Transcript of Record — Powers-Kennedy Co. v. Concrete Co.

Supreme Court brief1930

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TRANSCRIPT OF RECORD

Supreme Court of the United States

OCTOBER TERM, 1993.7 /77 2

No. 501 ,+ i |

POWERS-KENNEDY CONTRACTING CORPORATION

AND ANTHONY G,. FLECK, PETITIONERS,

vs.

CONCRETE MINING AND CONVEYING COMPANY

ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT

COURT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR CERTIORARI FILED OCTOBER 15, 1928

CERTIORARI GRANTED DECEMBER 10, 1928

(33,810)

BONE FE TE ELLIOT TIE OE ORME FOE OME LN

Hi 4

(33,810)

SUPREME COURT OF THE UNITEDSTATES

OCTOBER TERM, 1928

’ No. 501

POWERS-KENNEDY CONTRACTING CORPORATION

AND ANTHONY G. FLECK, PETITIONERS,

US.

CONCRETE MIX!NG AND CONVEYING COMPANY

ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT

COURT OF APPEALS FOR THE SECOND CIRCUIT

INDEX

Original Print

Record from the district court of the United States, South-

GO Fe PN A hind. a 0 b'bh'e0'o000hbuee 60ebawenieeeencclcs 1 1

See We IIIs 0. 60:00 54006 ¢005s000dsbubedeseceeebsne 1 1

GE wid oes abutGbaads oo du 6 sededd ed bidvueewe hecckex 5 3

Order amending auswer.............cccccccccccccecce 13 S

SEI UII: Cin ubulceewns cance éknoueddese ca 15 10

Plaintiff's interrogatories..............cccccccccccccee 16 10

MmwoerS 00 Taterrematories. oc ccccccccccccecccwceeecce 29 20

SED GE GUND: 0 cb sacckecedesesvccéecesesecckece 31 21

Appearances of counsel. ......cccccccccccccccceccs 31 21

LIE IG Sac dugout. Nee Oot 2 32 pi 4 |

Testimony of Anthony G. Fleck.................0. 32 22

OBOTS 1 OVIMOM, 0 cr sscesscvssesescesccegecess 40 27

Testimony of William Artingstall.................. 46 32

i Oe 141 103

Se Wy I eens cddsc dks caer 153 112

William H. Larkin, Jr......ccccccss 18S 140

Jupp & DetweiLer (INC.), PRINTERS, WASHINGTON, D. C., JANUARY ZS, 1929

“e.

INDEX.

Original Print

Testimony of Jolin Erieson. oo... Rises eee aa 107 1s

ATETOE SN 6 ede shen eh 00 eweeas woo mies

a wertre rT en een ls

Perea ee eT eae ve oki ede va eeeeeess sis ISS

PCG {Ser SMT E vc Ries awe Cen cates aver lhe

John KErieson Creealled)....... cece 208 17

William Artingstall Crecalled)....... aE) 1K)

John TS Panning Creenllod).......... 261 1)

Pe ee ae re Ae Zu)

OE Bas ORs os eG Oe 00 us 0a ous iD 20)

RO Bi POEs ecensccekee ree idauees Blo ER

John Kennedy Creenlled)............ O16 42

Frank I. Dyer (reealled)..........6. O17 2-433

ee ol ore

PPDUOTHCE SONY ces wenn kicteecs Vedeee ks bs 4 354 aS |

H. B. Kirkland (recalled). .......... 86u 276

Stipulation re testimony of Wim. TR Larkin........ Bag 276

Testimony of Alan M. Jolson. ........ccce cece ee 3} 277

Testimony of John I. Fitzwerald....... cece cceeees HOG 279

Plaintift’s Exhibit 1—Stipulation providing for un-

certified copies of the patent in suit and other

patents and also for the use of copies from the

Ulen sult without certification... .ccccecccccecs 370 281

Plaintitt's Exhibit 2—Patent in suit, No. 1,127,660, . 3t2 285

Plaintit’s Exhibit $—Enlarged drawing of the cut

referred to on page 901 of the Compressed Air

ee heer Rens errr ee ere ‘ 3S1 292

Plaintiffs Mxhibit 4—Blueprint, marked DP. N, 40,

CO GOVINO sa ce ieedivieaescuaes $Uaee sensors cen osZ ph}

Plaintif’s Exhibit 5—DBlueprint, the asse aie dean:

Me Siwaaveveeiesseceens eee eee Cee eens se ex 3S3 294

Plaintif!s Exhibit I —-Specifications of transit

COMMISSION .cscseess ices PERRET KR ON eN Gea ost 205

Defendants’ Exhibit B—Book of prior patents:

Ee Neal 44 ceed eReE EERE eee eRe OST 207

Ra Ms ke cae eee ee en ees Tec e ree 3sd a)

po Ae | a ree Perry veer BVO bd

408,201, Wafllace..... Nias Sulewee ee eae Pe ee 309 309

SE, UN is cccaveuedueenecesceraces a $12 °

Sire: CORUM 6 cn cd eaeed ce yicd odaweewianiees 40S 31S

VOT Ga ss, PEC RAN To nds eed cease vers here renee 4155 on

Opinion, FIAUG, Ove cicdcaves Sats ce ARR CERES CEDIA SS 417 320

PROP COC ORE T COCNO ss rec oav 604 16 e AOE A TE Creede ‘ 419 %238

rst FO CIOCIUNRy CIE 6 ise Keil k Ue aRHEL CERO ee FER 422 330

PING) GOCTCCs co eccecce Cr TK SAT EEDT CORO Oe 84 TESORO TRS 42 332

Petition for appeal and order allowing same....... ooo 20 nae

PRETEE CTT ON nid 5h OOS Ore Ree eee 127 eb

Citation and service. .........% (omitted in printing). ho

Stipulation re transcript of record.......... Pane a in 136 ond

IN DEX,

(Order ms to reecord,,

Priecipe: for transeript of record

Stipulation re certain exhibits. et

Stipulation re record...

Clerk's certificate ‘

Proceedings: in the United States cireuts

second cireult,.

Opinion, Swan, J

POCTOG cccoes ,

Clerk’s cert ieate

Order allowing certiorart

Certnittesyl

‘eure

perdtatinage

Original

lil

I’rint

ving

one

™*

[fol. 1]

IN UNITED STATES DISTRICT COURT, SOUTHERN

DISTRICT GF NEW YORK

In Equity

Concrete Mixine anv Conveyixnc Company, Plaintiff,

Vs.

Powers-Kennepy Contracting Coxrporation and Antruony

G. Freck, Defendants

Bitt or COMPLAINT

Plaintiff, for complaint against defendant, alleges as

follows :

{1) Plaintiff, Concrete Mixing and Conveying Company,

is a corporation organized and existing under and by virtue

of the laws of the State of Ilinois, having its principal place

of business at Chicago, in the County of Cook and State of

Illinois. Defendant, Powers-Kennedy Contracting Corpora

tion, is a corporation organized and existing under and by

virtue of the laws of the State of New York, having its

principal place of business at 149 Broadway, New York

City, in the State of New York, and defendant, Anthony

G. Fleck, is a citizen of the State of New York and has a

regular and established place of business in the Borough

of Manhattan, within the Southern District of New York,

[fol.2] within which district both defendants have com-

mitted acts of infringement of plaintiff's patent, of which

complaint is made herein. ,

(2) John H. MeMichael being, prior to January 14, 1907,

the original, first and sole inventor of certain new and

useful improvements in method of and apparatus for trans-

porting and treating concrete, lawfully filed and prosecuted

an application for United States Letters Patent therefor,

and having complied in all respects with the statutes,

United States Patent No. 1, 127,660 was lawfully granted

and issued pursuant to said application to the plaintiff on

February 9, 1915.

1—901

RY ES ac RE a ets a EA TL a ‘ . 2. sce

Said invention was new and useful, not known or used

by others in this country before his invention thereof, not

patented or described in any printed publication anywhere

before his invention or more than two years prior to said

application for United States Patent therefor, not in public

use or on sale in the United States for more than two years

prior to said application for United States Letters Patent

therefor, not patensed in any foreign country by him or

his legal representatives on an application filed more than

one year before his said application for United States Let-

ters Patent, and not abandoned. Said United States Let-

ters Patent No. 1,127,660 is. now in full force and is hereby

proffered and ready to be produced before the Court.

(3) The invention patented in the aforesaid patent No.

1,127,660 is of great utility and has been introduced into

public use by the plaintifff and the public generally has

[fol. 3] acquiesced in and acknowledged the utility of said

invention, and the validity of said Letters Patent, and the

plaintiff’s exclusive rights thereunder.

(4) Plaintiff is and always has been the sole owner of

said United States Letters Patent No. 1,127,660 and of all

rights of action for infringement thereof.

a oe . . > . . ; . ye

iN (5) In violation of plaintiff’s Zights under said United

States Letters Patent No. 1,124660, and without any an-

thority, since the issuance of said patent and within six

years prior to the commencement of this suit within the

Southern District of New York, and elsewhere in the United

States, defendants have jointly and severally infringed

plaintiff’s exclusive rights granted by said patent by mak-

ing and (or) using and (or) selling the patented apparatus

for transporting and treating concrete, an instance thereof

being in the construction of the Queensborough subway ex-

tension, in the Borough of Manhattan, City of New York,

State of New York, the said infringing machines having

been made and (or) caused to be made and (or) used by the

defendant Fleck on the said work for the defendant cor-

poration and the said two defendants having conspired to-

gether and co-operated in the committing of said infringe-

ment. Defendants continue to make and (or) use and (or)

sell the apparatus embodying the patented invention in vio-

lation of plaintiff’s rights, and in infringement of said

patent, whereby plaintiff has been and is greatly and ir-

reparably damaged, and whereby defendants have obtained

[fol. 4] and are obtaining large profits which in equity be-

long to the plaintiff, the amount of which damages and

profits the plaintiff cannot ascertain except by an account-

ing.

Plaintiff therefore prays

(a) That defendants be required to answer this bill of

complaint, but not under oath, answer under oath being

hereby expressly waived.

(b) That the court grant a preliminary injunction pend-

ing this suit and a perpetual injunction restraining defend-

ants, its officers, and their joint and several agents, em-

ployes and eantedevaten from making, using or vending de-

vices embodying said patented invention, and from offering

or advertising,so to do, and from aiding or abetting or in

any way contributing to the infringement of said patent.

report on account of damages and profits accruing from

defendants’ infringement of said patent, and that the dam-

ages reported be increased threefold in view of the wanton

character of defendants’ infringement, and that plaintiff

@have judgment for the damages and profits so found and

tor the costs of this suit.

(d) That plaintiff have such other and further relief as

equity may require.

Concrete Mixing and Conveying Company. (Signed

Sb . e . <

, Edward Wray, President.

[fol. 5] In Unirep States Districr Court

ANSWER

Answering the complaint herein, the defendants, the

Powers-Kennedy Contracting Corporation, and Anthony G,

Fleck, severally and jointly say:

A. They have no knowledge or belief that the plaintiff

is a corporation as alleged in paragraph 1 of the complaint,

or that it is the sole owner of the McMichael patent No,

Peeves

1,127,660 or of any or all rights ef action for infringement

thereof as alleged in paragraph 4 of the complaint.

B. They admit the allegations in the second sentence of

paragraph 1 of the complaint except that they deny they

have committed any acts of infringement of said patent.

C. They admit that patent No. 1,127,660 was granted on .

February 9th, 1915, and that John H. MeMichael on Janu-

ary 14, 1907, filed an application for a patent, but they

deny that said patent was issued lawfully pursuant to said

application, or that said MeMichael was prior to January

14, 1907, the original, first and sole inventor of any new or

useful improvement set forth in said application, or that

he had then or during its prosecution did comply in all

respects with the Statutes.

D. On information and beliet, they deny, save as afore-

said, each allegation in paragraph 3 and in the second see-

tion of paragraph 2; and allege specifically that said inven-

[fol. 6] tion was not new and not useful, that it was known

or used by others in this country before John H. Me-

Michael’s alleged invention thereof, that it was patented

or described in printed publications before his alleged in-

vention and more than two vears prior to his said applica-

tion for United States Patent therefor, that it was in public

use or on sale in the United States for more than two years

prior to his said application for United States Letters Pat-

ent therefor, that it was patented in a foreign country by

him or his legal representatives on an application filed more

than one vear before his said application for United States

Letters Patent, that it was abandoned; that said United

States Letters Patent No. 1,127,660 is not now in full foree;

that the alleged invention patented in the aforesaid patent

No. 1,127,660 is of no utility and has not been introduced

into public use by the plaintiff, and that the publie generally

have not acquiesced in or acknowledged the utility of said

invention, or in the validity of said Letters Patent, or in

the plaintiff’s alleged exclusive rights thereunder.

K. They deny each allegation in paragraph 3 of the com-

plaint and deny specifically that in violation of plaintiff's

rights under said United States Letters Patent No, 1,127,-

660, and without any authority, since the issuance of said

patent and within six years prior to the commencement otf

this suit within the Souihern District of New York, and

elsewhere in the United States, (they) defendants have

jointly and severally infringed plaintiff’s exclusive rights

eranted by said patent by making and (or) using and (or)

[fol. 7] selling the patented apparatus for transporting and

treating concrete; and they expressly deny that they have,

are, or intend to commit any act of infringement in the con-

struction of the Queensborough subway extension in the

City of New York, Borough of Manhattan, and State of

New York; and they deny that the said infringing machines

having ben made and (or) caused to be made and (or)

used by the defendant Fleck on the said work for the de-

fendant corporation and the said two defendants having

conspired together and co-operated in the committing of

the said infringement; and they deny that they continue to

make and (or) use and (or) sell the apparatus embodying

the patented invention in violation of plaintiff’s rights, and.

in infringement of said patent, and deny that plaintiff has

been and is being greatly and irreparably damaged, and

deny that defendants have obtained and are obtaining large

profits which in equity belong to plaintiff.

F. On information and belief, they allege that all such

apparatus as they may have made, used or sold, either

jointly or severally, is beyond any reasonable interpreta-

tion of said patent, and that said apparatus, except wherein

it represents the conventional skill of the art prior to the

alleged MeMichael invention, is altogether different in

structure and function from anything covered by said

patent.

Gi. On information and Telief, they allege that the ap-

paratus set forth in said patent involved nothing more than

the exercise of the expected skill of the art prior to the Me-

(fol. 8] Michael alleged invention; and they allege that said

patent is invalid and anticipated fully by prior patents and

publications as follows:

Inventor + Number Date

S. W. Wood 65,149 May 28, 1867

L. La Rue Smith.............:. 268,305 Nov. 28, 1882

a ES Fs ye csas eons cee ee 267,318 Nov. 14, 1882

J.B. Hyde......... iecececse 294,778 Mar. 27, 1883

L. Smith ...... nN ace an 279,034 June 5, 1885

Inventor Number Date

I ook an Poe eee 285,047 Sept. 18, 1883

Eb ns etek. 347,196 Aug. 10, 1886

Te WO. ¢ oho ek 408,201 Jul. 30, 1889

M. B. Church... ays 487,606 Dec. 6, 1892

G. G. and H. N. Gray... 477,361 June 21, 1892

re eer 020,766 June 35, 1894

J. k. Mathewson 031,379 Dee. 25, 1894

A. Bryce ... 061,482. June 2, 1896

S. C. Davidson 099,005 Feb. 15, 1898

3 Ee ey ee 609,744 Aug. 23, 1898

kh. A. Franklin 634,024 Oct. 10, 1899

H. G. Warren 671,303 Apr. 2, 1901

W. Goldie . 676,128 June 11, 1901

i eeererererrer ss 704,037 Jul. &, 1902

We, SO 5p. o enc S ees evesees e+ (07,840 Aug. 26, 1902

L. H. Davis (30,884 June 16, 1903

H. Cutting 163,802 Nov. 1, 1904

M. A. DeFrance 741,116 Oct. 13, 1903

N. Farnham. 647,396 Dee. 22, 1903

G. M. Schwend 702,098 Feb. 16, 1904

eT ee ene 708,118 Apr. 26, 1904

Cr. eeeeeteel es 799,700 May 10, 1904

‘eS eens torre 783,218 Feb. 21, 1905

.& fee ere 773,665 Noy. 1, 1904

F. W. Breidster 791,176 May 30, 1905

[fol. 9] H. H. Hahn 808,236 Dee. 26, 1905

| reer ce 830,018 Sept. 11, 1906

W. H. Kelly 839,485 Dee. 25, 1906

iy ee 837,113 Nov. 27, 1906

° eR ere 837,622 Dec. 4, 1906

F. M. Wise 847,270 Mar. 12, 1907

W. H. Kelly 864,471 Aug. 27, 1907

ere 873,345 Dec. 10, 1907

J. W. Buzzell & Larkin 894,813 Aug. 4, 1908

WEI ot cass cee 998,421 May 17, 1910

F. S. Lamson 1,249,280 Dee. 4, 1917

Gauthir > 386,121

Prindle..... 179,055

23,594 (British) 1896

12,758 (British) i894

~ 18,394 (German)

Knight’s Mechanical Dictionary Vol. 1 (1874), page 775.

Title: Ejector.

Knight’s Mechanical Dictionary Vol. 2 (1875), page 1186.

Title: Injector.

New American Mechanical Dictionary Knight 1882, page

52. Title: Aspirator.

H. They further allege, on information and belief, that

said alleged invention was in public use and on sale in the

United States more than two vears before said John H.

McMichael made application for patent covering the same,

and that the patentees named in the next preceeding para-

graph had knowledge of such public use and sale, the names

and addresses of such persons being fully set out in said

Letters Patent cited by way of anticipation.

{fol.10] I. They allege on information and_ belief that

said complaint (when taken in connection with said patent

in suit No. 1,127,660, and also in eonnection with the file-

wrapper and contents of said patent, the same being a

», documentary history of the prosecution of said patent in

the U. S. Patent Office) fails to state facts sufficient to

constitute a valid cause of action in equity for the follow-

ing reasons:

(a) Beeause the patentee of the patent in snit aban-

doned the invention as originally filed in that he submitted

to rejections of claims as originally filed and as amended,

and cannot now be heard to set up other or further claims

which are inconsistent with his original disclosure of in-

vention, or with such abandonment ;

(b) Because new matter was introduced into the speci-

fication and claims which was inconsistent with the origi-

nal disclosure and heyond the scope of the original oath

made in connection with the original application; and that

therefore the claims as allowed are not supported by an

oath as required by the United States Statutes in sueh ease

made and provided ;

(¢) Because the plaintiff became estopped to deny the

invalidity of the claims of the patent by reason of the acts

of the patentee in the course of the proseention of said ap-

plication for patent;

(d) Because the statement on tlic face of the patent with

reference to the prior state of the art, between lines 29-50

inclusive, page 4, and the statement on page 3, lines 95-103

inclusive, amounts to such disclaimer of invention on the

[fol.11] part of the inventor as to negative any right to

the inventions claimed in fhe patent in suit, or in those

claims upon which infringement is specifically alleged ;

(e) Because the renewal of said application (which is

alleged to have been accomplished as of the date of Janu-

ary 25, 1911) was not accomplished according to the re-

quirements of Rules 172, 175 and 176 of the Rules of Prac-

tice of the U. S. Patent Office, or according to the require-

ments of the Revised Statutes of the United States, See-

tions 4894 and 4897; and because said application was

abandoned for failure to complete or prosecute the same,

and bheeause the said applieant did not show facts sufti-

cient to justify such renewal, and failed to show that his

delay in such application was unavoidable, and because

the said application before renewal was not made within

two vears after the allowance of the original application,

and did not bear date of the time of the renewal, and was

not subject to examination like an original application.

Wherefore, these defendants humbly pray that the com-

plaint be dismissed with costs and disbursements.

Powers-Kennedy Contracting Corporation, by ——

Bingham, Vice President. Anthony G. Fleck,

Albert F. Nathan, Solicitor and of Counsel for

Defendants.

[fol.12]) Duly sworn to by Bingham and Authony G,

Fleck. Jurat omitted in printing.

[fol. 13] Ix Ustrep States District Court

Orpen AMENDING ANSWER

This cause coming on to be heard in open court on the

regular motion calendar, June 15, 1926, on the motion of de-

fendants to amend their answer, and John D. Morgan,

Esq., and Allan M. Johnson, Fsq., appearing for the de-

fendants, and Stephen J. Cox, Esq., appearing for the

plaintiff, and the Court being fully advised of the amend-

ments sought to be made to the answer of the defendants

heretofore filed in this case, it is:

Ordered Adjudged and Decreed, that the motion be

granted and that the following amendments be allowed, and

the Clerk of the Court is hereby ordered to file the same as

the date of this order as an amendment to the original an-

swer:

On page 5 at the end of paragraph ‘*G’’ insert :

W. H. Smith, 122,497, Jan. 2, 1872.

W. H. Smith, 122,498, Jan. 2, 1872.

[fol. 14] On page 5 at the end of paragraph ‘tI’? insert

the following:

They further allege that said alleged invention was in

public use in the United States more than two years before

said John H. McMichael made application for said patent

on January 14, 1907, to wit: >

(1) In 1900 by William <Artingstall, civil and licensed

structural engineer, with offices at 1206 Union Trust Build-

ing, Chicago, Illinois, and Haley-Ward Company of Water-

town, New York, in the construction of a head race or water

channel near Black Rock, New York, which is near Water-

town, N. Y.

(2) In 1903 by Jackson & Corbett Bridge & Steel Works

of Chieago, Hlinois, and George W. Jackson and John T.

Fanning in laying a concrete floor and underpinning at 177

Kast Monroe Street (old number) City of Chicago, Ilinois.

(3) In 1901, latter part of the vear, by the Jackson &

Corbett Bridge & Steel Works of Chicago, Hlinois, Geo.

W. Jackson and John T. Fanning, in the Hlinois Tunnel

Company's tunnel in Chicago, Hlinois, adjacent the Powers

& O’Brien shaft, Shaft No. 1.

(4) In 1902 and 1905, and later, with different machines,

by the same parties in the Illinois Tunnel Company’s tun-

nel in Chicago, Illinois, adjacent the Powers & O'Brien

shaft, Shaft No. 1.

Sete

It is further ordered, adjudged and decreed that if this

case can be heard this term no bond need be filed. It, how-

[fol. 15] ever, the case cannot be heard this term, and goes

over to the Fall term, then the granting of this order to

amend is subject to the defendants filing a bond for tive

thousand (5,000) dollars, in favor of the plaintiff, to cover

any possible judgment that may be finally entered in its

favor for infringement of the patent in suit.

John C. Knox, U.S. District Judge.

New York, N. Y., June 16, 1926.

The entry of the foregoing order is consented to.

Stephen J. Cox, Attorney for Plaintiff.

New York, June 16, 1926.

Ix Unxtrep Srates —

Mrmoranpum—l'iled June 21, 1926

It appearing that the present Equity term of the court

will end June 25, 1926, | have signed the within order. Ob-

viously the plaintiff cannot investigate the new defense

songht to be interposed within ten days. The case

should therefore go over until Fall as the delay has been

occasioned by the new defense. T think the suggested bond

should now be filed. Over the Summer, however, plaintiff

must make its investigation of the new defense and be pre-

pared for trial in October.

Jno. C. Knox, U.S. D. J.

lol. 16] Ix Usxrrep States Distiier Courr

Prainrivre’s TN TERROGATORIES

And mow comes the plaintiff and moves the Court for

leave to file the following interrogatories, to be answered by

* the defendant Anthony G. Fleck under oath, and gives no-

tice that the same wl be presented to the Court, and this

motion for leave to file the same and for an order directing

the defendant to answes them, on Friday, February 27th,

1925, at 10 o'clock A. M. or as soon as the matter ean be

heard, at the session for the hearing of motions to be held

on that date in the Court Room in the Federal Building, of

the Borough of Manhattan, City of New York.

Do not the annexed pages trom the Magazine as the

Mngineering News-Reeord published and circulated in the

United States and being pages 264-268 of a copy of the

number of said Magazine published Febr uary 12, 1925, cor-

rectly describe and illustrate the work now being carried

on and carried on since the grant of the patent in suit and

prior to the commencement of this “suit by the defendants

in the Southern District of New York, as stated therein?

Does not the said article correctly deseribe and illus-

trate the work carried on by the defendants at the time and

place stated in the last question under the heading ‘ Plae-

ing Conerete’’?

3. Is not the statement of the said article ander the head-

ing ** Personnel’? a correct statement of facts?

[for 17] 4. Are not the same things set forth in the last

three questions true also of the article published and cir-

culated in the United States in the Compressed Air Maga-

zine of June 1924, of which a copy is hereto annexed, and

particularly the deseription and illustrations on pages 901

and 902, the deseription beginning with the words **The

placing of concrete”* on page 902!

Was not the pneumatic concrete conveying and placing

device illustrated in Figure 12 of the Engineering News-

Record article and in the bottom illustration of page 901 of

the Compressed Air Macazine article constructed and oper-

ated as follows:

Concrete was dumped into the drum or vessel D through

its top and the top closed. The compressed air was then

admitted to the top of said vessel and above the mass of

concrete therein at A and vir pressure thus established be-

hind the said mass tending to force it down over the smoath

walls of the funnel shaped lower part B and through the

outlet I. of said vessel to and through the extending conduit

or passageway C to the forms, and compressed air was also

admitted to the outlet through the nozzle F and into the

moving conerete.

‘Sa. If the answer io interrogafory 5 is not wholly af-

firmative, state exactly how the said pneumatic concrete

conveying and placing device was operated and what varia-

tions, if any, in its operation were practiced to your know!l-

edge ?”’

6. Was not the said machine for conveying and placing

conerete pneumatically built for the defendant, Power-:

[fol. IS] Kennedy Contracting Corporation under the direec-

tion of the defendant, Anthony G, Fleck since the grant of

the patent in snit and prior to the commencement of this

suit?

7. Was not the said machine instatled or the said job for

the said eerporate defendant under the direction of the said

defendant Fleck?

8. Was not the said machine placed in operation on the

said job under the direction of the said defendant Fleck for

the said corporate defendant? *

9, Was not the said machine actually operated on the said

job by the defendant Fleck for the said corperate defendant

and did he not advise and instruet others in the employ of

the said corporate defendant in the use and operation of

the said apparatus?

10. Which of the forty-cight patents and publications set

up in the answer of the defendants herein will be uset by

the defendants at the hearing in support of the allegations

of the answer that the patent in suit is anticipated!

11. Which of the forty-cight patents and publications set

up in the answer of the defendants herein will be used by

the defendants at the hearing in support of the allegations

of the answer that the patent in suit is lacking in invention!

{fol. 19] The foregoing interrogatories are propounded

for the discovery by the opposite parties of facts materia!

to the support of the cause, and the defendant Anthony G.

Fleck is required to answer cach and all of them, on behalf

of defendants. In ease he is not able to answer any of the

said interrogatories or is not able to answer any of them

fully, then John J. Kennedy, Treasurer and General Mana-

ger of the corporate defendant and Henry L. Kennedy,

General Superintendent of the said corporate defendant

are required to answer the same and to answer them fully;

and motion is hereby made for an order allowing the plain-

tiff to file each and all of said interrogatories to be an-

swered by the said officers of the corporation and directing

the said officers to answer the same.

And in case of the failure or refusal of the defendant

Fleck, or the said officers to answer the said interrogatories

fully, or such of them as may be allowed by the court, the

plaintiff will ask the court for an order for the examina-

tidén of such officers upon such interrogatories, and for

such other and further relief as to the Court may seem

just in the premises.

Dated February 21, 1925.

Stephen J. Cox, Plaintiff's Solicitor, 233 Broadway,

New York City.

To Albert F. Nathan, lisq., Defendants’ Solicitor, 149

Broadway, New York, N. Y.

[fol. 20] Open Cut and Tunnel in Manhattan Nehist

Queensborough Cross-town Subway Extension at Forty-

Second St., Manhattan, Calls for Careful Methods in

Safeguarding Crossing Tunnels and Water Mains

Underground railway construction in its most dificult

aspects is illustrated by the work now well advanced on

the Queensborough Subway extension across-town at 42nd

St., in New York. butting buildings, contiguous water

mains and sewers and other subways runring above or

across introduce exceptional hazards while heavy rork ex-

cavation and the erection of steelwork and concrete placing

below busy streets without hindrance to traffic or annoyance

to business demand the construction in detail which char-

acterizes subway building under city streets. It is as a

series of special operations, therefore, that the new cross-

town rapid transit line has to be considered.

Route and General Plan.—The route of the new subway

is shown in diagram by Fig. 1. The Queensborough sub-

way from Long Island crossing the East River on the line

~ =

Ges keer core

of 42nd St., Manhattan, terminates at Vanderbilt Ave.

Its train terminal is the Park Ave. and Grand Central Sub-

way Station. From here, west across-town to the Broad-

way and the Seventh Ave. Subway Station at Times Square,

the transfer of passengers has been by shuttle trains ac-

com-odated by taking over the 42nd St. spur of the Seventh

Ave. Subway. This shuttle train service has grown inad-

equate and besides it requires a change of trains. The new

[fol. 21] line is intended to relieve the congestion and delay

by providing a parallel cross-town route. It is an exten-

sion west of the Queensborough subway which provides

through train service between Times Square Station (Sev-

enth Ave. and Broadway) and Queensborough. The traffic

services of the new line need not be further indicated ex-

cept to observe that there is an intermediate station (be-

tween Times Square and Grand Central) at Fifth Ave.

Turning to the map, Fig. 1, the route, stations and se-

quence of open-cut and tunnel construction are clearly in-

dicated. In detail the construction required is as follows:

From the old Steinway tunnels terminal, 74 ft. below street

grade, twin tunnels on a rising grade extend to a little west

of Fifth Ave. From the ends of the twin tunnels west

something over 300 ft. is open-cut emplacement for the

Fifth Ave. Station. Here the depth to subgrade is about 45

ft. Then comes double-track tunnel under the corner of

Bryant Park and Sixth Ave, and along 41st St. to near

Broadway. An open-cut station excavation carries the

work to about midway between Seventh and Eighth Ave-

nues. Thence, to a dead end at about the middle of Eighth

Ave., is double-track tunnel. At Seventh Ave. the depth is

about 55 ft. There are in tunnel and open-cut 226,000 cu.

yd. of exeavation of which 189,000 eu. yd. are rock. The

total length of the line is 5,660 ft. |

From the outline of the work, it will be observed that

subways cross over the new line on Seventh Ave. and on

Broadway and for the distance that the new. line is within

42nd St. Where the line skirts the Public Library building

[fol. 22] and in 41st St., where it fills the street between

eurbs, there are contiguous building foundations to be

considered. Crossing sewers and water mains furnish a

third type of hazard. The ways of meeting the hazard in

each case indicate general procedure also,

Sewer and Pipe Crossings.—The most important conduit

crossings under-run by the subway have been a 6-ft. sewer

between Vanderbilt and Fifth avenues and four lines of 48-

in. water mains at Fifth Ave. In the case of the sewer the

cover over the excavation to the bottom of the sewer was

4ft. There was a 10-ft. cover betwgen excavation and the

water mains. Somewhat different methods of driving un-

derneath were adopted in the two cases, both however

based on the theory of close shallow holes and light blasts.

Under the sewer the construction was parallel twin tun-

nels, with a separating rock core and inside structures of

steel bents with concrete arches between them. The cut

for each tunnel was 164% x 17 ft. It was normally taken

out in a heading about 20 ft. ahead of the bench and in a

bench 7 to 9 ft. high. On approaching the sewer short holes

were put in close together and light charges were fired.

This broke out the rock in small pieces and reduced the

blasting shock and shattering to insignificant amounts.

Moreover the bench was kept close to the heading and the

lining was kept snug up to both.

In ease of the water mains in Fifth Ave. and a bottom

heading 9 x 8 ft. was driven and enlarged. Using many

short holes the sides of the heading were widened and the

roof was raised by many small blasts. The dynamite was

[fol. 23] 60 per cent. Virtually the roof rock was peeled off

in layers. This procedure with a 10-ft. cover hardly shook

the water mains. It shouldbe noted, however, that in case

of both sewer and mains the underlying schist rock was

hard, dense and solid

Besides the mains there had to be passed, on the west

side of Bryant Park, a shaft to the pressure tunnel under

Manhattan of the Catskill adequate system. Both shaft

and tunnel are filled with water under pressure. From the

side of the tunnel to the side of the shaft was 30 ft. Ordi-

narily in the heading 26 to 28 holes were used. In passing

the water shaft the number was increased to 126 largely on

the side and crown nearer the shaft. The heading on one

side was in effect line drilled and wedged out by light blasts.

Subway Crossings.—Illustrating, even better, blasting

in detail as a means of under-running other structures,

are the Seventh Ave. and the Broadway subway crossings

and the shuttle line on 42nd St. east of Fifth Ave. Con-

pas ee ee “ .

sidering first the direct crossings as the more simple, the

general under-crossing procedure has been developed as

indicated in diagram by Fig. 2.

At the crossing the roof of the new tunnel is up against

the floor of the old tunnel. As the side wall of the old tun-

nel is approached the rock is removed for the insertion

of plate girder A spanning the new cut and carrying the

side wall of the old subway. Then entrance is made to the

old subway and beams a and J are set under the rails and

spanning the new cut, and are encased in concreteo Driv-

ing is then begun using many holes and light charges until

[fol. 24] the face is removed so that columns la can be

erected and the lining placed. Driving ahead, columns 2b

are put in. Then beams c¢ and d are installed and driving

and lining proceed until track II is supported. By the

same process tracks III and IV are under-run.

In 42nd St. the relation of the new subway to the shuttle

line above is shown by Figs. 3 and 4. Here the new strue-

ture is parallel twin tunnels. As shown by Fig. 5, a bottom

heading driven from both ends was put thropgh in each

¢ tunnel. Then the roof was raised by close, alow holes

and light blasts keeping the living structure erected close

up to the face. The illustration indicates the character of

the rock which here is dense, solid and hard. Construction

has proceded past the point ofthinnest cover between the

new subway roof and the old subway floor and from this

point on the cover will thicken. It is, however, considered

by the engineers of the Board of Transportation that to

proceed by this method introduces too great a hazard to

the operating subway and excavation has been ordered

stopped, although the contractors, with a large bond to

guarantee security, had so arranged the work that with a

4-ft. solid rock lintel, overhead, the superimposed load of

the old subway columns would in no case be more than

15 in. from direct support beneath. The contractors have

acceded to the engineers’ demand, but presumably will re-

quire compensation for the resulting delay and extra ex-

pense.

In the cut for the Broadway-Seventh Ave. station the

street had to be kept fr@e for traflic. Plate girders were

[fol. 25] used to span the cut. They were held up at the

ends by posts standing on the rock, and carried a timber

flooring. As at the Fifth Ave. cut, the plan was to keep

the cut as free as possible from timbering. In general this

is the outstanding feature of all the work, tunneling as

well as open cut.

Driving Tunnel.—Where the excavation is two parallel

tunnels east of Fifth Ave—a top heading of about half

of the 16% x 17-ft. section was driven using 53 holes 2 ft.

deep. A shot took out 6 or 7 ft. The bench was kept 20

ft. behind the heading. The drills were 214 in. to 15¢ in.,

with 4%-in. drop for each change of steel. A heading

round required about 65 steels and a bench round required

20 steels. As has been described this normal practice was

changed when under-running conduits and subways.

Under Bryant Park and 41st St. the tunnel was largely

umbrella section—that is, two arches carried on center and

side walls. Generally the rock was hard, although seamed,

but in one place for some distance it was rotten. There

have been variations in detail but in general the process

has been to drive a top heading, Fig. 9, and then deepend

it to form a center cut, Fig. 10. In this center eut the

forms for the center wall and its umbrella top were erected,

Fig. 11 and filled. Widening out then began in such man-

ner that the roof arches could be put in resting on rock

benches at the sides. Finally the rock benches were taken

out and replaced with concrete, thus completing the side

walls. The method cut down timbering, gave quick perma-

nent root support and left the space below the roof. re-

[fol. 26] markably clear for hauling and other work. It

was adopted as a particularly safe method in uncertain

rock.

Placing Conerete.—<All concrete has been placed by com-

pressed air. This process has been found by the contrac-

tors to have particular merit. The pipe line takes up little

room and it can be nosed into almost any space to be filled,

even close up to the excavation. Examination and test

show the concrete to be dense and uniform. The delivery

in small batches is peculiarly adapted to concreting gen-

erally small-volume units.

Three concreting plants have been operated, two of 1 3-

cu. yd. and one of 1/6-cu. yd. bateh capacity. All are lo-

cated in the excavation and the arrangement is alike for

2—o01

Gennes ee -

all. At the sheet surface there is a hopper into which

trucks dump sand and stone. The hopper delivers the

aggregate into a sand bin or a stone bin below the surface,

These bins have side gates which deliver into a measuring

hopper. Cement chuted in bags from the street surface

comes to the measuring hopper platform and is there

added to the stone and sand batch. The measuring hopper

empties into the mixer on a staging beneath. In turn the

mixer discharges into a hopper and closed chute to the body

of the compressed air concrete gun.

Essentially the gun, as shown by Fig. 12, is a conical

drum with charging and discharge connections and with

valves and air connections. When charged with conerete

the proper valves are operated. air is turned on and the

batch is forced out of the drum and driven through the dis-

charge pipe line to the point of deposit. In the subway

operations the air pressure has ranged from 65 to 80 Ib.

[fol.27] It has been possible to shoot a batch a minute.

With the three outfits 160 cu. vd. of conerete have been

placed in a shift. A 6-in. discharge pipe line has been used

in all instances. The maximum delivery which the work

will require is 1,500 ft. So far one of the larger guns has

delivered through 1,160 ft. of pipe, with nine right-angle

bends, to a height of 57 ft. above the drum. At the end

there was a vertical lift of 24 ft. It will be noted that the

gun is not depended on for any mixing action, it is simply

a device for delivering concrete already mixed in the regu-

lation manner,

Power Plan.—-Compressed air is furnished by a plant on

the East River front at about 42nd St. There are two

electrically driven compressors, one direct-connected 14

and 22 in. x 20 in. with a capacity of 1,600 eu. ft. of free air

per minute and one belt-counected 10 and 16 in. x 14 in.

with a capacity of 660 cu. ft. at 80 1b. These compressors

operate the drills, pneumatie tools, concrete guns, hoists

and pumps. The mixers are motor-operated.

Personnel.—Contract for construction was awarded April

21, 1922, to the Powers-Kennedy Contracting Corporation

of New York, A. J. Powers, president, John J. Kennedy,

treasurer and general manager, and Henry L. Kennedy,

general superintendent. Albert Carr was engineer for the

contractor during the early part of the work and on his

death Henry B. Seaman was engaged. The direction of

the work is under the Board of Transportation, Robert

Ridgway, chief engineer.

[fol. 28] Constructing a Difficult Subway with Consummate

Skill

Work on Queensborough Subway Extension in New York

City Going Steadily Forward

by ALS. Taylor

The placing of concrete forms one of the most interesting

features of this great undertaking, and the means em-

ployed by the contractors to do this are deserving of special

mention. Compressed air has proved a prime aid in oper-

ating the facilities utilized in speeding up this part of the

job. The pneumatic placing of concrete is not, in itself, a

novelty; but conditions in the case of the Queensborough

Subway Exiension have called for apparatus which would

be sufficiently flexible to deal with the continually changing

demands.

Three conerete placers or ‘‘shooters,’’ as they are ealled

by the men on the work, are in service. Two of these are

capable of shooting a third of a cubie yard of concrete at

a time, while the capacity of the smaller outfit is one-sixth

of a eubie yard. The placers were built by the Pneumatic

Concrete Machinery Company and have been adapted by

the contractor to meet his particular needs. One of the

larger shooters has delivered concrete a total distance of

1,160 feet, sending the batch through a 6-inech line in which

there were nine 90-degree turns. The material mounted a

total of 67 feet on the journey—24 feet of which was a

straight rise at the end of the run. As Mr. John J. Ken-

nedy has expressed it: ‘‘One hundred per cent of the stuff

that goes into the mixer is shot into the forms, no matter

how far the forms are away from the shooter.”’

[fol.29] The air pressures used have ranged from 65 to

80 pounds per square inch; and it has been possible to

shoot a batch a minute with each of the outfits. In a day

the three shooters have placed 157 cubie vards of concrete;

and they have made it feasible to erect steel-work and to

complete concreting close up to the advancing headings.

In short, concreting has been done where it could not be

Qe ee one . *

placed by hand; and the machi: +s have produced better

and more finished jobs,

In Unirtep Srares Disrricr Courr

ANSWER TO PLAINTIFF'S INTERROGATORIES

The defendant, Powers-Kennedy Contracting Corpora-

tion by Jolla Kennedy, treasurer and general manager,

answers plaintiff's interrogatories as follows, the numbers

of the answers corresponding to the numbers of the inter-

rogatories:

1. Yes.

2. Yes.

3. Yes,

4. Yes.

d. No.

da. Concrete was dumped into the drum or vessel D

through its top and the tep closed. Then the valve in the

compressed air supply was opened and the batch of con-

crete passing down the outlet IE was ejected or shot into

the conduit C to the forms by pneumatic pressure passing

through the nozzle F.

[fol. 80] 10. Both defendants will rely upon all the prior

art cited in the answer to establish that the patent in suit

is anticipated.

11. Both defendants will rely upon all the prior art cited

in the answer to establish that the patent in suit is lacking

in invention.

John J. Kennedy.

Duly sworn to by John J. Kennedy. Jurat omitted in

printing.

[fol. 31] In Unrrep Stares Districr Court

| Title omitted ]

Case

Before Honorable Augustus N. Hand, District Judge

New York, October 4th, 1926—12 M.

Statement of Evidence

APPEARANCES OF COUNSEL

Stephen J. Cox, Solicitor and Counsel for Plaintiff.

John D. Morgan, Solicitor for Defendants, John D. Mor-

gan and Alan M. Johnson, Counsel.

(Mr. Cox stated to the Court.)

(Mr. Morgan stated to the Court.)

[fol. 32] Orrers IN EvipENCE

Prima Facie Proofs

Mr. Cox: I will offer in evidence a stipulation providing

for uncertified copies of the patent in suit, mi. other pat-

ents and aiso for the use of exhibits from the Ulen suit

without certification, as papers in that suit.

(Marked Plaintiff's Exhibit No. 1.)

L will now offer in evidence a copy of the patent im suit.

(Marked Plaintiff's Exhibit No. 2.)

(Claims 2, 4, 5, 6, 8, 9, 12, 15, 17, 19, 21, 22, 24, 28, 31, 32,

34 and 35 relied o: .}

(Counsel for the plaintiff read to the Court the inter-

rogatories, together with the-eanswers thereto.)

(Counsel cited the following to the Court: Page 902 of

the Compressed Air Magazine, published in June, 1924.

Engineering News, page 266.)

Recess.

——

Axtuony G, Fieck, called as a witness on behalf of the

plaintiff, being duly sworn, testified as follows:

Direct examination.

By Mr. Cox:

Q.1. Mr. Fleck, you are one of the defendants in this

‘ase?

A. Yes, sir.

Q. 2. And you were subpeenaed to attend here today?

A. Yes, sir.

[fol. 88] Q.3. Have vou got that subpeaena with you, or a

copy of it?

A. Yes, I have a copy of it here, or, rather, the original.

Q.4. Did you bring with you, as required in that) sub-

poena, drawings or illustrations of the defendants’ ma-

chine?

A. IT submitted some drawings to Mr. Jolson pre-

viously, that is, plueprints. L believe he has those in his

possession. This is one of them (indicating), and here is

another (indicating).

Q.5. In answering the interrogatories propounded to

you in this ease, you referred to the cut of the defendants’

machine published in the Compressed Air Maazine, did

vou not?

A. I believe they were attached, were they not? Yes,

sir.

Q.6. This drawing which I exhibit to vou is an enlarge-

ment of that cut at the bottom of page 901 of the Com-

pressed Air Magazine, and figure 12 of the cuts in the Kn-

gineering News Record?) (Handing documents to witness.)

A. Yes, sir, those are they.

Mr. Cox: I will offer this photo in evidence, so that we

will have the large illustration.

(Enlarged photo of the cut referred to on page 901 of the

Compressed Air Magazine was received as Plaintiff’s léx-

hibit No. 3.) .

~ ’ . . ’ . . e .

(). 7. Referring to this drawing which is marked Plain-

tiff’s Exhibit 3, I would like you to state what the part

marked D as shown in the drawing is.

A. What it is?

si sin wane ee

| 23-

[fol. 34] Q.8. Yes.

A. Just part of the equipment. It does not answer any

particular purpose, It is just a closure, That is the best

way to put it.

().9. I mean the vessel marked D.

A. To distinguish that from the lower section?

(). 10. Yes,

A, That is just a closure.

Q.11. That is a vessel to hold the conerete, is it not?

A, Yes, sir.

(). 12. To hold the concrete to be conveyed and placed?

A. Receptacles, yes, sir.

Q.13. What is this part designated by the letter A?

A. That does not refer to a pipe, does it ?-

(). 14. Yes, this part connected by a line to the letter A,

what is that?

A. This circular section is just a casting. Ht is the wen-

eral design of the make-up of the machine, That is simply

a battery of air inlets in there.

Q).15. This letter A refers to one of a battery of air in-

lets at the top of the machine?

A. That is a series of pipes going around there.

Q).16. There is a pipe running from that air inlet away

to the right. What is that pipe?

A. That is a pipe for the admission of air at times.

Q.17. At the top of the vessel?

A. Yes, that is a feed pipe for that battery.

Q.18. You are referring to the pipe which | now mark

A’, is that correct?

A. Yes,

Q.19. Below the reference letter D there is a reference

letter B. As I understand it, that is the lower tapering

part of the vessel for holding the conerete?

A. Yes, sir.

Q. 20. Then at the bettom of the vessel there is an outlet

marked K, is there not?

A. Yes, sir.

Q. 21. Then, leading away from that is a pipe or conduit

[fol. 35] marked C?

A. That C refers to that joint, does it not? In back of

that joint is a part of the bottom outlet.

Q. 22. The delivery pipe or conveying conduit extends

away from that bottom outlet C?

—

A. Well, that C may refer to the piping you have got

there. This is one fitting from here to here (indicating).

C can be the discharging pipe, if you want to put it that

way. It can be the orifice there.

(). 23. C and FE are all one fitting in the construction?

A. Yes, it is one casting.

Q. 24. Then the conduit or conveying pipe is this part in

the photograph, the enlargement, which | am now marking

J, is that correct?

A. That is part of the delivery pipe.

(). 25. From C to J there is an upward bend in that pipe?

A. There is in that particular job, ves, sir.

(). 26. Now, in the machine as actually used in’ the

Queensboro subway tunnel by the defendants, did this de-

livery pipe J extend upwardly to a point above the ma-

chine?

A. Well, it all depends. If they were shooting at the

bottom of the tunnel that would run out on the same level.

If they were putting in an arch on a higher elevation, and

| understand they went up fifty or sixty feet, it would nat-

urally rise. It all depended on the location of the deposit,

I believe in some cases they even shot below the machine,

Of course, | was not there. You leave that pipe wherever

you want it.

(). 27. When the concrete was placed in the upper part of

the forms of the tunnel, this pipe J ran up above the

[fol. 36] machine, and then along horizontally?

A. Yes, it depends on the location.

(). 28. Here at the top of this machine there is what ap-

pears to be a feeding hopper. Is that what was taken.

That is a chute leading from the regular conerete mixer

into that pneumatic placing machine. | guess it is a bag

around there, or something.

(). 29. You are referring to the part which LT am now

marking II?

A. Yes, that may have been a chute. It might be a piece

of pipe. It looks like a rectangular chute from here.

Q. 30. What is this bulbous looking portion here, below

A. That is just a flared section. You see, the opening in

the machine is about twelve inches, and this may be about

two feet. It is just a lead to it, vou might say.

TLL te TTT

3 |

Q. 31. And the concere:> coming down the chute H was

received in that part which vou are now referring to?

A. Yes.

Q. 32. T will mark that G. That is the part referred to,

is it not?

A. Yes, sir.

Q. 33. This part marked F at the bottom of the figure is

a compressed air jet entering the outlet of the machine, is

it not?

A. Blows right straight through there, ves, sir.

Q). 34. I notice that the man on the right has his right

hand on what appears to be a valve handle. Is that a valve

for admitting compressed air to the jet F?

A. Yes, that is the lower valve.

Q). 35. For admitting air to the jet F?

A. Yes, sir.

(). 36. That is the part that | will now mark K. Is that

right?

A. Yes, sir.

[fol 87] Q. 87. Can vou see that he has his left hand on

a valve handle above kK!

A. That is very indistinet. Tt is hard te tell. You very

often lean your hand up there. You get tired running all

day, and it is a good place to lean on,

(). SS. At any rate, this part that | will now mark L,

that is a valve controlling the air to the air inlet A, is that

correct?

A. No, sir, that is not a valve you are referring to. It is

a relief valve, that is what [call it, the one you just marked.

That is only used when a machine gets plugged up, and you

want to get the air off of it. That is a relief valve.

Q). 39. What is this part that | mark M here? Is that a

valve controlling the compressed air to the inlet A?

A. That valve if operated would allow air to go into the

upper section, yes, sir.

Q. 40. Can you tell whether the operator has his hand on

that valve M in the picture?

Mr. Morgan: [I object, your Honor. The pieture shows

for itself. The photograph is the best evidence

A. TL could not tell where his arm is on that. He may be

just having his hand resting on the pipe. IL could not dis-

tinguish that. It is very obscure.

Q. 41. At any rate, that is a valve, that M which when

operated admits compressed air to the top of the vessel D?

A. Yes, sir.

Q. 42. Now, between the receiver G and the vessel D,

there is a door, is there not?

A. Yes, sir.

Q. 45. And how is that door closed?

[fol. 88] A. The door is closed by a finger or lever which

is operated by a compressed air eylinder.

Q). 44. Is this pipe which | now mark N the compressed

air pipe whch operates the door-closing eylinder?

A. Yes, sir.

Q. 45. And there is a valve on that pipe also; is’t there?

A. Yes, sir. He may have his hand on that valve.

Q. 46. The valve controlling the door closing eylinder is

between M and K, is it not?

A. Yes, you can see right from here that it is above his

wrist there.

(). 47. In this picture there is something to the left of the

operator on the right, a round objeet. That is a pressure

eauge, is it not?

A. Yes, sir.

Q. 48. That is the part which IT will mark O, is it not?

A. Yes, sir.

Q. 49. That gauge shows the pressure of air on the pipe

leading to the top of the vessel, does it not?

A. That gauge there shows the pressure of the air that

is being supplied by a condensor. It is on the air line. It

is your initial pressure. It is immaterial where you use it.

Any air that goes into that machine, the initial pressure is

marked-by that gauge at the left hand of the operator.

Q. 50. That gauge indicates the air pressure on the ma-

chine?

A. The air pressure available, ves. sir. Not on the ma-

chine, but available. ;

Q. 51. Now, to the right of this operator and up near the

{op of the machine is another round object. What is that?

A. That is another gauge.

(). 52. That is the part which T am now marking P, is it

not?

A. Yes, sir.

+ |

Q. 538. And on what pipe is that pressure gauge located?

[fol. 39] <A. That gauge is attached in that upper casting

there somewhere around that mark A.

Q. 54. Does that show the pressure of air in the top of the

vessel?

A. At different stages. When the material is out in the

pipe it shows the pressure in the pipe. It shows the resil-

ient pressure that is in the pipe. Until the material ts all

out of that receptacle, it would show the pressure that is

above the concrete. After that it shows the pressure that

is behind the material, or that is passing through the pipe.

Q. 56. From the time the compressed air is turned on

with concrete in the vessel until the vessel is empty, that

gauge P shows the pressure at the top of the vessel?

A. Not necessarily the top of the vessel. Any part of

the whole apparatus. If vou are shooting that concrete,

say, five or six hundred feet it is just a question of some sec-

onds before the material is out at that point, and whatever

pressure you have from that point back to the machine also

registers. That is the total pressure that is in the equip-

ment as a whole.

Q. 56. That gauge P, though, communicates with the top

of the vessel?

A. Yes, sir.

Q. 57. And the gauge O communicates with L?

A. Yes, sir.

Q. 58. And the gauge alse, | assume, communicates with

the pipe leading to the bottom jet F?

A. It is in that course of air travel, ves, sir.

Q. 59. These blueprints that you have produced, marked

P. N. 40, and the other without a date, but showing a ver-

tical section, illustrate the construction of the machine

about which I have been asking you, do they not?

A. Yes, sir.

[fol. 40] Orrens IN EVIDENCE

Mr. Cox: I will offer them in evidence, the elevation as

Plaintiff’s Exhibit 4, and the assembly drawing as Plain-

tiff’s Exhibit 5.

(Marked Plaintiff's Exhibits Nos. 4 and 3.)

pwr & +S CRTaL wr tab :

. . ~.

Mr. Johnson: No cross examination.

Mr. Cox: IT wish to offer in evidence in this record as a

physical exhibit some of the papers in the last suit, so that

this record will show the issues on which the suit was based.

Mr. Morgan: I suggest vou give the whole record as it is.

There is a stipulation, I understand, that either side may

offer that record if they see fit. If you see fit at the pres-

ent time 0 offer part of it as a physical exhibit under that

stipulation, we have the right to do the same later on, and

we will have a rather complicated set of exhibits here, all

relating to one thing. | think if we put in that whole thing

at one time, the other parts will do no harm,, and we will

have no trouble about it. I suggest that the whole reeord

be offered as it is,

The Court: You may offer what vou like of it, or offer

the whole.

Mr. Cox: | wish to offer in evidence the bill of complaint,

“the answer, opinion of Honorable Learned Hand, order

amendine bill, answer of defendant Shandaken Corpora- |

tien, stipulation permitting amendment of bill, and = an-

swers, amendment to bill, amendment to answer of Ulen

[fol. 41] Corporation, amendment to answer of Shandaken

Corporation, order amending answer of Ulen Corporation,

order amending answer of Shandaken Corporation, and re-

ply of Ulen Corporation to demand for particulars. They

are, generally speaking the pleadings in the case on which

the case was tried,

Mr. Mergan: Your Honor, we object to the offering in

evidence of this portion of the printed record in the other

ease, We object to it first on the ground that it is irrele-

vant and immaterial, in every way. We suggest, however,

that if opposing counsel want to offer the whole record,

many parts of which are relevant, we will then withdraw

our objection.

The Court: Objection sustained, ,

Mr. Cox: TL wish to offer in evidence the two opinions,

one by Honorable Learned Hand, and one by your Honor

on final hearing.

Mr. Morgan: We make exactly the same objections that

we did before on exactly the same grounds, and again make

the same offer, that if the entire record is offered as a

physieal exhibit, we will withdraw our objection,

The Court: I will let him file copies of those opinions to

aid the Court, if he wants to. I will sustain the objection

to the offer, except that if he wants to put in the opinions,

I will allow him to do it.

Mr. Cox: That is all I will offer at this time, then. I

offer the opinion of Learned Hand as Exhibit 6, and the

(fol. 42] opinion of vour Honor as Exhibit 7.

(Considered marked Plaintiff’s Exhibits Nos. 6 and 7

for reference of counsel.)

Mr. Cox: I would like to offer in evidence the decree in

the Ulen suit.

Mr. Morgan: The same objection that was made and

on the same ground, and the same tender as to the record

in toto is made.

The Court: T will sustain vour objection.

Mr. Cox: I have here witnesses who will testify briefly,

if your Honor cares to receive such testimony, as to the

success of the patented device. That was all put in in

the other ease. .

The Court: Why do not vou offer that?) They have got

a stipulation, have they not, that covered that?

Mr. Cox: Yes, the stipulation covers anything we may

wish to offer.

The Court: I think vou had better offer it. That has a

bearing on the ease.

Mr. Cox: I offer the deposition of Harry B. Wirkland,

printed on pages 41 to 63 of the appeal record under the

stipulation which“admits evidence in the other case. Also

the deposition of Arthur P. Robinson following it on pages

63 to 67, inclusive.

Mr. Morgan: The offer is objected to, first, on the ground

that the depositions are irrelevant and immaterial in the

present case, insofar as is shown by opposing counsel.

In the second place, we object to the transcript of record

[fol. 43] in the preceding case being offered in this piece-

meal manner, instead of in toto.

In the third place, we object to these depositions going

in this case because it deprives us of the right of cross

examination of the witness if they have testimony bearing

on the issues in this case which are ditferent from the

issues in the other ease.

cee

Qt tc. 2S

”

The Court: I thought you stipulated that it mie¢ht be

offered.

Mr. Morgan: Not fractionally.

(The stipulation was then read by counsel.)

The Court: Objection overruled,

(Depositions marked Plaintiff's Exhibits Nos. 8 and 9.)

Mr. Morgan: I take an exception.

Mr. Cox: Your Honor, | have compared the defendant’s

structure in the opening with the claims of the patent in

suit, and I have Mr. Ray here as our expert who can cover

the question of infringement. [I do not know how far you

want to go.

The Court: I will not hear anything now, until they put

in their ease.

Mr. Cox: That will close our case, then.

Mr. Morgan: In connection with vour ruling, | think Mr.

Cox’s rebuttal should be limited to answering our case.

The Court: That is true, but he could have rested practi-

eally with an offering of his patent, and proving simply

your structure. That, T understand, is done. If vou give

[fol. 44] evidence which makes it necessary for him to call

on an expert, he has a right to eall him.

Prima facie proofs closed.

DEFENDANTS’ Proors

Mr. Johnson: Defendants offer in evidence as laxhibit A

the certified file wrapper and contents of the patent in

suit.

(Marked Defendants’ Exhibit A.)

Mr. Johnson: We offer in evidence as Exhibit B a book

of the prior patents and also a photograph of the British

Patent anda Knight’s Mechanical Dictionary that was used

in the other suit. [ will now read the different patents so

that there will be no mistake about them:

122.497, Smith, January 2nd, 1872;

122.498, Smith, January 2nd, 1872;

~~,

179,055, Prindle, June 20th, 1876;

276,318, Beech, November 14th, 18s2;

408,201, Wallace, July 30th, 1889;

999,055, Davidson, February 15th, 1898;

609,744, Hennig, August 23rd, 1898;

671,808, Warren, April 2nd, 1901;

747,396, Farham, December 22nd, 1903;

758,118, Sticker, April 26th, 1904;

837,113, Phillips, November 27th, 1906;

873,345, Canniff, December 10, 1997;

958,421, Mellvrit, May 17th, 1910;

British patent to Trewent, No. 12,758, June 30th,

1894;

{fol. 45] Knight’s Mechanical Dictionary, pages T75, 776,

1185, 1186 and 52.

(Marked Defendants’ Exhibit B.)

Mr. Cox: I would like, in order to save time and to clear

the matter up, to ask Defendants’® counsel to admit that all

of these patents except the two Smith patents were set up

in the answer of defendants.

Mr. Johnson: No, that is not true.

Mr. Cox: Which of them were not?

Mr. Johnson: Mellvrid.

Mr. Cox: No, sir; that was in the answer.

Mr. Johnson: I do not think that is in the answer of the

first suit.

I will now offer in evidence a certified copy of the Me

Ilvrid patent as filed in the Patent Office, that is Patent No.

958,421. That has already been offered. This offer is

made because under the practice, which [do not understand

the reason for, but nevertheless it is the practice, that if

you wish to rely upon the filittg date vou have to file a certi-

fied copy of the specification other than in the printed copy,

We also offer in evidence that portion of the transcript

of the record in Conerete Mixing andgConveying Company,

Plaintiff-Appellee, vs. Ulen Contracting Corporation and

Shandaken Tunnel Corporation, which has not been offered

in evidence by the other side, so that the entire record may

be before the Court as an exhibit.

[fol. 46] Winuiaam Arrixnesrau., called as a witness on be-

half of the defendants, being duly sworn, testified as fol-

lows:

Direct examination.

By Mr. Jolson:

Q. 1. Mr. ArtingstaJl, will vou please give your name,

age, residence and occupation?

A. Name, William Artingstall; fifty vears old; residence,

Chicago, Illinois.

Q. 2. And vour occupation?

A. Occupation, civil consulting engineer.

Q. 3. What education and practical experience have vou

had with building construction?

The Court: Do you call him as an expert?

Mr. Johnson: | have to qualify lim, your Honor, under

the decision of the Court of Appeals of this Cireuit to show

your Honor that he is qualified by education and training .

to testify as to the prior use.

The Court: That is all right.

Mr. Cox: We will admit that the witness is able to under-

stand.

Mr. Johnson: No, sir; we want his qualifications on the

record.

Q. 4. The question is what education and practical experi-

ence have you had on building constructions?

A. My education was gained through various schools,

the University of Cornell, and according to the old English

practice of a father who happened to be an luelishman, a

(fol. 47] good deal of tutoring. In fact, | was brought up

from the time L was a small boy and tutored, | might say,

in civil engineering. My father was probably one of the

best civil engineers in the United States. He brought me

in contact with engineering work as far back as IT can re-

member as a very small boy, and T naturally followed it.

I followed in his footsteps.

I was engaged at various times from the time of my uni-

versity experience until the present time in civil engineer-

ing. In the early stages of my expericnee | was engaged

as an employee in various capacities until about Tis or

1915, in that neighborhood, when I entered the consulting

practice and have been in that ever since, maintaining a

private office for consultation work.

In the last five years I have not done so much consult-

ing work for the very simple reason I am in a position

where I take what I please and do what I please. I sand-

wich in *considerable pleasure with my work. In other

words, I select what work seems to interest me.

I am at the present time also consulting engineer for

the Commissioner of Publie Works in Chicago, being his

personal representative. [lis work involves—this depart-

ment work involves all the engineering work taken up by

the City except what we ¢all local improv ement work,

works paid for by local assessment.

That work with which I am directly interested or may

be consulted on, is waterworks, sewers, pavements, street

cleaning and garbage disposal or other works in which I

may be particularly qualified.

{fol.48] Also I represent the Commissioner as his per-

sonal representative on the bie railroad terminals which

he was designated in the ordinance governing that work

as being the representative of the City. This work in-

volves about,—one terminal which is practically completed,

involves about $60,000,000; the other one under way is

about $110,000,000 as near as we can estimate at the pres-

ent time. The other terminal which we are about ready to

start has been estimated at about $320,000,000,

That I think in general covers my experience.

Q. 5. About how many employees are there in the de-

partment under vou as general consulting engineer?

A. The Department of Public Works employs about ten

thousand employees; that includes all classes.

Q. 6. Can you give me any approximate idea of the cost

of the construction jobs that vou were on before vou began

consulting engineering work for the City of Chicago?

Mr. Cox: How does that have to do with the witness’s

qualifications?

Mr. Johnson: It is necessary under the practice in this

Circuit for me to qualify him.

Mr. Cox: How many people ar» working on the City of

Chicago Department of Publie Works?

The Court: T will sustain vour objection. It is) too

elaborate.

Mr. Johnson: Exception.

Q. 7. What practical experience have you had with con-

crete and concrete construction?

[fol.49] A. T have designed a great number of concrete

works, and supervised the carrying out of the works. Three

pretty large tunnels under the Chicago River, T think they

were about two million or two million and a half dollars,

a rather large job; and the Chicago Municipal Pier involy-

ing about five million dollars, is another job, and various

street railway works and water works of various kinds and

various locations.

Q. 8. Have you had any practical experience with the

pneumatic conveyor for concrete?

A. Yes.

Q. 9. Please state what your experience in this line has

been?

A. My first experience with a pneumatic conveyor was

about 1801. At the time IT was employed as engineer for

Healy & Ward, Watertown, New York. At that time we

had a rather diffeult job of cutting a head race in which

the water from the Black River was seeping through into

the excavation, which made it very expensive work to carry

on. | snevested at that time the possibility of cementing

or building up a concrete dvke between the different lavers

of shale, this was a shale rock, and of course vou know how

that comes, just like so many leaves in a book. We tried

to build up a conerete dyke in there and shut the water off

from the River. Of course, this machine at that time was

a very crude affair, but answered our purpose, and that

was all that was necessary.

Q. 10. Have vou recently made a sketeh of that first ma-

chine for placing conerete by air?

A. T have arranged this from recollection, this memoran-

dum.

[fol. 50] Q. 11. Would vou recognize gn enlargement of

that, if you saw it?

A. I would.

TT TTT

Q. 12. I eall your attention to this sketch at the top here.

Mr. Morgan: Mark that for identification.

(Marked Defendants’ Exhibit E for Identification.)

Q. 13. The first sketch on Exhibit E.

A. Yes, sir.

Q. 14. Will you please describe in your own way just

exactly how that machine operated?

A. That, as I said, was a rather crude machine. We did

not go to any particular expense in building this up. This

is a piece of cast iron flanged pipe (marked 1), an ordinary

flanged water main. This was a eap which we used in

ordinary water works for blocking off the end of a pipe

(marked iron plate 2 and iron plate 8). These were holes

drilled in (marked 4, 5 and 6), the iron plates 2 and 3.

Mr. Morgan: I think you had better use reference let-

ters.

(A short recess.)

Mr. Johnson: Will vou read the question and answer?

(Q. 14 and anwser thereto read.)

A. (Continuing:) In the operation of this machine the

hole marked 4 was for an inlet, air inlet. The hole marked

5 was a hole for the inlet of materials. The hole marked 6

[fol. 51] was the discharge outlet from the machine proper.

In using this machine the materials were mixed up and

dumped info this hopper that we call No. 7. The valve D

in the base of the hopper 7 was the opening through which

the material dropped inte the machine or the seotion of

east iron pipe which acted as the machine. The valve A

was then opened, followed almost immediately by the open-

ing of valve B, the material occupying the space depend-

ing of course on how much there was to be put in, whether

it would be half way up the pipe or whether it would be

more or less.

I will call particular attention, your Honor, to the part

there which we had to insert afterwards, and that ix this

little plug labeled 8. The reason necessitating that was that

the material would pile up along from the discharge out-

let to the side of the pipe itself gradually getting to a point

where if was almost impossible fo put any more material

in, and we then would take a red and take this plug off and

take a small rod and work it around inside there and loosen

up this material and discharge that out. That, 1 think, in

substance and in brief is the description.

Q. 15. You spoke of the material, Mr. Artingstall. What

materials were they?

A. In this particular case we were using sand, cement

and water,

Q. 16. What do you call that?

A. I have always called that grout.

Q). 17. Is that thick or thin?

A. It is pretty thin material.

Q. 18. About the consistency of what?

A. Well, roughly, let us say, the consisteney of thick

cream. It is very sloppy stuff.

[fol. 52] Q. 19. Tlow large was the diameter of the open-

ing + that connected with the pipe in which valve A was

located, approximately ?

A. This machine was made up from ordinary material

which a contractor would have on hand, steam-fitting ma-

terial, water pipe materials and so forth.

These were steam valves and pieces of steam pipe. Valve

A was a steam valve and valve B was a larger steam valve.

This valve B was what what we called a butterfly valve,

this is, it opened up with a full opening with one half mo-

tion.

). 20. You speak of a steam valve. Did vou use steam or

what did vou use!

A. We used air.

Q. 21. About what pressure?

A. On that we did not use very high pressure, propably

about,—the pressure was not necessarily very high because

we did not have very high pressure to work against.

Our proposition was to get the grout into or between

the layers of rock, which was only a short distance below

our surface, twelve feet; and it was only necessary for a

very little pressure, in the neighborhood of 30 pounds.

(). 22. How large was the diameter of the hole No, 6!

A. That was approximately a 4-inch pipe.

Q. 23. And what was the diameter of the pipe that IT

have marked No. 9?

. 37

A. That was also the -ame size. In fact, when we got

out here to a point we throttled it down, because we had

only an inch and a half pipe running into the shale rock.

We had to throttle it down; there was no necessity of carry-

ing a larger pipe.

(). 24. What distance did vou have the discharge from

[fol. 53] the receptacle which you designated No.1?) > How

far did you shoot it?

A. That ran only a short distance, not over twenty-five

feet I would say at the outside.

Q. 25. Now, will you describe a little more in full just

exactly how you operated the valve with relation to the

charge?

A. The charge was mixed up first and put into this hop-

per (7). The valve B owas opened and the charge dumped

in the east iron pipe plug. This valve B then had to be

closed and that left the charge in an enelosed receptacle

with no air either on top of it or behind it. The valve A

connecting with the receiver, the air receiver running di-

rectly from the compressor.

You understand, yeur Tlonor, that where the air com-

pressor is small in capacity and vou want to use a con-

siderable amount of air, you use a receiver. It is nothing

but a boiler to store your air up. That acts as a reservoir.

That has say 1,000 eubie feet of air under a pressure of

thirty-five, forty-five or fifty pounds, whatever vou may

use, Whereas the capacity of your compressor might be

only as high as 100 cubie feet. In other words, it acts as

a reservoir.

This portion marked (1) air inlet led from the air re-

ceiver so that as soon as the valve A was opened, the air

which was in the receiver was shot through the pipe and

through the opening marked 4.) The connection back from

the receiver through the air inlet from the compressor, we

will mark that No. 10. The valve B in the pipe 10 was

opened as soon as possible after valve A was opened.

fol. 54] Q.26. Do LT understand then that vou first put

pressive above the nux in the receptacle and then later

opened the valve B through the length of the pipe No. 9,

to where you desired to place it?

A. Oh, yes. You had to do thai. If you did not do that

why your air from the air inlet and opening marked 12

would just blow a hole in your discharge pipe.

Q. 27. What date did you use this pneumatic conveyer?

A. That was in 1900.

Q. 28. And where?

A. At a place which we called Black Rock near Water-

town, New York.

Q. 29. Was it used successfully?

A. Yes, no question about it. It answered our purpose.

Q. 30. Now, as I understand it, you used only grout?

A. Yes, sir.

Q. 31. Is that right?

A. Yes, sir.

Q. 32. Now, does grout have gravel or stones in it?

A. It has small stones in it, yes.

(). 33. About what size?

A. Well, with us—I have got to always refer to my own

experience. We have a different sizes of sands. In some

places the sand is very fine, in others very coarse. For

instance here you get a river sand with not so many stones

as you get in Chicago, in what we call torpedo sand. 'Tor-

pedo sand was named because it had small stones in it like

the toy torpedoes. Now, your stones will run from in-

finitesimal size—and we have got it pretty well settled

wherever torpedo sand is used—it runs up to a half inch

and a quarter of an inch. It is also called pea gravel, when

the sand is screened out.

Q. 34. How do you fix the time as being 1900, is that it?

A. 1900.

[fol.55]) Q.35. Low do you fix that date?

A. That was the only date I was over in Watertown, and

I fix it because of the fact that | had considerable difficulty

getting life insurance on account of a physical condition.

My policy was issued on January 9th, 1901, and I received

it after I had left Watertown, and I have never been back

there since.

Q. 36. You made the application before you left Water-

town?

A. Qh, yes.

Q. 37. Of course, I mean the application for your insur-

ance, and no other form of application?

A. Yes, my last examination was just a couple of days

before Christmas.

Q. 38. Now, have you had any other experience with

pneumatic placing of concrete or grout?

A. In this way, yes. After I left Watertown I was en-

gaged by the Sanitary District of Chicago, and George W.

Jackson was a very prominent contractor there. Jackson

and I were pretty good friends, and he was, if I may be a

little bit crude, he was a bug on new methods or new appli-

cations of old methods to anything which would help him

on his concrete work.

I mentioned to Jackson the fact that I had used or de-

veloped this machine for placing grout. I might say,

your Honor, that I have always been particularly interested

in tunnel work, and Mr. Jackson was doing an enormous

amount of tunnel work at that time.

I do not know whether vou are familiar or not with tun-

nel work, but in placing conerete along the invert or bot-

toms and the sides of a tunnel it is a very easy matter to

place the conerete, but when you get up into the arch, the

[fol. 56] keying in. which may or may not be in the form of

a key stone, anyhow it is the place where you have to put

your conerete in the top of the arch, that is a different

propos-tion, and if is very important that the conerete be

placed in there as solidly as possible.

Jackson had tried, after he had been down in this Ulinois

tunnel which he had under construction for a long time, he

had tried various ways of puiting his conerete up in there

with rammers, pushing the stuff back, and it at first being

more or less ready to begin to come out, and it was always

at the top where the concrete would not stay.

It struck me that this or some adaptation of this machine

would be just the ideal for placing what we eall the key

concrete or the arch conerete. I spoke to Jackson about

it, and he took me over afterwards, or asked me to come

over, and I went, to what we always ealled his job, where

he showed me a machine. | sketched this out some time

ago like this. This figure No. 2 of Mxhibit

Q.39. The lower portion of the exhibit. Will you de-

scribe it and letter it as you go along?

A. This middle portion labelled A was an iron eylinder.

The part labelled No. 15 was an iron plate, The part

’ as |

labelled I was a piece of cast iron reducer. The part la-

belled D was an iron pipe.

By the Court:

Q. 40. Where is the part labelled I?

A. Down here, sir.

Q. 41. I thought you said it was a cast iron reducer?

A. That is what we eall it, your Honor. Like this glass

[fol. 57] (indieating). This is a certain size but we want

to bring it to a smaller size here so that this casting ean be

placed.

By Mr. Johnson:

(). 42. In other words, change the casting?

A. It is nothing but a funnel.

By the Court:

Q. 43. [t is an inverted truncated cone?

A. Yes, as we would say, nothing but a funnel. The

part labelled Il was the outlet or discharge pipe. ‘The part

labelled G was the connection from the lower portion of

the machine to the outlet pipe H. KH owas a valve in the

pipe leading directly to pipe J. Pipe F led to pipe J. ©

is a Valve in the pipe D, aiid B was the cover for inserting

the material into the machine. Pipe J led to the com-

pressed air receiver.

When I saw this machine operated the materials were in

this case conerete materials, that is when L say conerete

materials, I differentiate between concrete and grout, mean-

ing that the coarse aggregate was larger than a quarter of

an inch, that is it was stone running up to an inch and an

inch anda half. The concrete materials were mixed on the

floor and deposited through the opening of which B is the

cover, and that placed the materials directly into the

machine. The valve C was opened, followed immediately

afterwards by the opening of the valve I, and conerete was

discharged through this neek G, and through the discharge

[fol. 58] pipe IL and deposited in the making of a concrete

floor and underpinning, a small portion of the brick wall

which was in this building.

, 41

By Mr.,Jolinson:

Q. 44. If T understand vour testimony correctly, vou saw

a machine, built like this figure 2 on Exhibit E, convey

concrete pneumatically, is that right?

A. Yes, sir.

Q). 45. And where was that?

A. That was in what we called the Jackson Shop on

Adams Street. The number was 177 Hast Adams Street at

that time.

Q. 46. When was that?

A. That was in 1903,

Q. 47. How do vou place the daie as 1903?

A. Well, if you are going to ask me that, | am going to,

get personal. To was married in 1904 and this shop hap-

pened to be on the way where I could walk home and also

meet my prospective wife.

Now, when I walked in there and walked along—I do not

think I said this before—this discharge pipe was not a

straight pipe. It came out and for a ways went up over

some other machinery and came down dropping and had a

bag around it with a kind of curtain, and the material was

dropped down into a box.

Now, as I said this was personal. I got too close to it

and I was considerably splashed with conerete material,

consequently T could not meet my lady friend that night.

Q. 48. Why was it necessary to drape a bag or baffle plate

over the end of the discharge pipe?

A. If they did not do that the material came out with

such foree it Just splashed over everything.

[fol. 59] By the Court:

Q. 49. Where was the bag?

A. May I picture if to vour Tlonor?) You know how an

ordinary water tank for a locomotive comes down and

you know they have a bag or a steel plate just like a bag

right at the end to keep the water from splashing out of the

receiver. This bae was right at the end of that pipe.

Q. 00. Where was ti on this figure 2-—-

A. If I may carry this out a litte bit it was roughly lke

this (indicating) being a continuation of the tube.

= ©

‘

bv Mr. Johnson:

Q. 51. Was this bend higher than the reeeptacle or not?

A. Yes, it was.

Q. 52. Well then, break the line.

)

A. All rieht (witness does as requested).

The reason T said it was because the discharge pipe was

hung alone on the rafters, the ceiling rafters, while this was

plenty low enough for a man to shovel the material from

the ground up into this. The bag of which your Honor

asked was hung at the point. No. 16 on the continuation of

the pipe labelled HH.

Q. 53. Give the bag a number.

A. 17.

(). 54. Arve you through, Mr. Artingstall?

A. Unless there is something T have not made clear.

(). 55. What air pressure did you use in this pneumatic

concrete conveyer, Figure 2, Exhibit Kh?

A. That | could not state positively, as to what the pres-

sure Was there. Jackson was using air pressure for various

[ fol. GO, purposes, and he may have connected onto a 35-

pound tine or a 6O-pound line. All T ean say is that what-

ever pressure was used Was sufficient to send the material

out of the machine into the pipe Hf and splash considerable

when it came out at the other end of the pipe.

Q. 56. When vou saw this machine operating in 1903 was

it being used for any particular purpose?

A. At the time he laid concrete floor in this building,

No. 177.

Q. 57. What street?

A. Adams Street, Hast Adams Street.

Q. 58. Chicago, Hlinois?

A. Chicago, [Hlinois.

(). 59. Will vou please state about what was the size of

the opening that [have designated 4187"?

A. That was as near as T can recollect about a 2-inch

pipe, not any smaller. ‘Pwo inches or two inches and a

half.

(). 60. And how large was the portion that Tam marking

419""1

A. That was a four or six-iuch. Tam inelined to believe

that it was a G-ich, for this reason: at that time we puta

couple of cement bags in the machine. Now, a cement bag

is a rather bulky prop. itiou to force into a 4-inch pipe,

which was rather a small pipe, and this would lead me to

believe that I could without much question cross that 4-inch

out and say it was a 6-inch.

Q. 61. What was the diameter of the discharge pipe?

A. That was a 6-inch pipe; that was a spiral riveted pipe.

(). 62. What was the diameter of the air pipe F?

A. These were, both t and J were 2 or 242 inches.

[fol.61] Q. 63. In describing the operation of this pneu-

matie air blower, [ think vou omitted to state Just exactly

what you did with the cover’ B after the materials were

placed in the vessel A,

A. That may look peculiar, Mr. Johnson. That cover B

is on the top of the pipe while the air pressure is at the

bottom. As a matter of fact, there were some stud bolts on

here; that had to be bolted down after it was taken off.

The cover B had to be bolted down after it was taken off,

Q. 64. Can vou make stud bolts on that?

A. They are nothing but a bolt that comes in here (indi-

eating). Teall these stud bolts. IT do not know whether

they were stud bolts, may be they were a bolt that went

through with another nut at that point. That was imma-

terial so far as this was concerned.

Mr. Morgan: Refer them up.

The Witness: That would be No. 20; bolts, No. 20.

Q). 65. Then as I understand your testimony after you

put the sand, cement, water and gravel in the vessel A you

clamped down the cover B before turning the air on, is that

right?

A. Understand on this machine, Mr. Johnson, | was a

spectator. Jackson asked me over to sce how it worked,

and his men did all the work.

So your question would be answered yes: His men as

soon as they clamped down the cover B, turned the valve C,

then the valve 4 almost instantaneously.

Q). 66. Did you see them use stone or gravel in this eon-

erete that was blown from the vessel A in 19035?

[fol. 62] A. Jackson at that time was a great believer in

gravel concrete. When [say gravel, | do not mean small

gravel. IT mean gravel, crushed gravel, that would run up

to the same size or practically so as the crushed stone, and

that would run to an inch or an inch and a half in diameter.

Browns

Q. 67. A moment ago you spoke of Mr. Jackson's men.

Can you recall the name of any one of his men that were

working or superintending that job at that time?

A. Mr. John T. Fanning was very intimately connected

With it. . ,

Q. GS. Is Mr. Panning in the courtroom?

A. Yes, sir.

(). 69 Is Mr. Jackson alive?

A. Mr. Jackson is dead.

(). 70. How far did you blow the concrete from this pneu-

matic concrete conveyer?

A. That was about fifty feet.

Q. 71. About fifty feet?

A. About fifty, ves.

(). 72. Could you have blown it any farther if it) was

hecessary to do so?

Mr. Cox: | object to that as a matter of opinion. The

Withess has testified to certain facets, supposed to be facets.

Mr. Johnson: Ile is also qualified as an engineer, your

Hlonor.

The Court: Overruled.

A. There is no question but what it could have been

forced a ereat deal farther from the very fact that it came

out from the end of the pipe with such force that they said

to droop a bafle baw over it and let the material drop into

» bex at the bottom to keep it from splashing over. I do

(fol. 68] not mean to say a box at the bottom; a box under-

neath the end of the bag 17.

Q. 73. Twillask you as an engineer if you had the proper

pressure could you with this machine that you saw operate

in 1903 blow conerete pneumatically several thousand feet?

A. Well, there is no question but that you can blow it, but

whether it is economical or not is another question.

What IT mean to say is this: The distance which material

may be transported pneumatically depends on the capacity

of your compressors, aud on the unit pressure per square

inch, Now, that is general. The only other factor is the

friction in the discharge pipe itself. Tf all of those things

are porportioned correctly, there is no question at all but

what you can discharge it as far as you want.

Q. 74. Did I understand that Jackson was using this

identical machine in laying a tloor and also underpinning,

a commercial proposition?

A. Yes, sir, this was his own building.

Q. 75. His own building?

A. Yes, sir.

Mr. Morgan: Where was that?

The Witness: 177 East Adams Street.

Q. 76. You saw Mr. Joln T. Fanning, who is in’ the

court room, operate that machine at that time, is that right?

A. Fanning did not operate it at that time. Fanning

was there. A common laborer was doing the dirty work.

Q. 77. I mean Mr. Fanning was superintendent: was he

or Was he not?

A. Mr. Fanning was corfnected with George W. Jackson

as an engineer at that time.

(fol. @4] Q. 78. And you saw him there while this ma-

chine was being used commercially to lay a concrete floor

and underpinning in 1903?

A. [will not say that he was there at that particular time,

for this reason, Mr. John¢on: Mr. Jackson and Fanning

and I were pretty good friends for a great many years. We

might have met on a certain dav to go over to that same

shop to see something entirely different. lackson had va-

rious machines, so I cannot say that Fanning was with us

at this particular time that I went over to see this particu-

lar machine.

Q. 79. But you know that Mr. Fanning was connected

with the Jackson Company at the same time that this ma-

chine was used commercially in 1903?

A. Oh, yes.

Mr. Johnson: I offer Exhibit E for identification in evi-

dence.

(Marked Defendants’ Exhibit I.)

Q. 80. Are you a member of the Western Society of En-

gineers?

A. I am.

Q. 81. Do you know Mr. H. B. Kirkland who is present

in the courtroom?

A. I do.

Q. 82. Were vou ever present at a meeting of the West-

ern Society of Engineers when le read a paper on the pneu.

matic method of concreting?

A. I was.

Q. 83. ** Pneumatic Method of Conereting’™® stated to be

covered by this patent in suit?

A. I was.

Q). 84. What is the practice of you engineers?) After the

article is read, do vou discuss it or not?

A. Yes, generally the author who is to present a paper

[fol. 65] if it has not been printed in advance, he often

sends out typewritten copies--or he gives them to whom-

soever he may think is qualified to discuss his paper and

asks them to be present at the mecting—well, to be frank,

so as his paper will not tall flat for the want of discus-

sion.

Q. 85. Are those articles printed in the journal of the

Western Society of Engineers?

A. A great many of them are,

Q. 86. Would you recognize this article that vou heard

Mr. Wirkland read if you saw it?

A. IT would.

Q). 87. Teall your attention to the journal of the Western

Society of Engineers for May, 1918, Volume NNT, No. 5,

an article entitled ‘*Prhooumatic Method of Conereting”’ hy

IH. B. Wirkland, M. W.S. EL, presented May 15th, 1918, and

appearing on pages 319 to $55 of that journal (handing

paper to withess).

A. Yes, sir.

VW. S8&. You just said vou were present there?

A. Yes, | was present.

Q. 89. 1 notice in the discussion of that article some

remarks by Mr. William) Artinestall, is that yourself?

A, That is myself, ves.

Q. 90. Teall your attention more particularly to your

remarks appearing in that article, or in the discussion of

that article, printed on page Sos of that journal of the

Western Society of Mngincers, and ask that vou kindly read

into the record the portion that [have marked?

— EE LS TTS

A. Do you mean for me to read my discussion gn that

date?

Q. 91. Just that which is marked. IT do not want. the

whole thing.

A. This is a d'scussion by myself on the paper which

(fol. 66] Mr. Johnson spoke of. It reads as follows: “The

development——

Mr. Morgan: T suggest that vou read it as it appears so

that it will be clear for the record,

The Witness: **Mr Wm. Artinestall: The development

of the pneumatic mixer is interesting. About fifteen vears

ago this device apas used in connection with on ord nary

mixer as a transporting agent. The concrete was damned

into the hopper and transported by air pressure, The eon

tractor, however, put something over on the engineors. THe

ran a batch or two through the hopner without putting it

through the. mixer, and discovered that he had a pretty

good mix. From that time on it was dropped nntil alone

1907 or 1908, when the Drake Machine Company. here in

Chicago, too- it up and started to improve it. We tried

it out in the LaSalle Street Tunnel. T think that was the

first time it was used after 1908. We made some tests on

the concrete, and, as T recollect it now. the ordinary con-

crete running in n “IX to twelve ineh tnhe, Withstood io pres-

sure of ahout 1,900 pounds, We need pressures of about

2,500 to 2,700 pounds on some forty or fifty differen: tests.

We used this system on account of the eouventonce more

than anything else, but we found we hod the best couerete,

and we used it practically everywhere we eould after that:

I think you will find that if the mixers of the present time

[fol. 67] compare with the ones used at that time. the work

will compare favorably with the ordinary mixed conerete

work.”’

Q. 92. Now, when did you make that comment, at the dis-

cussion of this article by the chief engineer of the plain-

tiff company?

A. That discussion was nade——

Mr. Cox: I, of course, object to any statements in that

article which are not within the personal knowledee of the

—

witness, and if so made, as hears iv, such as what the con-

tractor did.

I understand that this article and his statements are

simply being introduced to show that this witness made

such a statement at that time, and not as evidence of the

facts stated therein.

Mr. Johvson: Oh, ves.

Mr. Cox: All right.

Q. 93. Now, if you will tell the date, the date please, Mr.

Artingstall, when you made that statement in this con-

nection.

A. This was my oral discussion of Mr. Nirkland’s paper,

‘*The Pneumatic Method of Conereting,”’ the same evening

at which it was presented, May 13th, 1918. It was presented

at the Western Society of Engineers.

Q. 94. Now, fifteen vears prior to May 1th, 1918, would

be what?

A. 19038.

Q. 95. Now, all throngh this article and also through

this disenssion that [ have just mentioned Mr, Kirkland

[fol. 68] and yourself differentiated between the mixer and

the pneumatic transporting agent. Why was that?) Why

should you differentiate between the mixer and the trans-

porting agent?

A. Well, there are a dozen different kinds of mixers.

You can mix concrete with an ordinary shovel, but it is a

very difficult proposition to transport it 50 feet or 100 feet

or 1,006 feet on the shovel.

In other words, the proposition with one is getting it in

the place where vou want it to remain, whether that be in

a tunnel, or a retaining wall or a seawall, wherever it may

be.

Q. 96. What did you mean by differentiating between

the two, that is, between the mixer and the pneumattic

transporting agent?

A. Yes, that was just what | pointed ont to you in an-

swer to those two questions there, what we want is to get

the material into a certain place, and there was only one

way to get it there and that was to force it in,

Q. 97. By what?

A. The best way to force it in was by air.

Q). 98. In this article-——

A. I might say, if | may expound a little bit. You won-

der why I say air instead of steam, because steam will

cause the setting of the concrete almost instantaneously.

In some cases we have had concrete put in carriages with

steam turned on it, and it would set within a very few mo-

ments, so that we finally had to dump the stuff out before

we got it to the place. That was the reason we use air.

Q. 99. In this article when you stated, ‘‘About fifteen

years ago this device was used in connection with an ordi-

[fol. 69] nary mixer as a transporting agent, what did you

have in mind at that time?

A. The mixers spoken of here or the machine spoken of

here was used as a transporting agent not primarily as a

mixer. That is, as I said, in the Jackson machine, the ma-

terial was mixed on the floor, by ordinary labor and thrown

up with shovels into the hopper and transported by being

carried through this pipe and over or across other machines

which happened to be in the shop to the place where they

wanted to put it.

Q. 100, In your last answer and one or two of the others

you have referred to these machines on exhibit KE. Why

do you refer to this machine here, figure 2 of exhibit KE, as

a transporting agent?

A. Well, because that is what it was used for.

Q. 101. Was that the one vou had in mind that was stated

‘“‘about fifteen years ago’’?

A. Yes, sir.

Mr. Johnson: The Journal of the W estern Society of

Engineers, May, 1918, Volume 23, No. 5, copyrighted in

1918 by the Western Society of usincers, | is offered in evi-

dence as Defendant’s Exhibit F.

Mr. Cox: The whole journal?

Mr. Johnson: Well, no, just a portion of it if you wish

me to designate it.

Mr. Cox: What portion of it are you referring to!

Mr. Johnson: That is, I am offering the article and the

front cover, covering the article entitled, “The Pneumatic

Method of Concreting,’’ by Mr. Il. W. Kirkland, M. W,

4—501

Cd eee

7 o

[fol. 70] S. E., presented May 15. 1978, and the discussion

thereof running from page 319 through page Soo.

Mr. Cox: | object to anything except the statement of

the witnéss here, Ido not know the rest of it. As [under

stand it, this witness has been simply asked to prove that

he made a certain statement. Now, if the rest of the article

is to be put in evidence it ought to be proven and its rele-

vancy shown.

Mr. Johnson: T have proven the fact that the paper wa»

read at this meeting by this witness. Te was there and he

discussed it.

I ean undertake to show the relevancy of it in the argu-

ments. It isa matter of argument, but [ will argue it now

if your Honor so desires. It contradicts everything they

have.

Mr. Cox: It is not relevant if it is being offered as a state-

ment made by Mr. Nirkland. He is here and ean be asked

about it.

Mr. Johnson: This man was present during the reading

of that article, he heard it delivered and discussed it.

The Court: What are vou trying to prove by it?

Mr. Johnson: I am first trying to prove that this state-

ment was not simply an afterthought by Mr. Artingstall,

and that there is documentary evidence that in 1918 Mr.

Artingstall said that this pneumatic method of conveying

concrete was old fifteen vears before that.

That is the first thing. That shows that in this discus:

(fol. 71] sion of this article he stated it was old in 1905s,

He established that. The whole article is necessary to

show just exactly what Artingstall was talking about.

The article is on mixers and is given by the chief engi-

neer and vice president of the plaintiff company, and, as a

matter of fact, it deals all the way through with their strue-

ture which contradicts their present contention.

The Court: I think T will allow it.

Mr. Cox: May I say here this is supposed to be a state-

ment made by Mr. Kirkland, and Mr. Wirkland is present

and if they want to prove that statement they ought to call

him as a Witness.

The Court: I think that is true.

Mr. Johnson: I will offer it as prima facie proof and if

they want to deny it they can call him. :

Mr. Cox: T will object to it.

The Court: I do not see how y®u can offer this strictly

except to refresh his recollection in order to show some

date or something.

Mr. Johnson: Well,, it does show the date, sir. It was

printed and the paper was given in May 13th, 1918, and it

was printed in May, 1918,

The Court: Do you wish to confirm what Mr. Kirkland

4s going to testify to?

Mr. Johnson: It contradicts what he is going to testify to.

Mr. Cox: Mr. Kirkland has not been called as a witness

yet.

(fol. 72] Mr. Johnson: We have an opportunity to do so,

The Court: I will sustain the objection.

Mr. Johnson: Exception.

I would like, if I may, your Honor

Mr. Cox: I do not object to what Mr. Artingstall said,

if vou want to put in that statement, I have no objection at

all.

Mr. Johnson: He made that statement. Ts it your posi-

tion, your Honor, that | should call Mr. Kirkland for the

purpose of proving this article? That copy is certified by

that society,

The Court: This article states a lot of facts, as I under-

stand it. Why should this witness be called to prove this

article?

Mr. Johnson: Well, he heard it.

The Court: Why do not you call the man that wrote it?

Mr. Johnson: I do not know that I will have an opportu-

nity.

Mr, Cox: He is here.

Mr. Johnson: But I need it very much. It is very ma-

terial to our defense, and if they will produce him and keep

him here I am perfectly willing to call him for its introdue-

tion,

Mr. Cox: We will keep him here.

The Court: They say they will keep him here.

Mr. Johnson: All right.

Q. 102. Did you ever know John MeMichael, the patentee

of the patent in suit?

A. Yes, I did.

(fol.73] @. 103. In what years?

A. T met MeMichael and knew him best about 1910 or

1911. .

Q. 104. Did he ever consult with vou as to any pneumatic

conveying mechanisms in 1911?

A. We were constructing the La Salle Street tunnel. Me-

Michael wanted to introduce his conveying apparatus to

the contractors at that time. IT was engineer of design and

in charge of the work for the street railway company, and

both supervisor and engineer.

The machine was made in the Drake Machine Company

plant, and there was considerable trouble in getting the

thing onto the job and getting it started and one thing or

another. My interest was to get the work through, so I

gave all the help [could to both the contractors and to Me-

Michael, whoever asked me to @o over there first, | do not

know, but T went over there and gave them whatever help

and information T could to get the machine onto the job.

Q. 105. Do vou know about when MeMichael built) his

first concrete mixer?

A. Well, I do not know when he built the first one. The

first one that IT ever saw was in 1911.0 This one T was just

speaking of, having been used on the La Salle Street tunnel,

Q. 106. Have you got a photograph of that?

A. T have it in that pamphlet there, Mar. Johnson.

(). 107. (Handing paper to witness.)

A. Yes, that is it.

(). 108. You havea photograph?) A. Yes, [have a photo-

graph.

(). 109. When was this photograph taken, about?

A. This was taken in 1911, along in the fall.

(). 110. 1 notice that in this photograph is a picture of a

[fol. 74] man, do vou know who he is?

A. He was one of my inspectors, by the name of Coombs.

The Court: Are von going to mark that?

Mr. Johnson: Yes, sir, Exhibit G. 1 offer this in evi-

dence,

Mr. Cox: May T ask for what purpose this is offered?

This photograph was taken some four years or more after

the filing of the application for the patent in suit, and it

does not seem to me to be relevant.

Mr. Jolinson: It show- the construction different from

that illustrated in the patent in this form, and the questions

I now ask show the relevaney,

The Court: All right,

(Marked Defendants’ Exhibit I.)

Q. 111. Did vou see this machine operate?

A. Oh, yes, many times.

Q. 112. Will you briefly describe how it did operate?

A. The operation, at the Upper part is a hopper which

Tam going to call H, which is practically at street level,

There is a large valve Immediately below that vhich Twill

call XK. The machine itself was composed of three different

sections, which I am going to eall M, that ix, there is the

center portion, an upper portion and the reducing portion.

At the lower portion of the machine (M) is the bend

leading to the discharge pipe and in fact is a portion of

the discharge pipe which | am going to call PL Off to the

right in the upper section above the flange is a small pipe

[fol. 75] with a valve on it, and the pipe and the valve | am

going to call No. 1, which is a litle bit farther to the right

of tnat which is a Y connected with a pipe leading down

toward the foot of the machine connecting it to another Y,

and this returning through a pipe to the air line. 1 will

‘all the whole business No. 3.

Now, the materials were put in at street level into the

hopper up in here, and the valye——

By the Court:

Q. 115, Where is that? This is the hopper?

A. The materials were put into this hopper, then valve K

Was opened, the materials dropped into the machine M, and

the valve L, leading into the top of the machine and the

other one leading down into the discharge pipe, were

opened, almost simultaneously as near as could be done ;

the material was then discharged through the pipe P down

under the pipe on which the young man is sitting, down into

the tunnel and to the place where the material was to be

dumped.

By Mr. Johnson:

Q. 114. What was the consisteney of the conerete that

was blown out of that machine as shown by the photograph,

Exhibit I?

A. That was a pretty wet mixture, pretty wet. It was all

concrete mixture. My specifications on all this tunnel work

ran on the river section, 1, 2 and 4; that is, one part cement,

two parts of sand and four parts of stone, not to exceed one

[fol. 76] or one and a half inches in diameter.

(). 115. Did you make any suggestions in the building of

this commercial machine?

A. We had a lot of trouble. There was considerable

trouble on this, and the material instead of, when they

opened that valve K—let me put it this way: before the

elbow of the pipe P was made of cast iron, they used a

spiral rivetted pipe. Now, when the material came down

through the valve IX and the air pipe No. 1 leading into the

top of the mixer it was turned up, there was considerable

clogging of material in this lower portion of the elhow P;

and I suggested to MeMichael that he could get rid of that

by putting a connection down here at the lower end of his

pipe by inserting a connection down near the elbow. That

is shown in here. That is the connection coming dowr

through here (indicating), No. 2.

Mr. Cox: MeMichael is dead and his application for a

patent was on file more than four years prior to this and

speaks for itself. At least it is incompetent, irrelevant and

immaterial.

The Court: Overruled.

Q. 116. Do T understand, then, Mr. Artingstall, that Me-

Michael attempted to build a machine like the drawings of

his patent with air coming down and the air pipes (2) com-

ing down as shown in the figure of his drawing, but that

that was not satisfactory?

Mr. Cox: I object to this. This witness says that he does

not know when MeMichael built his first machine, and

naturally he does not know how many machines MeMichael

lfol. 77] built. It is highly irrelevant to the issues in this

ase,

Mr. Johnson: This’ wiiuess is testifving to his personal

knowledge. This machine right here in 1911 was clogged

up and was unsatisfactory.

Mr. Cox: It is entirely irrelevant and immaterial. It

would not have made any appreciable difference if he

changed his patent construction.

Mr. Johnson: His patent application is inoperative as

filed. ;

Mr. Cox: That is another question. This thing here

varies from the patent in various particulars,

The Court: Overruled.

(). 117. Go ahead.

A. Read the question and answer, please.

(Question and answer read.)

A. The trouble we found with that pipe 2 coming in there

was that the air blew a hsle through the material.

(J. 118. That is through the concrete?

A. Through the concrete material. In other words, the

air exhausted through pipe 2 and out through his discharge

pipe 23 lifted the material up above your arch over bend.

Q. 119. You made a suggestion then. What Was your sug-

gestion?

A. My suggestion was he put the connection down at the

lower portion of his bend as shown in this photograph,

marked as No. 2.

Q. 120. And that was in 1911?

A. 1911, yes, sir.

(Adjourned to Tuesday, October oth, 1926, at 10:45

o’clock A. M.)

(fol. 78] Wruntam Artinesrats. resumed:

Direct examination.

By Mr. Johnson (continued) :

Q. 120. Mr. Artingstall, yesterday in your testimony you

referred to seeing this conercte blower, figure No. 2 on De-

fendants’ Exhibit No. a, at 177 Adam Street; was that ecor-

rect?

A. No, it is Monroe Street. It .hould be Monroe Street.

If I said **Adam’’, | am mistaken.

Q. 121. Throughout your testimony, you mean Monroe

Street?

A, a mont Monroe Street, ves, sir.

(). 122. In referring to this concrete blower that you saw

Fn on that job for laying a floor and also for under-

pinning on Monroe Street in 1903——

A. Yess sir.

Q). 123. Your testimony stated that the foree of the con-

crete coming out through this exit pipe was so great that if

splashed, and you had to have a batile bag; is that correct?

A, Y cs, sir.

(). 124. About what was the consistency of the concrete

that you saw coming out of this exit pipe IL?

A. It was very wet, quite wet. [| would say that vou

could compare it—if a man had stood on it, he would prob-

ably sink half way up to his knees.

(J. 125. Elsewhere in your affidavit vou referred to the

consistency of cream. Was it about like that?

A. Yes, just about the same, but, of course, having the

stone in, a layman would probably say it was slush.

(). 126. That is, very wet concrete?

A. Very wet, yes.

[fol. 79] Q. 127. In examining the operation of this ma-

chine, Exhibit No. 2, in 1903, did any slugs of concrete come

out through the exit pipe H, or sections of concrete or seg-

ments of concrete, or how did they come out?

A. No, that concrete is carried along as a floating mass,

and it just comes out in the one mass. In other words, the

floatation mixture is carried. There are no slugs.

(). 128. There are no slugs of concrete or sections of con-

crete segments of concrete; is that right?

A. No, I-never saw any. %

Q. 129. You mentioned a minute ago about coming out by

flotation. What did you mean by that?

A, When the air is turned into the conerete mixer, that

is not only forced through and into the mixture, but carries

the conerete mixture alone with it. That is, it could be

called an emulsification. The air is surrounding the in-

dividual portions of the concrete or certain parts of it, to

lay around the stones. In other words, there is a continual

mixing through there,» xine with the air us well as with

itself.

Q. 150. Is the air carrying it?

A. There is no question about that.

Q. 151. The air is floating it?

A. The air is floating it right dlong. If that was not 80,

if the concrete was carried along as a slug, there is no ques-

tion at all but what the friction on the outside of the pipe,

on each one of those slugs, would so retard it that the middle

would be pushed ahead,

In other words, it would be broken up. The middle would

then become the outside, and there would be a kind of whirl-

ing in and out motion, so there could not possibly he any

[fol. 80] such thing as a slug.

Q. 152. Is that also true of a segment of conerete or a

section of concrete?

A. Ido not get that,

Q. 153. You just mentioned that slngs of conerete could

not come out through this pipe UH. tam asking vou now

if that action of yours applies also to sections of concrete,

cylinders of concrete or sezments of conerete, like a piston

going through there, a piston of concrete.

A. IT can not see that there is any possibility of shoving

the piston of cancrete throneh there, through the pipe,

Q. 134. T call your attention to Defendants’ exhibit F,

which is a photograph of the MeMiehael blower, and ask

you did you see that in operation?

A. I did, yes.

(). 135. When?

A. In 1911,

Q. 136. With what sort of concrete Was it employed, wet

or dry?

A. It was a wet concrete,

Q. 137, Were there any slugs of conerete that came out of

the exit pipe there?

A. Not that I ever saw.

(). 138. How did it come out?

A. It just came out—possibly, bean picture it this way:

If you can imagine a water faucet: xiving it a quick turn,

your water is coming slushing out of the faucet. You turn

it off. That ends it except for the little bit that comes along

through the fancet itself. That is as near as [can pieture

it for a layman.

Q). 159. In this Journal of the Western Society of Engi-

neers, page SOS, marked for Identification as Defendants’

lfol St] bexhibit Py Po note that in your remarks vou re-

ferred to certain pressures of 1000 pounds and 2,300 pounds

and 2,700 pounds. Did that have any relation to the air

pressure in the pipe?

A. No, that has nothing to do with the air pressure at all.

That merely referred to tests which we male on the con-

erete,

(). 140. Tow do vou make those tests?

A. On that particular job of which Twas speaking there,

we were continuously making what we call a full-sized tests ;

that is, blocks of concrete six inches or twelve inches cube,

and we would take these eubes or forms, which are noth-

ing but a box twelve inches each way, put that directly

wonder the mixing and take the conerete right from the

spout, so that we would get an absolutely exact mixture,

the same kind and consistency that was going into the eon-

erete. Then that was earried off to one side as close as

possible to where that partieular conerete was being used

that day, so that the conditions of the test would simulate

as nearly as possible aetnal conditions in the work. That

is all these 1.800 and 2,200 pounds have reference to.

() 141. In vour testimony vesterday, vou referred to the

relative costs of placing conerete by a pneumatie blower

onehoas figure No. 2, Exhibit 3, and also Exhibit No. F.

With relation to placing it by hand, what have you to say

about that?

A. Conerete can be placed ina great number of different

wavs. Tn omy experience where we used this, the only job

of reine in whieh T could talk knowing what T was talking

about, was that of the South Street Tunnel, but we found

ffol. 82] that the eost of the conerete, as transported by

this air mixer, exceeded the cost*ef transportating it by

bugev, which is nothing but an ordinary wheel barrow, von

might say a half barrel shape, and the material dumped

into that and wheeled into place. We used this beeause of

the inaccessibility of getting the conerete into the upper

part of the arch. Where we used buggies, we would have

to load them, take them down into the tunnel a distance

of about thirty fect, carry them alone ona runway 100 to

190 feet, dump the material and then shove it back. In

this way, we got out of practically two handlings.

Q. 142. Would the cost of operation figure in’ which

method was used?

A. Yes, with a contractor more so than with an engi-

neer. As an engineer, | do not care particularly how much

a contractor is going to spend on his work as long as he is

going to have money enough to carry my job through. The

contractor has got to look at it from the other side of the

fenee.

Q. 143. Do yon know of any instance where the buggy

or hand placing superseded the pneumatic placing of the

MeMichael Blower, as Exhibit F?

A. Yes; on that same job we had that machine installed,

but we found it cheaper to place the conevete in the lower

part of the arch by means of these buggies and then place

it again from the regulary mixers to this air mixer and trans-

ported the conerete for the upper section by means of this

air conveyor.

Q. 144. Then the contractor wonld use whichever method

was the cheaper; is that it?

A. Yes.

Q. 145. I call vour attention to the Mellvrid Patent,

[fol. 83] No. 958,421, and ask you to examine the drawings

and the specifications of the patent, and ask vou whether

or not you ever used the concrete or grout blower shown

in that patent (handing paper to witness) ?

. Yes, T have used that.

146. When did vou use that?

That was used late in 1911.

147. Who manufactured the device?

The name plate on that was the Cockburn.

148. What materials did you use?

That was a cement and sand and water, we called

it a grout, very thin. We had no stones in it.

Q. 149. Did you have any small gravel in it?

A. No. I might say this, in explaining our use of that.

We used it for the stoppage of leaks. The tunnel is under

the Chicago River, and there is 27 feet of water over the

top of it. From the top or surface of the water from where

we were stopping the icaks was about 50 feet, quite a good

POrOveo>

60 ‘

deal of pressure, and the amount of water coming through

the conerete, of coursey would add to the inereased cost of

operation of this tunnel. We desired to prevent as much

water coming in as possible, and had one inch or one and a

half inches and in some eases two inch pipes put back into

the concrete. We then forced grout through these various

sized pipes. So you see we had to have it very, very thin.

In some easew, we used only water and cement.

Q. 150. Your fecollection is that you did or did not use

any pebbles in that grout?

A. No, | do not think that we used any pebbles at all.

[fol. 84] By the Court:

Q. 151. Do L understand you to testify that you used this

deviee that is deseribed?

A. This Cockburn, yes, sir.

Q. 152. What vear? \

A. That was.in 1911.

Mr. Johnson: That was before the patent in suit.

By Mr. Johnson:

(). 153. From your practical experience in handling a

machine built under this MelIlvrid Patent, 958,421, and the

fact that the patent says thas small stone may be used to

build sea-walls and foundatéons and so forth, what would

be your opinion; would that be wet concrete or not?

Mr. Cox: I object to that. That is simply asking for an

opinion and a ‘conclusion.

Mr. Johnson: He used the machine, your Honor, and he

is a Very capable engineer right in this line of business. The

patent says that small Sfones may be used to build sea-

walls and foundations. You would not make that out of

erout. When vou strengthen that with small stones, you

eet concrete. This man filed his application before Me-

Michael filed his in the Patent Office.

The Court: T will sustain the objection to the question

in that form. If vou want to ask him some scientific ques-

[fol. 85] tion, you may do so, but you are asking him to

construe the language of the patent, as I understand you.

Q. 154. Could the machine from your experience as an

“engineer familiar with concrete construction, could the ma-

chine shown in this Mellvrid Patent be used to blow wet

concrete?

A. Oh, yes.

Mr. Cox: I make the same objection to that.

The Court: Objection overruled.

Mr. Cox: Exception.

The Witness: If I may make a statement, I think it would

probably clear up my answer as to the possibility of using

gravel in that Cockburn mixer. When I asked for the pro-

ceeding of the Western Society of Engineers, I was under

the impression that there was a certain photograph in there

which was taken under my direction. At that time we had

considerable leakage in the Van Buren Street Tunnel,

which is also a street railway tunnel under the Chicago

River and under the same conditions Which I described a

few moments ago. The Great Lakes Dredge & Dock Com-

pany who had that contract, did not use the Cockburn mixer,

but we took the same kind of mixer as is shown on the

upper section of that Exhibit E there, as | deseribed ves-

terday, using a east iron water main. flanged pipe, and in

that case we had one very difficult place or condition where

[fol. 86] the pumps came down the shaft and an enormous

amount of water came down. We could yo! possihly fill

that hole up with grout, so there we made a special effort

and actually shifted torpedoes there and finally got roofing

gravel to use in that, call it grout machine or anything

you want, that first design there on the Exhibit.

Q. 155. When was that?

A. That was late in 1907.

Q. 156. Did vou ever read a paper before the Western

Society of Engineers describing the operation by vou of a

machine built in accordance with the Mellyrid Patent, No.

958,221?

A. That is manufactured by the Cockburm Company ?

Q. 157. Yes.

A. Yes, sir, I did.

Q. 158. Please refer to it.

A, That is in the Journal of the Western Society of En-

gineers, Volume 16, No. 9, November, 1911, page 917, which

if]

Siereeseaies ss ey

covers a portion of the discussion of my paper entitled,

“The Chicago River Tunnels.”

Q. 159. What vou just referred to is a portion of an arti-

cle written by vou entitled, “Chicago River Tunnels, Their

History and Method of Reconstruction,’? appearing on

pages 869 to 921, is it not?

A. Yes, sir.

Q. 160. When was that article printed and published? ,

A. That was published in Volume 16, No. 9, November,

1911.

Mr. Johnson: [T offer in evidence the Journal of the

[fol. 87] Western Society of Engineers of November, 1911,

Volume 16, No. 9, copyrighted 1911 by the Western Society

of Engineers, and more particularly page 917 of the cer-

tain article just referred to by the witness,

Mr. Cox: I object to this offer. This is an article said

to have been written by this witness in 1911, nearly five

years after the application for the patent in suit.

The Court: What do vou want that for?

Mr. Johnson: It is documentary evidence and corrobora-

tive testimony that he used this device in 1911; and that

this patent is not a paper patent; that is, that machines

were actually built under it and used.

The Court: How long was the article written before this

suit was brought?

Mr. Johnson: Fifteen years.

The Court: TI will let vou put it in. T doubt if it is com-

petent evidence. If it had been contemporaneous, LT think

it would be pretty poor evidence.

Mr. Cox: It is put in to corroborate the statement of the

witness that he did make such statements in 1911, is that it?

Mr. Johnson: To corroborate his testimony that he used

this machine in 1911, vears before the suit was breught.

The Court: The article may be one that I would like to

look at.

(Marked Defendants’ Exhibit G.)

[fol. 88] Cross-examination.

By Mr. Cox:

X Q.161. Mr. Artingstall, where is your office in Chi-

cago?

Ae ie tase!

A. I have two offices. one in 7 South Dearhor: Street

and one in the City ITall.

X Q. 162. Your office at 7 South Dearborn Street. is au

real estate office, is it not?

A. No, it is not.

X Q. 163. What is the name of the firm on the door?

A. It is a suite of offices. Roe & Whitman are the hold.

ers of the lease of the suite.

X Q. 164. “Roe & Whitman, Real Estate Dealers’ ap-

pears in large type at the head of the door, does it not?

A. Yes, f

X Q.165. And then there are about a dozen names ith

small type under that? &

A. I do not think there are a dozen. ‘There are about

four, I believe. There are several of them.

X Q. 166. And yours is one of those names?

A. Yes.

X Q. 167. About how often do you go to that office?

A. Sometimes I go there every day; sometimes | do not

go there for a week.

XQ. 168. You go there to meet appointments and eet

your mail?

A. Mostly to get mail.

X Q. 169. Just what is your connection with the City En-

gineer’s office in Chicago. Are you employed by the City

of Chicago on a salary?

A. I have no connection whatsoever with {he City Kn-

gineer.

XQ. 170. Are you employed by the City on a salary?

A. Yes.

XQ.171. Do you mind telling us what thet salary is?

Mr. Johnson: I object to that, your Ilonor.

[fol. 89] The Court: Objection sustained. | do hot see

what his salary ean possibly have to do with it.

X Q.172. You have a desk in a small ofliee in the City

Hall; is that right?

A. No, I have a large oftice.

X Q. 17% How big is it?

A. About twenty feet square, I should judge,

X Q. 174. And there are some other men in that oflice?

—

The Court: Ido not see what difference it makes whether

he has a large desk in a small office or a small desk in a

large office.

Mr. Cox: This witness has been telling us about his very

important connections in Chicago, and I think I ought to be

allowed briefly to show what they really are.

The Court: All right.

X Q.175. There are several other gentlemen in that office

with you?

A. My direct employees and assistants.

X Q.176. How many employees or assistants have you

in that office?

A. Thave only one who is a real office man. The others

come and go. Whether | have one or a dozen, it does not

make much difference. That is, what I mean to say, Mr.

Cox, is this: My position, as I stattd, is a peculiar one

XQ.177. Tam not interested in this unless the Court is.

I want to know how many employees or assistouts you have

there now?

A. How many I have?

[fol. 90] XN Q.178. Yes.

A. [have the authority to call on any man in the Depart-

ment of Public Works.

X Q.179. How many assistants have you now, or em-

ployees?) Lam not talking about those who are employed

by the Department of Public Works. Have you any?

A. Yes, I have. I think | see what vou mean. | want

to get it clear, Mr. Cox. [ have directly assigned certain

assistants to certain work. In my central work, | assign

an assistant, that is, directly. On the Union Station work,

I assign an assistant directly, or on any other work | as-

sign an assistant directly. At the present time L have

those three, with the office man, four all told.

X Q.180. They are employed by the City of Chicago,

these men?

A. Yes; indirectly by the City of Chicago.

X Q.181. Referring to this apparatus which you say you

used on the Black Rock job in 1900, were there any draw-

ings or sketches or photographs made of the machine at

that time?

A. Nothing other than probably just a rough sketeh.

XQ. 182. Did not somebody make that machine and

charge for the materials and time that Went into the mak-

ing of it?

A. I presume that it was charged up, yes, but it is just

like picking up this piece of pipe one place and the cast-

ings somewhere else or the valyes somewhere else, maybe

on the job. There was no direct order placed.

XQ. 183. Was not some entry made in somebody's books

at that time in connection with the making of that machine?

A. That I do not know.

XQ. 184. At any rate, you have nothing today in the

nature of a drawing or sketch or piece of the machine or

[fol.91] book or bill dating about that time, to show the

date or what it was?

A. Tam inclined to say no.

XQ. 185. Have you not looked for it?

A. No, I have not.

XQ. 186. Have you not made awuy inquiries for that sort

of stuff?

A. No.

X Q. 187. Did not defendants’ counsel ask you to look up

such things?

A. No.

X Q.188. Then you have nothing today, so far as you

know, that originated prior to the present vear in the

nature of a book entry or sketch or drawing or part of a

machine or any visible evidence to show What that machine

Was or where and when it was used?

A. I would be inclined to say no, Mr. Cox,

XQ.189. Have you endeavored to find anyone who saw

you use that machine or knew about the use of it?

A. No.

The Court: Which machine is this, the one he used in

1911?

Mr. Cox: In 1900, at Black Rock, the one represented by

the sketch, Exhibit BK.

My, Johnson: Fig. 1 of Exhibit RB.

Mr. Cox: Yes.

X Q. 190. Can you give us the name of anyone living

who knew about that machine at Black Rock in 1900?

o—9d01

A. T have never been back to Watertown since T left.

That is 26 years ago. I do not know whether they are liv-

ing or not,

XN Q.191. Can you give us the name of someone who

knew of it at that time, someone living?

A. Ido not know whether they are living or not. If vou

[fol. 92] leave that ‘tliving’’ off, T can give vou the names

of some that IT knew who were living at that time.

X Q. 192. Give us the name of someone living or dead

who knew of the use of that machine in 1900?

A. [hada foreman by the name of Grannis——

XQ. 195. How do vou spell that?

A, G-r-a-n-n-i-s.

XQ. 194. What was his first name?

A. Fred was his first name.

X Q.195. About how old was he at that time?

A. He was in the neighborhood of 50 or 52 or 53: some-

where in that neighborhood,

XQ.196. So he would be pretty well along toward 80

if living?

A. He would be along in the seventies, ves.

X Q.197. Anyone else that you can think of?

A. There was one of the members of the firm, James

Ward.

XQ. 198. How old was he at that time about?

A. He was about the same age; possibly a little older.

X QM. 199. So these two men, if living now, are somewhere

over seventy and along toward eighty?

A. Yes, | wonld say in that neighborhood,

XQ. 200. Did they both see this machine?!

A. Yes. The machine was made—I would like to explain

that a little bit.

XQ. 201. No, IT am only asking whether they ever saw

the machine?

A. It was made for them, ves.

X @). 202. Did they see the machine?

A. It was made for Haley Ward, and Grannis was the

[fol. 93] superintendent for Haley Ward.

X (). 205. Did they see this machine and see it operate?

A. . know Grannis did.

X Q. 204. You do not know whether Ward did?

A, No, I would only have to assume that,

X Q. 205. T believe you said that you first used this ma-

chine which T will eall the Black Rock machine with a top

compressed air inlet only; is that correct?

A. In there (indicating) ?

X Q. 206. Yes, shown in Fig. 1 of Exhibit E?

A. I do not think I said that.

X Q. 207. Then you did say, I think, if you did not have

the compressed air inlet at the bottom, the compressed air

at the top would blow through and defeat the operation of

the machine; is that correct?

A. Yes, I said that.

X Q. 208. Will you explain just why that is?

A. Why the air will blow through the mass?

X Q. 209. Yes.

A. Of course, whether it blows through or not, Mr. Cox,

is going to depend on the thickness of your mass. If you

have a’ wet—let me make an extreme example—if you have

only a liquid into the chamber itself with the discharge

end open, you are going to blow the air directly through

that liquid. Your other extreme is to imagine a solid plate.

Let us make it an absolute extreme and say it is a &teel plate

in there. Of course, the air can not penetrate through that.

Now, between the liquid and the solid plate, vou have a great

variation between which the air either will blow through or

will not blow through. There is some particular point in

there which is just on the balance.

[fol. 94] X Q. 210. We will use ordinary grout, which is

a very fluid substance in such a machine as that shown in

Fig. 1 of Exhibit FE. Will that blow through?

A. It is a flowing substance, if it is kept agitated—and

Iam going to say right here that the trouble with that

machine identified by the No, 1 on Exhibit FE was that the

material did get over that pipe, did clog it.

By the Court:

— Q. 211. What pipe?

A. Over the opening FE leading into the discharge pipe.

I explained that yesterday, and that we put this plug S

in, to put a rod down in there and plug that out. That

machine had to be agitated.

‘e

GQPtenw rn.) 2.

By Mr. Cox:

X (). 212. You had to stick a rod down in the tank and get

the packed material away from the discharge opening?

A. Yes, if your grout is real well, your ingredients are

going to separate comparatively quickly from the water——

X Q. 215. Tam not asking that. [ want to know what

you actually did. You had put a rod in there for breaking

up the material and getting It away from the discharge

opening Where it was packed?

A. Yes, and this in Mxhibit 1 had to be violently agitated

nnutil we could get the air started through from the valve A

through the machine to carry the grout alone.

XQ. 214. In this Meflvrid patent that you have referred

to, do you find any bottom air inlet or lower air inlet?

A. No.

[fol. 95] XN Q. 215. In that machine shown in the patent,

there is only a compressed air P in the top of the ma-

chine; is that correct?

A. That is all, ves.

XQ. 216. And there are paddle wheels inside the machine

to agitate the material?

A. Yes.

X (). 217. And is it vour testimony that without those

paddle wheels, the machine would not operate properly?

A. IT would not say that it would not operate, but the in-

troduction of the paddle wheels keeps the material agitated,

and that is just exactly what vou are trving to do when vou

force that air through. On this Mellvrid, the material is

being agitated by paddle wheels and the material is carried

down'with it and forced through that discharge pipe.

XQ. 218. What T want to know is whether, if vou ean

State, that Mellvrid machine could be operated without the

- rotating paddle wheels inside the vessel?

A. IT sineerely doubt that it could if it was placed in the

same position that it is there,

X Q. 219. You would have to make some change in the

construction and arrangement in order to wet it to work:

4s that it?

A. Not necessarily making a change. You would have to

make some arrangement for agitating the material, either

using the madhine itself and rolling it to keep that going

until you got rid of it.

Bice ia

X (. 220. You are talking about using this Mellvrid ma-

chine with grout?

A. Yes,

XQ. 221. With ordinary erout—I do not think vou have

answered my question—and with a top cutlet only such as

[fol. 96] is shown in Exhibit By Mig. 1, and in the Mellyrid

patent, would the compressed air bore down through the

material? ;

A. There is a qualification as to how thick your material

would be,

X Q. 222. With ordinary grout?’

A. I know, but vou ean pack water so that you ean not

float through it. T think T ean explain your question. Let

us say that the diameter of the evlifder in that machine was

two feet. If you had six inches of materia! on the bottom

without a paddle wheel, so there was no agitation whatso-

ever, in other words, the machine was at rest, and you

turned fifty or sixty pounds of air in through the top valve

and opened up your bottom valve, there is no question but

what you would blow a hole through that six inches of grout.

X Q. 223. And you would not discharge the grout. You

would blow a hole through it?

A. You would have to discharge some of it.

X Q. 224. You would not get a discharge of the batch of

grout in the mixer?

A. Not lying on its side like that.

X Q. 225. How about in the position shown in vour sketch

here, Exhibit EB, Fig, 1?

A. That is just exactly what T said; that if was not «at-

isfactory, the fact that the material piled up from the open.

ing 6 towards the sides of the evlinder. In other words,

there was practically a cone of material whieh was blown

out.

X Q. 226. You have deserihed an apparatus whieh vou

say was used in Chicago in 1903. That was at 177 Monroe

Street, vou now sav?

A. Kast Monroe Street, ves, sir,

X Q. 227, Do you remember who owned that building?

A. Ido notk now who owned it,

[fol.97] X Q. 228. Do vou remember who ooonpiod it?

A. George W. Jackson occupied it,

Gir eee

X Q. 229. The entire building?

A. He had the entire building; double building.

XG, 230. Was not that building occupied by the ‘Tunnel

Company?

A. It may have been the Tunnel Company, but George W,

Jackson was the controlling feature of the Tunnel. /Com-

pany.

XQ. 231. Ido not want vou to argue this matter. T want

to get through. The Tunnel Company had its men and its

equipment in that building, did it not?

A. So far as that goes, I can not say whether they were

directly employed by the Tunnel Comany or by George W,

. Jackson.

X Q. 252. [t was a building oceupiet by those engaged

in the Tunnel Company’s work?

A. Not necessarily; not all of it. They were practically

90 per cent of the time engaged on tunnel work.

X Q. 233. Do vou know what Mr. Jackson’s connection

with the Tunnel Company was at that time?

A. Jackson was engineer for the Tunnel Company and

he was at that time, [ think, also general manager.

X (). 234. So that his occupation was conducting the

operations of the Tunnel Company? ®

A. The operations of the Tunnel Company was only con-

struction.

X Q. 235. His chief occupation was conducting their ope-

rations; is that right?

A. Now, I would not say as to that because IT would not

he har nye to say.

X Q. 236. You mean vou do not know enon about what

Mr. Jackson was doing, to say?

A. T mean to say this, that T de not know what a man is

[fol. 98] doing in hix private capacity except so far as T

come in contact with him. ,

XQ. 257. Mr. Jackson was a prolific inventor, was he not!

Mr. Johnson: T object to that.

Mr. Cox: That is very material, T think.

The Court: Objection overruled,

A. That I do not know.

XQ. 258. You know that he had a large number of in-

ventions, do you not, that he was working on from time to

time?

A. No, I knew of only (wo.

X Q. 239. What were they?

A. One was a loading machine and the other was a steel

sheeting machine.

X Q. 240. T understood you to say that you were a pretty

close friend of Mr. Jackson’s: is that correct?

A. T said Twas a pretty good friend of" Mr, Jackson’s.

XQ. 241. And that you came in contact with him quite

often?

A. Yes, I came in contact with him.

XQ. 242. And yet you did not know that Mr. Jackson was

developing any inventions except these two that you men-

tioned?

» A. Jackson was very secretive about a great deal of his

work——

X Q. 243. Now, please answer the question,

Mr. Cox: I object to this witness entering into explana-

tions instead of answering questions. If you will read the

question and answer, you will see what if amounts to, .

(fol. 99] (X Q. 242 read.)

Mr. Johnson: Your Honor, they are absolutely fair and

responsive answers and the attorney should not browbeat

the witness. :

The Court: Go on with your questions.

Mr. Cox: I am trying to get through with this eXamina-

tion.

X Q. 244. Did you not know that Mr. Jackson was work-

ing on any other inventions that he did not have to be

secretive about, that he obtained patents for?

Mr. Johnson: L dhject to that,

The Court: Objection overruled.

The Witness: Will you please read the question,

(X Q. 244 read.)

A. No, I would not say that | positively knew any other

patents,

X Q. 245. You made an afidavit in this case in June, 1926,

did you not?

A. Yes,

X Q. 246. And your present testimony is that in that

machine used by Mr. Jackson in 1903, he used stone up to

an inch and a half in diameter; is that correct?) Or crughed

gravel?

A. I think I corrected that to say crushed gravel which

runs up to an inch or an inch and a half in diameter.

X Q. 247. In this affidavit that vou made in June of this

year, you said ‘‘On this 170 East Monroe Job in 1903, [ saw

them mix sand, cement, water and gravel up to one-half to

three-quarters inch in a concrete mixer and then place the

| fol. 100] mixed conerete in the tank A through the cover

B’’; referring to the drawing from which Exhibit I, Fig.

2, was made. You made that statement, did you not?

A. Yes.

X Q. 248. So that the size of that crushed gravel used by

Mr. Jackson has increased in vour mind since June from

three quarters of an inch maximum to an inch and a half?

A. No, I did not say that.

X Q. 249. You now say that he used up to an inch anda

half?

A. I said erushed gravel—probably I did not make it

absolutely clear. Crushed gravel running from an inch to

an inch and a half. Let me explain this way: There are

different sizes. We classify from half an inch to an inch

as.one inch gravel because it would pass through a one inch

ring. We classify as an ineh and a half gravel from one

inch to an inch and a half or anything that will pass through

an inch and a half ring. So I am perfectly consistent, Mr.

Cox. If I say we use three-quarters of an inch gravel, what

I mean is probably the average was three-quarters of an

inch. Maybe the minimum even ran below half an inch. It

sometimes slips over the scréens. The largest may have

been larger than an inch because it may not have been ab-

solutely an inch in all directions.

X Q. 250. Then your statement in this affidavit that Jack-

son used gravel up to one-half to three-quarters of an inch

is not {he statement that you wish to make now; is that cor-

rect?

A. I will say this

X Q. 251. Why not answer it?

A. Iam going to answer it absolutely to vour liking. I

will say that I have my sincere doubts on 10 per cent of the

[fol. 101] gravel coming inte Chicago being an inch and a

half, although classified as that. 1 doubt if 20 per cent

would run over an inch in diameter. We as chyimeers ean

eall for crushed gravel from an inch and an inch and a half

and know very well that we are lucky to get an ineh. In

other words, here is our whole object in Chicago. The

crushed stone people had a monopsly and we wanted to

break the monopoly or at least@llow competing material

gravel to come in with us. We shut one eye when we look

at the sizes. It is immaterial.

X Q. 252. Is that statement in your affidavit correct or

not, that the gravel used by Jackson was up to ong-half to

three-quarters of an inch?

Mr. Johnson: The witness has answered that question,

vour Honor.

The Court: Objection overruled.

A. In other words, what vou want is what is the absolute

say as to my recollection regardless of that.

X Q. 253. TL want to know whether that statement in your

affidavit is correct or not?

A. Yes, I will say that it is correct.

X Q. 254. And then vour statement that the gravel used

by Jackson was up to an inch and a half in your testimony

here is not correct, is that right?

A. I just qualified that a moment ago. I explained just

exactly what I meant.

XQ. 255. And you do not care to make any further quali-

fication. You are satisfied to leave it at that?

[fol. 102] A. Yes.

XQ. 256. You have said in your testimony here, I helieve,

that Mr. Jackson used on that machine an air pressure of

5d. pounds or more, is that correct ?

A. I think that that is very close to correct.

X Q. 257. Well now, in this affidavit made hy vou in June

you said, ‘After the tank .\ was full of mixed concrete the

cover B was closed and the valve G@ and the air pipe B was

opened to admit air of between SU’and 100 pounds pressure

above the charge of the mixed concrete in the tank.’’ Did

you not make that statement?

A. That is true, too.

XQ). Los. Now, the size of this cclivery pipe, the pipe at

the bottom shown in Figure 2 of Exhibit 6, what was that?

A. The pipe IP?

XQ. 259) The pipe He?

A. The pipe TH was a six inch pipe.

XN @). 260. And T believe that vou said that the pipe I*

Was about a two inch pipe?

A. Two or two and one-half ineh.

XN Q. 261. In vour affidavit made in this present vear in

June, the allidavit to which f refer, vou say that the ‘upper

air passing through the pipe D above the charge forces tha

mixed concrete down through the exit pipe G of four inches

wnd the other air passing down through the pipe F impels

or forces this concrete and forces it out through the pipe Il

Which was four inches.”? You made that statement, did you

not?

A. LT thought T said four or six inches on that.

XQ). 262. You made that statement, and I will show you

a copy of the aflidavit. Yes or no, please.

fYol. 105] Ma. Jolson: Here is a copy of your g¢keteh.

Mr. Cox: Why coach the witness while Lam cross ex-

amining him? | have not interfered with couffsel.

The Court: Do not be handing the witness things when he

is cross examining him.

A. Frankly it says so here but I did not appreciate it

until just now.

XQ. 265. By the way, Mr. Artingstall, what was the date

of vour marriage in L904?

A. June sth.

A. Yes, sir.

X (). 265. This work on which you said you saw Mr. Jack-

son use a machine of Figure 2 of exhibit HE was in connee-

tion with the putting in of a tunnel in that building, was it

not?

A. No, it was a floor in the building itself,

XQ, 266. What floor was it?

A. The basement floor.

X Q). 267. And had not they connected that with a tunnel,

with the tunnel system?) Did not this underpinning and the

laving of the floor, wasthat work that was required by the

tunnel connection?

A. No, not the part that T saw them putting in. That had

nothing to do with the tunnel connection. In fact, | would

not say whether there was a tunnel connection in there or

not.

X Q. 268. You do not remember Whether the tunnel was

connected there at that time or not?

A. It was what vou might call a machinery room. There

Was a compressor and various other machines there, and I

never went down through that entrance. Tf there was a

[fol. 104] tunnel in there | never went down there.

XQ. 269. Do vou know whether the building is connected

with the tunnels in the street?

A. No, I have never had any occasion to check on that.

X Q. 270. Now, this work of laving the floor that you

have deseribed, was that different from any other floor lay-

ing job?

A. No different except that there was INachinery around

the different places, that was all.

X Q. 271. In laying a floor it is usual and customary even

today just to take the concrete, mix it and flow it out on the

floor, is if not, throueh a chute or hy means of wheel bar-

rows?

A. With an ordinary man, ves,

X Q. 272. With ordinary men that is what is done?

A. With an ordinary man.

X Q. 273. That is what is usually done, is it not?

A. Yes, | would say Yes, an ordinary man. In 99 eases

out of 100,

X Q. 274. And where you are putting underpinning under

Walls it is only necessary to run the conerete down through

a chute or shovel it down, it is net?

A. No, the underpinning of the Walls is a pretty ticklish

proposition,

X (). 275. Well, is it usual just to shovel or run the eon-

erete down through a chute, is it not. to the place where it

is packed? .

A. Well, if might be to the layman, but there are lots of

things besides that.

XQ. 276. This machine that you describe as having been

used by Jackson in 1903 did not pack the conerete, did it?

A. No, it was only transporting it,

[fol. 105] oN Q. 277. It was only transporting it. If it

needed packing that had to be done afterwards?

A. The material was wet enough so that it would pack

itself.

XQ). 278. At any rate the building at No. 177 Kast Mon-

roe Street where vou say this work was done by Jackson

was a building principally occupied by the work of the

tunnel company, Was it not?

A. Well. TP stated that I did not know whether they were

tunnel employes or whether they were George W. Jack-

son employes. Jackson also ran the Jackson Bridge &

Tron Company.

X (). 279. That was not located at 177 Monroe Street,

was it?

A. No, his shop was farther up the river, but whether

the men were designing on that, 1 do not know.

X Q. 280. Do you remember about what the size of the

vessel was that you have described as used by Jackson

In 1905?

A. Do vou mean the machine?

X Q. 281. Yes.

A. To the best of my recollection that was in the neigh-

horhood of 2O or v4 inches in diameter. Let us see, it |

just stand up LT will get an idea as to the way it looked.

The platform itself, we will say, is four feet off the ground;

the incline section comes down about in the neighborhood

of 15 inches below the platform, and the upper section was

two feet or maybe 27 inches above the top of the platform

itself. Is that sufficient?

X Q. 282. Yes.

The Court: Where was the machine with reference to

[fol. 106] the conerete, or fluid, however you may describe

it, that was deposited?

The Witness: It was deposited in different ways, your

Honor.

The machinery was lined up along the wall. There

were pipes of various kinds in there, and the only reason

I could see for using this machine in that particular case

Was to prevent the slopping of the conerete when they

would throw it in shovels over the machinery. That was

the only reason I could see why he would want to use it.

NCAA SHS

X Q. 283. It splashed your clothes pretty badly, did it

not?

A. Oh, yes, but that was when he was dumping it to an-

other section. Remember there was a line of machinery

partially along on the east side.

The Court: Why would not a funnel have heen just as

well?

The Witness: You mean a large funnel?

The Court: Yes,

The Witness: Your Ifonor, I will have to digress just

aminute. If you knew George W. Jackson vou would know

anything he did

The Court: I am not saying what he would do, or the

characteristies of George W. Jackson. 1 am asking you

why it would not have done Just as well,

The Witness: I would have taken and covered the ma-

chine with a few planks, and thrown a tarpaulin over it and

[fol. 107] put a little spout in there and shoveled the Con-

crete into the spout and into place, like an ordinary man

would have done.

X Q. 284. Can you state what the discharge pipe of this

apparatus was made of, this Jackson apparatus which vou

have testified about?

A. It was what. we call spiral riveted pipe.

X Q. 285. And how about the part of the pipe that you

say went up and down over something and down again?

A. Do you mean what we eal] the goose-neck ?

X Q. 286. Yes,

A. That was all spiral riveted pipe.

X Q. 287. And this bag on the end of the pipe, What was

that made of, do you remember?

A. Just an ordinary burlap or cement bag.

XQ. 288. Can you make a sketch of that basement jin

which you say this machine Was used, and indicate on that

sketch where the underpinning was done and Where the

floor was laid, and where the machinery was located?

A. I think I can describe it to vou.

X Q. 289. I would like for you to make a sketeh. T wil]

hand you a piece of paper.

A. (Witness does as requested.) You appreciate this

Will not be to scale. It Will be perhaps indicative of what

Was there.

In order to save some sketching, T will say that the en-

trance to the building was practically in the center of the

building, and then passing in ou the first or ground floor

to the right of which was some clerical help, and a short

way back was the elevator, then just in the rear of this

elevator was a stairway, which led down to the basement.

[fol. 108} That Tam merely explaining so that you will

understand. Loam going to leave off vetting to the base-

ment. See whether this will answer your purpose, This

is Mast Menroe’Street at the bottom of the page. North

is to the back which | will indicate by an arrow. Along

the west wall there were various machines, whether they

were permanently installed there or not, of course, I do

not know. There were several mnachines along in through

about not quite the middle, a little bit to the west of the

middle of the building itself.

There were some columns coming down at various points

along in through what would be the middle of the building.

This is really a single building but built on two lots, pos-

sibly 50 feet frontage. Whether it is 50 feet or 40, 1 do

not know.

The concrete mixer itself was installed slightly to the

north and practically, well, | will say not more than five

or six feet west of the center of the building.

XQ). 290. Well, just make ans M*" there to indicate where

the mixer was.

A. We will put it right here. Now, vou asked about the

concrete which was put in. The first concrete which we

put in and which T saw being put in, and which Tam telling

you Was splashing where | got my decorations, ran over

this series, or the pipe ran over this series of machines

which T will call No. 1, and deposited in due course to the

machines practically taking up that bay between the ma-

chines along the west wall, and thence running down just

west of the center. T will indicate the outlet of that pipe

[fol. 109] approximately by the circle there.

XQ. 291. Better mark the pipe P or something like that.

A. Allright. Ewill mark the pipe Py and mark the outlet

I will not necessarily indicate the box in whieh that was

dumped. You will understand that that box was helow.

That was the first piece supposedly, and 1 will shade ap-

proximately the cross arch or the piece of flooring which

I saw put in, centering, let us say, roughly around this end

XQ. 291. And how big was that piece of flooring?

A. This west half of the building js approximately 25

feet wide. The machines, the ones marked No. 1 there

have a space of about 4 feet: and the machines along the

west side there, I will mark those No. 2, were set about 2

feet or possibly a little bit more from the wall, and 1 will

say that they probably averaged 80 inches at the foot, 30

inches across, in that neighborhood,

XQ. 292. Were they conereted in at the base. the ma-

chines?

A. My recollection is that those were, and many of them

were on skids. Now, whether it was pieced under, | do not

know.

X Q. 293. Now, indicate where the underpinnings started,

A. Now, when T saw the underpinning done this Pipe

ras swung over to the west. Supposing LT indieate it with

a dot. Understand that there are bends and one thing

or another in there, but roughly it is shown as indicated

by the dotted line, and we will call it G for that pipe.

(fol. 110] That underpinning was alone on the west wall

back of where I have labelled the various machines No. 2,

Roughly, I should say, all I saw them do was ten fect or so,

possibly, of that underpinning.

XQ. 294. And did that underpinning, run the entire

length of the wall?

A. That I do not know. As I sail. | saw them do about

10 feet of it.

XQ. 295. And this patch of concrete that You say vou

saw them do was about what size, approximately?

A. This was about 5 feet. Roughly, that would be be-

tween 10 and 15 feet. I should say lo feet, closer to 15

than 10 feet wide, and about 20 feet lone.

Understand, Mr. Cox, I am not going to say that T saw

the whole of that piece put in. That is where they were

working.

XQ. 296. How near ‘the front of the building was that

patch of concrete floor?

A. Well, I would say approximately that that was about

a little bit north of the center of the buildine. My recol-

lection is that these buildings are about 125 fect in depth.

Berm + an ae >

“ay

80)

Mr. Cox: Now, [ will have this <keteh marked for identi-

fication.

mead Plaintiff's Mxhibit No. 10 for Tdentitication.)

X Q. 297. Now, as TL understand your testimony, Mr.

kak you have no drawings, sketches, description

or photographs of this machine that you say was used by

Jackson in 1903?

A. L would be inclined to say no---oh, Jackson's 1908?

[fol. 111] X Q. 298. Yes,

I do not know whether To have or not. 1 have not

looked for any.

X Q. 299. Did not defendants’ counsel ask you to look

for such things?

A. No.

X Q. 300. Did not ask vou to look for any drawings, or

sketches or photographs or any part of this machine that

might be in existence?

A. No

XQ. 301. Do vou know whether the drawings or not were

made at that time?

A. That, | do not know whether they were or not. You

see L was not connected with Jackson at all.

X Q. 302. You were a friend of Mr. Jackson, were you

not, and met him quite often? :

A. Oh, yes.

X Q. 308. Did not you learn in the course of your rela-

tions with Mr. Jackson whether he did have a drawing or

a sketch or description made of this machine?

A, Oh, no, not any more than | would learn when I would

go out to the bridge shop and ask him for the blueprints

of the piece of work he was putting through the shop. I

was not interested particularly whether he had any draw-

ing or not.

X Q. 304. Then vou do not know whether any drawings

were ever made or any photographs or other illustrations

of this machine?

A. Not of my own knowledge, no.

X Q. 305. And vou have not tried to find out?

A. No. ’

X Q. 306. Have not you asked, Mr. Artingstall——

A. Let me just correct that a minute, T ealled Mr. Slade

who is now engineer for the Chicago Tunnel and was con-

nected with Jackson a number of years, and went with the

[fol. 112] Tunnel Company, either connected with Jackson

or the Tunnel Company for a good number of years, and

I asked him if he had had anything relating to the ma-

gM suid that they had nothing going back to 1907,

I think 4t was 1907 when the Chicago Tunnel Company su-

perseded the Ilinois Tunnel. In other words, their records

started with the present concern, not the old.

X Q. 307. Why did you ask Mr, Slade?

A. Why did I ask Mr. Slade?

X Q. 308. Yes,

A. Because I knew that if anybody had it Slade was the

man that would have it,

X Q

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