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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Transcript of Record
- **Published:** January 1, 1930
- **Citation:** 282 U.S. 175

## Text

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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

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(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

ee

Certnittesyl

‘eure

perdtatinage

Original

lil
I’rint

ving
one

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[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

3

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.

(c) That this cause be referred to a Master to make and
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 . 386,121
Prindle..... 179,055

23,594 (British) 1896

12,758 (British) i894

~ 18,394 (German)

7

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-

9

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 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.

= 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?

38

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?

39

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 |

40

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.

= ©

42
‘
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.

)
2.
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

45

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

44

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.

45

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
4

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.

4s

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?

Pa

4

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

50

[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. :

~>

51

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?

o2

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.

03
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,

a)

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?

56

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

57

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

5s

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

59
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.

OL

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

62

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!

65

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?

Qe

—

64

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.

65

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

é

who knew about that machine at Black Rock in 1900?

o—9d01

66

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,

-

67

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.

68
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

69

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

70

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?

71

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

4

73

[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?

75

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,

16

[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
a
id

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.

a
78

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
O.

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-

79

proximately the cross arch or the piece of flooring which
I saw put in, centering, let us say, roughly around this end
of the pipe which I have marked ©,

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
. hh

130 .
a

X Q. 162. Now, that building at 177 East Monroe Street,
[fol. 176] that building was rented or owned by the Tumnel
Company, Was it not?

A. They leased it, I believe. Just what their arrange-
ments were, 1 am not positive. Those details | am not posi-
tive about.

X Q. 163. They oceupied it?

A. They oceupied it, ves, sir.

X YQ. 164. Mr. Jackson’s oceupancy of part of that was
\ as an engineer and general superintendent?

N\A. Yes, sir.

x . 165. I believe vou are unable to state whether My.
Jagkson had any drawings made,of this machine at the
time?

A. I am unable to state that positively. He had none
made in my olfice, I know.

X Q. 166. Well, Mr. Jackson had a great many ideas,
didn’t he? 7

A. Yes, he had a number of them.

X Q. 167. He was a man who invented a great many
things?

A. Quite a few.

XQ. 168. And patented quite a few?

A. He took out quite a number of patents, I believe.

X Q. 169. Now, I want to clear ‘up this point. How long
were you with Mr. Jackson?) That is to say, when did you
first separate from him in business?

A. The first separation was in 1906.

X Q. 170. Yes, and the next?

A. I went back with him again in 1906 to take care of the
crib werk for him.

X Q. 171. Yes, and how long were vou with him then?

A. I think about six months.

X Q. 172. Now, I believe you said that it was hard to
place the key of the tunnel lining by hand?-

A. Why, it was the most difficult part of the eonereting,
that is what I meant, because it is in a confined place, and
[fol. 177] they have to throw it up over their heads, and
throw it in back.

You understand, as they concrete the sides they leave the
lagging plates off until they fill the concrete te the top of
the lagging plates in place, and then keep adding lagging

aaa i ‘ee or pestering
- 131

plates as they go up until they come to a confined place
ealled the key. That of course is a little more difficult, and
they have only about twelve inches to place that in.

X Q. 175. Phat might be called the keystone of the arch?

A. That might be called the keystome of the arch, ves.

X Q. 174. And the floor and sides of the tunnel and the
roof up to this key were all placed by hand?

A. At first, yes.

X Q. 175. And was the concrete rammed in?

A. Yes, sir.

X Q. 176. How was the concrete placed by hand in the
key?

A. Shoveled in.

X Q. 177. Shoveled in, and then rammed?

A. Tamped, what we call tamping.

X Q. 178. And it is your testimony that vou used this
machine No. 5 of Exhibit I to place the key in that arch?

A. We did.

X Q. 179. Well now, how much of that key did you place
with that machine?

A. I am not positive on that point, 100 feet possibly or
more.

X Q. 180. 100 feet or more?

A. Yes.

X Q. 181. And there weve about 69 miles of those tunnels
in the streets of Chicago? ~

A. I think there are about 100.

X Q. 182. They were building the tunnel lining then ata
pretty rapid rate, were they not?

A. Yes, sir.

[fol. 178] X Q. 183. In 1903 and thereabouts?

A. Yes, sir.

X Q. 184. Now, was that 100 feet of key that you placed
with this machine all in one piece or strips or different
places?

A. All one strip, I believe. I was not there all the time
they were using it, you understand. I had other duties to
perform. I got up the idea of the machine or with Mr.
Jackson’s collaboration, and when the machine would get
started, | was through, and I had other things to go after. ’

X Q. 185. Was it placed all at one time or at different
times?

132

A. T helieve all at one time. To net want to be positive
on that?) I know they used #for over a week, and at that
time they were driving about 15 feet ina day in a heading,
and it was in one heading only

X Q. 186. Do you remember about where that was?

A. On LaSalle Street north of Madison.

X GQ. 187. North of Madison and between what streets?

A. I do not want to be sure of that. We would go in
there and I do not know just what streets we were under
or how far we were in. These details | did not bother with.

X Q. 188. Might it have been three or four blocks north
of Madison?

A. I do not think it was that far. LI would not say how
far. I walked in that tunnel there myself and did not know
Where I was at times. There were no markings in the tun-
nel,

X Q@. 189. Have you ever personally done any concrete
tunnel lining?

A. Yes, sir.

X Q. 190. With a pneumatic machine?

A. No, sir.

X Q. 191. Never used a pneumatic machine for tunnel
lining?

A. I never did, no, sir.

[fol 179] N GQ. 192. Do vou knew how extensively these
pneumatic conerete placing machines are used today for
tunnel lining?

A. At the present time I do not know. | know they have
not been used on a great many tunnels.

X Q. 193. And T believe it is your testimony that after
using this machine, illustrated by tgure 5 of Exhibit I,
on this one strip or piece of key vou discontinued using it?

A. I do not know. No, they used it for grouting right
along. T would be positive almost of that that they used
it for grouting whenever they would have a leak for quite
a while afterwards, but I did not go into that part of it.

X Q. 194. They did not use it any more for placing con-
crete? &

A. No. After 177 Monroe Street?) That was after the
tunnel was placed.

X Q.195. Yes.

A. If they did, I do not know; they may have.

133

X Q. 196. How soon aiter this tunnel was the work at
177 Kast Monroe Street?

A. Four or five months, I believe.

X Q. 197. How did they get the machine into 177 East
Monroe Street from the tunne!?

A. Ido not know. I did not bring it up.

Mr. Jackson had the foundation to bring it up there, and
Ido not know how he brought it. I presume he brought it
up out of the shaft and transported it over there.

XQ. 198. Were you at 177 East Monroe Street when this
machine was placed there?

A. LT was there when they set it up and started it.

X Q. 199. What was the condition of the basement there?

A. The basement was practically clear at that time.
[fol. l80]) X Q. 200. Was the shat't finished?

A. No, the shaft was not finished.

X Q. 201. How far along had they gotten with that?

A. That I do not know. I would not say just when that
shaft was finished or when it was not. These details were
not in my line of business.

XQ. 202. You were not connected with the tunnel?

A. Twas not connected with the tunnel company, except-
ing as advisory engineer to Mr. Jackson on methods that
he wanted to use. He asked my opinion on almost all
mechanical devices that he used. I do not mean to say that
he used all the things I suggested, or stopped using some
of the things I suggested that he not use.

X Q. 203. That tunnel work, by the way, the tunneling
of the streets of Chicago continued until 1909, did it not?

A. I understand later than that even. They did some
work themselves. Mr. Jackson, I believe, continued until
about 1909.

X Q. 204. Do you know how long Mr. Jitekson continued
there as engineer? o

A. I am not positive on that score. I ean give you my
opinion of it.

X Q. 205. Yes.

A. I think in 1906 that Mr. Jackson made different ar-
rangements. I think his contract was up, and he made dif-
ferent arrangements with the Tunnel Company. I think he
went down afterwards on a percentage basis, but that I do
not know. TI was not a partner of Jackson at that tire.
I was simply an employee. og

XN Q. 206. At any rate, he continued his work on the tun-
nel until about 1909, according to vour recollection?
[fol IST] A. Up to that time sometime, ves, sir.

A. Up to that time sometime, ves, sir.

X Q. 207. Now, do you remember how that machine that
you have described as being used at 177 East Monroe Street
Was mounted?

A. Mounted on a wooden frame.

X Q. 208. About how high was the frame?

A. Well, do not know the height of the frame. The top
of the machine | should judge would be about six feet.

X q. 209. About how big was the machine?

The tank was rolled 20 by 50,

X Q. 210. Twenty by thirty?

Inches. Tam talking about the sheet.

X QQ. 211. Now, vou are talking about the machine, fig-
ure 9 in Exhibit 1?

A. Yes.

X Q. 212. By the way, did Mr. Jackson to vour knowl-
edge use any other grouting machines there than the ones
you have testified to?

A, Afterwards I think he had another machine. In fact,
I know he had one other.

X Q. 213. Where did he get that?

\. He bought it. It was not a pneumatie machine.

X Q. 214. I mean pneumatic machine.

\. No, not to my knowledge.

X Q. 215. He did not have any other pneumatic ma-
chines than the one vou mentioned, to vour knowledge?

A. Not that I know of.

X Q. 216. Now, T would like to have vou make us a
sketch showing how that mage the was used to place the
key of the arch. T will give vou a piece of paper. Just
draw a lengthwise section of the tunnel and show us the
key and how the thing was done.

A. [think T ean show that better by a cross section.
[fol. 182] XN Q. 217. All right. Please show it both ways.

(Witness does as requested.) That will give you
roughly about the way that was done.

X Q. 218. All right, now T want you to make——

— =
135

A. This would show you where we placed the pipe. The
machine would be here (indicating) and the pipe would
come up there (indicating). It was on a track.

X Q. 219. Now, 1 will ask vou to indicate the tunnel
wall in the roof by ‘*A*’.

A. (Witness does as requested.) At the roof?

X Q. 220. Yes, at the roof, put the A‘ at the roof and
also on the lengthwise or longitudinal view up above there,

A. That would be shaded. That comes on a curve and
will be shaded down.

X Q. 221. Now, please indicate the forms running up to
the key by **B*’ in both views.

A. (Witness does as requested.)

X Q. 222. Now, please indicate the pipe leading to the
key for supplying the material from the machine ay a”
in both views.

A. (Witness does as requested.)

X Q. 223. And the machine, please make that ‘*D."’

A. (Witness does as requested.)

X Q. 224. Now, the el running out to the machine: I
mean the air pipe running through the lock to the ma-
chine?

A. The compressor air pipe that came along down on
the floor?

X Q. 225. Just indieate it on both views, please,

A. Coming to the heading this way it was not inside the
extension. We had to put an extension on the heading.
That is where the heading was not conereted.

X Q. 226. Just show how that pipe ran to the machine?

A. From the air lock. This direction is the air lock and
[fol. 183] the pipe ran through the heading. T have this
reversed, This machine should show in here (indicating).

XQ. 227. Can not vou show it?

A. The final position of the machine would be back there
(indicating).

X Q. 228. Then your drawing is incorrect?

A. What we did instead of extending the pipe, when
we would conerete a little we would run the machine back
alittle. The machine was mounted on a ear.

136

X Q. 229. IT want yeu to indicat’ how vou connected that
compressor air pipe that ran through the air lock to the
machine.

A. I think it was connected to the machine. That was
connected to the machine with a flexible joint down here,
and run to the tank or to the pipe from the tank. TI will
show that right now, running from this side of the tun-
nel on tue bottom, it ran across to the tank to the lining,
and hooked onto that lining with a f¢.

XQ. 230. Just please letter that now **E"* on both views.

A. (Witness does as requested.) It is pretty hard to
show it. You are looking right at it. There will be a ring
there and an ‘EB’. You are looking at the end of the pipe
on the side when you turn over to vour tank.

1 do not know whether you can make that out or not.
] can make vou a sketch of that so vou will have it tomor-
row in pretty good shape, so you will understand it. I
um not a very good free hand drawer.

XQ. 251. In this upper figure the pipe from the el out
to the machine is running to the left, is that right?

[fol. 84] A. As vou walk to the heading it was on the left
hand side,

X Q. 252. No, I mean it would be this pipe running to
the left or from the left in the upper figure of vour sketeh?
A. That was along the longitudinal side of the tunnel.

XN QQ. 233. Just please put an ‘*E** on the end of that
pipe nearest the air lock.

A. (Witness does as requested.)

Mr. Cox: All right. I offer that sketeh in evidence.
(Marked Plaintiff’s Exhibit No. 11.)

X Q. 234. Do you know how long this machine that you
testified about was used at 177 East Monroe Street?

A. When they started it we had had an aecident on the
Fighteenth Street Bridge, and T was called away and went
down there. T came back in about five days and everything
was completed, the floor was completed. Tow long they
used it, T do not know.

X Q, 255. Did vou see it used for anything except plae
ing a part of the floor there?

A. And underpinning.

g

X Q. 236. And some siderpinning?

A. Yes, sir.

X Q. 287. That was about how lone?

A. Well, the whole length of the wall. They wanted the
foundation a little deeper; they had an old foundation,
What they call a flooring foundation, and Mr. Jackson in-
tended to put some machines in there, and wanted to get
down to solid ground, so he had to underpin the wall to
below the basement.

X. Q. 238. And the concrete flooring, was that the whole
[fol. 185] floor or just a section of the floor?

A. The whole floor, He put in an entire concrete fle or
in the basement.

X Q. 259. How much of the floor was done when you saw
it?

NX. They just started it.

X Q. 240. Can you tell us what part of the year 19038
this was?

A. It must have been the first part of it: I am not posi-
tive,

X Q. 241. You say it was the first part?

A. That is my recollection. The reason IT say that is T
went with Mr. Jackson and did certain work for him previ-
ous to 1901.) Jackson had another job, bul went with him
in 1901, and he got me to sell out ny interest and go with
him in 1901.) That is about the time we were doing the
Kighteenth Street Bridge, which was about the beginning
of 1903. We started to wreck the Eighteenth Street Bridge.
We had fabricated it previous to that time.

X Q. 242. You say von remember it) was in the early
part of 1903 because you had an accident about that time?

A. Yes.

X Q. 243. You connect that accident with it?

A. I do, yes; that is what brings it to my mind.

X Q. 244. Was that a®serious accident?

A. A derrick fell down, that was all.

X Q. 245. Hurt anybody?

A. A man claimed to be hurt, but we finally found he was
not.

XQ. 246. As T understand it, from that time in 1903 unti]
later which you say was 1906, when vou saw it at the dis-
posal plant, you did not see this machine?

Gime ee an
158

A. T had seen the machine in the tunnel after that, yes,
but T did not see it used.

XN Q). 247. Where was it in the tunnel when you saw it?
lfol. 86] A. It was, | think, down near the Van Buren
Street incline.

XQ. 248. In part of the tunnel?

A. They had some trouble there with leaks, going under
the river on Van Buren Street that went down about 65
feet.

XN Q. 249. When was that?

A. In the year 1905,

XN Q. 250. And that time was the machine hooked up?
A. No.
XN Q. 251. Po be operated?

A. “ : was not. They took it up there, and they were
vetting it ready. They had some serious leaks of air there
and they were getting ready to try to plug them up.

N Q. Joe. Was this machine mounted permanently on a
track?

AL iH owas mounted ona little ear, and it could be taken
off and set on, bolted to the frame of the car. ,

XN Q. 258. But inthe basement at 177 East Monroe Street
TL understand that it was mounted ona frame,

A. They took the frame right off the car, and brought
it up and set iton some timbers,

XN Q. 254. At the time that vou saw Mr. Jackson use
the machine at 177 Kast Monroe Street, did he have his
headquarters there in the basement?

A. On 177, not vet, but he was going to go there. They
were remodeling the building to get ready to go to 177 and
the building had not been occupied. They just leased it,
when this work was done.

’

Redireet examination,
= Mr. Johnson:

RD. 255. You testified in vour eross examination that
so far as vou knew this machine, figure 9, Exhibit’ I, was
[fol 187 | only used in the tunnel for about 100 feet or so
placing the key. Why was it not used for any greater (lis-

ort

Pee -

139

A. Mr. Jackson deeidsd that he could put it in by hand
just as well and cheaper than bother with the machine,

R. D. Q. 256. So that that is the reason that it was not
used beyond the 100 feet or so?

A. That is the reason, ves, sir,

R. D. Q. 257. This drawing that vou have made is not
very clear to me, Mr. Fanning. Do | understand that there
was a form up here by the key arch or not?

A. No form. We placed the lagging. You see the ribs
are set up, and, as I said, as we built up the concrete the
lagging plates were placed,

R. D. Q. 258. What are lagging plates! Is it a form?

A. It is a form, yes,

R. D. Q. 259. That is what I want to know.

A. It is a piece of a form.

R. D. Q. 260. The key arch would have a form?

A. Yes, sir; certainly.

R. D. Q. 261, Will you indicate that on this sketeh?

A. Well, I showed it there with the form out, but this
shows the ribbing.

R. D. Q. 262. Put the form in them.

A. Before we would close that we would put the form
in there,

R. D. Q. 263. T want the form,

A. But those plates were placed as we concreted.

R. D. Q. 264. Put the form there, please, and give it a
number or letter.

A. F.

R.D. Q. 265. You have now indieated the key arch as
having a form, the form being **F,’’ is that right?

A. Yes, sir,

[fol 88] RL D. Q. 266. It was brought out in your cross
examination that after starting to use this machine No.
% Exhibit 1, for laying the concrete floor at 177 East Mon-
roe Street—

A. That was the old number,

R. D. Q. 267, You saw a portion of the floor laid by this
machine, and then you were called away on account of an
accident?

A. Yes, sir.

R. D. Q. 268. Is that right?

A, Yes,

R. D. Q. 269. You were uWway five days or so?

a)

¢
.

es —

A. Five days before | went bac}. there.

R. D. Q. 270. When you went back the floor was com-
pleted, was if not?

A. The floor was completed, and the machine discon-
nected,

140

(It was stipulated that the rebuttal evidence be taken at
this time.)

Rescriat Proors

Wins LH. Larkis, Je, called as a witness on behalf of
the plaintiff, in rebuttal, having been duly sworn, testified
us follows:

Direct examination,
iv Mr, Cox:

. 1. Mr. Larkin, will you please state your name, age,
residence, and ocerpation?

A. William Hl. Larkin, Jr, age 56, occupation mechanical
[fol ISO] cugineer United States Rubber Company; resi-
denee 285 Central Avenue, New Haven, Connecticut.

Q). 2. Have vou ever been interested in concrete and the
placing of conerete pneumatically?

A. Yes, sir, for twenty-five years,

(). 3. Ilave vou during that time kept records of the de-
velopment of that branch of the industry?

A. Yes, sir, carefully.

(). 4. | will ask vou to state whether to your knowledge
anything was published relating to the work of John IL.
MeMichacl prier to, well, we will say 1915?

A. Yes, sir,

Q. 5. When was the first thing that came to your atten-
tion?

A. About 1907 with reward to his work in Toledo.

(). 6. And what was that?

A. Ile did some work for the Steel Company in Toledo,
placing conerete pneumatically through pipes.

(). 7. Now, did you see any article published in a maga-
zine or engineering publication relating to this work?

A. Yes, sir, | have a copy of the article which I eut out
personally about 1907 relating to Toledo, and also of the
Harvard Denison Viaduct of Cleveland.

141

Q. 8. And when was that article published?

A. As near as I can recollect in 1907. The date is on
the article there in that scrap book of mine,

Q. 9. Now, I will ask you to fix the date by referring to
this book which you say is your serap book.

A. The article in regard to MeMichael’s Toledo work
I cut out of ‘*Concrete Engineering,’ in December, 1909,

Q. 10. And you say your recollection is that something
relating to that was published in 1907?

(fol. 190] Mr. Johnson: The witness has stated that that
it was 1909. I object to the question that has just been
asked. He is attempting to put dates in the mind of the
witness when he has aiready testified it was 1909.

The Court: Objection sustained.

Mr. Cox: I only did that when the witness mentioned the
publication in 1907.

Q. 11. Now, this publication in 1909 that you have iden-
tified, do you understand the apparatus illustrated and de-
scribed and did you understand it at the time?

A. Yes, sir.

Q. 12. Just please describe it briefly.

Mr. Morgan: I object to that question, your Honor, The
article speaks for itself,

Mr. Cox: I will tell you of this. The witness A rlingstall
said he showed MeMichael how to make his machine work
by putting a piece in the bottom in 1911,

Mr. Morgan: Your Honor, we will Withdraw our objee-
tion to the question if the witness will state that that is lis
opinion. If he is going to testily absolutely as to

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0435%3A01. Public record. Not legal advice.