# Transcript of Record — St. Anthony Church v. PENNA. RR > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_0561%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1915 - **Citation:** 237 U.S. 575 ## Text (23,890) 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 EP re er er er Pee rae ee a PCE TE ET CTTTT TCC CT EE EC ee er ee re ae a OPE ETN TT CETTE ETT TIT Cee rT re eo rey rere 1 Pn. siesou neovadeseetrepre nee pod ap eeawtaraienebeeseageveea 7 I: ss, nr nv eens hagas ov ht der ead pe od aN e5oe.geeea eds bE owas 13 i ME Sas wu'ocinverdeasneesheved ere areenwenebenen? 14 Destiongny of Biamislaes Martegky onc ooccccccvcnveccvcvecnon 15 SE Ee SOE “ca dviwcrsindvensseeestoesone 25 Er ED ain 5c Di Wows ant pode ke chkdadesanve 35 Ce SNES in nb 70 s-ts ddeu veo eneteaewnee 49 SE IE Sorin esexckecke vce cutbore 55 ES SI ob a 0s caduceeexe Rasp ehaveries 62 DE D5. Fed po newer sc cenwi event eh ken 80 NE Fc won 10.4005 4 056508 poked 84 OPER Terr rrr erry Serer 89 PUD THNER. ciebdoabhictcncunvusondraaebans haus v6 Ae PP ry ee ree ee ree ee re 108 Wov. Betosiaw Rwiktowaed. oie osc cccccessvasccs 114 SE - v.02 00 bh 53.045 s 5500005 s0s dN oO 130 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 Ss Teel weds shy ep iwa bakes ebb s.cle bb ede 163 ee a Wey. SUE? coca cr crcebersocressede 171 Sister Mary Hortulana .....................00- 182 Se a ak nb wuss 4.65) seek > eh ewe ects eames 186 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 ey ae CID oka occ cectvocccsavvcrsdecine Ai i, So x ae xd ce bib ans ob bs > 271 TE ho al ols oes howe nk ee Ob See 276 NS, es ake SB fo cala ni we k oa POALE 277 Pt PE Os ogc 52.esb 60 ee pee beara esewee 278 iC.) aba hy band sede sebbd bn be pe eae 279 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 ee ee ee ee ee ee ee ee ee ae ee ee er MEE ii bec eb cceh sense oe Teies isd dodo eho sober es ceunene Bond on appeal Citation Citation and service | ee ee ee ee ee ne MCN, Vea bbe yo bekn sevice Se Tere eewee cheeesuves ae yi ee ee ae wee BE Pellets OO MER mek ce 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 10 30 40 10 20 30 40 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 register of said county of Hudson. The said lots are each 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 10 20 3) 40 10 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 20 30 40 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 10 20 30 40 10 20 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, 10 20 30 40 8 ANSWER. te 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 10 20 30 40 30 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. 20 30 40 10 20 30 40 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. 16 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. Q A Q you 20 4 Q 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? A . I could not just say how many; in the month of May wa have services every night; September we have service every nigh t. 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 10 30 40 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 10 20 30 40 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 a 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. 10 20 30 40 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 10 40 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. 10 OAS AGAOAS 30 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. A. 0. A. 0. A. 0. 10 20 30 40 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. Q . 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? 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. 10 20 30 40 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. 10 20 30 40 10 20 30 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? 40 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? oe ~. 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. _ o COMPLAINANT'S PROOFS. N 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. 40 74 COMPLAINANT'S PROOFS. A. No matter where I seen them. Q. You want to swear that before three years ago the engines that passed the church burned hard coal, do you want to swear that? A. I can swear all I seen. Q. Is it true or not? A. Yes, sir. Q. Now what year did they burn hard coal? A. I don’t know just what year, but it was before the strike; after the strike they had the soft coal. Then the church was not bothered before three years ago? . Not as much as now; it was bothered. Were they bothered by the hard coal, too? . Nobody didn’t say nothing; I don’t know nothing about it. . Can’t you tell me whether they were bothered when the bard coal was being burned? A. Not as much. Were they bothered at all? A. Yes. You can't say when the hard coal was being burned? > Yes. What year? . Before the strike, between three and four years ago. Now, then, they were not bothered much just before three years ago? A. They were bothered a little, but not as much as now. Q. I didn’t ask you as much, I asked you were they bothered much three years ago? A. Yes. Q. Then it don’t make much difference whether it was hard coal or soft coal, you have always been bothered a good deal? A. Big difference; big difference. 10 nhehatans OaAOAOH 20 Q. Have you always been bothered a good deal ? A. Not a good deal before; I never cared; never took notice. 30 0 ©Q. Until when? 4. Until after that strike. OQ. You never bothered about it until three years ago at all? A. No, sir. Q. You never paid any attention to the railroad or thought much about it until three years ago? A. No, sir; of course, there was not as many rails there then. Q. I am not asking you that; tell me what | ask you. Well, didn’t it make just as much noise in those days? A. No, sir. Q. So the whole trouble has come for the last three years, that right ? 40 A. Well, about the noise, I can only explain to you there are so many rails, so many trains now, there is more and more all the time. Q. How many tracks were there three years ago? JOSEPH MENDRES. 75 A. I couldn't tell you. Q. What right have you to be testifying to these things if you don’t know what you are talking about—you understand the nature of an oath? A. Yes, sir. Q. Do you understand that you are sworn to tell the truth here? A. Yes, sir. Q. And you say there is more noise now because there are more tracks, and you don’t know how many tracks there were three years ago? A. I know it wasn't so wide. Q. Who asked you to come here and testify? The priest? A. Yes, I belong to the parish and am paying in the church, and my money is there the same as everybody else’s. Q. Do you have any office in the church? A. No, sir. Q. What do you mean by saying your money is in there? A. | ath paying for the church, and we had to paint it again; it was too dirty on account of the smoke; so when I heard this was going on I went over there and said I would come down. Q. Does the father ask you for money to paint the church with especially? A. No, sir. Q. But the people in the church have to pay to keep the church up? A. Certainly. 2 Q. And if the church has to be painted you and the other mem- bers of it have to foot the bill? A. Nobody else to do it but the people. Q. Why can’t you say yes? A. Yes. Q. Let us get this straight now. You never were bothered with the noises until three years ago? . I was bothered, but didn’t care for it. Didn’t make much difference? A. No. The noise doesn’t amount to much to you, does it? . I don’t care about noise, only the dirt. The only thing you think is the trouble is the dirt? . Of course, the noise, too; when you go to church you can’t hear the sermon. Q. The important thing to you is the dirt? A. Yes. QO. And the dirt is important because you think it costs more to run the church? A. Yes, it certainly does. Q. That is the whole story? A. That is right. Q. And you don’t know what kind of coal they used before three years ago? A. Before that strike, all I know is before that strike thev used to use hard coal. Q. You don’t mean to say that they used hard coal altogether ? mOROOA 10 20 30 40 10 20 30 40 76 COMPLAINANT’S PROOFS. A. Much as I seen. Q. Do you mean to swear that they didn’t use anything but hard coal up to three years ago? A. 1 am telling the truth, all I seen was hard coal. Q. Then you did mean to swear that you never saw any coal used there before three years ago except hard coal—that is what you come to now? A. I couldn’t— Q. Can’t you say, yes or no? A. | couldn’t swear to that. QO. Well, what can you swear to about hard coal up to three years ago? A. I seen it used. Q. Did you say they used it for fifteen minutes, or hours or days or what? A. Couple of years as far as I remember. You say for a couple of years they used hard coal? . I don’t know how many years; couldn’t tell. Do you know anything about it? . Yes, they did use it. You can’t tell us when? A. Before the strike. . Yes, but a great deal went on in this world before the strilee, you can’t fix nie year before the strike? A. Yes. Q. What year? A. The year before the strike. Q. Then you say x year before the strike they used hard coal? A. Yes, sir. Q. Did they use hard coal on the part of the railroad in irons of the church? A. Yes. Q. Did they use hard coal on all the engines passing that part of the railroad? A. As much as I seen, all I seen was hard coal. Q. How much did you see? A. I used to live on the corner. Q. But you said you didn’t pay any attention until three years ago? A. Did I say I didn’t pay any attention ? Q. Yes, so this hard coal that you saw on the engines was during the years that you were paying no attention. A. I paid that much attention to look on the coal. Q. I am asking you whether it was so or not? A. Have to look on it to see it. Q. Can you answer that yes or no? A. Yes. Q. Do you want to change your answer when you said you didn’t pay much attention until three years ago? A. I paid that much attention that I seen hard coal. Q. And how’ much attention did you pay—how many engines did you say had hard coal on them? A. That I couldn’t say. Q. You don’t know whether it was on all the engines or on one engine? A. All I seen, all that passed there. POO ROAO JOSEPH MENDRES. 77 Q. All that passed there? A. All I seen; sometimes Sundays I would sit by the window and I would see them pass. Q. And you watched every engine? A. I couldn’t say every engine. Q. And yet this was during the time that you were not inter- ested in the matter because you were not paying much attention, was it? A. I didn’t have any business to. Q. You were not paying any attention? A. No. Q. And you didn’t pay any attention whether they were using hard coal during that period or not, did you or not? A. Yes. Q. So while you were not paying any attention you were very carefully watching to see whether they used hard coal, is that right? A. Yes. Q. That is right? 4. Yes. Q. What was it that interested you so much in finding out whether they were using hard coal during this time when you were not interested in any of the troubles that came from the thing? Mr. Hardenbrook—Objected to, that it is not in con- formity with the witness’ previous answers, and that he has not testified that he paid no attention at any time. Q. Answer? A. I always lived on Sixth Street; when soft coal was burned we got the smoke and we moved away from the corner. . When did they start to burn it? A. After the strike. . And they never burned any soft coal before that ? . Not as far as I know. . And you never paid any attention? . I didn’t have any business to pay any attention. . There was nothing to draw your attention to it? 4. Just as much as that I knew they burned hard coal. . But you didn’t know it from having your attention drawn or watching it? A. No. Q. How long ago was that wooden trestle there? A. That I couldn’t tell. Q. You don’t know how long the embankment has been there ; that stone embankment? A. What stone? Q. Isn't it stone? You don’t know how long it has been there? 49 A. I remember when they built it, but I don’t know how many years. 20 30 40 78 COMPLAINANT'S PROOFS. RE-DIRECT EXAMINATION, by Mr. HarpENBROOK : Q. About how often did you take your father’s dinner to him at the Pennsylvania yard? A. When I was not working I took it every day. Q. For about how long a time? A. About two months. Q. Two months? A. Two or three months. Q. Was your father, at that time, employed by the Pennsyl- vania Railroad Company? A. Yes, sir. Q. In what capacity? A. In the yard. Q. One of the men in the yard? A. Yes, sir. Q. What work was he doing there? A. He was one of the galvanizers. Q. When you speak in reference to the time when you noticed that there was a difference in the kind of coal used, and the change made from hard coal to soft coal, you fix that time as the time of what they called the strike? A. Yes. Mr. Wall—Objected to, not proper re-direct and leading. (. What strike do you refer to? A. All I know, the coal strike. QO. And when you say that you noticed this change three years ago in the kind of coal used, you don’t mean to state that it was three years ago, but you mean to fix the time as previous and subsequent to the coal strike, irrespective of the question as to whether the coal strike was three years ago or more? Mr. Wall—Objected to on the ground that the ques- tion is outrageously leading, and that the answer of the witness will be absolutely without probative force because the whole answer has been suggested by counsel. O. What is your answer? A. | said I don’t remember just exactly; something around there. O. When you fix the time when the change was made in the kind and character of the coal, you wish to fix that time as the time of the coal strike, do you? Mr. Wall—Same objection as before to its leading and improper quality. ‘. Yes. Q. And you wish to confine the time to the time of the coal strike ? Mr. Wall—Same objection. Yes. JOSEPH MENDRES. 79 O. And when you say three years ago, you mean to state a :-d of time which dates from the coal strike, do you? Mr. Wall—Same objection. ¥en, ate. Q. Now do you know about when that coal strike was? A. I don’t know; it seems to me something around there. Q. 1 ask you to put your memory on it and see if you can give any idea as to about when that coal strike was? A. I couldn’t just tell you now. Q. Is it as much as three years ago? A. I guess so. Q. You cannot fix the time? A. No. Q. Describe the difference in the appearance between hard coal and soft coal, as you understand it? Mr. Wall—Objected to on the ground that this wit- ness has not been qualified as an expert in coal and has given evidence that he has not the requisite knowledge to testify to any more than any one knows by observa- tion. QO. The question is—pay attention to me; describe the differ- ence in appearance between hard coal and soft coal as you under- stand it? Mr. Wall—Same objection. A. It is a difference in hard coal QO. The difference in looks as you understand it? A. I understand, certainly I do. Q. Go on, answer the question ? A. Soft coal is soft, soft; when you throw it down it falls into pieces; hard coal, it is pretty hard to break it. O. You thave described the difference in the hardness of the coal; can you describe the difference in the appearance in the looks of it? Mr. Wall—Same objection. A. Yes, sir; that is more black, and this is hard, shiny like, more glassy. O. Which is the more glassy of the two? A. Hard coal. RE-CROSS-EXAMINATION, by Mr. WALL: Q. Your lawyers asked you, the lawyer for the church asked you some question that had the word irrespective in it; he just asked you a question that had the word irrespective in it, you don’t know what the word irrespective means, do you? A. Yes, sir, not to tell any different tales. Q. I asked you if you know what it means? A. Yes, I know. 10 20 30 40 high. Yd. A. three QV. Q. last fi A. Yd. big cr 0. d. QO. A. what 0. O \ ANN \ MENDRES ille i 1 witre for the plaintiff. bei COMPLAINANT'S PROOFS. What does it mean? A. To tell it straight and no tales. That is what you understand the word irrespective to mean? Yes. To tell the truth? A. Yes. Now you say the coal strike, what coal strike do you mean? That was the big coal strike where the coal went up so The big coal strike, how long ago was it? That is what I said; | am thinking it is something like years ago. Was it nine years ago? A. I don't know Do you say it is the biggest coal strike we have had in the ifteen years, that right? It is not as far as that I don’t mean it was as far back as that—you say it was the oal strike? A. Yes Biggest one had since when?’ 4. Since I remember Since you remember? 4. Yes The biggest one we ever had in your time Yes. I don’t know whether it is the biggest or not. but I took an interest in It was the time when coal went up to S12 a ton Something like that About $12 a ton to people in dwelling houses? A. Yes dule sworn according t law testifie pppRECT EXAMINATION, by Mr. Haxpen Brook O You are the vite , thy ast , ‘ Vi, And () ANNA MENDRES. 81 Q. The month of May is a month which is devoted to services of a certain character, more than any other month? A. Yes, sir, every night. Q. And not confining your answer to last May, how fre- quently do you attend evening service there? A. Every Sunday before I was married I attended every Sun- day, but since I was married I have not had as much time. Q. How long since you were married? A. Nine years. Q. Where do you live? A. On Sixth Street. QO. Whereabouts? A. 218, between Grove and Erie. Q. Is that the block immediately to the east of the block bounded by Monmouth and Brunswick ? A. That is two block below I think; two or three. Q. Have you ever observed the operation of the Pennsyl- vania Railroad immediately opposite the Parish house and school house of the plaintiff in this action? A. Yes. QO. Now, take up the different elements one by one, don’t mix them up altogether; what have you noticed in connection with the operation of that railroad on that block or between the blocks ? A. | noticed that they have a good deal of going back and forth in that place which causes a lot of disturbance during church services. OQ. What disturbance ? A. Such as puffing of steam, and the engines get together, or the cars coupling as they call it. QO. Coupling? A. Yes. The noise it makes you would just imagine the train was coming off the track. O. Now, what else have you noticed, anything else in addition to the puffing of steam and noise of the coupling of the cars? A. Well, when they stand there and the letting out of steam makes a great amount of noise; also the smoke comes out in a rush; that makes a lot of noise. O. Have you frequently observed this puffing of steam? A. As often as I have been up there. O. How frequently is that ? A. When I go to church Sundays, and sometimes during the week, but not as often as Sundays. O. You frequently attend service during the week days? A. Yes, sir. Q. About how often? A. When there is occasion for a holiday; that may be twice a month, or once a month. II ROM 10 20 30 40 82 COMPLAINANT'S PROOFS. Q. Have you noticed anything else in the way of noise in addi- tion to this puffing of steam, blowing off of smoke and coming of the cars together? A. No. Q. Those the only noises which you have noticed ? A. That is all. Q. When you were attending service at church have you ever noticed those noises in the church. A. Yes, sir. Very much. QO. To what extent? A. When there is a sermon you can hear the preacher's voice, 10 but you cannot distinguish the words for the few minutes the noise would be going on. Q. Have you ever noticed whether the Father has had occa- sion to suspend during these noises ? A. Oh, yes, he had to stop for a few minutes. Q. How frequently have you noticed that ? A. Almost every time I have been to church. : Q. Now, this smoke which you say you have seen coming from the engines, what is the kind, color and character of it so far as your personal observation goes? 20 ~=3=— A: It is black smoke, and it carries with it cinders and also a sort of a substance like grease. Q. Is there much, the quantity which you have seen coming from these engines ? A. Yes, quite a good deal. Q. About how high would it be? A. That I couldn’t say, for I have never noticed how high, but I have seen it coming through the windows. Q. You can’t tell how high? A. 1 couldn't definitely say; I have seen it go up high, but I 30 didn’t stop to notice how high. Q. Have you ever noticed any of this smoke coming into the church? A. Yes, sir. Through the open windows of the church? A. Yes. How frequently have you noticed that ? . Mostly during the summer months. How frequently? A. As often as I have been there. What quantities, if you can give any definite idea? . I couldn’t say; it was like a large volume of smoke would come right through the window and across to the other side of 40 the church. - Q. Have you noticed whether this smoke carries any sub- stance? 4. This cinders and greasy substance. Q. Have you ever noticed those cinders and greasy substance being deposited in any portion of the church? LOSASS . ANNA MENDRES. 83 . Yes, on the seats, sills. . How frequently have you observed that? . As often as I have been in there and the windows open. . Have you noticed what effect that has on your clothing ? . Yes, you have got to lift your clothes and shake it off, and if the grease comes and you try to brush it off it smears all over the clothes. Q. Have you children that attend service there ? A. No, they do not; they are too small. Q. Have you noticed the effect this smoke had on the clothes of any members of the congregation ? A. No, sir, I didn’t notice. Q. This steam, which you say you have seen emitted from the engines, have you ever noticed any quantities of that ? A. No, only I could see large white cloud. Q. Have you seen that coming into the church? A. Yes, sir. Q. And is there any odor attached to this steam, any smell perceptible ? A. 1 wouldn't say as to the steam, but the smoke, there ts kind of a dark thick smell; when it comes in it kind of smothers you. Q. Have you ever been in the rectory where the priest resides? 4. Yes, three or four times. . Have you ever noticed this substance while in the rectory? A. Yes, in the rooms I was in, hall and side room. . Have you ever been in the school building? A. Yes, sir. . How frequently ? . Very often. I couldn't say how many. QO. Once a month? A. More than once a month; when they had the fair there I was there every day for two [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_0561%3A1. Public record. Not legal advice.