the windows of the church, you swear that?

A. Yes, sir. ;

. Youdo? A. Yes, sir, I swear.

. The railroad is not up on a trestle at all, is it?

. It is on the stone up at Brunswick Street.

. On a trestle or not, in front of the church? A. Yes, sir.

. What do you mean by a trestle? A. It is stone.

. Embankment? Solid, or can you see through it?

A. Solid.

. Well you know that is not a trestle, it’s an embankment,

isn’t it? A. Yes, sir.

Q. And on top of that? A. Tracks, trestle.

Q. What do you mean by a trestle, tell us what you think a

trestle is? A. A trestle is a railroad.

Q. Any railroad is a trestle?

A. No, railroad runs up in the air, it is a trestle.

44 COMPLAINANT'S PROOFS.

Q. Whenever a railroad is up in the air you mean it is a trestle,

is that right? A. Yes, that is what I mean.

Q. If an embankment is built of stone and the railroad is on

top of it, you mean that the railroad is on a trestle?

A. Embankment.

Q. Do you mean that it is on a trestle or not?

A. Yes, that is what I mean, on a trestle.

Q. That is the kind of a trestle it is—it is a solid stone thing

that the railroad is on? A. That is right.

Q. That right? A. Yes, sir.

Q. And the church is down on the street, isn’t it ?

. Yes, sir, down on the street.

. About thirty feet below the tracks?

. About thirty feet below the tracks.

. Guessing ?

A. Yes, sir; it might be more than thirty feet.

. And the engines are quite a distance above the tracks,

aren't they ?

. Yes, the engines quite a distance above the tracks.

. And the smoke comes out of the chimneys of the engines?

. Yes, sir.

. Any other place?

. No, sir; only when he opens the boiler or his fire.

. You say it comes out then? A. I guess—

. I don’t want you to guess, does it or not?

. I don’t say anything.

. Now then, is the top of the engine, the smokestack of the

engine higher than the windows of the church?

A. I think it is higher, yes, sir.

Q. It is higher? A. Yes, sir.

Q. So then you say the cinders go straight up in the air from

the engine? A. They spread all over.

Q. They go straight up in the air? A. Yes, sir.

Q. And these cinders that travel against the wind are cinders

that have been up in the air and are dropping? A. Yes, sir.

Q. But they drop and then come against the wind?

A. Yes, sir; I will explain that.

Q. 1 don’t, care for any explanation; now, these other wit-

nesses said that this was a brown, shiny kind of stuff, you say

it is a black cinder? A. It is black.

Q. You have not seen any of the brown? A. Black, shiny.

Q. Have you seen any of the brown shiny ones that they

mentioned, yes or no? A. Yes, sir, I seen—

JOHN GUTOVSKY.

Then there are two kinds?

A. There might be two kinds.

Not there might be ; have you seen two kinds?

. Yes, sir, 1 have seen two kinds.

I thought you said one kind, black.

. I didn’t say only one kind.

Is there one kind or two? A. Two.

Is it your idea that the brown kind comes from the rail-

road? A. Yes, sir.

Q. Why do you say that? 10

A. Because I see them come through the window while the

engine is there.

Q. And you saw the black kind too? A. Yes, sir.

QO. There are two different kinds?

A. It looks something like black or brownish.

Q. Look here, are there two kinds or not, now take your time

and answer the question.

A. It looks to me like there are two kinds, but I will say only

one kind, brownish; I took it for black.

Q. Then there are no black; take your time and answer? 20

A. 1 will say brownish.

Q. You say there are no black ?

A. I say I see so much of that stuff in there I can’t explain

just what they look like.

Q. Can't you tell us whether those cinders are black or brown,

you can if you want to tell the truth?

A. I will give you black and brown.

Q. You say both then? A. Yes, sir.

Q. There are two kinds then?

A. There are two kinds which I see which I can explain. 30

Q. And you swear that you saw both kinds coming from the

railroad? A. Yes, sir.

What is the brown made of, what does it come from?

. Come from the railroad, from the engine, the soft coal.

How do you know it?

. I see them come out of the engine.

You saw those brown things coming out of the engine?

. Yes, sir.

How big are they? A. Little bits of things.

How big are they, big as the head of a pin? 40

Some little bigger.

Where were you when you saw them coming out of the

engine? A. Sitting in the seat.

~©

Seaeoae

OAOOAGAOAS

COMPLAINANT'S PROOFS.

In the church? A. Yes, sir.

How far from the engine? A. I can’t tell exactly.

It is across the street? A. Yes, sir.

How far is that?

I don’t know just how wide the street is.

About fifty feet? A. Yes, sir; fifty feet.

And you can see coming out of the engine stack, you can

see a piece of cinder as big as the head of a pin, sitting in the

church, you swear to that? A. I swear that.

Q. And you can see whether it is brown or black?

A. | can’t swear exactly whether it is brown or black.

Q. You swear that you did see that—why don’t you tell us

what is true? Now, you want to swear that you saw coming

out of the chimney of a locomotive across the street, while you

sat in the church, cinders which you recognized as brown cin-

ders, that is right? A. That is right.

QO. Yousweartothat? A. Yes, sir.

Q. And other cinders which you recognized as black cinders?

A. Black, shiny.

. Any other kind? A. Some kind of light dust.

QO. White cinders? A. Yes, sir.

. Any other kind? A. That is all I know.

. How long have you been a member of the church?

. I been a member of that church about fifteen years.

. How old are you? A. Thirty-one.

. And you have been going continuously to that church?

. Yes, sir; I know six years I am there all the time; before I

didn’t go so much.

Q. Do you hold any office in the church? A. Yes, sir.

30 . What? A. Collector.

. Collector of what?

. Money, collect the church benefits.

. What office does this newspaper man, de Balliel, hold?

A. He has an office on Washington street.

. Has he an office in the church?

1. No, not that I know of.

. Now, you don’t know whether it is soft coal or very soft

coal? A. I couldn’t explain it.

Q. You didn’t mean to say it was very soft coal?

40 A. I couldn't say whether it was very soft coal; I know it was

soft coal.

OQ. You don’t know anything about coal?

A. 1 know about soft coal and hard coal.

OSAOOCSO

JOHN GUTOVSKY. 47

Q. I know, but you don’t pretend to know anything about

coal? A. It is soft coal.

Q. Are you educated on the coal subject or not? A. No.

Q. Now, some of these witnesses said that for the last twenty

years there it was just the same, only now it was more so, more

noise, more smoke; is that so for the 15 years you have noticed ?

A. Yes, sir.

Q. You agree with that? A. Yes, sir.

Q. You do?

A. Yes, sir; only every year it is increasing, more business,

more engines on the trestle.

Q. What do you mean when you say you got sick from the

smoke ?

A. Sometimes when I go to church and we are singing—

. Did you ever get sick from the smoke?

. [never got sick but I got sore throat.

. Well, what did you say you got sick for?

. When I got home I would take drink of water and gargle

and it would go away.

. Go away right away?

A. 1 do that every time I come from church.

. You did that? A. Yes, sir.

. Every time? A. Yes, sir.

. You swear to that, you swear that you gargled yesterday

after you came home from church? A. I took a drink.

Q. Do you swear that you gargled your throat yesterday ?

A. Yes, sir; I swear it: I take a drink of water and gargled

every time; I always do that when I sit down to eat.

Q. Well, you didn’t mean that you gargled yesterday on ac-

count of the smoke?

A. Not exactly account of the smoke; I won't say exactly on

account of the smoke; J always gargle before I sit down to my

meal.

Q. Tell us when you got sick from the smoke?

A. I say I never got sick from the smoke.

Q. Did you ever gargle for a sore throat from the smoke?

A. When I come home from the church before I sit to my

meal, I always take a drink of water; I get kind of sore in my

throat when I come from the church, but I cannot swear it is

from the smoke or not.

O. Never had a real sore throat ¢

A. No, never had a real sore throat so I couldn’t go to work.

48 COMPLAINANT'S PROOFS.

Q. How many suits of clothes did you buy during the year—

you are not such a swell as Hubert de Balliel, are you?

A. Three or four suits a year; I buy a Sunday suit I wear cn

Sunday for a while, and when the suit gets damaged in the church

I take it for every day.

Q. How many suits have you damaged in the church?

A. Three suits a year.

Q. Three suits a year?

A. Yes, sir; get them dirty in the church when you get down

in the seat, and then when you send them to get cleaned they

spoil the suit.

RE-DIRECT, by Mr. HARDENBROOK :

Q. These windows in the church are the ordinary high church

windows, aren't they? A. Regular high church windows.

O. About how do those windows compare in height, the top of

the windows, compare with the engines standing on this stone

embankment ?

A. You mean how high the engine and the top of the

windows ?

Q. Yes. A. I should judge about four or five feet higher—

the engine. ,

Q. The top of the engine?

A. Top of the engine; it might be more.

Q. As near as you can remember the top of the engine is about

four or five feet higher than the top of the windows in thie

church? A. Yes, sir; but I am not quite sure.

Q. Now, explain what you mean when you say that these

cinders, these particles, travel against the wind after leaving the

engine ?

A, When they come out of the engine full force, they go up

in the air and splash all over and 1!cht over the church and then

right in the windows no matter how heavy the wind is; when

they come out full force bound to some go in the church.

Q. Is that smoke thrown up in the air with considerable force,

as far as you have been able to observe ?

A. Yes, sir; sometimes.

QO. About how high above the top of the smokestack have you

noticed the smoke thrown up? A. I couldn't say how high.

Q. About how high? A. 25 or 50 feet, sometimes.

OQ. Now, I show you an envelope, I show you a substance con-

‘‘ned in an envelope marked “Taken from attic space 2 by 6”

and ask you if you will look at the substance contained in that

CHESTER SCHODOLSKI. 49

envelope; just pour a little in your hand if you like, and state

how that compares with the substance which you have testified

as having seen in the church?

Mr. Wall—-Objected to as improper and incompetent,

and not the way to introduce evidence concerning this

sample and not binding on the defendant.

Q. Answer the question please.

A. The sample here is about the same as what I have seen in

the church.

Q. In what portions of the church?

A. Around the windows and falling all over the seats.

Q. And how does it compare with the substance you have seen

in the rectory?

Mr. Wall—Same objection, and further, it is not

proper re-direct.

A. The same.

Q. How does it compare with the substance you have seen in

the school ?

Mr. Wall—Same objection.

A. The same.

Exhibit marked “Ex. 1 for Identification, J. H. C.,

June 26, 1911.”

Q. I also show you substance contained in an envelope marked

“from bedroom, June 20,”" and ask you if you will look at the

substance contained in this envelope and state how that compares

in appearance and character with the substance you have testi-

fied as having seen in the church and the school and the rectory?

Mr. Wall—Objected to on the same grounds as here-

tofore stated.

A. I could not understand.

OQ. How does that compare with the substance which you have

testified you have seen, does it appear to be the same?

A. That appears to be the same; | could not say exactly.

Q. It appears to be the same? A. Yes, sir.

CHESTER SCHODOLSKI, called as a witness on the part

of the plaintiff, being duly sworn according to law, testified as

follows :

DIRECT EXAMINATION, by Mr. HaRDENBROOK :

Q. Where do you live? A. 142 Pavonia Avenue, Jersey City. 49

Q. How long have you lived there? A. Eight years.

Q. Where do you work? A. Stanley Golliek Co.

Q. How long you worked there? A. About three months.

7 ROM

50 COMPLAINANT'S PROOFS.

Q. Before that what did you do? A. Every thing I could

get to do.

Q. Are you a member of the Roman Catholic Church of St

Anthony of Padua? A. Yes, sir.

Q. How long have you been a member of that church?

A. Since I came to America.

Q. Well, nobody knows how long that is—

A. About seventeen years.

Q. And during that time how frequently have you attended

10 church? A. Every Sunday.

What service? A. Low mass, at half past seven.

And that service continues for how long?

About an hour or hour and a quarter.

Do you attend any other services on Sundays?

Evening vespers.

What time? A. Half past seven.

And how long does that service continue?

. From half past seven to a quarter to nine.

And it has been your custom to attend church every Sun-

20 dae on those two occasions?

A. Yes, sir, I was altar boy there before that.

Q. You were altar boy, how long?

A. About eight or nine years.

Q. And what service was it your custom to attend other than

the morning service on Sunday and the vespers Sunday evening?

A. Every services, I had to attend to serve.

Q. You mean all the church holidays? A. Yes, sir.

Q. Which consist of about how many services a year?

A. At the time I was going there I was there every day to

30 Mass: when it was May or October then we had vespers in the

evenings, then it was twice a day.

. And while you were an altar boy you attended every day?

. Yes, sir.

. Every week day as well as Sunday?

. Yes, three or four times.

. On Sundays three or four times? A. Yes, sir.

. How long a period of time did that cover?

. Six or eight years.

. Every day? A. Yes, sir.

. Services every morning? A. Yes, sir; I attended the

actiool, too.

Q. You know the location of this railroad?

A. Yes, sir, I do.

SASSAGASS

CHESTER SCHODOLSKI. 51

Q. I want you to explain now in full detail what you have

noticed in connection with the operation of that railroad?

A. I have noticed that it was very noisy.

Q. What does the noise consist of ?

A. Whistling, puffing, bumping cars against cars, noises that

you can hear on a railroad.

Q. And how frequently have you noticed that during these

years? A. Very often; most every time I was there.

Q. And was that noise audible in the church—did you hear it

in the church?

A. Yes, sir, sometimes we couldn’t even hear the sermon, and

the priest had to stop on account of too much noise.

Q. And this noise that you say interrupted the service or

‘ interrupted your hearing, was this noise coming from the rail-

road? A. From the railroad.

Have you ever been in the rectory?

. Yes, I have been there often.

What have you noticed there in connection with this noise ?

. I noticed black—

One thing at a time—I am asking about the noise?

. Same as I did in the church.

Have you been in the school?

. Yes, sir, I have been in the school.

How frequently did you go in the school ?

. We had our headquarters of the Polish club there in the

school and I went there.

Q. What period of time did that cover, how long?

A. I don’t remember exactly—since that school was built up.

Q. How long would you be in the school at a time?

Q. Sometimes from half past seven in the evening until ten or

eleven o'clock.

. How frequently a week? A. Twice a week.

. That covered a period of years? A. Yes, sir.

. What did you notice in the school as to noise?

. Same thing as in the church.

. Same as in the rectory? A. Yes, sir.

. Now, in connection with the operation of this railroad,

Ww hat have you noticed in addition to the noise from the opera-

tion of the cars? A. I have noticed the smoke.

Q. Describe what you have seen in regard to the smoke, where 49

does it come from, what amount, what kind is it?

A. Came from the railroad; from the engines.

Q. What is the color? A. Dark brown or black.

52 COMPLAINANT'S PROOFS.

Q. How frequently have you seen it coming from the engines ?

A. I have seen it very often, but I could not just state how

often; sometimes I have seen it every time; I can see it some-

times, now, when I am passing, but I don’t take notice how

many times.

Q. How continuous has that been during those number of

years? A. Right along.

Q. It has continued right along? 4. Yes, sir.

Q. What have you noticed in connection with this smoke after

it has emitted from the smokestacks ?

A. I know if the windows are open the smoke comes right in.

Q. Into the church?

A. Into the church, or into the school or into the rectory.

Q. You have noticed it coming into the windows of all three

from the railroad.

A. From the railroad, yes; if the trains are passing.

Q. How frequently have you noticed it? A. How often?

Q. About how often; fair average?

A. I noticed that about three or four times a week.

Q. During this entire number of years? A. Yes, sir.

Q. What effect have you noticed it had on the articles in the

different edifices ?

A. 1 noticed they were covered up with black-brown-like

pieces; some of them were very soft when you press them; some

of them were kind of hard.

Q. Take, for instance, the church, where have you seen this

accumulation of particles?

A. Many times on the top of the altar, or on the seats and on

the organ.

Q. Have you noticed what effect it had upon the clothing, your

clothing, when it came in contact with it?

A. Not in my clothing much, because I wear black clothing;

but my wife, when she goes to church, or the little boy dressed

up in white clothing, you can notice that on them; I don’t know

just what it is but there is some black spots like grease in it.

Q. Have you noticed that in connection with any of the mem-

bers of the church? A. No, I observed my wife and my mother.

. But not the other members of the congregation ?

. No, sir.

. How is it in the rectory, what have you noticed there?

. I noticed the same thing as in the church.

. Where would the accumulation be in the rectory?

. In the office, on the desk; that is the place I noticed it.

CHESTER SCHODOLSKI. 53

. How about the rugs, carpets? A. I didn’t notices that.

. How about in the school?

. In the school I noticed it quite often.

O. Whereabouts ?

. In the hall, on the stage in our meeting-room and in the

classes. ¢

Q. And did you notice what effect it had on the clothing of

the children and teachers?

A. Yes sir; you could notice it; because some of the tables

are covered with white tablecloth, you could notice any dust

comes on it.

Q. Did you notice what effect this noise had upon your ability

to be heard or ability to understand ?

A. Had to stop at that time if there was any trains coming.

Q. That is true of the school?

A. In the school or in the church, whenever we had anything.

Q. In the rectory also? A. I didn’t notice that.

Q. You never noticed particularly in the rectory? A. No, sir.

Q. I show you a substance which has been marked Ex. 2, for

Identification, and ask you to look at the substance contained in

this envelope and state how the substance contained in this

envelope compares with the substance you have testified you have

seen coming from the railroad ?

Mr. Wall—Objected to on the same grounds that

were given before when the sample was produced to

the previous witness.

A. That is the same.

Q. I also show you substance contained in envelope marked

Paintiff’s Ex. 1 for Identification, and I ask you to look at that

and state how that compares in character with the substance you

have testified you have seen as coming from the railroad?

Mr. Wall—Same objection as before.

A. That is the same, something like it.

Q. What is your answer?

A. It is the same as this; sometimes it was in larger lumps,

larger pieces; this is finer.

CROSS-EXAMINATION, by Mr. WALL:

Q. How old are you? A. 26, going on 27.

Q. And you have been going to the church regularly for how

long? A. About 16 or 17 years.

Q. Your idea is that it is the smoke that is sometimes brown?

A. It is brownish, dark.

54 COMPLAINANT'S PROOFS.

Q. But the cinders are always black? A. Sometimes black.

Q. You are not an expert on cinders?

A. Of course, | am not an expert on cinders.

. You never saw any brown cinders? A. No, I didn't.

And you never saw any cinders sailing against the wind?

. No, I didn’t notice that.

. That takes a nautical man, don’t it, to figure this out and

stack these cinders up against the breeze? A. I suppose so.

Q. Your wife’s dress, did that dust show around the edge of

10 the dress at the bottom? A. Yes, and where she sat.

Adjourned to June 29th, 1911, 10 o'clock.

Circuit Court of the United States, District of New Jersey.

RoMAN CATHOLIC CHURCH OF ,

St. ANTHONY OF PADUA,

omplainant,

20 Complainant

US.

THE PENNSYLVANIA RAILROAD

CoMPANY,

Defendant. ]

Testimony taken in the above-entitled matter at hearing before

Hon. George R. Beach, Examiner, at his office, 75 Mont-

gomery Street, Jersey City, June 29th, 1911, at ten o'clock

A. M.

Appearances—I*. M. HarpENnBROOK, Esg., of counsel for com-

plainant; ALsert C. WALL, Esg., of counsel for The Pennsyl-

vania Railroad Company, defendant.

Mr. Wall—lIt is hereby stipulated on behalf of

the parties hereto that the coals used by the defend-

ant on the railroad in question, to wit—the Greenberg,

Avondale and Lloyd Ell coal, are each good grades of

bituminous coal.

Mr. Hardenbrook—I want to withdraw from the

record Exhibit C 2, for the reason that it does not

describe any of the property mentioned in the com-

plaint herein.

ANTHONY MACIEJEWSKI. 55

ANTHONY MACIEJEWSKI, called as a witness by the

plaintiff, being first duly sworn, testified as follows:

DIRECT EXAMINATION, by Mr. HARDENBROOK :

. Where do you live? A. 181 Twelfth Street.

. How long have you lived there? A. Only two years.

. What is your business? A. Wholesale grocer.

. Where? A. Twelfth Street.

. New York City? A. No, Jersey City.

. How long have you been engaged in that business ?

A. 1 am two years in this business; and before I was butcher 10

and grocer; 11 years in the business; 1 was before butcher and

grocer, and now is wholesale.

Q. All that time in Jersey City? A. Yes, sir.

Q. Are you a member of the Roman Catholic Church of St.

Anthony of Padua? A. Yes, sir.

. And how long have you been a member of that church ?

. Since going on twenty years.

. How frequently do you attend church?

A. What does that mean?

O. How often do you go to church? 20

A. | go to church every Sunday and sometimes two or three

days in the week ?

QO. You go to church every Sunday?

A. Every Sunday, and two or three times a week when the

service comes in the church.

QO. That has been your custom for how many years past;

your habit, for about how long?

A. Since I belonged to that same parish.

Q. What services do you usually attend on Sunday ?

A. | am the treasurer— 30

O. Answer my question, what services do you usually attend

cn Sundays? A. The service at high mass.

O. How many high masses are there?

A. One low mass, nine o'clock in the morning and one high

mass. Vespers in the evening. There is one now at eight

o'clock just started up six months ago.

QO. Which one do you attend ?

. Lam in the high mass and vespers.

. High mass at nine o’clock? A. No, eleven o'clock.

. And vespers at what time? A. Half past seven.

. How long does the morning service last ?

. Over two hours.

. And how long does vespers last?

56 COMPLAINANT'S PROOFS.

A. Over two hours; pretty near two hours; the high mass is

over two hours.

Q. Have you ever observed the railroad running along Sixth

Street between Brunswick and Monmouth Street? A. Yes, sir.

Q. Have you ever seen engines or locomotives on that branch,

that piece of the railroad? A. Yes, sir.

Q. How frequently have you seen engines standing on the

track there? A. Mostly all the time.

Q. Every time you have been up there?

A. I say pretty near every time.

Q. What have you observed in connection with those engines,

what have you seen in regard to them?

A. There is a lot of smoke from the soft coal, and the whistles

and the noise, and you can't open a window.

Q. I didn’t ask you anything about the windows; what did

you see in connection with the engines?

A. Smoke and noise; coupling cars.

OQ. This smoke which you have testified you 1 have seen, cle-

scribe it, the kind, the color of it and the extent of it?

A. It is from soft coal, heavy smoke.

Q. I asked you the color of it? A. The color of it?

Q. Yes? A. Black color; the color is just black color.

Q. To what extent have you seen it, what quantities of it

coming from these engines?

A. A big quantity; of course, if the engine comes under full

power the smoke comes out very heavy.

Q. Is that true of every time vou have seen engines on the

track ?

A. I see it pretty near all the time; lots of engines passing all

the time.

Q. Now, what, in addition to the smoke vou have testified to,

have you noticed in connection with those engines or with the

trains, what else besides the smoke ?

A. Besides the smoke? Coupling cars, makes a lot of noise,

and the switches, running over the switches you know.

Q. What noise does it make?

A. A lot of noise, coupling, bumping of the cars; lot of cars

in there.

Q. The cars coming together? A. Yes.

Q. Is that noise very loud? 4. Oh, terrible.

40 Q- Now, what else in addition to that have you noticed in

regard to the operation of that railroad, in addition to the smoke,

ANTHONY MACIEJEWSKI. 57

and the noise from the coupling of cars, have you noticed any-

thing else in the way of noise? A. Damage from the smoke.

Q. Can’t you understand my question? If you can’t, say so,

and I will repeat it and keep at it until you do understand. What

else have you noticed in the way of noise other than you have

described. You say you have noticed noise from the bumping

of the cars—have you noticed any other noise in addition to that?

A. From the whistles.

Q. Whistling of the engine? A. From the engines.

Q. How frequently have you noticed noises from the whistling

of the engines?

-A. Any time they start to run they give the whistles, the con-

ductors.

Q. What else have you noticed, if anything, in addition to the

noise from the whistling and the noise from the coupling of the

cars, have you noticed any other noise? A. No other.

Q. Now, when you have been in the church, have you noticed

any of this smoke such as you have described coming into the

church? A. Yes, sir.

Q. How frequently have you noticed smoke such as you have

described coming into the church, how often?

A. During the two hours of the High Mass that happens some

times three or four times.

Q. During the two hours? A. Yes.

Q. Is that true of every Sunday? A. Every Sunday.

Q. And is it also true as to the time when the vesper service

is being conducted? A. Pretty near the same.

Q. To what extent, if you can describe it, characterize it, have

you noticed this smoke coming into the windows of the church,

how much of it?

A. If you open up the windows then nobody can stay in the

church, but sometimes if one or two windows open then of

course it don’t come so much; but it spoils the clothes and every-

thing; you couldn’t stay in the church—

Q. Did you understand my question? I ask you about how

much, if you can describe it, in quantity, comes.

A. All I can understand how much, a pail or so, or gallons.

Q. Is it very much?

A. I can say bushels, how does that mean; I don’t understand

how much can come in; I didn’t measure it; that not a question;

I can’t tell you how much, bushels.

Q. Have you noticed what effect this smoke, such as you have

8 RoM

58 . COMPLAINANT'S PROOFS.

testified you saw coming into the church, has had upon the articles

of furniture, and the decorations and things in the church?

A. Yeés, sir.

Q. Describe if you can, as best you can, what effect this smoke,

such as you have seen, has had upon the different things in the

church? A. Yes, sir.

Q. Describe it, tell what effect it has in the church?

A. All spoiled, clothes spoiled ; decorations spoiled ; everything

on the altar and everything that is in it.

Q. Whereabouts in the church?

A. The dust and smoke all over.

Q. Does this smoke, such as you have ‘estified as having seen

come into the church, carry with it any particles?

A. Yes, of course, they are full of dust.

Q. Can you describe the kind and character of that dust, what

kind of dust is it?

A. It is like black sand, black sand or gravel, soft coal.

Q. Whereabouts in the church have you seen this substance ?

A. In the seats.

Q. On the seats—anywhere else ?

20. = A.. I don’t go around you know, but any time I go to church

I see the seats full of that‘dirt.

Q. Any other part of the church except the seats ?

A. I never go around, I never can say that.

Q. I ask you if you ever saw it anywhere else?

A. I never seen it.

Q. You never saw it on the organ?

A. Yes, sir, I was sometimes singing in the choir and I saw

lots of it. f

Q. Have you seen it anywhere else except on the organ and on

30 the seats? A. No.

Q. Have you noticed what effect this substance which you say

you saw upon the seats has had upon the clothing—

A. Yes, sir.

Q. Of people with whom it has come in contact, what effect

has it had on the clothing of these people ?

A. If any comes with white clothes on then of course there

is a lot of dust on it.

Q. What does it do to the clothing? A. Spoils it.

Q. Stain it? A. Certainly; of course it spoils the clothing.

40 «=. _ In what way does it spoil it, does it stain it black. How

does it spoil it, in what way? °

A. Have to get washed every time you come out of the

- church.

ANTHONY MACIEJEWSKI. 59

Q. Have you ever noticed what effect it had on your clothing?

A. The clothing I wear I don’t pay attention much on it.

Q. Have you got a family, you go to church with your wife

and children? A. Yes, sir.

Q. Have you ever noticed what effect it had on their clothing?

A. That is the only way I can say; all the time comes dirty

from the church.

Q. And have you ever noticed what effect it had on the cloth-

ing of other members of the congregation?

A. I didn’t take that attention.

Q. This noise such as you have described, which you have

testified as having heard from the operation of these trains, have

you ever heard that noise while in the church? A. Yes, sir.

Q. To what extent, if any, has that noise been audible, how

can it be heard in the church?

A. Well, when the priest starts to speak he have to stop some-

times five or ten minutes before the noise gets stopped.

Q. How often have you noticed that within the past six years,

about how often?

A. T tell you sometimes once; I can swear once every time on

the speeching, and sometimes two or three times; once all the

time during the half hour or so, bumping, couplings, comes all the

time.

Q. Once every time—you refer to once during each service ?

A. Yes, sir; that is what I mean.

Q. I show you a substance contained in an envelope marked

“Taken from the sills of the windows in four days” and ask if

you will kindly look at the substance contained in this envelope

and state how it compares in character and appearance with the

substance which you say you have observed at various times in

the church?

Mr. Wall—Objected to on the ground that the ques-

tion is incompetent; that the substance shown the wit-

ness is not so identified as to have any relation whatso-

ever to the issues in the case, and on the further ground

that the question is irrelevant.

Q. Answer the question now.

A. I can prove that very easy because I got some of that from

my own property; I can say that comes out of the engine; that

comes out of the smokestack; I know that because I seen it a

good many times in the church.

Q. Answer my question; how does that compare in appear-

ance with the substance which you have testified you saw on the

seats and on the remainder of the church?

60 COMPLAINANT'S PROOFS.

A. The same thing comes out of it.

Q. How does that compare with the substance which you have

testified you have seen in the church?

A. Then I don’t understand.

Q. Does the substance which you have seen in the seats and

on the organ look the same as this?

A. Not so heavy as this, but pretty near the same; this is

just from outside of the windows.

Q. How do you know where that is from; I didn’t ask you

10 where it is from?

A. Not so heavy as this, but pretty near the same; black dust.

Marked “Ex. C 3, for Identification, J. H. C., June

29, I9II.”

CROSS-EXAMINATION, by Mr. WALL:

Q. How long have you been going to that church?

_ A. Going on twenty years.

Q. Little over twenty years?

A. No, pretty near twenty years; it will be twenty years next

20 New Years. ’

QO. Smoke and noise and all the rest of it just the same since

you can remember ?

A. Yes, sir; pretty near; of course there was not so many

cars in the last fifteen years, but now it is getting worse all the

time; company getting rich and more cars on the line.

What? A. Company getting rich; more engines.

You are treasurer of this church? 4. Yes, sir.

Church been growing all these years?

. Well, population grow.

You been getting rich? A. I also?

Yes, you been getting rich? A. Yes, sir.

You say that vespers last two hours?

Sometimes longer than that ; vespers longer than two hours.

They don’t generally last two hours?

A. Every Sunday they last two hours,

QO. You say vespers last two hours every Sunday?

A. Pretty near two hours.

Q. Can you tell us what the truth is about it?

A. I can't tell exactly the hour; sometimes less, sometimes

more; that goes by the speeching; if a good priest comes speech-

ing he takes up an hour for speeching only.

every high mass on every Sunday for twenty years?

S99

OROCO

ANTHONY MACIEJEWSKI. 61

A. Yes, sir; if there was any windows up, you are full of

smoke all the time; they try to keep the windows closed, but

have to have air and sometimes the windows opeu.

Q. And it doesn’t make any difference how the wind blows,

if the windows are open the smoke comes in, that right?

A. Of course, pretty near all the time.

Q. Can’t you say no if it don’t; you understand the meaning

of no? A. Yes, sir.

Q. Don’t you understand the meaning of no?

A. I understand, but just let me tell you; if the wind from

this side (irdicating) how can the smoke come into the church?

OQ. The smoke can’t come against the wind, can it? A. No, sir.

Q. Nor can dust go against the wind? A. That is it.

Q. Now, when you said that you saw bushels of the smoke

come in through the window, did you mean bushels of smoke ?

A. I just only fooling; I didn’t measure that smoke.

QO. Oh, you were only fooling’?

A. Yes, sir; I didn’t measure the smoke how much it come

n; if you tell me how then I can answer.

O. Now, you said that you saw dust from this railroad, or

this sandy stuff on the seats, but you didn’t see it anywhere else,

and then you said that you saw it on the organ?

A, Well, I forget; last ten or twelve years I was a singer in

the choir; then I was there; but I see less of that; last ten

years I was not upstairs at all.

QO. So the dust that you saw on the organ you saw it ten years

ago, that right? A. More than that.

O. More than that? A. Yes, sir.

. How much more than that? A. When I was a singer.

How long ago was that? A. Fifteen years.

Fifteen years ago? A. Fifteen years.

. Since then the only soot, or sand or cinders, or whatever

hey are you have seen have been on the seats, that right?

A. Yes, sir.

Q. That stuff that you saw, that the lawyer handed you, how

much heavier is that than the stuff you saw in the church?

A. The dust is not so heavy, what we find on the seats not as

heavy as this.

Q. This is much heavier than on the seats ?

A. Yes, much heavier than on the seats.

Q. You never saw in the church any stuff as heavy as that that

the lawyer handed you? A. No, not heavy as that.

62 COMPLAINANT'S PROOFS.

JOSEPH MENDRES, called as witness by the plaintiff, being

first duly sworn according to law, testified as follows:

DIRECT EXAMINATION, by Mr. HarpENBROOK :

Where do you live? A. 218 Sixth Street.

Jersey City? A. Yes, sir.

What is your business? A. Ivory cutter.

How long have you been in the business of an ivory cutter?

. Eighteen years.

Where? A. New York.

New York City? A. Yes.

Are you a member of the congregation of the Roman

holic Church of St. Anthony of Padua? A. Yes, sir.

How long have you been a member of that church?

Since 1887.

How frequently do you attend service there?

. Most every Sunday.

And what service do you attend on Sunday usually ?

. Generally half past nine or half past ten.

Either one or the other? A. Yes, sir.

And you attend the evening service? A. Very seldom.

About how long does this service in the morning continue?

. About two hours.

. Have you observed the location and operation of the rail-

road on Sixth Street between Monmouth Street and Brunswick

Streets, Jersey City? A. Yes, sir.

Mr. Wall—Objected to as containing a false assump-

tion of fact; counsel has repeatedly referred to the

railroad as being on Sixth Street; whereas there is no

warrant in the proof as heretofore shown or so far

adduced, or anything stated in the papers or the issues

to uphold such assumption.

Q. What is your answer to the question—have you observed

the operation of the railroad on this street? A. Yes, sir.

Q. State in a general way what you have observed in connec-

tion with the operation of the railroad there; take one element at

a time; what have you observed there in connectiofi with it;

have you ever observed engines standing on the tracks there be-

tween Monmouth and Brunswick? A. Yes, sir; very often.

Q. What have you noticed in connection with those engines?

A. They got the switches right there between Monmouth and

Brunswick; coupling cars and bumping; engines stand there

and puff that smoke sometimes for half an hour steady.

Q. And is there any noise attached to this?

Cat

QO.

JOSEPH MENDRES. 63

A. Yes, they let the steam out; I don’t understand how it is;

there is a white dust comes out with that steam.

Q. My question was, with the puffing of these engines is there

much noise created? A. Yes, sir.

Q. You spoke of steam?

A. Sometimes they let the steam out, and white stuff comes

out with it.

Q. Is there much noise attached to the coming out of the

steam? A. That is worse than the puffing.

Q. You mean by that that the noise is greater?

A. That only lasts for a while though.

Q. I didn’t ask you how long it lasted, I asked you if the noise

so created by the letting out of the steam as you call it, is greater

than the puffing of the smoke? A. Yes, sir, more noise.

Q. What other elements of noise have you noticed, if any, in

addition to the puffing of the smoke and the letting out of the

steam and the bumping of the cars?

A. The most noise is when there is a big train coming and

there are two or three engines attached to it; it is impossible to

hear anything then; that is the biggest noise of anything.

Q. And that noise so far as you are able to describe, or observe

rather, is caused by what?

A. The puffing of the engines when they got a big train there.

Q. And is there any noise attached to the passing of these

trains over the switches? ~. Yes, sir; most—

Q. Is there any noise attached to the passing of these trains

over the switches so far as you personally are able to observe?

A. About the switches, all I know is that they whistle every

time they start up.

Q. And is there any noise attached to the passing of these

cars over the switches?

Mr. Wall—I object; you have already asked’ that,

and in spite of the suggestiveness of the question the

witness has answered that he noticed nothing but the

whistling; I object to any further questioning along

that line.

Q. What quantity, if you can describe it, of smoke have you

seen coming from these engines, much or little?

A. I seen a good deal of it.

Q. Can you describe it in quantity ?

A. Yes, sir; when you step on it you can hear it under your

feet.

Q. Can you describe the quantity, is it very much? A. Yes.

—

COMPLAINANT'S PROOFS.

About how high in the air have you seen it go?

. The smoke?

Yes, we are talking about the smoke?

. I couldn't tell you how high it goes.

Can you tell about how high—three feet or thirty feet?

. More than that sometimes.

More than what? A. More than thirty feet.

More than thirty feet? A. Certainly.

How much more? A. I couldn’t tell you.

Can you give any estimation or idea as to about how high

you have seen the smoke go?

A. My idea is that when it is stronger it goes up higher.

Q. What is the highest you have seen the smoke go so far

as you can intelligently state? A. About 150 feet.

Q. Is there any difference in height when the atmosphere is

heavy and damp from when the atmosphere is light ?

A. On rainy days it is down.

Q. What is the color of this smoke which you have seen

emitted from these engines? A. Black.

Q. This steam which you say you have seen coming from the

engines, is there much of that or little?

A. That only lasts for awhile.

Q. Is there much or little of it? A. Good deal of it.

Q. Have you ever noticed any of this smoke, such as you have

described, coming into the church?

A. Yes, sir; sometimes they got to close the windows on that

side.

Q. You have noticed this smoke coming into the church?

A. Yes, very often.

Q. How often have you noticed this?

A. It comes in—on a clear day it don’t come in so much, but

on a'rainy day it comes in awful; t>ey got to close the windows.

Q. About how often, could you give any fair estimate about

how often you have noticed that ?

A. It comes in on every Sunday, but not as much—

Q. Some Sundays more than others?

A. On rainy days that is the worst.

Q. This steam which you say you have seen let off from the

engines have you ever noticed any of that coming into the church?

A. Yes, it is white cinders from that.

Q. Have you ever noticed any substance in this smoke which

comes into the church? A. Yes,

Q. What? A. Soot,

OHHOOAOAOAS

JOSEPH MENDRES. 65

Q. What is the general character of that dust—what is the

color of it? A. Kind of black.

Q. Are the particles large or small?

A. Mixed; sometimes heavy and sometimes not, according to

how strong the wind is.

Have you noticed much of it coming into the church?

. Yes, especially on rainy days, it comes in heavy.

Whereabouts in the church have you seen these particles?

On the benches.

On the seats where the people sit? A. Yes, sir. 10

And where else, anywhere else?

. I don’t go anywhere else.

That is the only place you have noticed it? A. Yes, sir.

Have you noticed what effect it had on the clothing?

. Yes, sir; lots of ladies make complaint because of their

white dresses, and when they come out they were black.

Q. Have you ever noticed whether it had any effect on your

clothing?

A. I didn’t take notice of my clothing; I brush the soot off

before I sit down. 20

Q. You have a wife a member of the congregation, and chil-

dren? A. Yes.

Q. Have you ever noticed the effect on their clothing?

A. Yes.

Q. What?

A. I take the boy with me, and he has a white suit, and I clean

the bench off, but when he gets through it is all black.

Q. About how long a period of time have you noticed these

particles in the church, for how long a time back?

A. I cannot say; about three years ago it was not so much; it 30

was pretty fair, but now since they started to burn that soft coal;

I think it is something over three years; ever since that strike.

Q. Ever since the coal strike of some few years ago?

A. Yes, sir.

Q. Since that time it has been worse than before? A. Yes.

Q. Have you ever heard these noises which you have described,

in the church while you have been attending service there ?

A. Yes, sir; sometimes Father had to stop the sermon till it

went past. |

Q. How frequently have you observed these noises in the 49

church? A. Every Sunday.

Q. And to such an extent that the Father would have to stop

the service temporarily, how frequently ?

DMOOROOROAS

Q ROM

66 COMPLAINANT'S PROOFS.

A. Very seldom on Sunday that he don’t have to stop.

Q. And by that you mean that it is almost every Sunday?

A. Not quite, sometimes he goes on with it, but you can't

hear it.

Q. When he attempts to go ahead, with the noise existing, you

can’t hear? A. No.

Q. And sometimes he stops? A. Yes.

Q. How long has that continued, about how many years, if it

has continued for any particular length of time—how long have

you noticed that?

A. That is more than three years ago.

Q. More than three years?

A. Yes, there was not so much noise when the wooden trestle

was, but now—I remember when the wooden trestle was there

was only one track then.

Q. And the road now runs on a stone embankment? A. Yes.

Q. When was that put there if you can remember; about

when if you don’t know exactly? A. I didn’t take notice.

Q. But at the time the wooden trestle was there, how many

tracks were there? A. I remember only one.

O. Now, are there more tracks on the stone embankment ?

A. Yes, there are about four or five tracks.

Q. Do you remember or can you give any idea as to when

these switches were put in? A. I couldn't tell you that.

Q. About how long have they been there?

Mr. Wall—I object; he has answered it.

. Have you ever been in the rectory? A. Yes.

. The residence of the Father connected with the church?

~ wee.

. How often? A. Not very often.

. Well, how often? A. Once in a while.

. Have you ever noticed any of this substance such as you

aye testified you saw in the church, in the rectory?

A. I was no further than the hall, that is all.

Have you ever seen this substance such as you have testi-

fied there? A. Yes, I have seen it.

QO, Have you ever been in the school on the corner of Bruns-

wick and Sixth Street? A. Yes.

Q. How frequently have you been in there?

40 4- I have been in there often; the last year not often, but

! -*>re I used to go often.

Q. About how often did you go before that?

A. Once a week or two weeks.

JOSEPH MENDRES. 67

Q. Have you children attending that school? A. No, sir.

Q. What duties called you there?

A. | used to go to meetings there.

Q. Have you ever noticed any of this substance such as you

have testified having seen on the seats of the church in the

school? A. Yes.

Q. Whereabouts? A. Mostly in the seats and on the windows.

Q. When you say seats you refer to the children’s seats ?

A. Yes, sir.

O. Have you ever observed these noises which you have de- 10

scribed while in the rectory?

A. | wasn’t in there long, only a couple of minutes.

Q. Have you ever heard any of these noises such as you have

_ described when you have been in the school? A. Oh, yes.

Q. How frequently have you observed these noises in the

school? A. It was evenings, not as much as in the day.

Q. Were the school exercises going on at the time you were

there? A. No, sir.

Q. They were not? A. No, sir.

Q. To what extent did those noises which you heard while in gg

the school house interfere with the conversation so far as you

personally know? ‘

A. Well, if there was too much noise have to stop for awhile

the meeting; course I didn’t see any harm in that.

CROSS-EXAMINATION, by Mr. WALL:

Q. How old are you? A. Thirty-five.

Q. Thirty-five, and you have been a member, then, for twenty-

four years? A. Twenty-four years.

Q. Has there been a church located there for twenty-four g4

years? A. A wooden church.

QO. Not the same church you have now? A. No, sir.

Q. Was there any noise there twenty-four years ago?

A. There was only one track.

Q. Was there any noise there?

A. There was noise there when the engine was passing.

Q. Did the coal make any cinders in those days?

A. Not as much as now.

Q. I didn’t ask you that? A. Yes, it did.

Q. In other words, the situation to-day is the same as it was, gg

then, except there are more trains and more noise?

A. I think out of one engine now there is more smoke comes

out now than out of four or five then.

68 COMPLAINANT'S PROOFS.

Q. But you have not made any investigation to find that out,

that is just your view? A. I lived on Sixth Street—

Q. You didn’t answer my question, have you made any inves-

tigation to find that out? A. I seen it enough.

Q. Now, tell us what investigation you made to determine that

there are four times as much smoke coming from an engine now

as in 1887?

A. All I can sayis what I seen. What I see now is something

awful and before that you couldn’t see that smoke.

Q. That is all the investigation you have made? A. That is

all I can say. :

Q. Then you never made any investigation at all?

A. Just by looking at it.

Q. I ask you if you did or not, can’t you tell us?

A. I couldn't say no more than what I can see.

Q. And you didn’t use to make any special investigations in

1887, did you? A. No, sir.

Q. You didn’t pay much attention to the smoke then, or the

noise either, at that age? A. Yes, we paid attention.

You did? A. Yes, I did.

‘How old were you in 1887? A. Eleven years old.

You were eleven years old? A. Yes, sir.

Quite an expert in noise and smoke at eleven years old?

. We lived around on the corner; I seen it.

Make any investigations along other railroads? A. No.

. You never went to any other railroad and compared the

aneke and noise made on that railroad with, the smoke and noise

made here? A. No, sir; I never lived any other place.

Q. You don’t know how much noise is necessary in order to

run a railroad? A. No, sir, I don't.

Q. You don’t know how much smoke is necessary to make in

the burning of coal, do you? A. No, sir.

Q. You don’t know anything about firing an engine? A. No.

Q. You don’t know how it ought to be done or anything about

it? A. No, sir.

Q. Now, then, didn’t you make a little slip when you said you

had observed the operation of the railroad on Sixth Street, did

you mean that? A. Yes, sir.

Is there any street there on Sixth Street? A. Yes.

Where people walk on? A. Yes.

How wide is that street?

. Regular width, same as other streets.

Any engines run right on that street?

=e SOCCS

OAOOO

JOSEPH MENDRES. 69

A. Yes, sir, right alongside of it.

Q. You don’t mean that they run in the street? A. No.

Q. And you don’t mean that they run on top of the street?

A. No, sir. .

Q. You mean they run alongside the street, that is right or not,

yesorno? A. They run on Sixth.

Q. Is it right or not? A. I don’t know.

Q. Can you say?

A. In one way they run on Sixth Street, as it is called, Sixth

Street; they don’t run in the street, but they call that Sixth

Street.

Q. There is no railroad in the street? A. There can’t be.

Q. Is there, not can there be, is there, yes or no?

A. If I live on the same street.

Q. Don’t tell me anything else, yes or no? A. No.

Q. Now, then, you say that the smoke you have seen came up

high—now that is just the same as the cigarette here that the

Father is smoking in the room the smoke goes up high and

straight, and up in the air it blows off sidewise, isn’t that the

whole story ?

A. Sometimes it goes very high, and on rainy days it comes

down low.

Q. You never measured it, of course? A. No.

Q. And that smoke that goes up high does not bother the

church, does it.

A. Generally on a fair day it goes up high, don’t bother so

much, but on rainy days—

Q. I asked you whether the smoke that goes up high bothers

the church much, yes or no? A. Yes.

Q. It bothers it a lot? A. Yes.

Q. The smoke that goes up high? A. Yes.

Q. Just tell us how that bothers the church?

Q. The cinders that go up with that smoke come down again,

and if the wind is blowing toward the church—

Q. The smoke that goes up high doesn’t bother the church

unless the wind is blowing toward the church?

A. | don’t know; no matter whether there is wind you always

catch the dust there.

Q. You don’t say that the cinders come against the wind, do

you? A. I don’t know.

Q. That is your answer? A. I do know.

Q. You say yesorno? A. Yes.

Q. They go against the wind? A. Yes, sir.

70 COMPLAINANT'S PROOFS.

Q. When you are working with your ivory tools, to get a

shaving off the point of the tool you blow it, don’t you some-

times? A. Yes.

Q. And do those pieces that you blow off fly back and hit you

in the face? A. No, sir.

- Q. Explain why the wind that blows that smoke does not act

the same with regard to the cinders in the smoke, that your

breath does when yeu blow on the ivory shavings at your work?

A. I only know that much, that when I was a boy I used to

clean the church, and whether the wind was blowing this way or

that way we used to sweep the cinders every time.

Q. What does that mean?

A. It means whether it is clear day or rainy day some comes

in—not as much of course.

Q. I want you to tell me everything you know to show that

those cinders come in the windows of the church when the wind

is blowing against the cinders, in the opposite direction from the

church, toward the railroad—tell me how you know they come

into the church.

A. I don't know, but you can find them there—unless the wind

blows them up from the ground, those what fell before.

Q. Now do you believe that the cinders will go against the

wind and go in through the windows of the church against the

wind, do you believe that? A. I don’t say—

Q. Do you believe that? A. No.

Q. You don't believe any such nonsense as that, do you?

A. No.

Q. Now, how do they do in the church when the wind is

from the railroad and the weather is rainy, they shut the win-

dows, don’t they ?

A. They got to shut some, but they can’t shut all because it

would be too warm.

Q. Are they all on the side next to the railroad? A. No.

.Q. Are there some windows on the side away from the rail-

road? 1. Yes, sir.

Q. If they leave those open cinders don’t come in?

A. Yes, but the air don’t blow through.

Q. Do they shut the windows or not when the cinders are

_ coming in?

A. They leave two or three open, half way, on a rainy day.

Q. On each side? A. On the railroad side.

Q. Do you know anything about the way the church is built,

is there any ventilating system in the church?

JOSEPH MENDRES.

. I lived there all the way through they were building.

Is there any ventilating system in the church?

. I don’t think so. Windows.

No ventilating system in the church?

. Not as far as I know.

Now, when was the coal strike ?

I couldn't tell you, something around three years.

Did you ever examine the coal that the railroad used since

the coal strike? A. Yes, sir.

. Tell us when you examined it? 4. I looked on it.

. Where did you look on it? A. From the engine.

. Flow far from the engine? A. On the engine.

. You got on the engine and looked on it? A. Yes, sir.

. When did you do that?

A, On Sixth street down by the gas house.

. When? A. A couple of months ago; we were going down

fishing and we looked at it.

OaAOAOCAOA

Q. How did you do it, you got up on the engine?

A. Yes, I knew the engineer.

Q. You got up on the engine and looked at the coal? A. Yes. 90

Q. You didn’t know anything about coal ?

A. I knew the difference between soft and hard coal.

Q. That is all you know about coal?

A. That is all I want to know about coal ?

A. That is all I want to know, I think.

-Q. And when before that did you ever investigate the kind of

coal the railroad was using?

A. 1 never investigated it; but I know what is hard and

soft coal; all | know is before they used to burn hard coal.

Q. How do you know that?

A. | know it because I used to—

. Hlow do you know? 4A. I seen it.

. Where? A. On the railroad.

. On the railroad? A. On the engines.

QO. When was that? A. A good many years ago.

. What year? A. Since my father used to work there, fif-

teen years ago. ;

. Now tell us what investigations you made at that time?

. Just looked on it.

. Where were you when you looked on it?

. In the Pennsylvania yard.

. Where? A. Near the depot.

. Whereabouts? A. The old depot, you know.

COMPLAINANT'S PROOFS.

Where was the depot? A. Foot of the ferry.

Down at the ferry? A. Yes.

Tell us what you saw? A. Saw hard coal on the engine.

Hard coal on the engine? A. Yes.

Where was that engine?

. In the yard there; there was enough of them there.

You examined mre than one engine?

. | seen more than one.

Now look here, tell us what you did?

I looked on the coal; I know what is hard and soft coal.

Where were you when you got up on the engine?

. No, I didn’t get up.

Tell us about it? A. I seen it.

Where were you?

. We used to go up there to take my father’s dinner; right

in the Pennsylvania yard there,

. You didn’t get up on the engines did you?

. No, not fifteen years ago.

. You didn’t look ‘at the tenders, did you? A. No, sir.

QO. Where was this hard coal you saw ?

. On the engine, back of the engine, where they fire it up.

O. You swear that, do you? A. Yes.

. Now, tell us where the engine was ?

. In the yard; the Pennsylvania yard.

. Did you see more than one engine?

. More than one, certainly.

. You don’t know what those engines were, do you; whether

they were passenger or freight engines? A. Freight.

QY. Do you know where those engines were running; whether

they were through freights or local freights?

A. Couldn't tell you.

Q. Do you know whether they were doing switching work

about the yard? A. Some of them were switching.

Q. You don’t know what they were for? A. No, sir.

QO. You didn’t get up on any of them? A. No, sir.

Q. As you passed you saw some coal which you thought was

hard coal? A. Yes.

Q. That is the whole of it? A. Yes.

QO. Well, then, you idea is that they started about fifteen years

ago to burn soft coal?

A. Oh, no, I didn’t say that; I said I seen hard cual there at

that time; I didn’t say they started then.

J. Then, your idea is that they never burned any soft coal

until about three years ago?

ROESAOAGASASOSOOS

JOSEPH MENDRES. 73

A. | don’t remember that, but I know that they burned hard

coal before the strike.

Q. That was fifteen years ago?

A. No, it is only about three years or something.

Q. Can you say yes or no to the question of whether they

burned soft coal before the strike? A. They burned hard coal

Q. They burned only hard coal before the strike, is that right ?

A. | couldn’t tell you just only—all I seen was hard coal.

Q. Lam trying to get out of you just what you mean about this

hard coal business; I ask you this question—did the engines that

passed the church burn hard coal or soft coal in 1887?

A. That I could not tell you.

Q. Tell us about ’88?

A. I couldn't tell you just about that; I can tell about fifteen

years ago.

Q. Tell us about 89? A. Don’t know.

Q. go? A. | didn’t take notice that time.

Q. Do you know about any year?

A. That is about fourteen or fifteen years ago we used to go

there.

Q. You don’t know what the engines burned that passed your

church fourteen or fifteen years ago? A. No, sir.

Q. Do you know whether the engines burned hard coal that

passed your church any time since 1887?

A. As far as I seen they burned hard coal.

Q. When? A. When the wooden trestle was there I re-

member there was hard coal.

Q. Nothing but hard coal ?

A. 1 don’t say nothing, but we saw engines with hard coal.

Q. You didn’t see them on the trestle, you saw them in the

yard? A. JT don’t know.

QO. Do you know whether you saw any engines on the trestle

with hard coal? A. I don’t know.

Q. You don’t know?

A. Oh, yes, I did; see trains of cars there; hard coal.

QO. Trains hauling hard coal? A. Yes.

Q. You don’t mean to say that at any time since 1887 the

engines that passed the church burned hard coal to run those

engines, do you?

A. I don’t know if they all burned hard coal that time; but I

remember well before that strike they burned hard coal; every

engine I saw had hard coal.

Q. The engines in the yard or on the trestle.

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