ARGUMENTS
OF
WILLIAM W. HUBBELL, ESQ.,
OF PHILADELPHIA,
ON BEHALF OF THE DEFENDANTS,
BEFORE
HON. SAMUEL NELSON,
IN THE CASE OF
ROSS  WINANS  vs. ORSAMUS  EATON, et al.,
IN TIHE
CIRCUIT COURT OF TIlE UNITED STATES OF THE NORTHIERN DTSTRICT OF
NEWV-YORK, AGAINST A MOTION FOR AN INJUNCTION TO RESTRAIN
THE DEFENDANTS FROM CONSTRUCTING AND VENDING THE
RAILROAD CARS COMMONLY KNOWN AS THE
"EIGHT-WHEEL RAILROAD CAR,"
ALLEGED TO INFRINGE ROSS WINANS' PATENT OF OCT. 1, 1834.
ALBANY:
WEED, PARSONS & CO., PRINTERS.
1853.








ARGUMENT
OF
WILLIAM W. HUBBELL, ESQ.
MIONDAY, Au4gust 15th.
WM. W. HUBBELL, Esq., said:
If the Court please:
The opening argument of one of the opposing counsel on
behalf of the plaintiff, was commenced with allusions to
smoke, gunpowder, and the morale of the case; and, after
consuming a large quantity of the villainous salt-petre, and
raising considerable smoke, and after discharging the last shot
in his locker; upon looking round, we find that no one is
killed —no one is wounded. And we are inclined to believe,
that the obscurity attempted to be thrown over this case, has
been with a view to conceal the real issues involved, and to
mislead the judicial mind; notwithstanding which, however, we hope to be able to make the merits appear fully and
clearly in favor of the defendants.
Mechanics, when properly viewed, are simple, when looked
into, without an intention to pervert; and men who have
lived before us, were not all void of the commonest principles of common sense, as this court is asked to believe by the
plaintiff's attorney, in order that he may be allowed to levy
an enormous tax, on a thing which he neither describes nor
claims, and which looks back, with unerring confidence, to




2                    ARGUMENT OF
the earliest part of the present century, as the point of time
on which it rests, and whose existence here is coeval with
the railroads of this country: whose growth has been with
their growth, still retaining the same vitality, and living in
the same substantial form.
Remarks were also made with reference to the history of
railroads, but strange to relate, those remarks were not in accordance with that history.
It is shown by competent testimony in this case, that railways in the interior of England, at a very early day, were
very much curved; that was their general character. It also
appears that the Stockton and Darlington road, was one of
the first in existence, even before the Liverpool and Manchester road, and is referred to in Tredgold, p. 20, in these words:
"And an extensive railway from  Stockton by Darlington
to the collieries on the southwest side of the county of Durham, is now nearly con.pleted. It proceeds from Stockton
in a westerly direction, and about 3j miles from thence, a
branch to the south of 2 miles, leads off to Yarm; the mlain
line passes close to Darlington, and about 4 miles beyond
Darlington, a branch to the south, of nearly 2 miles, leads to
Pierce Bridge. About 5 miles further on the line, the Black
Boy branch leads off in a northeasterly direction to the Black
Boy and Coundon collieries. The extent of this branch is
upwards of 5 miles. The main line continues past Evenwood to near the Norwood collieries and returns in a northeasterly direction to the Etherly and Wilton-Park collieries.
The total extent of the main line is about 32 miles.  It is
formed with edge rails; and in the last Act of Parliament for
this railway, there are clauses to enable the company to
make use of locomotive engines."
The Liverpool and Manchester road was afterwards built
between two large cities, and, from that communication, necessarily, passenger travel, as well as the transportation of
freight, was attracted to that road. A large business was
done on it; yet that fact is entirely disconnected from the
subject of an 8 wheel car; for, on that road, four wheel cars




WILLIAM W. HUBBELL.                   3
are used at the present day. It does not necessarily follow,
that where persons are conveyed on any road, that the 8
wheel car must be used, for it is notorious that the four wheel
cars are used, as I have said, and generally, on the English
roads, at the present day.
The S wheel car is not suited to the disposition and habits
of the English people. It is republican in its character, because it allows persons to mingle freely among each other,
while the four wheel car admits of exclusive parties of the
aristocracy of that country, and is more consistent with the
general disposition and mode of living.'I'hese are the principal reasons why four wheel cars are used in England, and
eight wheel cars in the United States.
The Liverpool and Manchester road is proven to have had
considerable curvatures. Mr. Thompson's dep., No. 3, p. 1,
fols. 2, 3, testifies "that it has considerable curvatures:" and
yet these four wheel cars run over it.
The counsel also adverted to the locomotive steam engine,
and said that the idea of adhesion of the wheels did not exist
prior to 18S30; and, as authority upon this point, read from a
book published in that year. And, while reading, it is not a
little singular that this passage occurred, in substance: " T/e
wheels slipped when snow was on the track," which shows at once
that the wheels propelled by adhesion to the rails. They
were not cog-wheels, and the friction, or adhesion, was obviated by snow upon the track.
It was not only known then, prior to 1830, as shown by
the book from which he read, but we find it existing, in actual
use, long prior to 1830, in numerous places.
This is shown in Wood's Treatise in 1S25, in the engine
called the Wood engine.
This model here, they have presented as their own illustration of that engine, and it is shown to move by adhesion
to the rail, which is conclusive that this power of traction by
the resistance of adhesion to the rails, was known at that
period, 1825.




4                   ARGUMENT OF
An entire train is shown in fig. 7, plate 2, fully demonstrating that fact.
In Tredgold's Treatise of 1825, pages 74 and 176, this is
also set forth.
The practice of using locomotives to draw by adhesion to
the rails is very old, and there is no novelty in it; neitl-er
was it by any means new in 1830.
Cogs, and endless chains or ropes, also spoken of, are used
on Marine railways now, which proves that there was no
novelty in them. They were all old modes of applying the
steam power.
There was an important feature which gave the locomotive
the impetus it now possesses, discovered at an early day;
this was in the method of generating steam. We see in
Tredgold, of 1825, that the locomotive had a very tall chimney, sometimes from 12 to 13 feet high; and they obtained
draft, at that period, by the natural action of the air and
gases in the chimney.
It was discovered by an engineer on the Stockton and Darlington road, that by inserting the exhaust pipes into the
chimney and contracting their mouths so as to throw the exhaust steam with velocity up the chimney, it would drive out
the air and create a partial vacuum below, and thus cause a
powerful draft to rush through the furnace.
Then it was that the speed increased, and without that one
feature, the locomotive of the present day would not be able
to run more than 8 or 10 miles an hour. The impetus obtained was by means of generating steam by exhaustion, as
stated, and not by the adhesion of the wheels to the rails.
In this country, steam was successfully introduced on the
Charleston road in 1830, as shown by the testimony of Allen
and Detmoold. On the Newcastle road in 1832, as shown by
Dorsey. On the Mohawk and Hudson road in 1832, as
shown by Whitney, Mathews and Jervis. On the Baltimore
and Ohio road they were experimenting from 1831 to 1S34;
and in 1834-5 they had engines of considerable promise.
The engines of 1831-2 were a failure. The testimony of Mr.




WILLIAM W. HUBBELL.                  5
Dorsey shows, that on a trial of speed for a considerable distance, horses had beat the best locomotive they had produced.
His affidavit to that effect, is to be found in defendants' No.
4, p. 78, fol. 296.
The " Arabia," in 1834, which killed Phineas Davis on its
trial trip, was the first comparatively successful engine they
had. The fact is mentioned, I think, in Mr. Gillingham's 9th
annual report, A. D. 1835, ps. 11-12, and dated 1st. Oct.,
of that year; also in the affidavit of Edward Gillingham, in
defendant's No. 4, p. 56, fol. 215.
Such is a general outline of the history of the locomotive,
and it has been increasing in weight and speed, and cars have
also been increasing in size and number, in accordance with
the amount of business transacted on railroads, and as railroads themselves have increased.
My next subject is:
That this suit, with others, are a surprise at this late day
in the State of New-York and in the New England states.
Suits of this character being suits in equity praying for
injunctions, have been brought not only against the present
defendants, but against several railroad companies: the 6" Albany and Schenectady Railroad Company," the " Utica and
Schenectady Railroad Company," the "Syracuse and Utica
Railroad Company," the Rochester and Syracuse Railroad
Company," the " Buffalo and Rochester" (now the Central
road.)
Against all these companies injunctions have not yet been
moved for.
Also, since the bringing of these suits, suit has been
brought against the Eastern Railroad Company, in Massachusetts, which has gone on to final hearing without a motion for ail injunction. This suit is now in course of preparation for final hearing; and is expected to come up some
time in November, or about that time.
The order of the court is, that the proofs shall be in by
the 7th Oct., but they are so very voluminous that its practicability is somewhat uncertain.




6                   ARGUMENT OF
These suits were preceded by one against a small road, the
"Troy and Schenectady," and through that, and the others
pending in this court and in Massachusetts, the claims and
demands of Ross Winans, which followed it, by the circular
of Gould and Spencer, in 1852-53, have become known to car
builders and railroad companies in the northern states eighteen
or nineteen years after the date of the patent. In fact, these
suits are a speculation by third parties, in proof of which, I
will read from No. 3 (defendants' proof), p. 160, folio 638-9;
640, and p. 162, folio 648-9. The first, is the affidavit of
Charles Minot. He says:
" I have known Ross Winans, personally, for several years,
and have had very frequent conversation with him on railroad matters generally. In some of my conversations with
him of late years, he stated that he had a great many patents,
and never realized much from them, and that he was going
to take a new course in future; that he was not going to
litigate them at his expense. And in conversation with regard to his eight-wheeled car patent, he gave me to understand
that he was not much interested in the suits under it; and
that he had agreed with other parties at Albany, that they
should prosecute the suits, and if there was nothing gained or
got out of it, that he, Winans, was to be at no expense; that
the other parties were to pay the expense, and if anything
was made out of that, they were to have a share. After this
I received a circular from Charles D. Gould of Albany, and J.
A. Spencer, of Utica, claiming the right to compensation for
the using of eight-wheeled cars, on the New-York and Erie
Railroad, alleging that they were an infringement of' Ross
Winans' patent, of Oct. 1st, 1834. This was after the termination of the suit of Ross Winans vs. the Troy and Schenectady
road. After receiving the circular from Mr. Gould and Mr.
Spencer, I talked with Mr. Ross Winans about it, and he
said that Gould was managing that matter, and was interested
in it. Winans did not urge any settlement. I was conversing with him about some engines of his construction; and




WILLIAM W. HUBBELL.                  7
he said nothing further about the eight-wheeled car, than I
have stated.
" I annex the said circular hereto, marked A. I."
This circular, after alleging that a patent had been granted
to Ross Winans, the 1st Oct., 1834, and after setting out the
Troy and Schenectady case, goes on to state in folio 649:
" This letter is intended to bring this subject to the notice
and attention of the different railroad companies in the United
States, which have not already purchased the right to use
Mr. Winans''Eight-Wheel Railroad Car,' and to give information that the undersigned are fully authorized, and are
ready, to settle and adjust all matters in relation to the past
use of the car, and to convey the right to its future use, during the continuance of the patent, on the most liberal telms;
and the hope and expectation are indulged, that the several
railroad companies will promptly avail themselves of the opportunity so to do.-Dated 15th September, 1851.
" CHARLES D. GOULD, Albany,
" J. A. SPENCER, Utica, Attorncy and
Counsel for Ross WINANS.
This is signed Charles D. Gould, not as the agent of Winans, but absolutely in his own right, with an assertion that
he has power to convey that right, and that he is "fully
authorized and ready to settle and adjust all matters in relation to the past use of the car."  This statement, in connection with that of Winans, shows that this is a speculation,
undertaken by Mr. Gould, on condition that he shall pay all
expenses, and if he be successful, Winans and he will divide
the spoils.
This speculation has been planned with a view to approach
that basis, which equity requires to sustain a bill; by first
attaching small firms and corporations-little able to make a
defence-accompanied by offers of settlement for small sums,
to induce them, if possible, to submit to small but unjust exactions, rather than incur heavy expenses in litigation. There
is strong policy in this, and it is resorted to for the purpose



8                     ARGUMiENT OF
at this very late day-of establishing some foundation in
equity for a dormant patent, a patent unheard of and unknown in the New England states, until fourteen or fifteen
years after it was issued.
This policy is followed, evidently, with the view of approaching the large corporations, or heavy railroad interests,
from whom princely fortunes are demanded, backed by suits,
and threats, to stop all their cars and business by injunction,
if not complied with.
In the case before Judge Conkling, at Auburn, $100,000
was stated as the demand from  the Central Railroad line.
This was stated by the counsel for the plaintiff in July of last
year.
The suit against the Troy and Schenectady road was a
small affair, in comparison with the present.
It was a surprise on that road. It was struggling for an
existence; and its current expenses exceeded its receipts, as
shown by the official state of the reports, and was therefore
little able to defend itself for want of means, and has since
been sold out for less than its original cost.
Judge NELSON. It was represented by as able counsel as
could have been employed.
Mr. HUBBELL. The counsel admit that they knew but
little of the mechanics in that case, as the affidavit of Mr.
Buel, in dep. No. 2, p. 4, fol. 16, will show.
Judge NELSON. It was tried by Mr. Buel and Mr. Stevens,
and Mr. Stevens is one of the ablest gentlemen in his profession.
Mr. HUBBELL. That it was tried by able counsel, I have no
doubt; but, the history of the eight-wheel car had not been
a study of the profession at that time. The defences before
this court were, consequently, not then known; and a knowledge of defences in patent cases, is obtained by perseverance,
among strangers, in unknown places, and surrounded by difficulties.
In addition to the difficulties, which always surround investigations such as these, it appears, by the testimony of Mr. At



WILLIAM W. HUBBELL.                9
kinson, treasurer of the Baltimore and Ohio Railroad Company, that the papers which would convey information respecting that subject, were obtained by Winans, in September,
1852, who promised, at the same time, to return them in sixty
days, and which, notwithstanding, are still in Winans' possession, and have not been returned.
From the date of the existence of the Quincey car till the
present time, many obstacles have occurred, and death has
removed beyond our reach many of our principal witnesses.
Since the Troy and Schenectady case, one-Mr. Aler-is
dead; and so they are, one by one, taken away.
Every lawyer, if he has had experience in patent cases,
and happens to have been on the part of the defence, knows
these difficulties, in contending against old and dormant patents.
And I presume that your Honor's experience has taught the
same truths. Not only has the patent remained dormant, but
Ross Winans himself has been engaged in pursuits so widely
different from that of a practical car-builder, that the rernotest pretension of his being, or considering himself connected with the origin, construction, or use of the eight-wheel car,
was not entertained by the defendants, nor the railroads, in
this part of the country, for which they built cars.  He was
known only as a builder of locomotives and wheels on the
Phineas Davis' plan, and was only notorious for planning and
building locomotives, in which business he, for many years,
has been and is now largely engaged. And also, he was notorious as having claimed, under a patent, the outside bearings on railroad carriages, which, in the suit of Winans vs.
The Boston and Providence Railroad Company, was proved
not to be his invention, and his suit failed, [See 2d Story,
C. C. Rep., 412.]
That was the termination of that patent, and nothing more
has been heard of it. There was no surrender-no re-issue:
the whole thing was abandoned.
The engines were known to be used almost exclusively on
the Baltimore and Ohio road, running at a speed of from ten
to twelve miles an hour in the transportation of freight, while




10                   ARGUIMENT OF
other roads required better planned and constructed, more
economical and efficient engines, on entirely different arrangements of machinery, and of far superior speed. His
present position is, therefore, a surprise upon the defendants,
and the Northern railroads and car builders, calculated to
find them but little prepared to meet a dormant patent, speculatively sprung upon them after a sleep of 18 or 19 years, in
relation to a car, the history of which, on the Baltimore and
Ohio road, is peculiar, and the general history of which runs
back in this country to 1829, and in England and Ireland, its
construction and principles are found described in 1825, and
back as far as 1814. There was no cause, therefore, to suppose that any one claimed a patent for an eight-wheel car.
The idea was never entertained that any one claimed a patent,
and much less Winans, who had full opportunity to set forth
his claim, if he thought that the cars used by railroads infringed his patent, and notwithstanding which opportunity,
he never made any such pretension.
Lawyers called upon to defend such cases, might well be
surprised and non-informed as to the true principles and history of the car, let them be the ablest that the country affbrds.
Long years of practice and customary use, had settled the
principles in the construction of the car.
Inquiry as to the embodiment of that construction and
principle in language for the use of courts and juries, was
neither afloat nor in requisition. There were no demands
made to set scientific and legal men upon the inquiry.
There was no cause to investigate the matter in such a
light, and to embody it in such language, as to be able to
present it clearly to the mind of a court or to a jury. It appeared to be a public right; -a right immemorial almost, in
its character, and one which no person supposed was questioned in the slightest degree. Under such circumstances. I
say that the Troy and Schenectady suit was a surprise, and
this suit is a surprise, in which, however, the plaintiff is on
his third application for a preliminary injunction, he having
failed on the two former motions; but finding us, on this




WILLIAM W. HUBBELL.                11
much better prepared for the contest than we were on either
of the two former, in both of which he was DEFEATED. Then
we knew but little of the history of this matter, for it was
deemed unnecessary, prior to that time, to investigate it fully.
When a man undertakes to investigate a subject of this
kind, however powerful in intellect, or skilled he may be
in points of law, he must have time-time not only to examine it in a scientific point of view, but time to go over
this entire continent, if necessary, to ascertain, from one here,
and another there, who have been scattered since 1829, what
they know respectively about the matter.
In the next place, the position of the defendants in this
case is peculiar. They are men of high business standing
and responsibility, who by years of industry and enterprise
have amassed considerable wealth, and established an extensive business; while, by their practical operations, in building
good serviceable cars and coaches, they have greatly promoted the interests of the traveling and mercantile community.
Not by writing down a fanciful theory on paper, as Ross
Winans has, but they have promoted the public welfare by
a practical exercise of the mechanic art in their branch of
manufacture, in a workmanlike and truly efficient manner.
Theirs, is an exposition of construction in practice, which the
public requires, and which benefits the community. Their
earnings are hard earnings; their industry is a practical and
laborious industry. Their enterprise is shown by the extent
of their works at Troy, and by the fact, that cars, omnibuses
and coaches built by them, are all through the north, and
different states south, and in foreign countries, contributing
to the comfort, safety and dispatch of the public travel.
These men are asked to pay only $1,500 for having made
and sold, not used, the cars which they have, in times past,
made and sold; (there is no offer of right to use, but simply
to make and sell; the demands for the user are to be princely
fortunes, and are to come out of the railroad companies) and
$10, or $15, or $30, for the right to make and vend, such as
they may hereafter construct; and thus virtually ask them to




12                  ARGUMENT OF
declare to the public, and the world, and particularly to the
railroad companies which have patronized them, that the cars
sold as public, were a pirated invention, and render the companies, so far as such a declaration would go, liable for the
use of them.
Railroads must use them; they cannot conduct the business
of the road without them. They are part of the stock of
companies, and their money has been invested in them, as an
article of common and public manufacture, as much so, as
any other part of the construction and machinery of the road.
If Eaton, Gilbert & Co., were to submit to this exaction,
they would, in a measure, render the companies liable, to
such an extent as it might have an effect upon other suits
brought against them; which would be, not only a forfeiture
of that implied faith between them as business men, but if it
should be established, the roads might become liable to pay
one or two hundred thousand dollars, to be able to use a conveyance which they have purchased from  them, without
notice or objection from Ross Winans, as an article of public
and common manufacture. As honest business men, therefore, they look at this attack upon them as a mere piece of
policy, to reach their customers.  The toil, trouble and
expense of a suit like this, would scarcely be remunerated in
the sttum of $1,500, which is held out as an inducement to settle.
And therefore, considered as a matter of dollars and cents,
although more advantageous than to litigate, a settlement on
their part is not within the scope of an honorable business
transaction, towards those who have purchased their cars,
and now use them, for they were built and sold as a common
public manufacture.
As to the merits of Ross Winans' patent, they know that
the specification is a mere impractical theory on paper, that
never has been, and that never can be of any substantial
benefit. That the curious style of the specification, as a description of mechanism or mechanical principles, the provisos
and conditions, with which it is saddled, provisos fallacious
in themselves, and the ambiguous wording of his claim,




WILLIAM W. HUBBELL.                 13
show that it was not only founded in fallacy, but consciously
founded in fraud, as an attempt to pirate a practical principle,
known and in use, under the mask of specious distinctions of
distance and of construction, both of which are gross errors,
and changes departing from the true and known construction
and principle of the car-both of which are changes for the
worse, and pernicious changes in the legal sense of the term.
They also know that Ross Winans was not the original inventor of the eight-wheel car, as claimed in this suit by his counsel and himself. That he neither discovered the principle in
the abstract, nor the mode of construction by which the principle is embodied to use. And further, these defendants
believe, as the proofs here show, that this suit, among others
under this patent, is a mere speculation, as I have already
said, undertaken by Charles D. Gould; and an attempt to
levy black-mail on car builders and railroad companies, under
a patent which Winans himself knows is like his class of
patents, specious changes for the worse, founded in fraud, and
not used by the defendants, and in which he himself has not,
and never could conscientiously have had any confidence;
so little indeed that while he makes a long affidavit in this
case to support his title, he does not swear that the defendants' cars infringe his patent. He does not swear that he invented the Columbus, nor that he made the smoked-drawing
before the Columbus was built —though he is aware that they
are both matters of controversy, and that they are important
facts in this case. He does not swear that the Columbus was
built from that smoked-drawing, or that he invented anything
in connection with the origination of that car. If these facts
are true, he certainly knew it, and why not assert it in his
affidavit and under oath, instead of leaving his counsel and
partners in interest to come here and say that such are the
facts, and to ask this court to believe them?  These things
are not set up by Mr. Winans; they are set up by those who
are experienced in making representations in the trial of
patent causes, and I will add, by those who are parties in interest in this suit.




14                   ARGUMENT OF
With each and every one of these convictions, these defendants as honorable business men, feel bound to oppose this
suit, though the defence cost them as much as the sum for
which the plaintiff offers to sell them, that which is of no
practical use to them, that is: the specification of this eightwheel car patent, on which suit is brought. And although
they did make a mistake in the form of their first answer,
equity will allow them to correct that mistake, because it
relates to physical laws and conditions, which neither men
nor time can change, and because it relates to a claim, which
they are not supposed to be capable of defining, and particularly when the plaintiff's counsel say that it is for one thing, while
the claim itself states that it is for another and a different thing.
In the Troy case it was for one thing, at Auburn it was for
another; here it is for a third, thus carrying two or three faces,
one here and another there, just as they may thinkbeneficial to
suit the emergencies of the case. Under such circumstances,
and, as the error relates to a matter of physical and patent
law, the defendants, without the imputation which the counsel on the other side attempted to cast upon them, have a
right in equity, to correct a mistake in a single word. It cannot be surprising then, that under such an attack, these defendants should, by their exertions, have discovered a great
mass of new matter, explaining to this court the history and
true principles of the eight-wheel car, and mode of its construction, and the fraud and fallacy of Winans' specification
and pretensions, since the Troy and Schenectady case, and
even since the last hearing of this motion at Auburn, in July,
1852. And so arduous are the duties of counsel in patent
cases, that they have to go from city to city and collect materials, that have been scattered during years, and which time
only will enable them to accumulate, to be prepared in such
emergencies.
It may be proper for me here to state, that as some division of the duties arising under this testimony, between my
colleague and myself, is necessary, I shall endeavor to confine
my remarks to the statement and discussion of the evidence,




WILLIAM W. HUBBELL.                   15
and leave most of the points of law, and some of the facts, to
be discussed by my colleague. Such points of law as I may
state will be with a view to indicate the bearing of the evidence, rather than with a view to discuss the abstract principles of law, and the force of their application upon the merits of this case. I shall, however, allude to but few points of
law, if any.
The first inquiry therefore, in the mechanics of the case, is:
What is the true principle and purpose of the eight-wheel
car? And what the necessary construction, to practically
develope the principle to use? Upon these points, we have
33 witnesses, out of which number, 28 have been selected,
omitting the five who have explained their use of the word
substantially, in No. 1 of defendants' proofs, and whom  the
plaintiff alleges have contradicted thenmselves, although there
is no contradiction, but a mere explanation of their use of
that word. We have seen from the testimony, that the PRINCIPLE of the eight-wheel car, as built by the defendants, and
in general use, is THE SWIVELLING OR TURNING MOTION OF TWO
FOUR-WVHEEL TRUCKS UNDER ONE BODY, BURTHEN OR LOAD.
The purpose is, to enable the wheels to pursue or conform
to the curves and inequalities of the road, and the body,
burthen, or load, to be born safely and steadily along the
road.
The next branch is:
What construction and conditions are necessary to embody
this principle and purpose to use? The first point to be
looked to on this subject, is the suam of the conditions that
necessarily must exist; and construction must be adapted to
those necessary conditions.
A necessary condition is, the road itself has and must have
curves and inequalities at the joints, on the surface, and at the
sides of the rails; also, a lateral play or space between the
flanges of the wheels and the rails must exist, to allow of free
motion, or prevent binding. This lateral play is generally
about one inch IN THE SUM, on the best constructed roads,
which would be half an inch on each side. It is sometimes an




16                   ARGUMIENT OF
inch and a quarter, and in an extreme case, would be an inch
and a half, which is too much however for good running.
About one inch, or as near that as posssible, is the lateral
play or space on the best roads.
These are absolute, or constant, conditions as to the road.
As to the car, as a body in motion, there is the absolute
law always in force on it when running-" that a body in
motion, tends to move in a straight line." That is an absolute condition. Then there are two negative conditions:
1st. The flanges of the wheels must not bite or bind too
hard against the sides of the rails.
2d. The wheels must not hop, as it is technically called;
or, in other words, must not spring suddenly, by any cumnulative force, in a transverse direction: that is, transverse to the
line of motion.
And, if there be any such cumulative force, or a force variable in its character, and elastic, the wheels will hop, and
the pressure will throw them off or over the rails.
Absolutely expressed: the wheels must pursue a course in
the line or direction of the rails, without being acted on by
transverse cumulative, or transverse elastic forces.
The trucks must be under the ends of the body, without
being subject to collision in trains.
The ends of the body must receive the collisions in trains,
and not the trucks.
How are these conditions to be carried out, in connection
with the principle, so as to embody the principle to use?
What construction of running gear, and what material and
mechanism are necessary to accomplish the result, or attain
the purpose, by means of this principle of the swivelling
motion of the two four-wheel truck, under one body, burthen, or load?
Here is the point where Winans' specification departs totally from the true principle and manner of arrangement and
construction, and is worthless, both in its abstract theory, to
effect the purpose, and, in the mechanism, to develop the
principle.




WILLIAM  W. HUBBELL.                17
He, Winans, attempts to establish a new theory as to the
proximity of the axles of the wheels, to coincide, as near as
possible, with the radius of the curve, in connection with
their remoteness, and describes, and especially recommends,
certain long springs to connect the axles, as new mechanism,
to develop his new theory.
His theory is fallacious, and his construction is pernicious,
and trivial, as a piece of mechanism.
We will speak more of this hereafter.
Here Winans' specification, and the cars built by the defendants, part.
One pursues one physical doctrine to develop the principle
and eftect the purpose, and by certain suitable machinery;
and the other, Winans', pursues a different doctrine, by different machinery, to develop the same broad principle, and
effect the same purposes; but is erroneous, not only at its
base, as abstract matter, but also in the mechanism, and fails,
and is pernicious.
What, then, is the necessary construction and machinery
to develop the principles and effect the purpose of the eightwheel car?
We have the principle already stated; we have the absolute and negative conditions already stated; and, we have
the effect or purpose, already stated.
The testimony on this subject is very clear on the part of
the defence, and by many of the best witnesses that the United States can produce; men of experience-men of the best
scientific education and practical training-men from all the
branches and departments connected with the construction,
the running, and the necessary observation of the workings
and of the principle of the eight-wheel car.
Better witnesses the law cannot require; none better can
be found in this or any other country. And, we have not
failed to collect the experience and the knowledge of all parts
of the country upon this subject.
I will refer to some of their testimony. The first I will
mention are those who corrected their former affidavits.
2




18                   ARGUMENT OF
Robert Higham, defendants' No. 3, pages 132, 133, 134fols. 529, and 530 to 534 inclusive; corrected affidavit in defendants' No. 1, pages 41, 42-fobl. 271 to 276 inclusive.
Albert Bridges, defendants' No. 3, pages 1.34, 135, 136fol. 535 to 537 inclusive; corrected affidavit in defendants'
No. 1, pages 36, 37-fols. 235, 236, 237, 238.
Jeremiah Van Rensselaer, defendants' No. 3, page 136-fol.
544 to 548 inclusive i corrected affidavit in defendants' No. 1,
page 44-fol. 2S9 to 294 inclusive.
Isaac Adams, defendants' No. 3, page 138-fol. 550 to 560
inclusive. Troy case; corrected affidavit No. 1, pages 34,
35-fol. 217 to 224 inclusive.
W. Raymond Lee, defendants' No. 3, pages 110, 111, 112,
113-fol. 440 to 451 inclusive; corrected affidavit in defendants' No. 1-fol. 266 to 268 inclusive, page 41.
These are the five gentlemen, out of the thirty-three, who
use the word "substantially," in their original affidavits, but
who, in their amended affidavits, go into an exposition of
the principles fully, and give their conclusions on the exposition, and then verify, that the cars which they described
have been in use before Winans' alleged invention, as stated
in their former testimony.
They have explained the expression "substantially the
same," how, under what impression as to the extent of the
claim of the patent, and in what sense they used it.
Using the expression "substantially the same," in the
sense that two cars have king-bolts with which to have the
trucks swivel, is not such an admission or statement as forever to preclude a review of that, as applied to the description and claim in Winans' patent. That is a peculiar description, and a very peculiar claim, the effect of which was not
at first apparent.
I will now refer to some of the witnesses, to show what is
and what is not, the practical embodiment of the true principle of the eight-wheel car, as built by the defendants, and in
general use. J. C. H. Smith, defendants No. 2, page 24, fol.
97; page 25, folio 102, 103.




WILLIAM W. HUBBELL.                 19
He says: " I am 43 years of age; reside in Baltimore; am
a coach maker by trade, and have been engaged in working at
railroad cars since the year 1831, for the Baltimore and Silsquehanna Railroad Company."
He is therefore a practical car builder, and belongs to the
second or third order of witnesses.
At folio 102, he says: " The proper distance of the wheels
apart, to run well on curves and the straight line of road, bebetween the flanches, is twenty-three inches for freight cars,
and I very often have made them that distance; that is for fourwheel cars; and for eight-wheeled passenger cars they are
twenty-one inches apart between the flanches in each truck.
This distance is proper to make them run steady, and not press
too hard against the out rail of the curves; when the wheels
are placed very close together, they do not run steady, but
wabble about between the rails, and in striking a curve, the off'
front wheel bears too hard against the outer rail. The distance
of the wheels apart in the trucks of the Tredgold car, is much
less than the diameter of the wheels, and the entire description is correct in principle, and sufficient to construct the cars
from, that are now in use. I have no interest in this suit."
In order to explain matters as we proceed, I have prepared
some diagrams of the cars, such as the defendants make,
which I will hand to the court.
I will first state the physical law, " that action and reaction
are equal." That is absolute, whenever action takes place
reaction must take place somewhere to consume the active
force.
Explains the diagrams.
The square of the truck itself, and of the relation of action
and re-action, are represented by an equal sided parallelogram,
and the guage of the track it will be seen is equal to the
square of the truck, or nearly so; it is as near as may be.
The leverage therefore, is equal to control the truck on the
track. This line, midway between the axles, is the mean
radial line of the curve. The line of action is indicated by
the arrows.  Re-action must take place somewhere, to ba



20                  ARGUMENT OF
lance that action-it must be consumed or taken up somewhere. Suppose the line of action to have met with a resistance, and the force exerted to turn the truck to have been a
thousand pounds, that amount of force must be consumed or
taken up by a re-active force that will balance it, or be equal
to one thousand pounds, tending to steady the truck. The
mean line of force will necessarily go off midway between
the line of action and the line of re-action, intersecting the
king-bolt, and balance the truck upon the track, or diminish
its tendency to run off the track.
This shows the benefit in having the bearing points of the
wheels square, or at an equal distance apart, both across and
in the direction of the road. It does not increase the amount
of re-active force necessary to keep the truck on the track, over
and above the amount of force exerted to turn it off, and hence
the actual lateral pressure of the flanges against the rails is
not increased or multiplied. It is the increase of the lateral
pressure of the flange against the rail, which increases the danger, and a diminution of it diminishes the danger. To have
the track square, therefore, balances the force and does not
increase either the force or the danger. The longer the truck
is made the more safe it becomes, provided the distance between the wheels is not too great for the chord of the segment
of' the curve between them; they should not bind at the
extremities of the, chord; they must be free to move forward
easily. To diminish the distance between the bearing points
of the wheels below a square, that is, to have the actual leverage of the flanges on the same side, taken on both diagonal
positions, to be less than the guage of the track, multiplies or
increases the reaction or amount of force with which the flange
bears against the rail, both because its leverage is diminished
and the position of the truck is more oblique to the rail, and
hence greatly increases the tendency to run off. Therefore,
keeping the wheels square, and bearing on the rails at an
equal distance, as near as may be, both across and along the
road, balances the leverage in every way around this kingbolt, causes these wheels to remain more nearly in line with




WILLIAM W. HUBBELL.                 21
the rails, move with the least possible friction, and be more
steady and safe than when close together.
This figure represents Winans' truck at rest. It is drawn
to the same scale; it shows the mean line of force passing
behind the king-bolts, which, therefore, exhibits the major
force exerted to cause the flange to catch and rur over the
rail.
The next figure here, shows Winans' truck in motion on a
curve, and exhibits the effects of the excessive reactive or
lateral force on the truck; being constructed of springs, they
must yield to these forces exerted on them; and in addition
to that, the natural tendency of the inner wheel on the
shortest rail is to crowd ahead. This, together with the increase of resistance offered to the front outer wheel, must
twist the truck or these springs more or less out of square, and
increase its tendency to run off over the rail. This is shown
twisted about four inches out of square.  The nearness of
the wheels, and the use of these long springs, when the forces
on a curve are applied, destroy every essential condition that
a truck must possess to move with ease and safety on a curve;
and also, the same derangement is liable on the straight track,
in different degrees, dependant upon the exact circumstances.
These diagrams exhibit the conditions of position and of
the forces in the defendant's trucks, and in WTinans' trucks,
and display the difference in the mechanical doctrines on
which they are applied and operate, and the effects of the
different mechanism employed in them, very clearly.
The next witness I will refer to, is Edward Martin; he is
an important witness as to practical effects. His testimony is
to be found in defendants' No. 2, pages 33, 35-fol. 138 to 145.
He says, in folio 139: "] am at the present time superintendent of the Schenectady and Troy railroad." At folio 144
he continues: " Of over six hundred cars in use on the line of
railroad between Troy and Buffalo, Troy and Oswego, and
Troy and Cape Vincent, of which line the road superintended by me forms a part, and which cars pass over our road,
there is not one having trucks constructed after the manner




22'                  ARGUMENT OF
of the specfication of Ross Winans. And I would not have
a car constructed on that plan, connecting the wheels with
springs, nor the wheels in as close proximity as his specification states, as I think it is not practically useful, and not safe.
The curves on this line of roads are about as heavy or abrupt
as on roads generally, and many of the cars have the wheels
in each truck over two feet apart, and all of them have the
axles held parallel by substantial wooden or iron frames, and
have springs and pedestals attached to the frames, in which
pedestals the boxes of the journals move normal to the track."
The counsel on the other side, did not seem to understand
the meaning of the word " normal." In its general sense, it
means natural; and in mechanics, it means perpendicular.
For instance: if a railroad were even continued round the
earth, it would of course describe a perfect circle; there is no
such thing as a perfectly straight or level railroad, and normal
signifies perpendicular to the curved face, or perpendicular to
the face of the rails, as used here. It is an ordinary word,
in this sense, in mechanics, and is defined to mean perpendicular. He says further, at folio 145: "These conditions are
necessary, and they could not be attained in the plan proposed and described by Winans, in his said specification."
Winans' specification, therefore, will not give the necessary
conditions, neither as to the steadiness, nor as to the transverse rigidity; nor as to the perpendicular action; nor as to
the relative position of the bearing points on the rails. It is
through the bearing points of the wheels that the controlling
fbrces are exerted, and hence their primary importance in relation to each other and to the road.
The next witness is George Beach, defendants' No. 2, pages
36, 37-folios 150, 152, 153, 154, 155.  And on page 38,
folio 1.60.
He says: "I am a railroad car builder by trade," and that
lhe is at work for the defendants.
At fol. 151, he says: " I have examined the specification
of the Letters-Patent of Ross Winans, of October 1st, 1S34,
on which this suit is brought, and understand the same.  It




WILLIAM  W. HUBBELL.                  23
describes the wheels as close together in each truck as they
can be put, without the flanges touching, and the axles to be
connected by springs extending from one to the other, bolted
to the tops of the journal boxes, and a bolster extending between the springs and securely fastened to the tops of them.
The model marked B, and having a paper attached, signed
by Stephen Ustick, Wm. A. Aitkin and Oliver Byrne, and on
which I also have written my name, is a true representation
of the car described by the specification of Ross Winans'
patent of the 1st October, 1834. Inever saw a car constructed
in the manner described by that slxecyication, in use, on any railroad,
antd believe that such a car would not be practically usejul, as the
wheels are too close together.  There is nothing, and no means
of applying anything to steady the action of the springs and
confine them perpendicular, or normal, to the track; and
there is no means for preventing the leaves of the springs
from spreading out like a fan."
These springs have leaves, and there is pressure to spread
them out transversely.  He therefore says:
1" There is no means of preventing the leaves of the springs
from spreading out like a fan, from the side pressure against
the wheels, and nothing in the construction of the truck described, to resist a blow from any obstruction on one side of
the road, or a short curve, to prevent the truck from twisting
out of shape."
And hence it is, that in action, it assumes this position, by
all the forces, and material, and manner in which it is arranged.
Immediately following, he continues:
" It is not safe, and not practical for running on a railroad;
it would not stay on the track-it would be unsafe.  The
wheels of the trucks of an eight-wheel car must not be as
close together in each truck as they can be placed without
the flanches touching, as they would, if they were thus close,
wabble about on the straight track, and injure the road."
There will be a frivolous transverse action; and, as he
says, it would " not be as safe as wheels or trucks with wheels




2 4                  ARGUMENT OF
as far apart as they can be placed, consistent with the radius
of the shortest curves of the road.  The wheels in each truck
of the eight-wheel cars, are generally placed from twenty to
twenty-five inches apart. I have built them myself with the
wheels twenty-seven inches apart, and when the wheels are
placed thus far apart, the car runs steadily on the straight
track, and the outer front wheel in each truck does not bind
or bear too hard against the outer rail, and runs easy also on
the curves, as well as the straight track.
"I have to-day measured the distance of the wheels, in
each truck, apart, of one of the passenger cars run on the
Hudson River railroad; they are twenty-one and a half
inches apart; the curves of this road are more numerous and
of shorter radii than roads generally, to follow the windings
of the bank of the Hudson river, and the average speed of
running the cars on this road, is at least between thirty-five
and forty miles an hour."
At folio 161, he says: "The cars built by Eaton, Gilbert
& Co., have a centre cylinder," [this centre cylinder is a
transom-plate, commonly so called], "and centre pin or
pivot, similar to Tredgold's, and a frame also to support the
axles for the wheels to run in; they add the usual pedestal
and india-rubber springs, and sometimes steel springs to work
in the pedestals, and side bearings of steel or rubber for the
body.", We there see that the defendants follow the same construction as in general use.  There is the rigid frame and the
wheels the proper distance apart, as far as may be consistent
with the guage of the track, and the curves and switches on
the road, and a centre-plate, in order that the bearing of the
car by weight shall keep the truck comparatively steady, and
there is also a male and female transom-plate, from 15 to 18
inches in diameter-that is, transome plates provided with
flanges, fitting together and forming a large bearing surface
and strong centre.
The next witness is L. R. Sargent, as to construction, defendants' No. 2, pages 40, 41-folios 169, 170, 171, 172.




WILLIAM W. HUBBELL.                 25
He says: "I am the superintendent of the Rensselaer and
Saratoga, and Saratoga and Schenectady roads, and am, and
for many years have been, familiar with the principles of construction and operation of the eight-wheel cars built by
Eaton, Gilbert & Co., and others, used generally on the
railroads.
"1 have measured several of the cars now used as follows,
and compared the same with the Tredgold car, described and
shown in fig. 26, plate 4, pages 179 and 94, &c. in Tredgold's
Treaties on Railroads and Carriages, published in London, in
1825.
" The Tredgold car as shown, measures in its proportions as
fbllows:
" Diameter of wheels =30 equal parts, (considering those
parts all through as inches.)
" Distance of wheels apart 25 = equal parts.
"Distance from centre of truck, to end of car =55 equal
parts.
"Distance from centre to centre of axles, - 55 equal parts.
"The Rochester and Syracuse freight car, No. 105, measures
in its proportions as follows:
"Diameter of wheels - 30 equal parts.
"Distance of wheels apart = 24 equal parts.
"Distance from centre of truck to end of car=69 equal parts.' Distance from centre to centre of axles =54 equal parts.
" Hudson River Railroad baggage car. measures in its proportions as follows:
"Diameter of wheels = 33 equal parts.
"Distance of wheels apart = 23 equal parts.
"Distance from centre of truck to end of car= 78 equal parts.
"Distance from centre to centre of axles, or bearing points
of wheels =56 equal parts.
"The distance of the wheels apart, of the cars generally in
use, varies from 20 to 27 inches, many being more distant
apart than the Tredgold car, and of the examples by measurement ablove given. The distance apart of the bearing
points of the wheels of the Tredgold car is one equal part




26                   ARGUMENT OF
more than the Rochester and Syracuse car, No. 105, and one
equal part less than the Hudson river baggage car, they
standing 54, 55 and 56 = 55 being the Tredgold, and the centre of the truck is nearer the end of the car in the Tredgold
than in either of the others."
Showing that the distance from centre to centre of the
wheels, all through, is about the same as the gauge of the track.
The next witness is John Wilkinson, as to general principles of construction, defendants' No. 2, page 43, folio 181, 182.
He says that " he is superintendent of the Syracuse and
Utica Railroad Company, as well as president, and is well
acquainted with the particulars of construction and action of
the eight-wheel cars, as well as of the road on which they
run. The diameter of the wheels on the cars, varies from
30 to 33 and to 36 inches." (These are the practical conditions
as to the diameter.)
"' The distance from centre to centre of the sleepers on
which the rails of a railroad lay, were several years ago three
fee.t; and lately heavier loads are carried on railroads, and
the distance has been reduced to about two and a half feet
from centre to centre of the sleepers on which the rails lay."
There is, of course, an incidental condition, resting upon
the weight of the load, as well as the conditions of the
road; and it is bad policy to throw too much weight on the
same span of the rails, as it has a tendency to crush and bend
them.
The next witness is Joseph L. Kite, defendants? No. 4,
page  1 —folio 41 and 43; page 12-folio 45, 46, 47; page
13-folio 50.
This testimony is taken upon the Quincy car, but the exposition of the principle is embodied in it; hence, I will read it
in this connection.
He says, at folio 42: "I have examined the model now
before me, marked, on a piece of paper attached thereto,'Quincy Car, 1829,' and understand it. It has the permanent body to carry the load, with bolsters connected to the
centres of two four-wheeled trucks by vertical king bolts.




WILLIAM W. HUBBELL.                27
It also has centre plates and side bearings; and the distance
of the bearing points of the wheels in each truck apart, is
equal to the guage of the track; and the wheel frames are
rigid, to hold the wheel square on the track. This Quincy
model car is the same combination and principle as the eightwheel cars now  in general use on the railroads in the
United States. The distance of the wheels apart, between
their bearing points on the rails, being equal to the guage of
the track, is the true principle of the eight-wheel cars as in
general use; because the action and reaction between the
truck and the rails then deliver their mnan line of force to
the centre pivot, and balance the truck on the track."
There is the principle, and one of the prominent reasons
given, as shown in No. 1 of the diagrams, handed to your
Honor.
He continues: " The diameter of the wheels on the Quincy
model, in proportion to a five feet guage of track, is twenty
inches. Their being smaller in diameter than now generally
used, makes the space between the wheels greater than if
larger wheels were used."
The diameter of' the wheels does not control the principle.
The principle is independent of' the diameter of the wheels;
because the active forces take place between the bearing
points on the rail, and they are constant, even though there
be a change of diameter.
He continues: "But the difference in diameter, and consequent difference in distance between the wheels, does not
effect the essential feature of the distance between the bearing
points of the wheels on the rails, as existing in the Quincy car,
and in the eight-wheel cars in general use. The diameters
of the wheels now generally used are 33 and 36 inches;
which, therefore, brings the flanges of the wheel closer
together, but does not alter the essential distance between
the bearing points on the rails,"
The true principle does not depend upon an incidental
distance between the flanges of the wheels. It depends
upon the forces exerted on the bearing points of the wheels;




128                 ARGUMENT OF
because all the forces combined, and the direction of motion,
are due to these points.
He says: " The distance between the wheels is simply incidental to their diameter. The essential distance in the
principle of the eight-wheeled car, is the distance between
the bearing points of the wheels in each truck on the rails,
without regard to the diameter and the incidental distance
between the wheels. A change in the diameter of the wheels,
and the consequent change of distance between the wheels,
is not a change in the principle of the car."
It is not the invention of a new combination, or car, because the principle of the car is the swivelling or turning motion of two trucks under the body or load.
Neither is "a change of the position of the coupling for
drawing the car, from the end of the truck to the end of the
body, a change in the principle of the car, it is not the invention of a new combination, nor of a new car. Neither would
it be the invention of' a new mode of drawing a car, for as
shown by the printed publications, Tredgold's Treatise and
Wood's Treatise, published in 1825, trains of cars were drawn
by a coupling from the middle of the end of the body framing, and not from the axles or running gear."
The drawing by the body therefore is not the distinguishing feature between a four and an eight-wheel car.
The principle or distinction is not in the change of position
of the traction, but it is developed by the two four-wheel
trucks, swivelling under the body or load. The witness
adds: " It would be no invention of a mode of drawing, to
apply the old mode of drawing by the body, to the Quincy
car, or in other words, to unscrew the loop from the end of
the truck and screw it in the end of the body, would be no
invention of a new mode of drawing a car in 1829." Because
that mode of drawing had been known and used before.' A substitution of revolving axles, for the fixed axles in
the Quincy car, also would not be the invention of a new
combination nor principle."




WILLIAM W. HUBBELL.                29
Because they were both known before. They were both
known in four-wheel cars, and whether used in the trucks or
sets of four-wheels of an eight-wheel car, or in the sets of
four-wheels singly, does not constitute invention, as they
were well known in England as well as in this country many
years ago, and they are as old as mechanics.
He continues: "Revolving axles and fixed axles were
known and used both before and since 1829, and were well
known equivalents in 1829. Such change would be only the
substitution of known equivalents in the same combination
or principle of car, and not an invention, in any sense. To
introduce the revolving for the fixed axles, the fixed axles
should be removed from the cross-pieces, and the boxes of
the revolving axles bolted on to the same cross-pieces of the
trucks. Small revolving axles for the purpose, four in number,
one of which is marked, on a piece of paper attached,'Revolving Axles for Quincy Car,' and signed by me, are now
before me. They are described on page 13 of Tredgold's
Treatise on Railroads and Carriages, published in London in
182-5, in the words,'The wheels of the coal wagons are 2
feet 11 inches in diameter, with 10 spokes, and weigh 23
cwt., and their axles are three inches in diameter, and revolve in
fixcd bushes;' and on pages 77 and 78 of' Wood's Treatise,
also published in London in 1825, are these words,' The
axles were made of wrought iron, and fixed firmly into the
centre of the wheels, and, consequently, turned upon the
bearing with the wheels.' The same, or the revolving axles,
are also shown in the plate, No. 51, of the printed publication,'Reports on Canals, Railways, Roads, and other subjects, made to the Pennsylvania Society for the Promotion of
Internal Improvement, by William Strickland, Architect and
Engineer, while engaged in the service of the Society,' published at Philadelpaia by H. C. Cary & J. Lea, Chesnutstreet, in 1 S26. The substitution of these revolving axles does
not change the principle of the car."




30                  ARGUMENT OF
The swivelling motion of the four-wheel trucks, under one
body, burthen or load, remains unchanged.
" The principle consists in combining the two four-wheel
trucks by means of the permanent body, with bolsters and
king-bolts to allow the trucks to swivel to the curves of the
road, and this is alike the principle of the Quincy car and of
the eight-wheeled cars now in general use on the railroads
in the United States for carrying passengers and freight."
The principle, therefore, is in the transverse swivelling
motion of these two trucks, under one body, burthen or
load, and a mere change of known equivalents as to a mode
of drawing, or as to the axles, does not affect the principle,
and it still remains in-tact.
The next witness is Winm. Pettit, defendants' No. 4, pages
13, 14 —fols. 51, 52, who says: 1" I am the same person who
made an affidavit in this case on the 13th of August, 1S52.
I have examined the model marked'Quincy Car, 1829,' and
understand it. I have signed the paper attached thereto. It
has the two four-wheel trucks with rigid frames, and the
wheels in each, apart a proper distance, being, between the
bearing points, equal to the guage of the track, and the two
trucks coupled with the body and bolsters by means of vertical king-bolts, which allow the trucks to swivel freely to the
curves of the road, and being the whole essential principle or
difference between the eight-wheel cars now in general use,
to turn curves and run steadily, and the four-wheel cars previously in use in this country."
('l'hat is the whole essential difference.)
He continues: " Drawing a car by a coupling from the
middle of the end of the body-framing, or using revolving
axles with the wheels, is not a new invention. They have
both been known and in use, and described in almost all
works on railroads prior to 1829, and the substitution or use
of them would not be the invention of either a new mode of
drawing, nor of' adjusting the axles, nor the invention of a
new car. I have signed my name also to a paper attached to
a small revolving axle, to be substituted for the fixed axle in




WILLIAM W. HUBBELL.                3 1
the cross-piece of the truck frame of the' Quincy car model,'
both this axle and the mode of drawing the car by the coupling from the middle of the end of the body, are shown in
the drawing, No. 51, of the printed publication,' Strickland's
Reports,' &c., published in Philadelphia in 1826.
" I am of the opinion that the model marked'Quincy car,
1829,' is self-evidently the same in its principles of arrangement and action as the eight-wheel cars now in general use
on the railroads of the United States."
These portions of the evidence are to establish the principle, as I have stated, and show the necessary construction to
embody it to use.
The next witness is Hy. Waterman, defendants' No. 3,
pages 64, 65, 66 —folios 255 to 263, inclusive.
Mr. Waterman is a practical engineer, and master of machinery on the Hudson River railroad. He ranks among the
second class of witnesses. I will read from his testimony, to
show what is not a proper construction.
He says: "I have been practically acquainted with railroad machinery since 1837, at which time I took charge of
the Hudson and Berkshire railroad. I am the inventor of
the dumb, or condensing locomotive for drawing cars in
cities, without noise, and which has been for a considerable
time used, and is adopted by the Hudson River railroad in
the city of New-York. I am fully acquainted with the principles of construction and operation of the eight-wheel cars
used on railroads generally. I have examined the specification of Ross Winans' patent, of October 1st, 1834, for an
alleged improvement in the construction of cars or carriages
intended to run on railroads, and understand the same. The
only car actually described, and which is particularly recommended by Ross Winans' specification, is accurately represented by the model B, on the paper of which I have placed
my signature. A car constructed as described by Ross
Winans, in my judgment, cannot be used with safety for
general running on a railroad at an ordinary velocity, such as
aimed at by his specification, say at fifteen or twenty miles an




32                    ARGUMENT OF
hour. His car, as described by his specification, is too dangerous to use on a railroad, both to life and property, for the
following reasons: The metal composing the springs that
connect the wheels, is liable to constant depreciation of
strength by its vibration."
I will here remark, that it is a well known fact that the
vibration in metals granulates or weakens them, or weakens
them so much that they will break from the vibration.
And he says in substance, that the metal of the Winans'
springs, owing to incessant and violent vibration in every
direction, 4" is so liable to break, that it could not be relied
upon, and such a break in that truck would certainly do great
injury, and probably destroy the life of some of the passengers."
This, therefore, is adverse to the primary purpose of railroads, which is to carry persons and goods SAFELY, and if it
be made a means of destruction to goods or the lives of individuals, it is of no practical utility, but detrimental or pernicious in the legal sense.
He goes on to say: " The next reason is, that these spring
trucks will not keep square, but loose their rectangular form
by the transverse pressure, which will cause the truck to run
off' of the track. Another reason is that this construction and
nature of the truck when attempting to run on a curve of the
road, where necessarily the outer wheels have the longest
distance to traverse, and bear hardest against the side of the
outer rail, allows the axles of the wheels to get out of parallelismn with the radius of the curve, by the inner wheels forcing themselves forward of the outer wheels, twisting the truck
out of rectangular shape, and necessarily run off the track. It
is the worst form of truck that I have ever seen devised.
Another reason why it is dangerous also, is, that the vibration of the springs will allow the axles to get out of parallelism
with each other. which adds to its dangerous character before
explained. The very close proximity of the wheels required
by the Winans' specification, is also erroneous in principle and
practice, as it allows a serpentine, unsteady and unsafe motion,




WILLIAM W. HUBBELL.                 33
both horizontally and vertically, and the wheels follow each
other in shocks on the samle inequality on the rail, so quickly
as to blend the shocks so much together as to become, like
the action of a single wheel with a single shock, without giving the front wheel a chance to recover before the next one
strikes, and causes the wheels by the concussion and the action of the springs, to hop from the rail and thus run off of
the track from this cause, or become dangerous; these inequalities are frequent at the joints of the rails. It is the
worst plan for a truck, and all of these causes combined, constitute the very great danger and destructive character. I
have in practice proved these principles and actions as stated,
to be correct. The proper mode of constructing the trucks
of eight-wheeled passenger cars, and that in general use, is
to have a rigid rectangular wooden or iron wheel frame, with
pedestals securely attached to it, to ensure a normal action of
the wheels on the track, and hold the axles exactly parallel
to each other, and parallel to the radii of the curves; and the
wheels in each truck should be about 55 inches apart, from
centre to centre, or between the bearing points of the wheels
on the rails; that is, between 54 and 57 inches, with wheels
varying from 30 to 33 and 36 inches diameter, which are the
sizes in common use. This construction of truck runs with
ease and steadiness on both the straight and curved lines of
the road, and with perfect safe'ty in the principles and action
of the wheels on the rails, at all rates of speed."
The frame being rigid, increase of speed does not affect it;
it is fixed in its position and action, and always to be relied on.
The next witness is John Murphy, defendants' No. 4, pages
7 and 8-fols. 27, 2S, 29, 30;.his testimony shows the principle and construction.
He says: " I am a practical railroad car builder; am a member of the firm of Murphy & Allison, Philadelphia, and am
the same person who made an affidavit in this case on the
19th day of August, 1852. I have carefully examined the
model now before me, maked on a piece of paper attached
thereto, on which I have written my name,'Quincy car,
3




34                   ARGUM]ENT OF
1829.' It has two four-wheel trucks connected by a permanent body and centre pivots, with middle bearings and side
bearings which allow the trucks to swivel under the body to
the curves of the road; the wheels of the model revolve on
fixed axles, let into the cross braces of the wheel frame; the
distance of the bearing points of the wheels in each truck
apart on the rail, is equal to the gauge of the track, or the distance from outside to outside of the flanches. The whole
essential principle of the eight-wheeled cars, as used on railroads generally, to carry freight and passengers, known as platform, freight, and passenger cars, is contained in this Quincy
model. This essential principle, to turn the curves of the road
and run smoothly on it, is the combination of the two fourwheeled trucks, each having the wheels apart between their
bearing points on the rails, a distance equal to the gauge of
the track, coupled together, by means of a permanent body
to sustain the load, with king-bolts, to allow the trucks to swivel
under the body to suit the curves and inequalities of the road.
The trucks and body have the bolsters, side bearings and the
rigid rectangular wheel frames, to keep the wheels in their
position on the track, being the same practical conditions as
now existing in the eight-wheeled cars now in general use on
the railroads.
" In the early days of the railroads, the cars were made with
wheels both to revolve on fixed axles, and also with the axles
to revolve with the wheels. I have fitted them up both ways
myself."
This is the testimony of a practical car builder, who,
although he is acquainted with the plaintiff, and has been
upon business and friendly terms with him, still does not
hesitate to say that this is the true principle of the eightwheel car.
The next witness is Christian E. Detmoold, defendants' No.
3, page 56 —folio 224; pages 59, 60-folios 236, 237, 238.
He says: "I am 42 years of age, and am a civil engineer
by profession; at present I am the superintending engineer
of the New-York Crystal Palace, about being erected, and am




WILLIAM: W. HUBBELL.                35
connected with several other engineering enterprises. In the
summer of the year 182S, I was engaged in the service of the
South Carolina Railroad Company, and continued in their
service until 1833."
At folio 236 he continues, after speaking of the existence
of the eight-wheel steam carriages:
" These steam carriages contain the same substantial combination of two four-wheel trucks, and long carriage body, by
means of centre pivots and bolsters, as the eight-wheel carriages or cars for transporting freight and passengers on the
roads now in use, on the railroads generally. These carriages, like the South Carolina and the original drawing G,
also have rigid wheel frames, and pedestals, and springs, to
properly control and regulate the action of the wheels in
running on the road."
The principle was not a new thing then, for it was embodied practically and fully in those steam carriages.
i" In every essential respect and particular, and in the substantial character of' the combination of the body with the
trucks, the eight-wheel cars now used generally, and the
eight-wheel steam carriage, of which Mr. Allen and myself,
under his directions, made the drawings in the winter of
1830 and'31, are the same. Putting a box or seats on the
steam carriage for passengers, and making it a steam passenger coach, or removing the boiler and setting a box on the
upper bolsters for passengers to sit in, does not alter the substantial character of the combination, and does not produce
a new invention. It would fstill be the same substantial
combination, of a long carriage body connected to two fourwheel trucks by bolsters and centre pivots with side bearings,
to conform to the curves and follow the track with ease and
safety, and developes, in both cases, the same principles of
operation and the same advantages both to the road and the
carriage body. The distance of the wheels apart in each
truck of the original drawing, and of the steam carriages,
was twelve inches."
The bearing points of the wheels, therefore, are equal to




36                  ARGUM:ENT OF
the guage of the track. This testimony shows both the principle and the construction or mechanism in practice.
The next witness is Wm. J. McAlpine, defendants' No. 3,
pages 92, 93-fols. 36S, 369, 370, 371; page 94-fol. 374;
page 95-fols. 379, 380.
Mr. McAlpine is one of the first class of witnesses, and he
is not only among the first class as regards his education and
profession, but also by practical experience.
He says: " I am 42 years of age, and reside in Albany;
am civil engineer by profession, and have been engaged in
such occupation through a period of about 27 years. I have
been engaged on the Carbondale railroad; the Mohawk and
Hudson railroad; the Schenectady and Saratoga railroad;
on the St. Lawrence improvement; the Chenango canal; the
enlargement of the Erie canal; was engineer of the U. S.
Dry Dock, at the Brooklyn Navy Yard; was engineer under
Chancellor Walworth, in the Wheeling bridge case, referred
to him by the Supreme Court of the United States, and'afterwards was appointed by the court to examine and report
engineering facts in the case; and I was engineer of the Albany, and also of the Chicago Water Works, and at the
present time amr the state engineer and surveyor of the State
of New-York. I am acquainted with the principles of construction and operation of railroads, and of the eight-wheel
cars run upon them. I have examined the specification of
Ross Winans' patent of October 1, 1834, for an alleged improvement in cars or carriages, intended to run on railroads,
and understand the same. The model B, on the paper to
which I have written my name, is a correct representation of
the car described in detail, and recommended by Mr. Winans.
I do not deem it an improvement upon the eight-wheel cars
or carriages, previously known for the same purpose. It is,
in my opinion, comparatively unsafe. The wheels in each
truck are too close together. The axes of the wheels will
not remain parallel to each other, and the wheels in each bearing carriage will not keep square in running on a curve, which
would tend to throw the car off the track, and are difficulties




WILLIAM W. HUBBELL.        37
in its principles and details of construction, and consequent
action, so serious as to render it unsuitable for general use,
and unable to compete with the eight-wheel cars or carriages
having the rigid rectangular wheel frames and centre pivots,
previously known and now extensively used on the railroads
generally."
He then goes on to describe Chapman and Tredgold, which
I will not read in this connection.
At folio 374, he continues: "In that description and drawing of Chapman, we have the essential principle of construction and operation, both in detail and organization of the eightwheel car now used. There is the rigid rectangular wheel frame
of four wheels, with the cross-piece, centre pivot and side bearings, and the bearing points of the wheels, whether larger or
smaller wheels, may be used, given a distance apart about
the same as the breadth of the track, and the carriage body
sustained by the two bearing carriages, laying the weight
equally, being the same essential principles of construction as
used at present in the eight-wheel car."
On page 95, folio 379, he says: "And also the wood cars
described by Conduce Gatch, Jacob Rupp, and Leonard Forrest, in their affidavits in this case, are the same principle of
construction and organization, and in all essential details the
same as the eight-wheel cars now in common use. Putting a
box with seats on the bodies of the wood cars, instead of the
wood, would not form a substantially new combination, nor
involve any invention. No new principle would be developed,
and with reference to the South Carolina steam carriages,
removing the boilers or body, and securing a box with seats
on the upper bolsters in place of them, would not form substantially a new combination. It would simply be the analagous use of known things, for a known purpose, forming
the samne substantial combination, and not an invention."
So that it is clear that the principle does not consist in putting on boxes in place of boilers, and that when the swivelling motion takes place, the principle is developed without




38                  ARGUMENT OF
regard to the character of the body, or whether a box or platform, finished in one style or another, rests on the bolsters.
The next witness is Chas. B. Stuart, defendants' No. 3,
page 89-folios 353, 354, 355, 356; page 90-folios 357 to
359; page 91-folios 362 to 364; page 92-folios 365, 366.
Mr. Stuart's whole testimony shows that he speaks from
practical experience.
He says: " I am 38 years of age, and reside in the city of
New-York, and am an engineer by profession. I am, and have
for the past twenty-two months, been engineer in chief of the
United States Navy. Have been state engineer and surveyor
for the State of New-York. Have been. chief engineer of
the United States dry dock at the Brooklyn navy yard; and
have been connected with railroads for twenty-one years;
and seventeen years of that time was constantly engaged on
them. I was assistant engineer on the Saratoga and Schenectady railroad; also the Saratoga and Whitehall railroad,
and the Utica and Schenectady railroad. I was resident
engineer on the Syracuse and Utica railroad, and was chief
engineer of the Oswego and Syracuse railroad; chief engineer of the Tonawanda railroad; chief engineer of the
Susquehanna and central divisions of the New-York and
Erie railroad; chief engineer of the Rochester and Niagara
Falls railroad; chief engineer of the Great Western railroads
from Niagara Falls to Detroit; chief engineer of the Chemung railroad; and have been connected with other roads.
I have had very extensive experience in the construction and
operation of railroads; and I understand the principles of
construction and operation of the eight-wheel cars run on
them. I have carefully examined a certified copy of the
specification of Ross Winans' patent, of October 1st, 1834,
for an alleged improvement in the construction of cars,
intended to run on railroads, and the model B, on the paper
of which I sign my name. The model conforms to the
specification, and is such as a mechanic would make from the
description. I do not think the car, described by Mr. Winans'
specification, safe or fit for practical use on railroads; and it




WILLIAM W. HUBBELL.                 39
is entirely different in the details of its construction, and in
the alleged important principles, set out in the specification
from the eight-wheel cars, now in general use on railroads;
and no mechanic would or could make the eight-wheeled cars,
now in general use, from Winans' specification. I think the
specification purely theoretical, and unfit for practical purposes at an ordinary or usual rates of speed. I have carefully
examined the description of the eiglht-wheeled carriage,
contained in Tredgold's Practical Treatise on Railroads and
Carriages, printed and published in London in 1825, and the
model A, and understand them. The descriptions on pages
94 and 179, and the plate 26, fig. iv, is a complete description of the eight-wheeled car, with two four-wheel frames,
and vertical axis, to allow them to turn between the rails to
the curves, and all the other inequalities of the rails, conform
to the changes of level, and divide the pressure equally
among the wheels, as described and required by Tredgold;
and the model A, on the paper of which I have signed my
name, is a correct representation of it. A mechanic could
make the eight-wheeled cars now in use, in all',their essential
particulars, from Tredgold's description, without any other
aid whatever. It contains all the essential principles for
practical operation, and is far more correct in its details for
practical purposes than the Winans' specification. Putting
the longer body A 2, on the trucks of model A, would not
alter the principle. All the essential principles of the car
would remain the same."
Then, on page 91, folio 362, he adds: " I have examined
the specification and drawing of a patent, granted to WV.
Chapman, civil engineer, and E. Walton Chapman, of England, dated December 30th, 1812, as printed and published
in the Repertory of Arts, Manufactures and Agriculture, vol.
24th, 2d series, February, 1814, published by J. Wyatt,
London, England, and find there described a truck of four
wheels, with rigid frame, and the bearing points of the
wheels a proper distance apart on the rails, about equal to
the breadth of the track, to be placed under the ends of




401                  ARGUMENT OF
railway carriages; one of them with a single pair of wheels,
for a six-wheel carriage, similar to the six-wheel American
locomotives, and two of these trucks for an eight-wheeled
carriage if desired, similar to the eight-wheeled carriages
now used, for the purpose of allowing the carriage to move
freely around curves, or pass the angles of a railway, allowing
the frames to turn on a pivot and distribute the weight
equally on the track, as is common in the cars now in use in
the United States generally. An ordinary mechanic would
be able to make the eight-wheeled car from that description.
The details of construction and arrangement there shown,
are the true and practical principles of the eight-wheeled
car. The description is much more practical and better in
principle than the Winans' specification."
Then on page 92, folio 365, he continues: "Also, the
wood cars, described by Conduce G-atch, Jacob Rupp and
Leonard Forrest, in their affidavits in this case, have the two
four-wheel trucks, rigid wheel frames, vertical pivots, and
long permanent body, connecting them by bolsters and the
pivots, the same identically in principle of construction and
operation as the eight-wheel freight and passenger cars now
in use on railroads generally. The main details of construction, and the principle of the combination of the two fourwheel frames with the long body, by vertical axis and cross
pieces, to allow the wheel frames to turn between the rails, is
a very old thing, as now used, forming the eight-wheeled
cars on the railroads generally. And WVinans' spring trucks,
coupling the wheels closely and remotely, as he describes, is
no improvement."
The next witness is Vincent Blackburn, defendants' No. 3,
pages 96, 97-folios 382, 383, 384, 385; page 98-folios
391, 392.
Among other things, he says that the change of the diameter of the wheels does not alter the principle. In other
words, the principle is not involved, or does not lay in the
diameter of the wheels.




WILLIAM W. HUBBELL.                 41
He says: " I am a machinist, and have charge of the maclhinery department of the Utica and Schenectady Railroad,
and have been engaged for twenty-one years in the construction of railroad machinery. I am well acquainted with the
principles of construction and operation of the eight-wheeled
cars, used on railroads generally. There are certain details
and principles of construction in the eight-wheeled cars, that
are necessary to give a secure and practical operation to them
on the road, and these details of construction and combination,
composing the car, are very old. For example, the breadth
of the track of the line of railroad, between Albany and
Buffalo, is four feet eight and a half inches, (fifty-six and
a half inches) and the distance between the bearing points of
the wheels in each truck or wheel frame on the rail, is about
the same, or equal to the breadth of the track. The distance
between the bearing points of the wheels on the rails is the
essential distance, and not the distance between the wheelF,
or the faces of the wheels, as this latter distance will vary
with the variance of the diameter of the whleels used; the
bearing points remaining the same distance apart, or the
wheels the same distance from centre to centre. The distance
between the bearing points or centres of the wheels of the
trucks of the eight-wheeled cars, are and should be about the
same as the breadth of the track used, forming a square or
figure of equal distance across the track, and parallel to the
track, between the bearing points. The wheels should not be
placed as close together as they can be without touching each
other, as stated by Ross Winans, in his specification of Oct.
1, 1834, which I have read. In the construction of the wheel
frames or trucks, as they are commonly called in the United
States, used on the eight-wheeled cars generally, the axis of
the wheels are held parallel to each other, by rigid rectangular wheel frames, having centre pivots, the same in principle
as the wheel frame or truck shown and described in fig. viii,
plate v, in Chapmans specification, printed and published in
the Repertory of Arts, volume 24th, 2d series, 1814, in which
also the bearing points of the wheels are a distance apart,




42                  ARGUMENT OF
about the same as the breadth of the track, and two of these
trucks are described for an eight-wheel carriage, and one with
a pair of wheels for a six-wheel carraige."
Then on page 9S-folios 391, 392, he continues: "I have
examined the drawings H and G, signed by Horatio Allen,
and others, of the South Carolina engines or steam carraiges,
and they contain the same essential organization and combination to turn curves, that now exists in the eight wheeled
carriages in general use, many of which are constructed by
Eaton, Gilbert & Co. of Troy. The essential principle of
the combination of two four-wheel rigid wheel frames, with
pedestals and springs, centre pivots and side bearings supporting the long carriage body, by means of bolsters, is all
there, the same as used in the eight-wheeled freight and passenger cars in general use. I have examined the specification
of Ross Winans' patent fully, and he particularly describes
and recommends a car or carriage there, similar, or the same
as the model B, signed by me. It is no improvement whatever, over either Chapman's, or Tredgold's, or Allen's carriages. This mode of construction would not suit for the
Utica and Schenectady, and the other roads generally. It is
not used. It would be too unsafe. I would not recommend
it on any account."
Here is the testimony of a superintendent of a road, having power to put machinery on the road; but who says that
he would not use such a thing, as it is incompatible with the
construction and principle of an eight-wheel car.
The next witness is Walter McQueen, defendants' No. 3,
pages 99, 100-folios 395, 396, 397, 398, 400, 401; pages
102, 103-folios 408, 409, 410, 411: " I am a machinist, and
have charge of the Schenectady locomotive work:. I have been
engaged in the construction of railroad machinery for about
thirteen years. I am the designer of the locomotives on the
Hudson Riverrailroad, that run the express trains at from fortyfive to sixty miles an hour. I had charge of the machinery of
that road prior to taking charge of the Schenectady works.
I am well acquainted with the principles of construction and




WILLIAM W. HUBBELL.                 43
operation of the locomotives, and of the eight-wheeled cars for
conveying freight and passengers used on the railroads generally in the United States, and the details necessary to the
safe and proper practical operation. It is necessary that fourwheel trucks, to run on a railroad with safety and ease of
motion, should have rigid rectangular wheel frames, holding
the axis of the wheels parallel, and the bearing points of the
wheels square, so that the truck shall not be twisted out of
shape, and the engine or car run off of the track and overturn.
To secure the proper action in the eight-wheeled cars constructed by Eaton, Gilbert & Co., and such as are used generally on the railroads, the wheels are connected with each
other, and the body of the car by means of rigid rectangular
wheel frames, that hold the bearing points of the wheels in
each frame, a distance apart about equal to the breadth of the
track, and the axis of the wheels parallel to each other, and
keep the wheels square in running on curves; or at other
inequalities such as depressions or elevations at the joints of
the rails, while the truck turns between the rails from the resistance offered by the inequalities, at which time in all cases,
the axis of the wheels are not in the same plane, whether on
the straight or curved part of the road. This is the essential
arrangement and principle of the eight-wheeled car. The
distance of the trucks apart, depends upon the length of
the car, and will vary with a variation of the length of the
body, whether shorter or longer, without changing the essential principle. This essential principle of the eight-wheeled
carriage, whether it has horses, or men, or steam in it, to move
or draw it, together with freight or passsengers, or is used for
freight or passengers alone, was given and is to be found,
described and shown in Chapmans' specification, contained in
the 24th volume, 2d series of the Repertory of Arts, printed
and published in London, in 1814. That specification and
drawing, on pages 130 and 139, and fig. viii, plate v, distinctly
describes and shows both the six-wheel and eight-wheeled
carriage, in all the essential detail and organization or combination, as at the present time running on the Utica and




44                   ARGUMENT OF
Schenectady railroad, and also on the Albany and Schenectady
railroad, to turn the curves, divide the pressure on the wheels,
and run safely, smoothly and in a direct course on the track.
I constructed some of the six-wheeled carriages for the company to carry wood and water; and the eight-wheeled carriages are the same as constructed by Eaton, Gilbert & Co. of
Troy, and such as are used on railroads generally, to convey
freight of all kinds, and passengers. The truck or four-wheel
frame, in fig. viii, and as described, has the rigid rectangular
wheel frame, holding the axis of the wheels parallel, and the
wheels square on the track, and the distance between the
bearing points of the wheels is about, or exactly the same
as the breadth of the track; has also the centre pivot and
side bearings; and two of these, both alike, and in the same
way support the carriage body, under which they turn on the
pivots to the curves and other inequalities, the same in
arrangement and principle as the eight-wheeled carriages now
used on railways."
Then at folio 408, he adds: " The same arrangement and
principle of construction and operation, as contained in the
eight-wheeled cars, is also contained in the steam carriages,
delineated by the drawings G and H, signed by Horatio Allen
and others, and by myself. They have the long body secured
to, and borne by bolsters or cross-pieces, connected by centre
pivots to two rigid rectangular wheel frames, having each four
wheels, with the axis parallel, and pedestals, and springs, and
side bearings; and the bearing points of the wheels on the
rails are square, or equal to the breadth of the track, as shown
by measurement of the general plans in both drawings. The
arrangement, combination and principle, is identically the
same as the eight-wheeled cars or carriages now in use, in all
the essential details and organization; and that steam carriage,
or a box placed on the same bolsters, to contain freight or
passengers, would move past the curves and angles of the
railway with the same facility and safety, and pursue a smooth,
even and direct course on the road, the same as the eightwheeled cars now generally in use.




WILLIAM W. HUBBELL.                45
" I have examined the specification of Ross Winans' patent,
of October 1, 1834, and understand it. It does not set forth
any fixed principle, nor any specific mode of construction or
organization, from which a car can be constructed to run with
safety or practical utility on a railroad.  It describes the
wheels as close together as they can be placed, without
stating what diameter of wheels are to be used, and without
giving any idea of the proper distance of the bearing points
of the wheels apart. It does not describe any mode, nor intimate any means or necessity of keeping the axles parallel,
nor the wheels square on the track. It describes a spring
coupling the wheels, which is wholly impracticable, will not
keep the axles parallel, nor the wheels square. I do not consider it safe to run upon a railroad. No such car, to my
knowledge, is in use upon any of the railroads of the United
States. The model B, to which I sign my name, is a correct
representation of the car'intended to run on railroads,'
described by the specification, and patented as such by Mr.
Winans."
We consider Mr. McQueen one of the ablest and most experienced practical engineers. His affidavit contains a large
amount of practical information on the points of construction
and principle, hence I have referred extensively to it.
The next witness is George S. Griggs, defendants' No. 3,
page 104-fols. 414, 415, 416, 417, 418, 419.
He says: "I am the master mechanic of the Boston and
Providence railroad, and have the control of all the construction department of machinery, consisting of cars and engines belonging to the road. I have been master mechanic for eighteen
years on the same road. I have had the charge of construction of all the engines on the road, and we have built many
of our eight-wheel cars. The first eight-wheel cars built by
us in 1838, are now used on the road. The width of the
track is 4 feet 8I inches between the rails; and the distance
between the bearing points of the wheels, in each truck on
the rails, is about 5 feet; being more than the breadth of
the track. The wheels are 33 inches in diameter, and the




46                  ARGUMENT OF
distance, therefore, between the wheels, is about 27 inches.
Their trucks are made with rigid rectangular wheel frames,
as stiff as we could make them, and braced to strengthen
them and keep the wheels square and the axles parallel, and
thus enable the cars to run well on curves, and also the
straight track.  All of the bearing carriages of the eightwheel cars that have ever been used on the Boston and
Providence road, have rigid wheel frames, and the bearing
points of the wheels apart differ but a few inches. As a
general rule, the distance of the bearing points of the wheels
in each wheel frame apart, are about the same as the breadth
of the track. I measured two of the passenger cars at the
Roxbury station this morning; they have been running on
the road for about six years, and the turn-outs, and switches,
and curves of the road are as sharp, as on roads generally.
One of these cars measured 4 feet 9 inches between the centres of the axles or the bearing points of the wheels on the
rails in each wheel frame; and the other measured 4 feet 10
inches between the centres of the wheels on the bearing
points of the wheels on the rails in each wheel frame, being,
in both cases, more than the breadth of the track. On the first
eight-wheel cars built in 183S, the wheels were 36 inches in diameter, and so used for about seven or eight years, when 33 inch
wheels were placed on the same cars, bearing the centres of
the wheels or bearing points on the rails the same distance
apartas before; 33 inch wheels are now used on all the cars.
The distance of the centres of the wheels, or the bearing
points of the wheels on the rails apart, in each wheel frame,
is the essential distance in the eight-wheel cars for turning
curves and running on the straight track. The distance of
the faces or flanges of the wheels apart is not the essential
distance, as it will vary with a variation of the diameter, and
the wheels should not be placed as close as they can be without the flanches touching, as a general rule. The distance
of the centres of the wheels apart, or their bearing points on
the rails, should always be about equal to the breadth of
the track, which gives a good leverage to keep the truck on




WILLIAM W. HUBBELL.                 47
the track and make it run steady on both curves and the
straight line of road. These trucks are coupled apart any distance required, according to the length of the car, by the
centre pivot and the body of the car."
There he gives, not only an exposition of the principle, but
he shows the practice in regard to the principle, and that the
principle remains the same, although there may be a change
in the diameter of the wheels, and consequent changes in the
distances between the wheels.
The next witness is Albert S. Adams, defendants' No. 3,
pages 114, 115-folios 454, 455, 456, 457.
Mr. Adams is a witness of the second class, and is the master machinist of the Boston and Worcester railroad, a road
which does the heaviest business in the New England States,
and where the greatest amount of work is performed, and
therefore the probability is, that these things are more fully
tested there than elsewhere.
He says: " I am the master machinist of the Boston and
Worcester railroad, and have been connected with railroads as
machinist for fourteen years, and understand the principles of
construction and action of the eight-wheeled cars now in general use on railroads. The eight-wheel cars in general use,
have and necessarily must have to be practically safe and
useful, rigid rectangular wheel frames, with centre pivots or
bearings to support the body, and allow the frames or trucks
to turn to the curves, and turn from the resistance of inequalities of level on the straight, and also curved line of road.
The rigid frames hold the axis of the wheels parallel, and the
wheels square, or their Clearing points rectangular on the
track; and these trucks are secured a sufficient distance from
the ends of the car, so as not to be damaged by collision of
cars running together, and the truck sufficiently far apart to
distribute the weight over the different rails of the road as
much as the length of the body that may be used or desired,
will allow. The best practical arrangement of the wheels
apart in each truck, is to have their bearing points on the rails




48                   ARGUMENT OF
a distance apart about equal to the breadth of the track, without regard to their diameter.
" I have read the specification of Ross Winans' patent, of
October 1st, 1834, for a'car or carriage intended to run on
railroads.' His theory is to place the wheels in each truck
as close together on each side as they can be without their
flanges touching,' to be considered as acting like a single
wheel.' The fact is, that a single pair of wheels with a pivot
would turn around and lay lengthways between the rails, and
this same tendency of his wheels close together, tends to render them unsafe, or too unsteady; and his means or manner
of constructing these trucks by springs, coupling the axles of
the wheels, makes them so unsafe that they would be unfit
for practical use by the publie on the railroads.  The model
B., signed by me, is a correct representation of the car described by the specification of Mr. Winans' patent. I am of
the opinion that his car would not be safe or practical for use
on a railroad, to carry either freight or passengers. It would
be extremely dangerous to the lives and limbs of passengers."
The next witness is James H. Anderson, defendants' No. 3,
pages 117, 11S-folios 467, 468, 469, 470, 471; pages 119,
120-folios 476, 477.
He states that he is " the master machinist of the Providence and Stonington railroad, and has charge of the construction of the cars and engines of the road. I have been
engaged as a mechanic, on cars and machinery, for about ten
years previous to becoming master machinist. In all, I have
been engaged about twelve years. I understand the principles of construction and action of' the eight-wheeled cars in
use on railroads generally, and have constructed and understand the action of the trucks.
" The breadth of track of the Providence and Stonington
road, is four feet eight and a half inches. This is the usual
guage of railroads, and the distance of the bearing points of
the wheels apart in each truck of the eight-wheeled cars on
the rails, is about equal to the breadth of the track. In some
of them the distance is five feet, being a little more than the




WILLIAM W. HUBBELL.                 49
breadth or guage of the track. The trucks are rigid wheel
frames, holding the axles of the wheels parallel, and the wheels
square on the track.
"It is necessary, to the safety and good running of an eight
wheel car, that the trucks be constructed of rigid rectangular
wheel frames, holding the axles parallel, and the wheels
square on the track, then the friction in running on curves is
the least, and the car moves smoothly and safely.
" I have examined the specification of Ross Winans' patent,
of Oct. 1, 1834, and the model B, signed bv me, is the same
in construction as described by the specification, as the thing
patented. The specification of the patent, requires the wheels
to be too close together for safety and smooth running of the
car, and would cause great friction on both curves and the
straight track. Also the connection of the wheels by springs,
would be insufficient or impracticable for railroad purposes;
it would not hold the axles parallel, nor the wheels square,
and would not be safe.
" The manner of construction and of connecting and arranging the wheels of the trucks of Winans' car, is essentially different from the cars now in use by railroads generally; and
its action, resulting from the connection and arrangement,
would make it unsafe, unsteady, cause too much friction, and
unfit for railroad purposes."
This clearly shows what is and what is not the true construction to develop the principle to use, and on this head I
will refer to the testimony of a few more of our witnesses, in
order that all the practical information on the subject may be
fully brought forward.
The next witness, whose testimony I will read, is Win.
C. Young, defendants' No. 3, pages 149, 150, 151, 152-fols.
597, 59S, 599 to 600; and fols. 604, 605, 606.
He says: "I am 52 years of age, and reside in the city of
New-York. Am an engineer by profession; was educated,
and graduated at the United States' Military Academy, at
WTest Point, and at present am the President pro tem. of the
board of directors of the Panama Railroad Company. In
4




50                   ARGUMENT OF
1831, and until 1833, I was a resident engineer of the Saratoga and Schenectady railroad; in 1833, and until 1849, I was
the chief engineer of the Utica and Schedectady railroad, and
in 1849, until 1851, I was the chief engineer of the Hudson
River railroad. I have had practical experience in the construction and use of the eight-wheel cars used on railroads
generally, and understand their principle of construction, and
their action in running on the road.
" The model B (signed by me), is a true representation of
the car described by the specification of Ross Winans' patent,
of October 1st, 1834. Placing the wheels as close together
in each truck, as he describes as a material part of his invention, is objectionable. An eight-wheel car runs more steadily
and with less friction with the wheels in each truck a considerable distance apart, than when close together. I have placed
them six feet apart from centre to centre, or between the
bearing points, and they run more steady, and with less friction on curves, than when placed close together; a distance
apart between the bearing points, equal to the guage of the
track, which is generally four feet eight and a half inches, is
close enough for steadiness, safety, and avoidance of friction
in running on curves, and through switches.
"The mode of connecting the wheels with springs, described by Winans, is too frail and yielding to be safe and practical for railroad purposes. It is unsafe, and not useful.
" Tredgold's Treatise on Railroads and Carriages, published
in London in 1825, clearly describes the construction and
action of an eight-wheeled car on a railroad, similar to model
A, signed by me, on pages 94 and 179, and fig. 26, plate iv.
It is a true representation of Tredgold's description, which
is within the capacity of any ordinary railroad machinist, in
my opinion, and is the same in principle as the eight-wheeled
car now in use, and the same in the essential detail to carry
out the principle. It performs all the functions required by
Tredgold, on the pages and figure above referred to.
"The model C signed by me, is not described by Tredgold,
and does not perform the functions he requires, and it would
not suit for a railroad car.




WILLIAM W. HUBBELL.                  51
"The eight-wheel car, in its essential construction and organization, was described before Tredgold's publication, in
the specification of Win. and E. W. Chapman, in the Repertory of Arts, volume 24, second series, published in London
in 1814. The model K (signed by me), represents it, and
also the six-wheel car, being changeable from one to the
other.
"Both of them are in use on several of the railroads between Albany and Buffalo, and the eight-wheel is in general
use. Both the Tredgold and the Chapman car, have the
rigid rectangular wheel frame, the axis of the wheels parallel,
and the bearing points of the wheels about equal in distance
apart, to the guage of the track, and the swivel on separate
axis or pivots under one body, to suit the curves and irregularities of the rails; or as Tredgold more comprehensively
expresses it,'turn when (or at the time) from any inequality
(or level) the axis of the wheels are not in the same plane.'
This occurs both on the straight and curved track, and these
principles of action are those of the eight-wheel cars in general use.
" Placing the same trucks farther apart, with the same or a
longer car body, or placing the truck wheels closer together
and the trucks farther apart, is no invention; it is simply a
change of proportion.
"The whole principle and arrangement of the eight-wheel
car now used, is practically organized, and clearly stated, and
shown in both the description of Chapman and of Tredgold.
" The same essential principle of construction, arrangement
and action of the eight-wheel car, is contained in the steam
carriage, delineated by the drawings G and H, signed by Horatio Allen and others, and by myself. The body resting on
the upper bolsters, being a steam boiler, does not change the
substantial combination or arrangement. Putting seats on
it, or a box on the bolsters in place of' it, to carry freight or
passengers, would not change the substantial character of the
carriage, to turn curves, and pursue a steady and safe course
on the road. The invention would be the same. It has the




52                   ARGUMENT OF
bolsters, centre pivots, rigid rectangular wheel frames, parallel
axis, and the bearing points of the wheels equal apart to the
guage of the tracks, and supports the body by a truck under
each of its ends, being the entire essential principle of the
eight-wheel cars in use."
The next witness is Godfrey B. King, defendants' No. 4,
pages 79, 80, 81, 82-folios 298, 299, 300 to 310 inclusive.
In his affidavit this whole subject of construction and principle is so fully treated, that I will refer largely to it.
He says:   I am  the master machinist of the Boston and
Lowell railroad, and have been on the road -ever since it was
started, being for a period of about seventeen years; and I
designed and built the engine that took the premium for
draught, at the trial of locomotives in New-England, which
took place at Lowell about one year ago.
" I am acquainted with the construction and action of all
the eight-wheeled cars that have been used on the Boston and
Lowell railroad. We frequently construct our eight-wheeled
cars. They are on the same plan of construction and operation as those generally in use on railroads. I have examined
the specification of Ross Winans' patent, of October 1st, 1S34,
for a car or carriage intended to run on railroads, and understand it. The Boston and Lowell railroad never used a car
constructed in the manner, or upon the plan described in
Ross Winans' specification. The cars that have been used
by the Boston and Lowell road, have the bearing points of
the wheels on the rails about the same distance apart as that
of the rails of the road, forming a rectangle or square of
equal leverage about tle centre pivot, and the wheel frame of
the trucks, is the usual rigid rectangular wheel frame, holding
the axles parallel and the wheels square on the track, both
on the curves and on the straight lines of the road, the same
in principle of construction and action, and also the same in
arrangement and organization with the car body, as the eight
wheeled car described in the 24th volume of the Repertory
of Arts, second series, in Chapman's specification, published
in 1814; and the same also, as contained in Tredgold's Trea



WILLIAM W. HUBBELL.                 53
tise on Railroads and carriages, published in London in 1825.
The model K, signed by Wm. B. Aitken, and others, is a
correct representation of both the six and eight-wheeled carriages described by Chapman, in the 24th volume of the
Repertory of Arts, as it illustrates both the six and the eightwheeled carriages, being changeable for that purpose. The
six-wheeled carriages to convey wood and water, and also
the eight-wheeled carriages there described, are in use in
this country.
" The carriage may be moved by any kind of power, in various ways, of different degrees of utility; and the long body
or single body, sustained by the two four-wheel trucks, properly constructed and acting, forming the essential principle of
the car, still remains the same, though the mode of drawing
or moving the car may be changed. Its construction and
arrangement, as described by Chapman, like the eight-wheeled cars now in use, is adapted to being drawn by the middle
of the end of the body, because he shows the necessary
wheel frames, and the bearing points of the wheels in the
trucks on the rails, a distance apart equal to the breadth of the
track, and, therefbre, the trucks have the bearing points of the
wheels, in each of them, sufficiently far apart and firmly held,
to enable the flanches to keep the trucks steady, when left free
on their centres, as they are when the car is drawn by the
body.
"The model A (signed by Oliver Byrne and others), is an
accurate representation of the eight-wheeled car described in
the book, Tredgold's Treatise on Railroads and Carriages,
published in London in 1825, on pages 94 and 179, plate
iv, fig. 26. It has the same essential construction of the rigid
wheel frame; the wheels, as shown by their diameter and
their proportionate distance apart in each frame, having their
bearing points a distance apart about equal to the breadth of'
the track; the vertical axis, to enable them to turn at the
time, or when the axis of the wheels is thrown out of the same
plane by the change of level or inequality, which is incessant
on both the straight track, and particularly on curves, and




54                  ARGUIMENT OF
which at the joints causes the constant clicking noise to be
heard as the cars run. These rigid wheel frames, of the
Tredgold car, are also shown, arranged and organized with
the body, as near as they can be, to the extreme ends of the
body, and still have those ends protect the trucks from destruction or injury in the collision of cars running together;
and therefore, of course, as far apart as they can be placed,
consistent with the length of the body, to distribute the stress
of' the wheels upon the different rails of the road. All the
essential detail of construction, and arrangement, and connection of the wheels with each other, and with the body,
and also the action, safety and steadiness of motion that exist
with the eight-wheeled cars, are contained in the description
and drawing in Tredgold's book. That is, all the essential
features are there sufficiently set forth to enable an ordinary
railroad machinist or car builder, to construct and use from it
the eight-wheeled car now in use, with any particular length
of body that may be desired. The construction of the Tredgold car, as shown or described, is particularly well adapted
to being drawn by the body, in the manner now practised, as
the trucks are capable of steadying and controling themselves
by their flanges being a proper distance apart, and drawing
by the body with a coupling at the middle of its end, is the
method shown in the same book, plate 1, as the established
method of drawing cars in trains, and no directions being
given to change it, a mechanic would use it the same.
"The steam carriage delineated by the drawings G and H,
signed by Horatio Allen, C. E. Detmoold and others, contains
the essential combination and construction of the eight-wheel
carriages used generally to carry wood and water, and
freight, and passengers, separately or together. It has all
the necessary construction of wheel frame or truck, with the
bearing points of the wheels held the proper distance apart,
connected by the proper kind of frame, and the two wheel
frames connected, one under and to each end of the body, by
the separate vertical pivots and body bolsters-substituting a
box to carry freight or passengers on the upper bolsters, in




WILLIAM W. HUBBELL.                 55
place of the iron body or boilers, would not involve invention,
nor form substantially a new arrangement, or organization.
The mere fact that passengers could stand or sit more conveniently in one than about the other, would not form or
constitute the combination of a new one, and no new principle would b.e developed.
"The car or carriage described by Mr. Winans' spectification,
is accurately represented by the model B (signed by Oliver
Byrne and others.) It is such in all respects as I should make
from the description. He, Winans, does not attempt to describe any particular mode of drawing it, or moving it on the
road; but silently leaves the selection of a mode, it appears,
to the person who may construct the car; or else knew of no
mode, I should think.
" The wheels of his car are too close together to be drawn
well by the body; their proximity would make the truck unsteady, if left free to run by the center pivot; and the mode
of connecting the wheels, by springs, particlarly described by
him, is not safe nor practical for railroad purposes. It would
be impossible to keep such a construction of truck square on
the curves, or the axis parallel, or prevent violent oscillation,
and hence it would be too unsafe and unsteady. I would not
assume the responsibility of putting it on the road, on any
account, owing to the strong probability that loss of life would
ensue from it, and it never has been either constructed for or
in use on the Boston and Lowell Railroad, under either eightwheeled passenger or freight car bodies.
"Placing the wheels in each truck closer together, or as
close as possible, without the flanches touching, and placing
the trucks further apart, is no invention; it is simply a change
of proportion, and not a change or discovery of principle.
The former makes the truck unsteady, and is no improvement;
and the distance of the trucks apart, will follow or depend
upon the increase or diminution of the length of the body,
without effecting or altering the action or principle of the
truck or car. As for example-diminishing the length of the
body of the Tredgold car " A," would diminish the distance




56                   ARGUMENT OF
of the trucks apart; and putting a longer body A 2, on the
same trucks, in the same essential manner, increases the distance between the trucks, but does not alter the principle or
action of the car."
The next witness is Stephen W. Worden, defendants' No.
2, pages 39, 40-folios 165 to 16S, where the practical results
of different constructions are stated.
He says: "I have examined the specification of Ross Winans' patent, of Oct. 1st, 1834, and understand it. The model
B, now before me, with a piece of paper on the truck, signed
by Stephen Ustick, Win. B. Aitkin, Oliver Byrne, George
Beach and E. Martin, and on which I place my signature, is
a true representation of the car described by the said specification of Ross Winans. Yesterday was the first time I ever
saw or heard of this model.;" In the summer of 1S3S, I was superintendent of construction and repairs of cars for the Richmond, Fredericksburg
and Potomac railroad.  The shop was in Richmond, Va., and
at that time a pair of trucks, constructed precisely similar to
that model, and to the specification of Ross Winans' patent,
were brought to me at the shop, and I had orders to put them
under a car and try them.
"I understood that they were constructed in and brought
from Baltimore. I put them  under a plafform car, what we
called then a'timber car,' and the car was then put in a
train for trial, and on trial it proved a total failure. The trucks
would not stay on the track, the car ran off, and the trucks
were smashed to pieces, so much so that we considered them
a total failure, and threw them away, as not practical and
too dangerous to use. I afterwards put other trucks under
the platform, the same as we had previously been using, that
is, with a rigid frame like the Tredgold model, and the cars
now in use. The Winans' truck, as described in his specification, is utterly worthless, and of no practical use. It is
dangerous-too dangerous to use. I have no interest in this
suit, either directly or indirectly."




WILLIAM W. HUBBELL.                57
There it seems that Winans' plan had been tested, and it
was found that it would not stay on the track.
Then there is Henry Shultz, defendants' No. 4, pages 40,
43, 44-folios 154, 165, 166, 167, 168, 169.
He says, at folio 154: " I am a railroad car builder by occupation, and have been since the early part of the spring of
the year 1S32, at which time I commenced to work for the
Baltimore and Ohio Railroad Company."
Then at folio 165, he continues: " In the year 1S37 I engaged in car building with the Philadelphia, Wilmington
and Baltimore Railroad Company, at Baltimore, and have
had charge of the building and repairing here ever since.
I have built nearly all of the eight-wheel passenger cars
that the Philadelphia, Wilmington and Baltimore Railroad
Company use this side of the Susquehanna river; and I understand the principles of construction and action of the eightwheeled cars in general use.
4" The eight-wheeled passenger cars in use have swinging
bolsters and draw springs. The trucks are rigid, rectangular
wheel frames, made as rigid and stiff as possible; and the cross
bolsters and end pieces are secured by joint bolts. The
distance of the body bolster from the end of the body brace,
is about 7 feet; and the distance from the end of the box
part about 4~ feet; and from 35 to 44 feet in length. The
distance between the centres or bearing points of the wheels,
in each truck on the rails, is made as far apart as we can get
them in a truck from 78 to S feet long; they are further
apart than the wheels of the Columbus were; and to get
them far apart is an advantage; it makes the car run easier
and steadier than it would if they were closer together. The
trucks have male and female transom plates, to connect them
to the body and allow them to swivel, with a body bolt
passing through them to hold them together. The male and
female transom plates, for the trucks to swivel, are in universal use on the eight-wheel cars on railroads, and with
swinging bolsters on the passenger cars; I have not seen
any without them. I have examined and understand Ross




f58                 ARGUMENT OF
Winans' specification for an eight-wheel car, dated Oct. 1,
1834; at least, I understand what Ross Winans means to
describe by it; but it will not answer for an eight-wheel
car. A single pair of wheels, as he states, would turn right
around into the middle of the track; and putting the wheels
close together, as he describes, would tend to do the same
thing. The springs that he describes for coupling the wheels,
are good for nothing; they have been tried on the Baltimore
and Ohio road, and condemned; they will not hold the
wheels steady; and if one should break, it would destroy
the whole truck. Coupling the truck with the body by a
king bolt, like a common wagon, which he describes, is not
the way in which eight-wheel cars are built. They have
male and female transom plates; and the body bolt may be
taken out, and yet the car will run. The body bolt is a
security only in the eight-wheel cars; the swivelling is in
the transom  plates. There is no attempt in Mr. Winans'
specification, to describe any mode of drawing or moving the
car. The principles, or conditions and construction there set out
in that specification, are unsafe, liable to accidents, and would
not be suitable for railroad companies to use. I never saw
his specification before, and have no interest whatever in the
subject of this suit."
The next witness is Jacob Shryack, defendants' No. 3,
pages 39, 40-folios 156, 157, 158, 159.
This witness testifies to the trial of the trucks, according
to Winans' specification; and also in relation to the Washington cars. He is foreman of the building of passenger
cars on the Baltimore and Ohio railroad.
At folio 156, he states: " On the 28th of October, 1834, I
went into the employment of the Baltimore and Ohio railroad
company, and have been in their employ ever since.
" I assisted in building the passenger cars of the Washington Branch road, that was opened in the latter part of the
summer of 1835. We commenced to build the Washington
cars in the early part of November, 1834, as soon as the
benches and shop were prepared for the hands to work on
them.




WILLIAM W. HUBBELL.                59
"They were built under the superintendence and direction
of George Gillingham.
" There were twelve of the Washington cars built in 1835,
at the Charles-street car shop. I think the trucks were built
by Jacob Rupp. He was also building house cars at the
time; that is, double pitch roofed freight cars; he built a
great number of them.  The Washington cars, built in
1834 and 1835, were not like the model B, now before me,
and on the paper of which I have written my name. They
had a wheel frame, made of timber and iron braces, that
held the axles parallel to each other; and the action of the
wheels was normal to the track. They were different altogether from the model B. The trucks on this model B are
known as the spring trucks, and have been tried with strong
springs, and a saddle of cast iron upon the top of each
spring, with checks running along the sides of the spring to
keep it from spreading; the bolster resting upon, and secured
to the top of the saddle. The springs of this model have no
saddle to keep them from spreading. These spring trucks,
even when provided with the additional security of a saddle,
have proved to be very poor. We can never keep them
square, nor with the axles parallel. It is a dangerous thing,
and is condemned as unfit for use on the Baltimore and Ohio
road, where they have been tried. They were made under
the administration of James Murray, as superintendent on
the road. The model B is correct to the description in
Winans' specification of October 1, 1834. A car like that is
not practically useful, and not safe to run on a railroad."
This affidavit shows, that they were tried on the Baltimore
and Ohio Railroad, with an improvement added to them, and
yet they were good for nothing, and condemned.
This is the third witness on that point of construction.
I will now give your Honor the names of some additional
witnesses, with references to their testimony, to save thetime
of the Court, and to relieve you from hearing their evidence
read, as I have already collated most of the facts on this head
of construction.




60                   ARGUIJMENT OF
John B. Winslow, defendants' No. 3, pages 120, 121-fols.
479, 480, 481, 482, 483; page 122-fol. 488.
Asahel Durgan, defendants' No. 3, pages 123, 124-fols.
490, 491, 492, 493, 494, 495, 496.
John Crombie, defendants' No. 3, pages, 125, 126, 127,
12S —folios 500, 501, 502, 503, 504, 508, 509, 510.
Henry W. Farley, defendants' No. 3, pages 128, 129, 130
-folios 512, 513, 514, 515, 516; page 131 —folios 521, 522,
523.
Wm. P. Parrott, defendants' No. 3, pages 152, 153, 154folios 608, 609, 610, 611, 612, 613, 614.
Septimus Norris, defendants' No. 4, pages 1, 2, 3-folios 1,
2, 3, 4, 5, 7, 8, 9, 10.
Mr. Norris is not only a builder of some of the best locomotives, but he is one of the best engineers in the United
States.
M. W. Baldwin, defendants' No. 4, pages 3, 4, 5 —folios 11,
12, 13, 14, 15, 16.
He also is one of the oldest builders of locomotives in the
country, and one of the best engineers. His manufactory,
as well as that of Mr. Norris, is in Philadelphia.
Richard French, defendants' No. 4, pages 5, 6, 7-folios 17,
18, 19, 20, 21, 22, 23, 25, 26.
There is but one more witness of the third class, who is
a very intelligent nun, whose testimony I will read on that
point. He is Asahel Durgan, defendants' No. 3, pages 123,
124-folios 490, 491, 492, 493, 494, 495, 496, 497.
He says: "I am 42 years of age; reside at East Boston,
and am a mechanic. I have been engaged on the Eastern
Railroad for fourteen years as a master mechanic, and for the
last four years have had charge of the shop for the construction and repairs of cars. I have often had occasion to observe the action of the eight-wheel cars in running on the
road, to be able properly to repair the wear that takes place,
and I understand the principle of construction and operation
of the eight-wheel cars in use on railroads generally. In
the construction and use of eight-wheel cars, it is all impor



WILLIAM W. HUBBELL.                   61
taut that the trucks should be made and kept rigidly square,
to hold the axles parallel and keep the wheels square on the
track, and in order to secure these conditions, the wheel
frames are braced as strongly as possible. On a road having
sharp curves, the bearing points of the wheels on the rails in
each truck should be secured a distance apart, the same as
the guage or breadth of the track, and a few inches further
apart than the guage of the track, if the curves are not very
sharp. This relative distance causes the trucks to run steadily,
and with the least friction of the flanches against the sides of
the rails, both on the curves and the straight track, as it
keeps the axles of the wheels very nearly parallel with the
mean radial line of the curve between them, and the extent
of the oscillation of the truck, when it passes over inequalities of level, is then the least, and the least injurious in its
effects on the flanches, the wheel frame and the rails. The
latitude between the flanches and the rails, necessarily allowed on the roads for the trucks to move forward easily, is about
an inch. The resistance and friction that causes the trucks
to turn or oscillate on the tracks, firom inequalities of level,
on the curves and straight track, at the points of rails, and
from the different directions of the rails of the curves in their
tendency to spring the trucks out of square, necessarily wears
the flanches, and to a slight degree deranges the square of
the truck, for I find the cars in this condition brought to the
repair shop, to have the running gear repaired. In repairing
cars brought to the shop, when I find the flanches much worn,
as I do very often, I invariably place my squaring rule on the
truck frame, to see if it is slightly strained out of square, and
always find it to be so, and a cause of the running gear needing repair; when I always bring the truck back to its
square and rebrace it. Preserving the rigid and square condition of the trucks, is necessary to the safety and good running of the car, and to prevent excessive wearing of the
flanches. I have read and understand the specification of
Ross Winans' patent, of October 1st, 1834, for an improvement in cars or carriages intended to run on railroads. The




62                  ARGUMENT OF
only truck that he describes, is made by connecting strong
springs to the journal boxes of the wheel axles, and connecting the springs by a bolster, with centre pivots, connecting two of these trucks to the body of the car. The model
B, signed by me, is such a car as I would make from the
description of the patent. It is an accurate representation of
the patented car. It would be impossible, in my opinion, to
hold Ross Winans' truck square by the bolster and the springs
mentioned and recommended by him, connecting the two
axles of his trucks, and as the wheels are to be as stated by
him, very close together, the consequent violent oscillation
and friction produced, would twist the axles out of parallelism, and the wheels out of square, so much as to make it
extremely unsafe-too unsafe for use. It would hop off the
track, and if the spring broke, the side of the car would fall;
and the destruction necessarily be considerable.
" The old plan of the rigid wheel frame, with the bearing
points of the wheels on the rail, a distance apart equal to the
guage of the track, described by Chapman in 1814, and Tredgold in 1825, organized, forming an eight-wheel car, the same
in principle as those now generally used, is far safer and more
pratical than Ross Winans' patented car."
The witnesses to whom I have referred, are not experts
who make a business of testifying in courts. They are practical men and engineers, testifying in relation to matters
which it is their business to understand, and hence there is
no class of witnesses who are entitled to so much weight in
the investigation of matters such as these. It has been necessary to multiply them in order to embrace all the points raised,
and I believe that the principle, and the construction, and the
purpose, has been covered by the testimony which I have
adduced.
It is proved then, that to keep the wheels in each truck in
line with the rails, as near as may be, keeps their axis near
parallel with the radius of the curve, and the construction of
a rigid rectangular frame, is necessary to effect this, in conjunction with the distance of the bearing points of the wheels




WILLIAM W. HUBBELL.                  63
apart on the rails, as near as may be, equal to the guage of
the track.
This distance of the bearing points of the wheels, both
before and behind the pivot, or centre bolt, gives a length of
leverage, which safely controls the truck between the rails,
and prevents it from turning the axis of the wheels too much
across the radius of the curve of the road.
When the bearing points of the wheels on the rails are
equally distant apart, or, as near so as may be, both across
the track and in the length of the rails, the action of the for.
ward motion of the wheels upon irregularities at the joints
being incessant, tends continually to arrest the wheel and
lurch the truck around; and this action is then, with such
arrangement, counteracted and balanced by the re-action of
the side of the rails against the flanges, without multiplying
or increasing the force of the bearing of the flange against the
side of the rail, above the measure of force of the action, causing the lurch of the truck.
Because, as action and?e-action are EQUAL, as a law of force
and the leverage across the tract is equal to the leverage along
the rails, the mean line of force tends to intersect the kingbolt, and thus a BALANCE of force is exerted to keep the truck
on the track, without increasing the force of the flang-es against
the sides of the rails, and hence, without increasing the tendency of the truck to catch and run over the rail.
All the best engineers therefore agree, that the true construction of the truck, is with a rigid wheel frame, holding
the bearing points of the wheels equally distant and square on
the track.
Suppose, for example, that a truck has a rigid unyielding
frame, and the wheels with their bearing points equally distant on and across the rails, and a wheel strikes a joint of
the rails, a stone, or any elevation on the track, with a measure of force equal to one thousand pounds.  There is then a
force of one thousand pounds tending to press the truck around
on its centre off the the track, which brings the front flange
in contact with the rail with a force of one thousand pounds.




64                  ARGUMENT OF
The two balance each other, and the mean line of force is
directed to the centre pin, which it intersects, and the truck
is balanced without an increase in the force of the flange
against the rail, beyond the force of the action which caused
it. The danger of running off, increases with an increase of
the force with which the flange is brought against the side of
the rail, and the danger diminishes with a diminution of the
force with which the flange is brought in contract with the
rail.
The leverage about the king-bolt across the track, is constant.
In a track of four feet eight inches and a half guage, and a
lateral play of one and a half inch between the flanges and
the rails, leaves four feet seven inches, and the half of this;
two feet three and a half inches, is the constant leverage
ACROSS the track around the king-bolt; it is the action of the
wheels against the projections of the rails, that is exerted on
this constant leverage.
Now, the leverage around the king bolt, on which the
reaction operates when the wheels have struck a projection
on the surface of the rail, is always equal to half the distance between the bearing points of the flanges against the
side of the rail; the distance being taken in the direction of
the rails, because the king bolt occupies a position half way
between the bearing points. This may be a variable —not a
constant-distance; because it may be diminished or increased
by diminishing or increasing the distance between the centres,
or bearing points of the wheels. If the wheels are brought
closer together than a square, this leverage of the reaction is
thereby diminished, and the flange bears with more force
against the side of the rail.
Suppose that it is diminished from a square, say from 4
feet 7 inches, between the bearing points on each side, to 33
inches, with the thirty-inch wheels, used on the Baltimore
and Ohio road -this is about Winans' distance-and the
thousand pounds action is exerted to turn the truck. The
flange will be brought against the side of the rail with an
increased force, proportionate to a thousand pounds-as 4




WILLIAMf W. HUBBELL.                65
feet 7 or 56 inches, are to 33 inches; which would be with
a force of 1,696 pounds, tending to cause the wheel flange to
catch, and run over the rail-as a measure of force, 696
pounds more than the measure of force which caused it.
But, by diminishing the distance between the bearing
points on each side below the guage across the track, not
only is the measure of force-of the lateral bearing of the
flange against the rails, from action or obstructions on the
surface-increased, but the obliquity of the truck in turning,
until it has consumed or exhausted the lateral play between
the flanges and the sides of the rails, is increased.
This increase of obliquity, causes the flange to bear more
directly or obtusely against the rail, and, with its accompaniment, a diminished leverage before and behind the king
bolt, greatly increases the danger of running over the rail,
by thus bringing the bearing points, or wheels, as close
together as possible on each side of the truck, and shows the
fallacy of such a change.
r'ihe action which takes place on a CURVE, is still more decisive in showing the rigid frame and wheels, distant between
the bearing points about the same as the guage of the track,
to be the true construction and proper arrangement of the
wheels in the trucks; and Winans' not to be the proper construction nor arrangement,
In running on a curve, the outer front wheel, owing to the
tendency of the car or body to continue on a straight course,
brings its flange violently in contact with the outer rail of
the curve. If the truck-frame were of elastic materialsuch as a pair of long springs, constructed and applied as
described by Winans, capable of accumulating a reactive
force, to throw the wheel against the side of, and over, the
rail, as the wheel pressed against it, and forced the spring on
its elastic strain - this cumulative, reactive force of the spring
would become exceedingly dangerous. In its struggles to
force the wheel, which has its flange already bearing against
the side of the rail, it would, on the first opportunity-for
the level of the rail, or a break or joint in the rail, to allow
5




06                   ARGUMENT OF
the wheel to catch-spring it over the rail; and thus, as is
technically called, make the wheel HOP over the rail —off of
the track.
But the rigid frame has no such tendency. It possesses no
elastic, or cumulative, reactive, transverse force; and hence,
the wheel has nothing to tend to make it climb the rail, or
cross over, other than the one primitive law of motion; that
the body is tending to move in a straight line, and the frame
is made so stiff and strong as to resist this force without
twisting out of square.
The action produced by this law of motion, on the front
outer wheel, causing it to bear, with the flanges, against the
side of the rail, tends to retard the motion of' that side of the
truck, while the inner side of the truck, having no such
restraint, and running on the shortest or inner rail of the
curve, tends to crowd ahead.
Here, the great IMPORTANCE of having a frame to hold the
wheels square, and prevent the front one from being pressed
sideways, and the inner one ahead, and thus twisting the
truck out of shape, is APPARENT.
This can only be prevented by having a rigid wheel frame,
and avoiding longsjprings, or other elastic material, which will
allow this twisting and distortion of the truck to take place.
Here, also, on a curve, is apparent the importance of keeping the bearing points of the wheels apart, to prevent the
short swivelling, or obliquity, that would take place, like a
single pair of wheels on a centre point, and cause too hard a
bearing of the wheel against the outer rail, as well as throw
the axis of the wheels across the radius of the curve, instead
of keeping them parallel with it.
Practical men, and engineers of any experience and merit,
all agree, that the true construction of' the truck, and arrangement of the wheels in the truck of an eight-wheel car,
is to have a rigid wheel frame, holding the wheels square on
the track, and the bearing points of the wheels, as near as
may be, a distance apart equal to the guage of the track;
and, then, the application of the springs to the trucks must




WILLIAM  W. HUBBELL.                 67
be by pedestals, to confine their elastic action, normal or
perpendicular, to the track, and not such as with long springs,
and not such as to allow them  to accumulate reactive transverse force, or play, or HOP the wheels over the side of the
rail.
A construction of truck, possessing or admitting of cumulative, reactive, or elastic transverse force, is worthless, and extremely dangerous, and unfit for use on a railroad.
The trucks of the eight-wheel cars are, and should be, constructed of wood, as it will not granulate or become oxydized,
as is the case with iron, when caused to violently tremble.
Wood also possesses the most strength, as compared with
its weight, as well as the greatest durability.
The wheel frames of the trucks are therefore constructed of
wood.
The trucks of engines are constructed of wrought iron, because it occupies less space, where wood would interfere with
the steam machinery, which often contracts the trucks too
much. They are, however, steadied and directed by the axles
and conical action of the driving wheels. The Norris's have
lately re-arranged the steam gearing, and build their engine
trucks square, as the proper construction.
The means by which the truck is to swivel or turn, is the
next object of inquiry in the necessary construction, and this
is effected in the eight-wheel cars by means of transom plates.
Plain transom plates were used on the first eight-wheel car in
use in this country, in 1829.
The Quincy car, together with side-bearings, and also in
the wood and trussel cars, on the Baltimore and Ohio Railroad in 1830.
The transom plates now in use are male and female circular plates; when small in diameter, side bearings are required to steady the body of the car.
When the transom plates are of large diameter, from sixteen to twenty-four inches, side bearings are dispensed with.
These were first used on the model and the car "Victory,"
at Philadelphia, in 1834, 1835.  To make the male and female




68                   ARGUMENT OF
transom plates move safe, a king bolt passes through the
centre.  With plain transom  plates, like the Quincy car, a
king-bolt is necessary, and is used to form the centre of the
swiveling action of the truck.
The position of the trucks, in relation to the ends of the
body, is another feature of the construction.
The eight-wheel car or carriage has swivelling running gear,
and therefore it must be compared with cars or carriages of
its kind; that is, with cars or carriages having swivelling running gear; and wagons, cars and carriages on the common
road, turnpike road, and on railroads, with swivelling running
gear, whether with two wheels or with four wheels, swivelling on a pivot, have always had the swivelling running gear
placed under the ends of the body.
Also, it is a common elementary feature of mechanics, that
every body of an eight-wheeled carriage or car is a trussel,
which word in mechanics means a frame work resting with'its ends on two separate points or objects; such as a trussel
bridge, for example, which is a frame work resting with its
ends on two abutments. And also common practice, as well
as common sense, dictate that a carriage having swivelling
running gear, whether of two or four wheels, or eight wheels,
must rest with its END on the swivelling point. Common road
wagons, carriages, railroad cars and other vehicles of common use, have been generally constructed with the END resting
on the swivelling running gear.
Practice with the eight-wheel car on railroads, has established, that the truck must not be so near the end of the car,
as swivelling running gear is commonly placed in wagons or
carriages; that is, it must not be at or near the end, as stated
by Winans.
In the eight-wheel car, the centre of the truck is placed about
seven feet from the end of the bottom of the body framing, or
platform which receives the concussion, when cars run together
in trains, or in line on the road.
The truck, therefore, by practice, is established as most
convenient under all circumstances, when distant from  the




WILLIAM W. HUBBELL.                 69
ends of the bottom framing of the body, to the centre of the
bolts or cross piece about seven feet; and this is the distance
employed by the defendants, and in general use.
This distance protects the trucks from collision with each
other, on the road and in trains; gives the body a fair balance
of its weight over the trucks, consistent with its strength, to
support the middle of the car, and divides the car iin its support generally into about sixths, with a forty-two feet length
of car.
One-sixth, that is seven feet, balanced on each side of each
bolster, two-sixths or fourteen feet, to be sustained by the main
strength of the body.
This is the general construction; some few cars, however,
are sixty feet long, and some much shorter than forty-two, feet.
It is established in this case, by the best of proof, and, in a
measure, shown in this argument, that the construction or
machinery necessary to embody the principle of an eight wheel
car to use, consists of two four-wheel trucks, with stiff; rigid,
rectangular wheel frames of wood, holding the four wheels
on the track, with their bearing points on the rails, a distance
apart, as near as may be, equal to the guage of the track.
The springs, if applied between the wheels and frame, having
pedestals or other fixture to confine their cumulative force,
or elastic action, perpendicular or normal, to the surface of'
the rails, and these trucks supporting the body. of the car,
about seven feet from the ends of' the bottom framing, connected by king-bolts, with transom plates of large size, or
else of small size with side bearings.
The purpose effected by this construction is, to cause the
car to run steadily and safely on the track.
The principle is, as before stated-the swivelling or turning MOTION of two four-wheel trucks, under one body, burthen or load; and such construction practically develops this
principle, with the beneficial purpose, or result stated.
As to the mode of drawing the car, it may when run in
trains, or when liable to come in collision with other cars, be
drawn by a short perch from the truck; so short a perch, as




0i                   ARGUMENT OF
to not project beyond the ends of the body, or by a chain
from the front of the truck, or by a rod and chain, coupling
from the centre pivot, or by a coupling from the middle of
the end of the body. In all of which cases, when the cars
run against each other, or back each other, they will strike
and push by the body, and not by the truck or perch.
All Qf these are used at the present day.
When, however, the car is intended to run singly, the perch
may project from the truck, beyond the end of the body,
without serious objection, such as in the Columbus.
The majority of cars, however, both four-wheel and eightwheel, are drawn by a coupling, from the middle of the end
of the body; and this is the oldest method of drawing railroad
cars, in trains, shown by the works or publications on railroads.
These different modes of drawing the car do not change
its principle, though they may possess different degrees of
merit, as modes of drawing.
Such is the principle, construction and purpose of the
eight-wheel car, in general use, and constructed by the defendants.
The argument, also, in order to show most clearly what is
the construction, to develop the principle, and effect the purpose, has shown, we submit, that connecting the axles by
long springs, the wheels closely, and at or near the ends, as
described by Winans, is not the construction to develop the
principle; it is one to be avoided by the car builder and
railroad manager.
The next subject that I will examine is involved in the
inquiry as to
What is the origin and history of this eight-wheel car? and
What improvements, for convenience and comfort, have
lately been made upon it?
I will at this time mention the improvements made upon it.
They are, Davenport and Bridges' patent swinging or
pendulum  bolster. in general use; and Condue G(atcl's
changeable backs, with swivel jointts, for the seats inside;




WILLIAM  W. HUBBELL.                  71
a new draw-spring coupling, for which a patent has been
obtained; Stevens' improved equalizing brakes; and Kite's
patent safety beams to the trucks.
These are all the essential improvements to be found in
them, as differing from their original construction prior to
1S31.
I will now proceed to examine the origin of the car.
We first find the principle of the car, and also the necessary construction or mechanism to develop the principle, in
the Chapman specification, in vol. 24th of the "Repertory
of Arts," printed and published in 1814, in London, a period
of twenty years before the date of the plaintiff's patent, on
page 130-139, with a general reference to the specification.
The specification is divided into different parts, with different figures relating to the different parts.
The portions of the specifications we refer to are in these
words:
1" We also, as the carriage containing, the motive power
will, thus loaded, be too heavy in various cases for the
strength of the existing iron or wooden rails, if resting on
four wheels only, so arrange it for such ways (or other confined ways, where the ledges either of the ways or of the
wheels regulate the direction of the carriage) that it may rest
equably, and move freely round curves or angles, either on
six or eight wheels, so as to reduce its pressure on each in
the inverse proportion of its number of wheels.  Having
thus described the outlines of the separate leading parts of
our invention, we shall proceed to the means of carrying
them into effect."
" Fig. viii. shows a carriage of six wheels for the engine,
which may rest equably, or nearly so, on each of its wheels,
and move freely round the curves or past the angles of a railway.  1, 1, the fore pair of wheels, are, as usual on railways,
fixed to the body of the carriage; 2, 2, and 3, 3, the other
two pair, are fixed (on axles parallel to each other) to a separate frame, over which the body of the carriage should be so
poised as that two-thirds of its weight should lie over the




712                  ARGUMENT OF
central point of the four wheels, where the pivot 4 is placed,
and the remaining third over the axis 1, 1. The two-thirds
weight of the carriage should rest on conical wheels or
rollers, bearing upon the curved plates c, c, so as to admit the
ledges of the wheels, or those of the way, to guide them on
its curves or past its angles, by forcing the transom or frame
to turn on the pivot, and thus arrange the wheels to the
course of the way, similarly to the carriage of a coal wagon.
And if the weight of the locomotive engine should require
eight wheels, it is only requisite to substitute, in place of the
axis 1, 1, a transom, such as described (laying the weight
equably upon both), and then similarly to two coal wagons
attached together, the whole four pair of wheels will arrange
thenselves to the curves of the railway."
This Chapman specification describes both a six-wheel and
al eight-wheel carriage. It distinctly, also, speaks of ledges
or flanges on the wheels. The six-wheel carriage has a
truck frame, with four wheels, and a single pair of wheels
cn. a fixed, revolving axle. Plaintiff's attorney stated that
the wheels revolved on the axles. The specification contradicts this; for it expressly states that the wheels are "fixed
on axles parallel to each other;" therefore, the axles must
revolve with the wheels.
This construction of running gear, in connection with the
body, is now in use on steam  carriages, and on carriages
containing wood, water, and such compact and heavy articles,
requiring but little comparative room.
The eight-wheel carriage is now in general use for carrying
bulky articles and passengers, and is the freight and passenger car of the present day.
Few  of the carriages on railroads contain the motive
power as well as passengers or freight, as was the case with
steam coaches and carriages in Europe at an early day, and
as mentioned by Chapman.
The model K, in this case, is proved by the most competent witnesses on the subject in the country, to be a true




WILLIAM W. HUBBELL.                  73
representation of the Chapman carriages-both the six and
eight-wheeled.
1" Any motive power," such as Chapman mentions, whether
horse power, man power, or steam power, may be put in it;
or passengers or fieight may be put in it; and it may be
drawn by any of the modern locomotives, or horses, at the
highest speed.
The change in the speed, or efficiency of the means of drawing the car, does not change the arrangement nor principle in
the running gear, and the connection of the same with the
body. We deny that the arrangement or principle reposes
in, or is governed by, the speed.
Chapman speaks of its being drawn by a chain, which is
connected to the body of the car, and derives motion from a
barrel or windlass ahead, on the track.
The modern locomotive is an improved machine for drawing this car; and the entire capacity, or space, in the body
of' the carriage, is now appropriated to the stowage of goods
or the reception of seats for passengers.
The steam passenger coach, &c., is now again being tried
in New-England, with the engine, and room for passengers in
the same vehicle.
The essential principles by which the carriage, on its eight
wheels, conforms to the curves, and pursues a steady and
safe course on the road, remains unchanged.
This Chapman carriage, on the eight wheels, has several
purposes and objects to attain.
It has eight wheels, to distribute the great weight on more
than four or six bearing points, and properly on the road,
essentially as now practiced in the eight-wheel car. But it
is observable, from the specification and the drawing, that
those eight wheels are not put in a single rigid frame; because other objects are to be attained, besides the distribution
of the weight among the numerous wheels, and properly on
the rail.
It has eight wheels to distribute the weight; but those
eight wheels are divided into two sets of four wheels each,




' 4                   ARGUMENT OF'
independent of each other, with wheel-frames, king-bolts,
transom-centres, and side-bearings,-for what?
To distribute the weight? No, sir.
These two trucks would not be necessary to distribute the
weight among numerous wheels, and properlyv on the rails.
A single stiff frame, with eight-wheels, would do that, though
not equally among the wheels.
They are put in two trucks of four-wheels each, with kingbolts, transoms, and side-bearings, that the two trucks shall
have a swivelling motion, under the one body of the carriage,
to turn curves fand run safely and steadily on, the road, and so the
printed publication states.
Here, then, this Chapman carriage embodies the whole
principle and purpose of the eight-wheel car, as made by
the defendants, and in general use.
The next point in this car is, as to the construction of the
trucks, and their arrangement with the body of the carriage.
The truck, or bearing carriage, is described in the Chapman specification and drawing, and fully proved to be conlposed of a rigid, rectangular wheel frame, consisting of two
side, and three cross-pieces.
The middle cross-piece carries the transom, centre-plate,
and king-bolt, and side-bearings, and sustains the weight of
the body carried.
Tlhe body has anti-friction, side bearing rollers, to allow
the trucks to swivel easily.
The axles of tile wheels are described as parallel; and the
construction of the truck frame, by its rigidity, necessarily
holds the axis parallel.
The object of the transom or truck, is expressed as to turn
CU?'e'Cs.'I'The drawing of the truck or transom, given in tile specification, measures from the celntre of' one wheel to the centre
of the other, on each side, the same in. distance, as thle gtuagre of
the I'ack slown ill t/he plhn.
The centre or king-bolt, is equi-distant from the bearing
points of the wheels.




WILLIAM W. HUBBELL.                  75
The wheels, therefore, are held by the truck frame, square on
thle tracck,
Tile two trucks or transoms, for an eight-wheel car, are
to sustain the one carriage body. They are described and
shown as swivelling running gear. All swivelling running
gear, in the common road wagons, carriages, and all sorts of
vehicles, has been, from time immemorial, placed under the
ends of the body.
The repetition of this fact was not necessary for Chapman
to make.
All mechanics knew where swivelling running gear was
placed; and so these four-wheel transoms would, of course,
be placed where swivelling running gear had always been
pblced, i. e., under the ends Of the body.
In fact, a man ought to be considered an idiot, or excessively ignorant, who would suggest to place it anywhere else
than under the ends of the body; for he is not directed by
Chapman to make any change, in this respect, from  other
swivelling vehicles, whether used on common, turnpike, or
rail roads, and could give no sensible reason why a change
should be made, or why the swivelling gear should be placed
elsewhere than und(er the ends of the body.
To support the body equably, also, as Chapman describes,
requires them to be placed under the ends of' the body.
All the essential differences between the eight-wheel car and
other vehicles, whether of four or six wheels, are described in
C hapman's specification; and the principle and precise essential
construction and imode of connecting and arranging the wheels,
as used in the eight-wheel cars generally, and constructed by
these defendants, are there described and fully explained.
As to the purpose or effect, we have shown that the principle of the Chfapnman carriage is the same, and that t!he essential construction to develop the principle to use, is tile same
as now used.  The purpose is expressed to turn curves alld
run on a railroad; and as to thie efitct, it is an immutable
principle in physics, displaying the stability of cremation and
the character of physical l]ws, that " lice c'auses plro-luce like




76                    ARGUMENT OF
effects;" while, to conclude this principle of physics, I will
remark that it is equally true, as a physical evidence of the
omnipotence and omniscience of the Creator, that the same
effects may be produced by different physical laws and properties of matter, or, legally expressed, by substantially different
causes. If the knowledge to create physical laws to produce a
certain effect were limited with the Creator, there would be no
omniscience. If the power to create those physical laws were
limited, then there would be no omnipotence. Hence the truth in
physics, as I have stated, "that the same effects may be produced by different principles or physical laws," not only exists,
but is a striking evidence of omniscience and omnipotence,
supporting our belief in this truth of law and fact.
We have shown the principle, and the construction  or
mechanism to embody the principle to use, to be the same as
now in general use, and built by these defendants; it therefore follows, of course, by the laws impressed on matter, that
the car must run, as near as may be, with the same safety
and steadiness on the road.
Additional wheels have been made for the model K of the
Chapman carriage, to be placed on the same axles, instead of'
the smaller wheels, and practically show that, while such
change of the size of wheel brings the flanges nearer together,
the essential parts of the trucks, and the bearing points on the
rails, remain the same distance apart. The large wheels represent about thirty-six inches in diameter; the small ones,
about twenty inches diameter.  The large size, or from twenty-eight to thirty-six inches, are now more generally in use
on eight-wheel cars, though they still vary on cars from twenty
to thirty-six inches. This change in the size of the wheels,
does not change the essential construction of the car, although
it does bring the nearest faces of the wheels closer to each
other, and of course the remote faces as much further from
each other in the same truck.
The bearing points and axis remain the same distance
apart.




WILLIAM W. HUBBELL.                 7
It is through the bearing points of the wheels, on the rails,
that the controlling action and reaction, which directs and
keeps the car on the track, takes place. The wheels there, at
the bearing points, act on the rails, and the rails react through
these bearing points on the wheels; therefore, the distance
between the bearing points of the wheels, in each truck, is
the essential distance in the development of the principle of
the car.
I will refer to some witnesses upon these points. These
witnesses were not in the Troy and Schenectady case; and
they are not men who, for a living, make a habit of appearing as experts. They are practical men, ornaments to the
community, who must possess the best knowledge on the
subject, and such as are most to be relied upon by the court,
in cases where a principle of construction and mechanical
action is the subject of investigation.
Wm. B. Aitken, defendants' No. 3, pages 131, 132-folios
525, 526, 527.
He says: "I am the same who, on the 19th day of July,
1852, made an affidavit in this case; that he is a pattern
and model maker by trade and occupation, and understands
the descriptions and drawings of machinery generally, as it is
his business to work from them, and also, in many instances,
to make drawings of new machinery, from which to make
models and patterns. That on or about the middle of last
week, Wmn. W. Hubbell, Esq., handed to me the 24th volume,
2d series, of the Repertory of Arts, and requested me to
make a correct model of the engine or carriage described in
the specification and drawing of W. & E. W. Chapman, published therein in February, 1814, to show its principle for
turning curves and running on a railroad; and also to make
an entire set of wheels for it, of larger diameter than those
shown in the drawings, fig. viii. I have made the said model
exclusively from the said specification and drawing of Chapman, as contained in said book, to turn curves and the angles
of a railway, and the same is marked K, and I have signed
my name on a piece of paper attached to one of the trucks.




78                   ARGUMENT OF
The proportions and construction of the model are correct to
the description in the book. The extra large wheels are
marked L."
Here is a practical man who makes the car itself; in its essential principle and construction, as now used from the specification in the book, by his own comprehension and understanding alone.
Another witness is Wm. J. McAlpine, defendants' No. 3,
pages 93, 94-folios 372, 373, 374, 375.
He says: 1" Both the six and the eight-wheeled car or carriage, in all its most essential principles and details of construction and operation, to conform to curves and other inequalities of a railroad, and divide the pressure equally among
the wheels, are handed down to us from  England, in the
printed publications, Repertory of Arts, Wood's Treatise,
and Tredgold's Treatise. In the 24th vol. of the Repertory
of Arts, 2d series, the Chapman specification, printed and
published in Feb., 1814, in London, describes a six-wheeled
carriage having a regular four-wheel frame, with centre-pivot
and side-bearings under one end, and a pair of wheels under
the other end of the carriage body. It is ascertained by
measurement of the plan of this four-wheel truck, or wheelframe of four wheels, in fig. viii, plate v, that the distance of
the bearing points of its wheels, apart, is about equal to the
breadth of the track; and the specification describes that the
carriage body may be supported by two of these wheel friames,
both alike, laying the weight equally upon both, and they
turn by means of their centre pivots, or axis, to suit the
curves and other inequalities of the roads. In that description
and drawing of Chapman, we have the essential principle of
construction and operation, both in detail and organization, of
the eight-wheeled car now used. There is the rigid rectaingular wheel-frame of four wheels, with the cross-piece, centre-pivot and side-bearings; and the bearing points of the
wheels, whether larger or smaller wheels, may be used, given
a distance apart, about the samne as the breadth of the track,
and the carriage body sustained by the two bearing carriages,




WILLIAM W. HUBBELL.                 79
laying the weight equally, being the same essential principles
of construction as used at present in the eight-whetled car.
George W. Smith, defendants' No. 3, pages 75, 76-folios
297, 29S, 299, 300, 301. This gentleman is one of the founders of the Franklin Institute, of the State of Pennsylvania,
for the promotion of mechanic arts, founded in 1824, &c., &c.
At folio 297, he says: 6"Also, the principle is sufficiently
set forth to enable an ordinary mechanic to construct the
same, in the specification of the Chapman patent of 1812,
and printed and published in 1814 in the 24th volume, second
series, of the Repertory of Arts, pages 130 and 139, and the
drawing plate v.
-" The necessity of keeping the axles parallel, and use of a
rigid rectangular wheel frame, that will hold the wheels
square, as at present used in the eight-wheeled cars, are
there clearly set forth and shown. A ground plan of the
wheel-firame of one truck is clearly shown in the engraving,
fig. viii.; it has the two side-pieces and the three crosspieces, one a middle-piece with the pivot-centre; being the
same comprised by the Tredgold car, and in the eight-wheeled
cars now in use on railroads.'l'he distance between the axles
of Chapman's wheel-frame measures about the same as the
breadth of the track. The wheel appears small in diameter,
which gives, apparently, more distance between them than if
they were larger in diameter.  Tile distance between the
bearing points of these wheels on the rails, or the centres of
their axles, which is the essential distance, being about the
same as the breadth of the track, makes this wheel-frame, in
fig. viii. of Chapman's, in all its essential features, the
same as the Tredgold wheel-frames and those now in use on
eight-wheeled cars."
Where it is desired, therefore, to have a more capacious
body, the only change to be made is to lengthen the body,
allowing the trucks to remain, as before, near the ends.
The means of connection with the body, and the distribution of the weight, remain the same; and the length of the




80                   ARGUMENT OF
body, whether shorter or longer, does not change the principle, nor the essential operation nor effect.
The next witness is Vincent Blackburn, defendants' No. 3,
page 97-folios 385, 386, 387, 388.
He says:  "In the construction of the wheel-frames or
trucks, as they are commonly called in the United States,
used on the eight-wheeled cars generally, the axis of the
wheels are held parallel to each other by rigid rectangular
wheel-frames, having centre-pivots, the same in principle as
the wheel-frame or truck shown and described in fig. viii.,
plate v., in Chapman's specification, printed and published in
the Repertory of Arts, volume 24th, 2d series, 1814, in
which also the bearing points of' the wheels are a distance
apart, about the same as the breadth of the track; and two
of' these trucks are described for an eight-wheel carriage, and
one with a pair of wheels for a six-wheel carriage. Both of
these plans are used on the Utica and Schenectady railroad.
Some of the carriages, carrying the wood and water, commonly called the tender, have the front pair of wheels
attached to the body of the carriage; and the four-wheel
truck or wheel-frame sustains the back end of the body with
side bearings and a pivot, the same as in Chapman's specification. Also, some of the tenders have two of' these trucks
or bearing carriages; and the freight and passenger cars have
the two four wheel trucks, sustaining the body of the carriage, and constructed, in their essential details and principles,
with the bearing points of the wheels about the same distance
apart, as described and shown in the drawing and description
in Chapman's specification, in the Repertory of Arts. He
there describes and shows both the six and the eight-wheeled
carriages, in their most essential principles, with rectangular
wheel-frames, holdidg the axles parallel, and the bearing
points of the wheels in the truck a distance apart about
equal to the breadth of the track, with the usual cross-piece
and centre-pivot to turn curves, the same as used on the
Utica and Schenectady railroad; and as to the eight-wheeled
carriages, the same as generally in use on railroads."




WILLIAM W. HUBBELL.                 81
The next is Charles B. Stuart, defendants' No. 3, page 91,
folios 362, 363, 364.
He says: " I have examined the specification and drawing
of a patent granted to W. Chapman, civil engineer, and E.
Walton Chapman, of England, dated December 30th, 1812, as
printed and published in the Repertory of Arts, Manufactures
and Agriculture, vol. 24th, 2d series, Feb., 1814, published
by J. Wyatt, London, England, and find there described a
truck of four wheels, with rigid frame, and the bearing points
of the wheels a proper distance apart on the rails, about equal
to the breadth of the track, to be placed under the ends of
railway carriages, one of them with a single pair of wheels,
for a six-wheel carriage, similar to the six-wheel American
locomotives, and two of these trucks for an eight-wheeled
carriage, if desired, similar to the eight-wheeled carriages now
used, for the purpose of allowing the carriage to move freely
around curves, or pass the angles of a railway, allowing the
frames to turn on a pivot, and distribute the weight eqally
on the track, as is common in the cars now in use in the
United States generally. An ordinary mechanic would be
able to make the eight-wheeled car from that description.
The details of construction and arrangement there shown are
the true and practical principles of the eight-wheeled car.
The description is much more practical and better in principle than the Winans' specification."
The next is George S. Griggs, defendants' No. 3, pages
105, 106 —folios 419, 420, 421, 422, 423.
He says, at folio 419: " The whole of the essential construction and organization of the eight-wheeled car, as now
used by the railroads generally, is contained in the specification and drawing of the six and eight-wheeled carriages of
William and Edward Chapman, printed and published in the
24th vol., 2d series, of the Repertory of Arts, in the year 1S14,
in London. The drawing, fig. viii. of the specification, shows
the transom or wheel-frame with its four wheels, having the
centres of the wheels or their bearing points on the rails a
distance apart equal to the breadth of the track; and the
6




82                  ARGUMENT OF
specification distinctly states that two of these, both alike,
should be used for an eight-wheeled carriage, and one of them
with a pair of wheels for a six-wheeled carriage. They are
used both ways on the railroads in this country, and the
model K, on the paper of which I have signed my name, is a
correct representation of the carriage described in Chapman's
specification in the Repertory of Arts. This model exeiplifies both the six and the eight-wheeled carriage described by
Chapman and now in use. The six-wheeled plan is used
chiefly to carry wood and water for the engine, and the eightwheeled plan is used for passenger cars and freight cars. All
the essential principles of the distance of the bearing points
of the wheels apart, and of constructing the rigid rectangular
wheel-frame, to hold the wheels square and the axles parallel
with the centre pivot, and the organizing of two of these
with the same body to turn the curves and pursue a smooth,
even, and safe course, the same as used on railroads, are described and shown in Chapman's specification, and in the
model K which corresponds with it; and putting the larger
wheels L, in place of the small wheels K, on the same axles,
would bring the faces of the wheels closer together, but would
not alter the principles; the essential proportion and construction would remain the same, whether horses or men are
put init to propel themselves, as stated by Chapman, or are in
it, as freight or passengers; being drawn by a steam engine
attached to it, makes no difference in the principle of the car;
it still has always the eight wheels to distribute the pressure
in two separate trucks to freely turn the curves; and these
trucks are properly constructed and proportioned, and supporting one body, and containing all the essential construction and organization of the eight-wheeled cars now in use."
The next is Walter McQueen, defendants' No. 3, pages 100,
101-folios 398, 399, 400, 401.
After stating the principle, he says: "This is the essential
arrangement and principle of the eight-wheeled car. The
distance of the trucks apart depends upon the length of the
car, and will vary with a variation of the length of the body,




WILLIAM W. HUBBELL.                 83
whether shorter or longer, without changing the essential principle. This essential principle of the eight-wheeled carriage,
whether it has horses or men, or steam, in it to move or draw
it, together with freight or passengers, or is used for freight
or passengers alone, was given and is to be found described
and shown in Chapman's specification, contained in the 24th
volume, 2d series, of the Repertory of Arts, printed and published in London, in 1S14. That specification and drawing,
on pages 130 and 139, and fig. viii, plate v, distinctly describes
and shows both the six-wheel and eight-wheeled carriage, in
all the essential detail and organization or combination, as at
the present time running on the Utica and Schenectady railroad, and also on the Albany and Schenectady railroad, to
turn the curves, divide the pressure on the wheels, and run
safely, smoothly and in a direct course on the track. I constructed some of the six-wheeled carriages for the company
to carry wood and water; and the eight-wheeled carriages
are the same as constructed by Eaton, Gilbert & Co., of Troy,
and such as are used on railroads generally to convey freight
of all kinds and passengers. The truck, or four-wheel frame,
in fig. viii, and as described, has the rigid rectangular wheelframe, holding the axis of the wheels parallel, and the wheels
square on the track, and the distance between the bearing
points of the wheels is about, or exactly the same, as the
breadth of the track; has also the centre-pivot and side-bearings, and two of them, both alike, and in the same way support the carriage body under which they turn on the pivots
to the curves and other inequalities, the same in arrangement
and principle as the eight-wheeled carriages now used on railways."
The next witness is James H. Anderson, defendants' No.
3, pages 118, 119 —folios 471, 472, 473.
He says: " The essential principle of construction and action of the eight-wheeled cars in general use, and manner of
arranging and connecting the wheels with each other, and
the car body as practiced commonly, is fully described in
Chapman's specification, printed and published in the 24th




8 4                 ARGUMENT OF
volume of the Repertory of Arts, second series, published in
London in 1814; and the six-wheeled carriage there described,
and also the eight-wheeled carriage are now in use in this
country.
" The model K, signed by me, represents them both being
changeable. It is such a model as I should construct to represent the description exactly. I could build the eight-wheeled
cars now in general use in all the essential construction, arrangement and organization, as I have described, from that
description and drawing in the Repertory of Arts."
I will not read any further testimony relating to the Chapman car, as it will be, generally, a repetition in substance of
that which I have already read; but I will refer to the
remaining witnesses, giving their names, and the place where
their evidence is to be found.
Asahel Durgan, defendants' No. 3, pages 124, 125-folios
496, 497, 498.
John B. Winslow, defendants' No. 3, page 121 —folios 484,
485, 4S6, 4S7.
Henry W. Farley, defendants' No. 3, page 130-folios 517,
518.
John Crombie, defendants' No. 3, pages 126, 127-folios
604, 505, 506, 507, 508.
Wm. P. Parrott, defendants' No. 3, page 154-folios 614,
615, 616, 617.
Mr. Parrott is one of the most eminent engineers. The
other gentlemen mentioned are engineers and practical men.
Wmn. C. Young was educated at West Point, and is one of
the best engineers in the United States; his testimony is in
defendants' No. 3, page 151-folios 602, 603, 604.
Godfrey B. King, defendants' No. 4, pages 79, 80-folios
300, 301, 302.
Mr. King is a practical man, and one of the best machinists
in the country; he has been engaged as master machinist for
17 years, on the Boston and Lowell railroad.
[Adjourned; and on the following day Mr. HUBBELL continued his argument.]




WILLIAM W. HUBBELL.                 85
The next point to which I will advert, is —the manner in
which the Chapman car was presented in the Troy case,
with a view to show that the issue there raised on it was a
different issue from that now raised.
On this point, I refer to the affidavit of Isaac Adams, pages
77, 78, 79.
The question in the Troy case was-whether the Chapman car did, or did not, embody the doctrines and mechanical
structure of Winans' specification.
In this case, we say that the Chapman car embodies the
principle of the eight-wheel car, and the essential structure
to develop the principle, the same as that contained in the
cars made by the defendants, to wit: to keep the axles parallel with the bearing points of the wheels in each truck —a
distance apart, as near as may be, equal to the guage
of the track, and held thus square, and in this position, by a rigid rectangular wheel-frame; two of which
support the body, with an equal amount of weight on each,
and have the swivelling motion under it, to coiform to the.
curvatures of thle road; while the increased number of bearing
points distributes the weight over the road.
And further, we say, that Winans does not profess to have
discovered the principle, in its true sense, which I have stated
heretofore.
But he sets out the doctrine that a proximity of the wheels,
as close as possible, that the axles may more nearly coincide
with the same radius, like a single wheel, while the wheels
thus brought together in each truck still remain in the two
trucks remotely apart; and employing big springs and wagon
bolsters, or analogous devices, to thus couple the axles and
wheels as close as possible, without touching, and at the ends
of the body, is his theory and mechanism, and that it tends to
concentrate the weight.
We say that this is equally different from both the defendants' and Chapmans'.
And if his patent be construed so broadly as to cover the
defendants', it necessarily must cover Chapmans', and is too
broad, and void.




86                  ARGUMENT OF
But if it be construed directly as to his theory of coincidence with the radius, by proximity as near as possible, and
the mechanism is by spring connections, with common wagon
bolsters, which he describes, then it is equally different from
both the defendants' and Chapmans', and the defendants do
not infringe.
To prove that this Chapman car was presented in the Troy
case solely for the purpose of destroying the plaintiff's patent,
I will refer to the charge of Judge Conkling, to the testimony of Edward S. Renwick, pages 80, 81, and to Harvey Waters, page 82, in defendants' copy of Troy case.
These were the defendants' witnesses.
Not one of them was a practical railroad engineer, and
hence they were not the proper kind of witnesses. They
were not such witnesses as we have now presented to the
court.
Although they are very respectable gentlemen, yet they
are not practical men, acquainted with the true principle and
construction of eight-wheel cars.
The plaintiff's witnesses are Mr. Hibbard, pages 85, 86,
87, 88; and Walter R. Johnson, pages 91, 92, 93.
The court will understand that the point is: that in the
Troy case, the Chapman car was put solely upon the ground
that it was the same thing as Winans describes; and we say
that such was not the issue that should have been taken on it,
for we put it on the ground that it is the same as the defendants', and that they are both equally different from Winans'.
Hence, if Winans' patent includes the one, it will include
the other; and if it includes Chapmans', his patent would be
void; but if it do not, then the defendants are not infringers.
We do not understand, however, that Mr. Winans' specification, in the view that we have taken of it, and as expressed
by the specification itself, includes such cars as those constructed by the defendants, nor such as Chapmans'.
I will read from Judge Conkling's charge to show the manner in which the Chapman car was presented in the Troy




WILLIAM W.'HUBBELL.                87
case.  Page 131 of defendants' copy, and page 9 of the
charge, in the Appendix to plaintiff's evidence.
The Judge says: " On the part of the defendants, however, it is insisted that carriages substantially like that in
question were previously described in certain public works;
and to establish this, they produce two English books, Wood
on Railroads, published in 1825, and a volume of the Repertory of Arts, published in 1814. They insist that each of
these contains a description and drawing of what is substantially like the railroad car which the plaintiff has patented.
I shall not enter into a detailed explanation of the drawings
and descriptions contained in these books, nor recapitulate
the views and arguments concerning them, which have been
so elaborately presented to your consideration by the counsel
on the one side and the other, but shall content myself with
calling your attention, presently, to some principles of law
applicable to the subject."
We there see that it was insisted by the defendants that
those cars were substantially like the railroad car which the
plaintiff had patented, with: a view to destroy the patent by
showing want of novelty. These words of the Judge show
that fact, viz: "They insist that each of these contains a
description and drawing of what is substantially like the
railroad car which the plaintiff has patented."
That is not the same case as we now present to this court.
In that case, it was a different question entirely, and would
depend upon the construction put by. the court on Winans'
patent. We think, however, that it will not bear such a
construction as to include either the defendants' car, in this
case, or the Chapman car. We contend that it is for a collective claim; i. e., for the manner of connecting and arranging
the wheels as described.
The "arrangement" refers to the distance of the axles,
which are to be coincident to the radius, as near as may be,
in each truck, and the trucks as remote as possible; and the
" connection" is by big springs, bolted to the boxes of the
axles, and wagon bolsters across to the middles of the springs.




88                   ARGUMENT OF
In this relation let me remark that a patent cannot be sustained for a change in distance between the parts, or the
space between two objects in existing machinery for a similar purpose; nor for changes, whether chemical or mechanical, effected by lapse of time, in conjunction with the use of
known machines, employed for an analogous purpose; nor
for changes that take place by natural operations, or efftcts of
existing machinery; nor for an idea; nor for a principle in
the abstract.
And the Winans' patent, therefore, must be for the big
springs bolted to the wheel boxes, with wagon bolsters between their middles, connected by king-bolts to a connection
or body between them, or some analogous or elastic fixture,
secured in like manner to obtain this proximity of the axles,
or near coincidence to a radius, like the axle of a single pair
of wheels; subject, however, to the question whether it is so
pernicious as to be invalid.
We have shown that a car, full of passengers, with a single spring, moving at the rate of twenty miles an hour between them and eternity, is a position which the boldest man
may well shrink from with fear, and is too dangerous to be
of public use.
We say, that if the court construes Winans' patent to be
for the manner of connecting the wheels with each other by
means of the big spring, or an analogous device, as close as
possible without the flanges touching-to embody the idea
expressed in the specification of having the axles as near
coincident with the radius, or like a single pair of wheels,
and thus connected with each other, also with the body by
the common wagon bolster and king-bolt, in the collective
sense-then it is equally unlike Chapmans' and the defendants', and there is no infringement.
In order to show that such is his theory and mechanism, I
will collate some parts of his specification.
First, I will examine those parts which set out his theory.
On page 111 of Appendix A, in plaintiff's proofs, folio 4,
Ross Winans himself says: " From this consideration, when




WILLIAMI W. HUBBELL.                     89
taken alone, it would appear to be best to place the axles as ncar
to each other as possible; thits cacusing them to aplproacLh more
nearly to the direction of the RADII oJ' lte curves, and the planes
of the wheels to conform to the line of the rails."
I will now turn to page 113, folio 10, where he continues:
" The two wheels on either side of the carriages are to be
placed very near to each other; the spaces between their flanges
need be no greater than is necessary to prevent thcir contact with
each other."
He then goes on to the construction, at folio 14, page 114,
and, after making a suggestion, at the commencement of the
paragraph, as to construction, the theory begins with the word
" provided," and goes on: " Provided that the fore and hind
wheels of each of them be placed very near together, because thle
closeness of thefore and hivnd wheels of each bearing carr'iage, taken
in connection with the use cf two bearing carriages coupled as remotelyfi'on each other as canL conveniently be done for the support
of one body, with a view to the objects and on the Yr1nciples /lerein
set forth, is considered by me as a most important feature of my
invention."
He says in his suggestion, as to construction: "Although
I prefer the use of a single spring to a pair of wheels as above
described, instead of the ordinary spring to each wheel, and
consider it more simple, cheap and convenient than any other
arrangement; the end which I have in view  may nevertheless be obtained by constructing the bearing carriages in any
of the modes usually practiced."
He then proceeds with his theory, as previously stated, with
the proviso as to plroximity, which he says " is a most implortant
featture of my invention"
I next refer to folio 116, at the top of page 115, where lhe
ad(ds: " The two wheels on either side of one of the bcearinog carriages may, friom  their proximity, be consideredc as acting likce a
single wheel."
Now, to get at the sense direct, tlake the words that I have
just quoted in connection with those to which I referred in
the commencement of his tiheory, viz:  " From  this consid



90                    ARGUMENT OF
eration, when taken alone, it would appearto be best to place
the axles as near to each other as possible, thus causing them
to approach more nearly to the direction of the radii of the
curves, and the planes of the wheels to conform to the line
of the rails," and you will discover that Winans' theory was
coincidence of the axles in each truck with the same radial line, as
near as may be, like the axles of a single pair of wheels, and these
trucks connected to the ends of the body. That is the first branch to
be considered and determined in an analysis of his specification.
Now, as to the mechanical construction. It will be perceived
that Winans does not profess to have discovered and applied the
"' principle of the swivelling motion of two four-wheel trucks
under one body, burthen or load."
His theory in each bearing carriage is coincidence of the
axles to the radius, as near as possible, to act like a single
pair of wheels, in connection with the two carriages coupled
at or near the ends, a convenient distance apart. He does
not profess to say that the two carriages have not been coupled near the ends as conveniently as may be, with the axles
further apart, than with a design to have them coincident, as
near as possible like a single wheel, and swivelling under the
body in eight-wheel cars; his specification implies that they
have been so constructed and arranged, and so operated.
His claim is collective. We have his theory or doctrine
as to the arrangement, as to the manner of connecting and
arranging the eight wheels, as described.
We have the arrangement already collated.
Now, what is the manner of' connection, or the machinery
described?
At folio 9, page 113, of Appendix A, in plaintiff's proofs, he
says: " For this purpose, I construct two bearing carriages,
each with four wheels, which are to sustain the body of' the
passenger or other car, by placing one of them at or near each
end of it, in a way to be presently described."
Then, in folio 10, page 113, he adds: "These wheels I
connect together by means of a very strong spring, say
double the usual strength employed for ordinary cars; the




WILLIAM W. HUBBELL.                 91
ends of which springs are bolted, or otherwise secured to the
upper sides of the boxes, which rest on the journals of the
axles; the longer leaves of the springs being placed downwards, and surmounted by the shorter leaves.
" Having thus connected two pairs of wheels together, I
unite them into a four-wheel bearing carriage by means of
their axles, and a bolster, of the proper length, extending
across, between two pairs of wheels, from the centre of one
spring to that of the other, and securely fastened to the tops
of them. This bolster must be of sufficient strength to bear
a load upon its centre of four or five tons. Upon this first
bolster I place another of equal strength, and connect the
two together by a centre pin, or bolt, passing down through
them, and thus allowing them to swivel or turn upon each
other, in the manner of the front bolster of a common road
wagon.
"4  prefer making these bolsters of wrought or cast iron.
Wood, however, may be used.
"I prepare each of the bearing carriages in precisely the
-same way.:
" The body of the passenger, or other car, I make of
double the ordinary length of' those which run on four
wheels, and capable of carrying double their load.
" This body I place so as to rest its whole weight upon
the two upper bolsters of the two before mentioned bearing
carriages, or running gear."
Then follows some variable modes of suspending the body;
after which, on page 114, folio 13, he continues:
-' When the bolsters of the bearing carriages are placed
under the extreme ends of the body, the relief from shocks
and concussions, and from lateral vibrations, is greater than
it is when the bolsters are placed between the middle and
the ends of the body; and this relief is not materially varied
by increasing or diminishing the length of the body, while
the extreme ends of it continue to rest on the bolsters of the
bearing cars, the load being supposed to be equally distributed over the entire length of the body."




92                   ARGUMENT OF
Immediately following, is the suggestive passage which I
have already read, but which I will repeat in this connection.
He says: "Although I prefer the use of a single spring to
a pair of wheels, above described, instead of the ordinary
spring to each wheel, and consider it as more simple, cheap
and  convenient than  any other arrangement; the end
which I have in view may, nevertheless, be obtained by
constructing the bearing carriages in any of the modes
usually practiced, provided that the fore and hind wheels of
each of them be placed very near together."
I will remark, here, that it appears by the evidence, though
not fully described, but only implied by the specification,
that these bearing carriages, referred to as "bearing carriages in any of the modes usually practiced," were probably
the bearing carriages of the eight-wheel wood cars, the
eight-wheel trussel cars, the eight-wheel car Columbus, &c.,
invented and constructed by Conduce Gatch.  That, however, will be adverted to in another part of the case. I will
now confine myself simply to his theory, and the manner of
connection or nmechanism, which he describes and claims to
carry that theory out.
At page 115-folio 17, he goes on to say: "I do not claim
as my invention the running of cars or carriages upon eight
wheels, this having been previously done; not, however, in
the manner or for the pusrposes herein described, but merely
with a view of distributing the weight, carried more evenly
upon a rail or other roads, and for objects distinct in character
from those which I have had in view, as hereiinbefore set
forth. Nor have the wheels, when thus increased in. number,
been so arranged and connected with each other, either by
design or accident, as to accomplish this purpose. What I
claim, therefore, as my invention, and for which I ask a patent,
is the before described manner of arranginlg  and connecting
the eight wheels, which constitute the two bearing carriages
with a railroad car, so as to accomplish the end proposed by
the means set forth, or by any others which are analogous,
and dependent upon the same principles."




WILLIAM[ W. HUBBELL.                93
The issue tried in the Troy case was, whether the Chapman car was, or was not, like the above theory and mechanism of XWinans. ()ur issue is, whether the defendants' and
Chapmans' are alike; and whether they are both different
from Winans'.
We say that they are not like Winans', but are like each
other.
The defendants in the Troy case said that Chapmans' was
like Winans', and the plaintiff said it was not; and therefore
the whole value of the evidence there, was lost in the improper manner of presenting the car, as we think.
It was lost to us, because it was not brought properly to
bear upon the merits of the case; and it was lost to us, because it was misunderstood by the court, jury, and counsel.
Our position is, that the Chapman car is like the defendants', and not like the plaintiff's.
Judge NELSON.-You admit then that the Chapman car is
not in evidence against the novelty of the plaintiff's invention?
The ground taken in the Troy case was, that all the essential
principles in the Winans' patent, were embodied in Chapmans'
description, and therefore there was no novelty in it.
Mr. HUBBELL.-If this court takes the view that Winans'
claim does include our car, then it must include Chapmans',
which will destroy his patent; and our view is, that the defendants' is as much unlike Winans' as Chapmans' is, and the
Chapmans' and defendants' are alike, and therefore they neither infringe. But it is not for us to presume that the court will
construe the patent as we do. The issues are entirely different in the Troy case and this, and the mode of presenting the
testimony, and the effect to be sought from it, is entirely different. In the Troy case, the effect sought was to destroy
Winans' patent by means of the Chapman specification. Here,
the effect sought is to enlighten the judicial mind, and protect the defendants' car by Chapmans', and show  that Winans' patent should be construed on its own theory and
mechanism, and if construed beyond that, it would be too
broad, and void.




94                   ARGUMENT OF
Judge NELsoN.-Well, that is a fair argument.
Mr. HUBBELL.-It is not a patent which secures the embodiment of a principle; it simply secures a particular manner of connecting and arranging the wheels by the mechanism
described, and which manner and mechanism the defendants
do not employ.
The defendants' principle and physical doctrine is the same
as stated in substance by Chapman, in his specification, and
shown in his drawing, namely: That the axles of the wheels
shall be held parallel to each other, in a rigid rectangular wheelframe, consisting of two side-pieces and three cross-pieces;
that the bearing-points of the wheels, on the rails, shall be
equally distant from each other; that is, equal to the guage
of the track. These axles, being thus held parallel, and the
wheels square, the axles are always, as near as may be,
parallel to the mean radial line between them; and the
wheels, therefore, in line with the rails. That these transoans have each a centre-pivot, transom-plate or centrebearing and side-bearings; and two of them are placed at a
convenient distance apart, under the body, say about seven
feet from th eends, laying the weight equally upon both. Hence
they swivel to suit the curves, distribute the weight, and run
safely and smoothly.
I will merely refer to the authorities on the Wood engine,
which we find was presented in the Troy case, in the same
manner as the Chapmans' car was. The Wood engine, described in Wood's Treatise, in 1825, is next in order of time,
and it was printed and published to the world nine years before the date of the plaintiff's patent. The plaintiff produces
John Elgar, with a version of this engine entirely different
from the version in the Troy case, put forth by plaintiff. In
that case, the trucks were admitted to swivel on a king-bolt,
in the middle of the cross-piece; but his defence was, that the
wheels were not as close together in each truck, and the
trucks as far apart, as they may be; and the engine was there
alleged to have the extraordinary capacity of lifting itself up
off' the track into the air, before the wheels would slip to




WILLIAM W. HUBBELL.                 95
consume the power by velocity. The success with which
these nonsensical theories and doctrines were advanced in that
defence, by plaintiff, as to that engine, is really wonderful.
Science stands aghast at the spectacle, and the best of practical engineers are confounded at such pretensions. Mr. Elgar,
the plaintiff's bosom friend, is ready to expound every new
doctrine, starts another view of the construction, and says
that when Wood describes a bolt in the middle of the crosspiece, to allow the frame and wheels to conform to curvatures,
he intended to describe two bolts, outside, one at each end of
the cross-piece, with a transverse motion, like their model,
which Elgar says is a lateral motion, and which would inevitably prevent the engine from running on any part of a
curve. Mr. Elgar is contradicted in this, by the plaintiff's own
witnesses, in the Troy case, viz., by Mr. Hibbard, Troy case,
p. 88, and Peter H. Dryer, Troy case, p. 89. Both these witnesses contradict Mr. Elgar. Mr. Hibbard, plaintiff's witness,
p. 88 defendants' print of Troy case, and p. 94 in Appendix
A, to plaintiff's evidence, says: "I find in the treatise and
drawing the two trucks are connected with the frame or body
by bolsters or king-bolts, as in the model. By divesting the carriage described and represented in Wood's Treatise of the
cog-wheels and apparatus, the obstacle to the free motion of
the trucks would be removed." There, one of the plaintiffs
witnesses testifies that it has king-bolts, which is a contradiction of Mr. Elgar's evidence. Peter H. Dryer, page 89 defendants' print of Troy case, and p. 96 of plaintiff's Troy
case, in Appendix A, says: "I understand the description and
drawing in Wood's Treatise. I do not consider that a practical locomotive carriage could be made from the drawing;
there are two trucks, the inner axles being connected by a
cog-wheel; the motive power connected with the inner wheel;
the free motion of the trucks would be impeded by the
meshing of the cogs. There would be considerable strain on
the king-bolts."  " On the king-bolts! "  Now, Mr. Elgar says
that it has no king-bolt. He goes on to say: "The amount
of the strain would be the whole leverage from the kilng-bolt




96                   ARGUMENT OF
to the cog-wheel."  This witness, therefore, also contradicts
Mr. Elgar.
I will now refer to the defendants' witnesses, to prove the
principle and essential arrangement and construction of the
defendants' car to be embodied in this Wood's engine of 1825.
John Edgar Thompson, defendants' No. 3, pages 1, 2folios 4, 5.
George W. Smith, defendants' No. 3, pages 73, 76-folio
292; page 75-folios 298, 303.
WVm. J. McAlpine. defendants' No. 3, page 94-folios 375,
376.
Walter McQueen, defendants' No. 3, page 101-folio 402.
George S. Griggs, defendants' No. 3, page 106-folio 424.
All these witnesses contradict Mfr. Elgar.
MAr. Hibbard and Mr. Dryer, two of the plaintiff's witnesses, as well as the witnesses on the part of the defendants,
put exactly the same construction on the Wood engine that
we do, as regards the king-bolt; and it was not presented, in
the Troy case, in the same light in which we think it should
have been presented. We are of opinion that it should have
been presented in the same view as we present it here, and
as we have presented Chapmans' car here; subject, however,
to the same effect of invalidating the patent, if the court put
a broader construction on the plaintiff's claim than we do.
TREDGOLD CAR.
The next defence to which I refer is the printed publication:
"A Practical Treatise on Railroads and Carriages, 4c.,'c. By
Thomas Tredgold, Civil Engineer, Member of the Institution of
Civil Engineers, 6c. Printed in London, 1825,"
This is the next work in point of time on which we rely,
and particularly the following parts of the publication:
[Page 93 of Tredgold.] " Carriages for common railroads are
made strong, to resist the shocks they are exposed to at every
change 6f velocity; and it is necessary to make the 1parts, which




WILLIAM  W. HIUBBELL.                97
come in contact, solid pieces, extending a little more than the
length of the body of the carriage, and hooped at the extremities, to prevent splitting; but carriages for passengers, and for
various kinds of goods, must be provided with springs, to reduce the force of these shocks."
[Page 94.] "Small carriages must obviously be both
heavier and more expensive, in proportion, than large ones.
But as the stress on a wheel must be limited on a railroad,
we cannot much enlarge the carriages without adding to the
number of wheels."
Eight-wheeled Carriages.
" When a carriage has more than four wheels, the body must
be sustained, so that its pressure may be divided equally among
the WHEELS. In the case where eight wheels are applied to
support one body, if the body rests upon the wheel-frame of each
set offiour wheels, in the middle of its length (see fig. 26, plate
iv), and is connected with those frames so as to allow the
greatest possible change of level on the rails, it is obvious that
each wheel must bear an equal pressure."
[Page 95.] " The load on each wheel must be limited to suit
the strengh of the rails; it will seldom  exceed two tons
on a wheel, nor be less than half a ton. The size of the axles
may therefore vary from twenty-two inches to thirty-five
inches. Perhaps the most advantageous load will be about
one and a quarter tons on each wheel, which will require an
axis of three inches diameter."
[Page 179.] 1" Plate iv. fig. 26, a diagram to show how a
wagon may be made with eight wheels, so that the stress of
each wheel on the rails of a railroad may be equal. The body
of the wagon rests on the wheel-frames at A A, and is connected to them by an axis, on which the frames turn, when,
from any inequality, the axis of the wheels are not in the
same plane. [See page 94."]
[Pages 12, 13.] 1" The Helton railway is one of the principal ones."  In some parts near the Staiths we observed malleable iron rails, in fifteen feet lengths, supported at every three
feet.  (See figs. 9 and 10.)  They are three and a half inches
7




98                   ARGUMENT OF
deep, in the middle, between the supports, and two and a quarter inches in breadth, at the upper surface; one yard in length
weighs about 2S lbs.
" The wheels of the coal wagons are two feet eleven inches
in diameter, with ten spokes, and weigh two and three-quarters cwt.; and their axles are three inches in diameter, and
revolve in fixed bushes."
"The weight of the engine is about eight tons. (See fig.
2, plate 1.)"
" The boiler is supported on the carriage by four floating
pistons, which answer the purpose of springs in equalizing the
pressure on the wheels, and softening the jerks of the carriage."
[Pages 118, 119, 120, 121.] "The extent of land required
for a railroad must depend on the breadth and number of the
tracks. The breadth of the track has rather been determined
by opinion, than as a question arising out of the circumstances
of the case. But it must be obvious that the breadth of the
track ought to have some relation to the height of the load,
in order that the carriage may be always in stable equilibrium
on the rails; and in railroads there is another circumstance
to be considered-the pressure on the rails should not be materially altered by any slight depression of one side of the
road. It may be taken as a general rule, for the width between the rails for carriages traveling at a greater speed than
five miles per hour, that the centre of gravity should not be
higher in proportion to the breadth between the rails than as
1 is to 11, but they are often so constructed as to be equal, or
nearly equal, to the breadth between the rails; and with this
proportion, in slow motions, no ill consequence may probably
occur; but in rapid motions, the centre of gravity must be
kept at least within the limits we have mentioned, or there
will be much risk of the carriage being overthrown by a very
small obstruction. On a common road, the great resistance
at the surface of the wheels, and the force of the moving
power, tend to keep the carriage from upsetting; but on a
railway, the smallness of the moving force, and little increase of resistance to the wheel which takes the stress, ren



WILLIAM W. HUBBELL.                  99
der them insufficient to balance the momentum the carriage
acquires by striking on an obstruction; besides, the connection of the moving force is not so favorable for drawing the
carriage backto its position. All these circumstances demand
the serious attention of the engineer who has to conduct a
railway, where the carriages are to proceed at the rate of ten
miles an hour. The width between the rails being, therefore,
dependent on the height of the centre of gravity of the
loaded carriages, and this again varying with the nature of'
the load and the velocity, it will be obvious we cannot do better than make the breadth between the rails such that, by
disposal of the load, the centre of gravity may be kept within
the proper limit in either species of vehicle, whether swift or
slow. And it would be desirable that the same breadth and
the same stress on a wheel should be adopted in all railways.
We would propose four feet six inches between the rails for
heavy goods, and six feet for light carriages, to go at greater
speed." " In all railroads, it is necessary that there should be
passing places at certain parts of the road, and in single
tracks they should be very frequent."
[Page 127.] Example.-" If the distance of the supports
be three feet, &c."
[Page 130.] "If the distance of the supports be three feet,
[Page 126.] " The distance between the wheels of the carriages
should be such that the unsupported part of a rail should have to
carry only one wheel."
[Page 101.] " In proportioning the body of a carriage, it
should be kept in view that the load should be as low as possible."
[Page 173.] " For carriages on springs, and steam carriages,
consider the stress, &c."
[Page 1.74.] " Where the heaviest carriages are on springs,
or floating pistons, two-thirds of the actual load on each
wheel may be considered the stress on the rails for ordinary
purposes, &c."




100.ARGUMENT OF
[Page 12.] "The Helton railway is one of the principal
ones."  " The rails of the straight parts of the railway weigh
61 lbs. each! but this was found to be too slight for the
curved parts; therefore, the strength of the latter has been
increased, &c."
[Page 135.] " When a considerable degree of curvature is
given to a railroad, the rails of the outer curve should have a
slight rise to the middle of the curve; and the rails should
be stronger in a lateral direction in both lines. The object
of making a slight ascent to the middle of the curve of the
outer rail, is to counteract the tendency of the' carriage to
proceed in a straight direction, without its rubbing so forcibly
against the guides, as we have observed in cases where roads
have had a considerable curvature."
[Pages 42, 43.] "It often happens that a great part of the
resistance of the rails arises from the lateral rubbing of the
guides of the wheels; therefore it is desirable to give the
wheels a tendency to keep in their path, with as little assistance from the guides as possible. For edge-rail carriages,
this may be accomplished by making the rims of the wheels
slightly conical, or rather curved, as shown in fig. 24. The
carriage will then return of itself to its proper position on
the rails, if it be disturbed from it by any irregularity."
The car shown in the diagram, fig. 26, is about eighteen
feet in length; and hence the wheels, under the rules laid
down, are correct, as there shown, at an equal distance apart
on the rails.
If the car be made longer, or a longer body be placed on
the same trucks, the same rules, to attain the same expressly
required conditions and results, will cause the wheels to
remain the same distance apart in the trucks, and the trucks
to be placed under the ends of the body, the same distance
from the ends; and, consequently, the trucks to be frrt/er apart,
proportionate to the increased length of the body, such as
demonstrated by the long body, A 2.
Tredgold cannot be considered as intending always, or with
longer car bodies, to place the wheels at an equal distance




WILLIAM W. HUBBELL.                101
apart. He expressly states his object to be, to divide the
pressure equally among the wheels,,so that it shall be about
two tons, or, perhaps, most advantageous, " about 11 tons on
each wheel." He requires both the body of the car and the
load to be low, so that " the centre of gravity should not be
higher, in proportion to the breadth between the rails, than as
1 is to 1V."  [Page 118.]
On a four feet eight inch track, this would make
the height to the centre of the load about 3 feet. The rules
laid down, and the ordinary height of wheel in use at the
time, show the diagram to be in the proportion of a car
about IS feet long; and to preserve the same application of'
the rules, laid down in a longer car, would require the same
trucks equally near the ends of the longer body, and having
the, consequently, greater distance between the trucks alone.
To suppose the diagram to represent a car 60 feet long,
would make the body about 15 feet high, and the wheels 8
or 9 feet in diameter, on a 4 or 8 or 6 foot track, which
would be ridiculous, and violate the rules of construction, as
to height of load, weight and arrangement of' wheels, which
Tredgold lays down. He NEVER intended to place the wheels
at an equal distance apart on the rails, in a car as long as 40 or
60 feet. He shows a lpractical car, 18 Jfet long, and the same
trucks, are to be used with longer bodies, when required. The
rules he lays down, as to the height of the body and load,
the position of the wheels on the spans of the rail, the
division of the pressure in tons among the wheels, to relieve
the rails of too much stress on a wheel, the proportions of'
his diagram, &c., all show this.
Also, a car body, 40 or 60 feet long, with trucks holding
wheels at an equal distance apart, would have the trucks so
heavy and large as to be in direct violation of' his purpose, of'
having but little stress from  each wheel on the rail, and of
running on a railroad, as generally built. His rules and
instructions, laid down, are the practical rules now followed
in building and using the eight-wheel car; and they are not
changed, whether the car be 1S, 20, 40 or 50 feet long. His




102                  ARGUMENT OF
diagram shows a car about 18 feet long. Putting a longer
body on the same trucks, under the same rules, does not alter
the principle, essential arrangement and construction, nor the
operation. The same eight-wheel car is now used, from 15
to 50 feet in length, for carrying different articles, or objects,
animate and inanimate, such as wood, water, freight, live
stock and persons.
In consequence of intimations heretofore thrown out by
the court, I will further refer to the Tredgold car, very briefly,
in seven propositions.
It is fully proved on behalf of the defence, and model A
is the representation of it; it is proved by thirty-seven of the
defendants' witnesses as the car described in Tredgold's
Treatise, published in London in 1825, a period of nine years
before the date of the plaintiff's patent.
The court will understand that we present Tredgold in
the same manner that Chapman has been presented; subject
to the construction placed upon the plaintiff's patent by the
court. The propositions are:
1st. Tredgold describes an axis to each wheel-frame, and
two of these wheel-frames of four wheels each.
2d. The car Ire describes is to run on a railroad, and is
represented in sketch as a known principle.
3d. Query. What was a wheel-frame of four wheels, with
an axis for a railroad car, before the time that Tredgold
wrote- S25?
4th. In 1814, Chapman describes and shows it as consisting of two side-pieces, and three cross-pieces; central
and also side-bearings, and a vertical pivot, or king-bolt, or
axis, as it is called.
5th. This, then, is the same wheel-frame, of four wheels,
described by Tredgold, with a central bearing alone-as he
shows-which divides the pressure equally among the wheels,
and conforms to any change of level, —both on the straight
track and the curves-one set of wheels being shown under
each end of the car.




WILLIAM W. HUBBELL.                103
6th. The railroads of that day, 1825, were more curved
than the railroads of the present day; as shown by the testimony of John Edgar Thompson and Geo. W. Smith, and
expressed by Tredgold himself, on pages 135, 158.
7th. It is drawn by a chain coupling, from the middle of the
end of the body; the same as shown in the drawing, plate
1, figure 1, in Tredgold,-that being the only mode shown
to draw cars in trains.
These propositions cover and show what the car is, precisely.
I will now refer to the witnesses on this point, and give
the pages and folios that contain their evidence:
Names.           Defts' No. Page.     Folios.
1. Wm. B. Aitken,....   2,   5,         17, 18, 19
2. Stephen Ustick,.... 2,    6,         21, 22
3. Oliver Byrne,....   2,    10,            37 to 45
4. Albert S. Adamls,.        3,    115, 116, 460, 461
5. John Edgar Thompson,... 3,   2, 3,         5 to 11
6. Wm. Pettit, ----- ----- 3,    13, 14,    49 to 55
7. Asa Whitney,... 3,    14, 15,    56 to 59
8. John Murphy,. -.. 3,    10, 11,    38 to 44
9. Jacob Schryack,.-. 3,    40,        159, 160
10. Henry Watermap,... —. 3,    66, 67,    263 to 267
11. Wm. J. Ragland,.... 3,    69,        273 to 276
12. Geo. Stark,.3,    70 to 72,  281 to 2S6
13. Chas. B. Stuart,.        3,    90, 91,    358 to 361
14. Geo. W. Smith,.      -   3,    74,         296 to 299
15. Vincent Blackburn,... 3,    97, 98,    388 to 391
16. Win. J. McAlpine,         3,    94.        376 to 378
17. Geo. S. Griggs,.  --- 3,    107, 108, 425 to 429
18. Walter McQueen,           3,    101,      403 to 407
19. James H. Anderson,..      3, 3,    119,   473 to 475
20. Albert S. Adams,          3,    115,       460 to 463
21. Asahel Durgan,            3,    127,       506, 507
22. Jno. B. Winslow,......... 3,    122,     485 to 4S7
23. Hy. W. Farley,.           3,    130,       519, 520




104                  ARGUMENT OF
Names.           Defts' No. Page.      Folios.
24. Jno. Crombie,...........3,    127,       506 to 608
25. Wm. C. Young,.. —..... 3,    150,         600, 601.
26. WWm. P. Parrott,.........3,    155,        618 to 623
27. Chas. Minot, —............3,    160,       641 to 644
2S. Godfrey B. King,........ 4,    80, 81,    302 to 306
29. Conduce Gatch,.........   2,    22, 23,    88 to 92
30. Jno. C. A. Smith,          2,    25,        99 to 102
31. Isaac Knight,............2,    27, 28,    111 to 113
32. Geo. Law,..............2, 9, 30,    120 to 122
33. Edward Martin,.......-   2,    35,         145 to 149
34. Geo. Beach,..              2,    38,        157 to 160
35. Stephen W. Worden,.....  2,    39,         163, 164
36. L. R. Sargent,...........    2,    40, 41,    169 to 172
37. Jno. Wilkinson,            2,    43 to 45,  181 to 194
These thirty-seven witnesses embrace the three classes of
the best witnesses, and the best practical men in the country.
The three classes are:
1st. Men of education and experts, who understand the
principles of science, in their abstract character and mechanics.
2d. Superintendents who have a controlling direction over
machinery, to say what shall, and what shall not, go on a
road, and how it must be constructed.
3d. Men who perform manual labor and make the machinery, and know exactly how it should be constructed, and
the reasons why constructed in the particular mode, and are
called practical mechanics.
I have now a few remarks to offer in relation to the plaintiff's witnesses. To these 37 practical and experienced men,
the plaintiff opposes 4 witnesses: William C. Hibbard, Jeremniah Myers, Lee McComas and John Elgar.
William C. Hibbard, it appears, is a patent agent, and
professional expert. He does not state that he ever located
or constructed a railroad; he does not explain, or state, that
lie knows the nature of the changes of level in a railroad;
nor does he say that he is acquainted with the nature of
railroads existing in England in 1825. He speaks of' curves




WILLIAM W. HUBBELL.                105
of short radius, at folio 363, of the plaintiff's testimony, as
being a new condition, which, with more speed, indicated
wants in engineering that did not before exist, and to meet
which. is the object of the plaintiff's invention.
Whereas, we prove that the roads constructed before 1825
were more curved than the Baltimore and Ohio road, and
roads in this country; and, therefore, the roads of that day,
necessarily required the eight-wheel car to have two swivelling trucks, such as Chapman and Tredgold describe, and as
are now in general use; and that the speed is due to the
locomotives, as improved in power-not to the cars. He
assumes that the doctrines set out in Winans' specification
are correct, and forms his opinions on such assumption. He
knows nothing practically about railroad machinery; and we
prove by our experienced witnesses, that the doctrines, and
also the mechanism, of the specification are unsound and
impracticable; particularly on curves, and at high speed.
He talks, at folio 369, of the "momentum of the shocks,"
and then gives a computation of their increase of intensity
with an increase of velocity of the car, when, in fact, a
shock has no momentum; and the velocity of the car being
increased, tends to carry it over the joints of the rails, without falling or settling into the spaces between them, and,
hence, diminishes the shock.
A shock has a measure of force, which is determined by
multiplying the weight by the velocity in feet per minute;
but the shock itself has no momentum.
This Mr. Hibbard, at folio 371, then says: "These difficulties are remedied by constructing the car in the manner
fully described in Winans' specification;" and then he follows
the substance of the specification, as to placing the wheels
close together, and the bearing carriages at a remote distance
from each other; and adds, among them, the application of
the tractive power to the body alone, as vitally essential, in
his judgment, to the proper construction of an eight-wheel
car; while the fact is, that the specification does not describe
any mode whatever of drawing the car; and really intelligent




106                   ARGUMENT OF
engineers, who do know  how  the eight-wheel car is and
should be constructed, describe the same, both in its construction and action, and demonstrate it to be different from
the specification of XWinans. At folio 3S5, he states that
those conditions of speed of transit, or curvature of road, have
not come to his knowledge from the books, or any other
source-by which the invention of the plaintiff was requiredthe truth being, that the Tredgold book itself, is indexed
" curved roads," pages 135 and 138; and the pages referred to,
both contain descriptions of curves and allusions to increase
of speed; and all the roads in England, at the time, were very
much curved, as proved by Mr. Thompson and Mr. Smith,
and steam engines of different degrees of power and speed
in use on some of them, thus making his ignorance and want
of discrimination that improvements in locomotives gave the
increase of power to draw the same cars at higher speed, and
his carlessness in not examining the book, a basis for an
opinion in a matter of' such vital importance as this. At folio
3S6, lie gives his opinion, or the appearance to his mind, as
he states, that the invention of the plaintiff was for the purpose of remedying certain defects in the movements of cars,
while those before existing were for the purpose of remedying a deject in the strength of the rails, and that this is a broad
distinction between the invention of the plaintiff, and those before existing.
And Mr. Hayes, also the plaintiff's witness, swears that the
wheels are further apart, in the trucks on the Baltimore and
Ohio road, than stated by Winans' specifications, for the purpose of distributing the weight of the bearing cars on the rails.
Thus, one of the plaintiff's witnesses, giving evidence,
upon practice, contradicts the other, giving evidence upon
the theory of the specification.
I must remark, further, that with regard to the latter part
of Mr. Hibbard's opinion, it would be the work of a life-time,
left unfinished, to find out how an invention in a car can consist in the purpose of remedying a defect in the strength of the
-cails. The invention, I believe, is generally, and so far as I




WILLIAM  W. HUBBELL.               107
know, considered as continued in the mechanism of the car,
to effect the purpose by means of the operation or principle;
and the judgment of the effects of inexperience, or manifest
want of common knowledge of the subject, such as Mr. Hibbard's, founded on a limited conception as to purpose,-and
assuming the doctrines of the specification to be true, without actual experience and knowledge-certainly is not expert
evidence, on which a court can rely, as against thirty-seven
practical, sensible men, on the same subject. Mr. Hibbard's
remarks, in his testimony, on the vital importance of drawing the car by the body, seem to be founded on a misapprehension, on his part, that Mr. Winans' patent secures to him
this mode of drawing a body with trucks under it; while the
fact is, as appears by the specification itself, and from the testimony, that no mode whatever of drawing or moving the
car is described or claimed by Mr. Winans.
With reference to Mr. Myers, the plaintiff's witness, he
states that cars could be constructed from  the plaintiff's
patent, without stating the construction, or conditions, or
principle, in terms. It is therefore impossible to determine
what is in the mind of the witness, as to construction, arrangement or principle. He is one of the class of experts
who offers to decide a matter, without giving the basis of
reasons and considerations upon which his conclusions depend; and hence, his declaration cannot be examined and
weighed by the court. He gives a profuse sprinkling of scattered and incoherent extracts from different parts of Tredgold's book, taken from entirely different headings, on different subjects-and finally takes up half of the description of
Tredgold on the eight-wheeled car-that part on page 94,
omitting that on page 179 —and declares that he cannot find
stated, in said treatise, any object or purpose for which the
plan of the car described in said letters patent would be particularly useful. This shows at once that he perverts the
true construction of the Tredgold car, as described, from its
legitimate purpose. While in fact it is expressly stated on
page 179 —the part which he has omitted, taken in connection




108                   ARGUMENT OF
with page 94, and the diagram, as to run on a railroad, &c.
Such a witness as this, as an expert, who avoids and perverts the examinations of the article, subject " eight-wheel
carriages," in Tredgold, can have no weight, as against practical men. He is contradicted in his statement that eightwheel cars, constructed and arranged after the plan of a Baltimore car, at Philadelphia, and as directed in said letters
patent, were placed on the Boston and Providence railroad.
The Philadelphia cars are proved to have originated at
Philadelphia, and to have been successful from  the comnmencement; and the officers of the Boston and Providence
road —Mr. Lee and Mr. Griggs-prove that no such car, as
described in Winans' specification, was ever put upon the
road.
So much for Mr. Myers. He pretends to examine Tredgold, as to eight-wheel cars; and, after hopping about on to
six or eight distinct and different subjects, finally ends by
finding half of the description on the subject, and then states.,
or implies, that no such purpose is there expressed as the
ordinary purpose of an eight-wheel car to run on a railroad.
He says that he built cars like Winans', and does not describe
the machliecry; and is contradicted by the engineer of the
Boston and Providence road as to his statement concerning
cars on that road.
In the investigation of a question like this, it is the machinlery that is to be examined.  The machiney is the subject
of a patent; nzot the 2urposc, and nzot the priuciplle, incidental
to the machinery; and where a witness like this omits to
give the construction of the machinery altogether, he is not
entitled to any consideration whatever from this court on the
subject of this suit.
Lee McComas is the next expert of the plaintiff: He says
that his business is that of a pattern-maker and machinist;
that he has been employed as such for the last 23 years; but
by whom, or where he has been employed, is concealed.
Is he not Ross Winans' pattern-maker?
Mr. LATROBE.-We admit that fact-that he is.




AWILLIAMI W. HUBBELL.             109
Mr. HUBBELL.-Then it should have been stated in the
affidavit, and not studiously omitted, as there appears. He
makes up his own specification, at folio 323, in these words:
" that is spread over the eight wheels, each wheel bearing its
share of the load, provided the load be properly divided;" and,
from this, makes the plaintiff's black model.
No such condition or purpose is stated in the Tredgold
specification, as to the eight-wheel car. It is only stated as
to the six-wheel car; and hence, this model is made for a
purpose, and from a specification, not contained in the book.
It is an intentional perversion, and entitled to no reliance
whatever.
The next witness is Mr. Elgar. Neither does he state
how he is employed. Is he not in the employ or pay of the
plaintiff?
Mr. LATROBE. —NO. He is an engineer, and surveys gentlemen's country seats to put down water-rams. He is a
surveyor.
Mr. HUBBELL.-He asserts that car builders cannot do, from
the whole book, what they themselves testify they can from
pages 94 and 179, and the other references, and have done, as
is directed there.
He describes no " features and advantages," but leaves them
undescribed, and hence we do not know what Mr. Elgar
means.
He testifies to a model marked in a certain manner, which
is not produced so marked, and gives us his conclusions, without the mechanism on which they are founded.
It is impossible, therefore, to give any weight to his opinion;
for the means or channel of mechanism, and the certain assumed purposes and conditions upon which it was based, do
not appear for investigation.
Any man, however ignorant or mistaken, or biased on this
particular subject under investigation, could swear away
another's rights, if such testimony as this were entitled to
weight in a court of justice.




110                  ARGUMENT OF
These are all the plaintiff's experts, and we respectfully
submit that they are entitled to no weight whatever, and that
we have in the case the Tredgold car (as well as the Quincy
car, the Chapman car, and the Allen car) proved conclusively to be substantially the same in construction and operation,
or principle, as the eight-wheel cars built by the defendants,
before the date of the plaintiff's patent, and before 1830.
QUINCY CAR.
The Quincy car is admitted by the plaintiff's witnesses to
have been in use in 1830. John L. Cofran misdescribes the
bearing of the bolsters, as being upon and across the truck,
whereas, in fact, it had side-bearings, as shown in the model;
and it is proved positively by the defendants' witnesses, who
made and used it, as represented by the model before the
court, to have been constructed and run on the Quincy railroad, by Gridley Bryant, in the summer of 1829, more than
five years before the date of the plaintiff's patent; and that it
and similar cars have been openly and publicly used there,
continually, until the present time.
This is proved by four witnesses.
There are also seven witnesses, as experts, who prove that
the principle, construction and arrangement of the eight-wheel
car, built by the defendants, and in general use, and this
Quincy car, are essentially the same.
The plaintiff's experts show that they are incompetent, on
the subject of railroad structure and railroad machinery.
And the rights and interests of these defendants, and of railroads, against which suits are brought, which will be influenced by a decision in this case, we submit, are not to be
sacrificed in the courts of the United States by such incompetent, impractical men, possessing and showing not the
slightest practical knowledge of the conditions, nature and
principles of railroad machinery.
The one of them a professional expert, or affidavit speculator. An  iler of them a surveyor of water-rams, and an old
acquaintance and bosom friend of the plaintiff, imbued with




WILLIAM W. HUBBELL.               111
all the feelings of freindship and all the notions that contact
with the plaintiff may have impressed upon him.
Another, the pattern-maker of the plaintiff, and dependent
upon him for his daily bread; and the other, an unsuccessful
car builder, whose ideas are as incoherent and crude as
the human mind could be on such a subject, possessing
neither order of thought, knowledge of fundamental principles, nor capacity to describe, nor apparent willingness to tell
the whole truth, and who, as we shall show in another branch,
has stated that which he ought to know is erroneous, and
concealed that which he ought to have stated.
If such men, inexperienced as they are, and circumstanced
as they are shown to be, are to be relied upon, as against
sound, experienced, practical men, trials in courts of justice
become a mockery, and the vested rights of the public at
large are mere fleeting shadows.
PLAINTIFF'S WITNESSES.
The next point to which I will advert is, the weight to be
attached to the plaintiff's witnesses; and here, I am sorry to
say, my duty becomes a painful one. Such a tissue of errors and
contradictions as is contained in the evidence of the plaintiff's
witnesses, I never before remember to have met with. They
not only severally contradict themselves, but they contradict
each other in different directions on the same subject; stating
things from the plaintiff himself, throughout, which ought to
have been examined, in order to have ascertained their truth
or falsity, before affidavits were made in relation to them. I
propose to examine the testimony of each one separately, and
to show that things have been stated to be true, which ought
to have been known were erroneous; that at one time, one
thing has been sworn to, and at another time, something else
contradictory; that they have testified that they have known,
or believed things lately, which, some years ago, they testified
that they did not know; and to show, also, that they have
contradicted each other, as to material matters in this case.




112                   ARGUMENT OF
The first to which I will refer, in this connection, is the affidavit of Ross Winans himself. On page 3, second paragraph, of plaintiff's proofs, he states: "And this deponent
further says, that on obtaining the letters patent for said invention, he took measures to make it publicly known, and to introduce
his improvement into general use. He published the specification in
the American Railroad.Journal, a paper published in New- York
city, having an extensive circulation among all parties interested in'
the existing and projected railroads of the country."
This affidavit was before Judge Conkling, at the last hearing, and the judge thought that a very wise measure had
been thus taken by Mr. Winans; and, at that time, we did
not know that it was unfounded and erroneous. Much reliance was there placed upon it by the plaintiff, and great
weight by the court. The motion failed, however, notwithstanding.
For the purpose of investigating the circumstances, with a
view to ascertain whether such a publication had been made
in the American Railroad Journal, Mr. Randall, as his affidavit
will show, very fully, and with much time and care, searched
the publication, with the results which his evidence will
demonstrate.  He says: "that he is 43 years of age, and
resides in Syracuse; that he is by trade and profession a
printer and editor, and is accustomed to the examination of
files of newspapers and printed publications. I have examined the files of the American Railroad Journal, referred
to by Ross Winans, in his affidavit in this case, for the
purpose of finding the publication of the specification of his
patent of October 1st, 1834, on which this suit is brought,
and which he testifies was published in the said American
Railroad Journal, published in New-York city, on obtaining
the said letters patent. I very fully and carefully searched
the said Railroad Journal, in the library of the Franklin
Institute of the State of Pennsylvania, in the Mercantile
Library of the city of New-York, and in the office of publication of said Journal, in New-York city, for all the years front
1832 to 1847, inclusive, and being through a period of fifteen




WILLIAM W. HUBBELL.                113
years, for the purpose of finding said specification published
therein, but did not find the same, nor any allusion to the
invention of an eight-wheeled car by Ross Winans; and if
the said specification, or any publication of Ross Winans,
similar to it, had been published there, I believe that I would
have found it. Not having found it, after the search I made,
I am confident that Ross Winans is mistaken in his statement, and that no publication of his specification of October
1st, 1834, was made in the said American Railroad Journal.
The only specification in the said Journal, of a patent issued
to Ross Winans, is of an improvement in wheels for cars
and locomotives, to be used on railroads; the date of the
patent being 1833, and which is published in the volume of
1834-this being the specification of another patent entirely.
"I also searched for the publication of notice of the
application of said Ross Winans, for an extension of said
patent of October 1st, 1834, in the volume or file of the Sun
newspaper, published in New-York city, in 1848, and that of
the National Intelligencer, published in the city of Washington, in 1818, in the respective offices of said papers, and,
after a very full and careful search, did not find such notice
published in either of said papers; and not having found the
same, I am confident that the said notice was not published
in either of them. I also got the owners of said papers to
examine their books, to see if any charges had been made on
their respective books for said publication, but they could
find no charge. and expressed their belief that no notice of
the kind had ever been published in their respective papers.
I have no interest in this suit."
Notice was given to the solicitors on the other side, at the
time that this affidavit was served, to produce that American
Railroad Journal, in which the specification was alleged to
have been published.
The plaintiff's counsel now, when they find that we have
proved the assertion of Winans erroneous, say that said specification was not published in the work in which Winans
swore that it was; but, as an excuse, say that it was published
8




114                   ARGUMENT OF
in the Franklin Institute Journal, in Philadelphia, and a
volume of that work is produced for some other purpose, I
believe to show a publication concerning the Helton railway;
but there has been no volume of the Franklin Institute Journlal
produced to show that their present statement is true, or that
Mr. Winans had even negligently and unintentionally committed an error in his statemnent.
Mr. Randall's affidavit proves conclusively that no such
publication was ever made in the American Itailroad Journal,
and they now admit the factl-and therefore Judge Conkling
was misled.
Such an erroneous statement as that is inexcusable, to my
mind(. Mr. Winans should have satisfied himself as to the
fact, by a personal examination of' the Railroad Journal, before swearing to such a statement.  He should not have been
so negligent and careless as to make an assertion like that,
without first ascertaining that it was correct.
MIr. Winans further says, that " he procured its adoption on
the Baltimore alnd Ollio railroad, where it llad been firlst
tried, inlproved and perfected by hlim; he then endeavored
to introduce it on the roads leading from Boston, and one of
these, the Boston and Lowell, in 18836, took and paid him fbr
the license under which they have since been operating it."
This also is erroneous; for, in February, 1S34, it appears
that a general assignment of all the righlts he had,. or miglht
have, was made to tile Baltimore and Ohio Railroad Company, and there was no express purchase or mention of tillis
patent.  It had no existence at tlhat time.  And we ~have
shownl, by the testimony of AIr. Schrylack, the foreman of thle:car establishment of' that road, that thle car described by the'specification was not adopted on that road.
Also, the same is shown by the testimony of Hy. Shultz,
defendants' No. 4, folios 156, 157, 15S.
Eight-wheel cars, of some kind, we know, were used on
that road.; but, the qulestion is, whether they were the same
as described in Winans' specification; and thle testimony
shows'that they were not.




WILLIAM  W. HUBBELL.                  115
Mr. Schryack's testimony further shows that Winans' specified car was subsequently tried with cast-iron saddles on thle
springs; and even with that addition andl assistalnce, it tailed.
Thile statemlent that the " Boston and Lowell road Ihave been
operating it," is disproved by Waldo Higginlson, the engineer
of that road, who testifies that such a car has never been on
the road as the one described in Winans' specification; and
that four patents were purchased of lhim, collectively, for a
thoustand dollars.
Therefore, as no such car as that described in Witnans' specification was ever malde for or used on tlhe Boston and Lowell roadl, the consequence is, that the company has never b,een
"operating it under the patent;" and thle statement of Winans, in this behalf also, is b)oth equivocal and erroneous.
Mr. Higginson is also confirmed in his statement ly Win.
Raymond Lee, superintendent and chief enginleer of the Boston and Providence road, defendants' No. 3, page 112-folio
447.
Mr. Winans states further, in his affidavit: "And the chief
engineer of another, the Boston antd Providence, ordered at
your orator's instance cars upon his plan, which were (afterwards countermanded from want of confidence in their success,
although this company subsequently adopted, and have since
been using them."
Mr. Lee directly contradicts such a statement, in the last
reference to page and folio, where he says, that "'.No su/ch
order as stated by Ross TWinans was ever given at his instanlce f;r
cars upon his plan, no7r.fr a, ny other plItm."
On pfage 4, folio 4, Winans further adds: 1" About the same
time he furnished, for the same purpose, several of hiis imnproved cars" (1 infer that the intention hiere, is to impress
the court with the opinion that these cars were constructed
in the manner described by the specification ) 1" for the Ihiladelphia, Wilmington and Baltimore Railroad Comnpany, wljich
said last mentioned company purchlased and paid him therefor."




116                 ARGUMENT OF
The testimony of Henry Shultz, defendants' No. 4, folios
64 to 68-pages 43, 44, proves that no such cars, as described
in Winans' specification, have ever been on that road.
At folio 165, he says: " In the year 1837, I engaged in car
building with the Philadelphia, Wilmington and Baltimore
Railroad Company, at Baltimore, and have had charge of the
building and repairing here ever since. I have built nearly
all of the eight-wheel passenger cars that the Philadelphia,
Wilmington and Baltimore Railroad Company use, this side of
the Susquehanna river; and I understand the principles of construction and action of the eight-wheeled cars in general use.
" The eight-wheel passenger cars in use have swinging
bolsters and draw-springs, the trucks are rigid rectangular
wheel-frames, made as rigid and stiff as possible, and the cross
bolsters and end pieces are secured by joint bolts. The distance of the body bolster from the end of the body brace is
about seven feet, and the distance from the end of the box
part about four and a half feet, and from thirty-five to fortyfour feet in length. The distance between the centres or
bearing points of the wheels in each truck on the rails, is
made as far apart as we can get them, in a truck from seven
and a half to eight feet long; they are further apart than the
wheels of the Columbus were, and to get them far apart is an
advantage —it makes the car run easier and steadier than it
would if they were closer together. The trucks have male
and female transom-plates, to connect them to the body and
allow them to swivel, with a body bolt passing through themn
to hold them together. The male and female transom-plates,
for the trucks to swivel, are in universal use on the eightwheel cars on railroads, and with swinging bolsters on the
passenger cars; I have not seen any without them. I have
examined and understand Ross Winans' specification for an
eight-wheel car, dated Oct. 1, 1834; at least I understand
what Ross Winans means to describe by it, but it will not
answer for an eight-wheel car; a single pair of wheels, as he
states, would turn right around into the middle of the track;
and putting the wheels close together, as he describes, would




WILLIAM W. HUBBELL.               11 7
tend to do the same thing; the springs that he describes for
coupling the wheels are good for nothing; they have been tried
on the Baltimore and Ohio road, and condemned; they will
not hold the wheels steady, and if one should break, it would
destroy the whole truck; coupling the truck with the body
by a king-bolt, like a common wagon, which he describes, is
not the way in which eight-wheeled cars are built. They
have male and female transom-plates, and the body-bolt may
be taken out, and yet the car will run; the body-bolt is a
security only in the eight-wheel cars; the swivelling is in the
transom-plates. There is no attempt in Mr. Winans' specification to describe any mode of drawing or moving the car.
The principles or conditions and construction there set out
in that specification are unsafe, liable to accidents, and would
not be suitable for railroad companies to use. I never saw
his specification before, and have no interest whatever in the
subject of this suit."  Showing, again, that Winans' language
is both equivocal and erroneous.
At folio 5, Winans continues: "Deponent says, however,
that the improvement gradually came into favor; and the
Newcastle and Frenchtown Turnpike and Railroad Company adopting and refusing to pay for it, a suit was commenced
against them in the Circuit Court of the United States, for
the Maryland district, in 183S-was most thoroughly contested before Chief Justice Taney, and although not resulting in
a verdict, the jury failing to agree, it had the effect of inducing the defendants to pay to deponent the sum which he had
demanded before the action was commenced."
Now, the testimony of James B. Dorsey shows, in defendants' No. 4, folio 292-page 77, that he planned and built
the cars for the Newcastle and Frenchtown road, and that
"they had rigid wheel-frames for the trucks, well ironed, to
make them stiff;" which is essentially different from the car
described in Winans' specification.
In regard to the ruling of Chief Justice Taney being in
his favor, as he states, we have examined it, and we differ on
the subject; and although it is a matter of opinion, however,




118                 ARGUMENT OF
it is set up here with as much assurance as though it were
expressly and directly on his side; whereas, as we understand that opinion, it is adverse to the plaintiff.
He then states, at folio 9, page 5, in relation to the Baltimore and Susquehanna Railroad Company, that "i small,
however, as was the sum claimed by the deponent, the amount
offered by them was still less, and as they fully admitted the
value of his improvement."  Mr. McGraw and Mr. Hollins'
testimnony show that that company did not admit that it was
an improvement. They offered a small sum, or to docket a
suit at home, where the plaintiff; the witnesses, and they all
were; but no! Mr. Winans flees from the justice of the district of Maryland; he flees from  Chief Justice Taney's instructions, and catches Mr. McGraw on a visit to Philadelphia,
serves a summons on him there, where, on a trial which took
place, too much reliance was placed on a point of law, and a
verdict was rendered for the plaintiff, without a trial on the
merits.
In relation to the statement respecting one of our most
able lawyers, and Mr. Winans' counsel, Mr. Meredith, folio
10, page 5, it appears from the affidavit of Mr. Tucker, president of the Philadelphia and Relading Railroad Company,
on page 88 of defendant's No. 3, that they do not use the specified car, and that "Mr. Meredith was also the standing
counsel for that company," from which it would appear that
a friendly arrangement was entered into for the minimum
sum of $500. Winans omits to set out these facts.
On page 7, folio 19, Winans further states, " that the delays herein detailed operated to prevent his obtaining remnuneration for his improvement, and led him t) apply for an
extension of the term of his letters patent, under the act of
Congress in such cases made and provided; which application
was opposed, on behalf of the lNew-England roads leading fronm
Boston, by the ablest counsel at Washington."
The record and files in the Patent Office would have shown
Mr. Winans that such was not the case. The Boston and
Providence Railroad Company was the only one represented,




WILLIAM W. IIUBBELL.,             119
as the letter of the counsel will show; and the only objection
made by the counsel was upon the point of' law, that the chief
clerk had no jurisdiction; and there seems to be a few affidavits now on file as to Winans not claiming the cars in use as
beinlg his invention, which were not referred to, at the time,
by counsel.  The statement in Winans' affidavit is put in such
form, as to lead to the impression that lie met withl great opposition from all the New-England roads leadinlg out of' Boston, represented by tlhe ablest counsel at Waslhington.  l'he
New-England roads from  Boston numbered siz, according to
the affidavit of W. Raymond Lee, defendants' No. 3, page
11:3-folio 449, and only one of them opposed. in the manner
started.  MIr. Winans had access to the record, as well as his
counsel, and it was his duty not to swear by supposition,
loosely making a general statenlent at variance with the facts.
I will now leave Mr. Winans' affidavit, and refer to his partner and agent's, Mr. Gould's, to see what weight it possesses.
Mr. Gould, plaintiff's proofs, page 10-folio 35, states "that
the said cars or carriages, which thle said defendants have been
and are constructing and selling, are constructed on the improved plan, Upoll the same principle, and similar to the improved cars or carriages mentioned and described in said
complaint, and the schedule tlherein set forth, as patented to
said Winans, and combine and embrace all the improvements
invented by and patented to said Winans."
Mr. Gould is the only witness on the question of infringement.  Alr. Winans himself is proved to have known how
defendants' cars were built, yet lie does not swear that the
defenldants' cars infringe his patent; but tlhat he has been so
informed by Mr. Gould.  It is now proven, by numerous witnesses, thatt MIr. Gould'sjg'minent is erroneous; and it is also
slhown. thlat he is a party in interest in this suit.
I do not wish to call in question Mr. Gould's veracity, but
merely to shlow the character of the phraseology of his affidivit. The question that we are trying is, wl,ether the calrs
made by the defendants are on the same plan and prinrcip'e
as those mentioted in thle plaintiff's specification; of' which
tile court is to judge, and not Mr. Gould.




120                         ARGUMENT OF
We say, therefore, that as Mr. Gould is an interested party,
he is disqualified from being a competent witness; and that
his is not a proper kind of affidavit, as it expresses a judgment,
when it should contain  detail of mechanical structure.   Mr.
Winans swears that the defendants infringe, only from  hearsay, which comes from  Mr. Gould, and  these  are  the  only
two alleged witnesses on the subject of infringement, the one
being the patentee, and the other a party in interest, whose
name should have been affixed to the  record in this suit as a
party, coupled with that of Ross Winans.
I now  propose  to  make  some  remarks  upon  plaintiff's
witnesses and affidavits in relation to the Baltimore matter;
and first, to show from them that Philip E. Thomas does not
know, and  in fact does not _profess to kaow, and  testify of his
own knowledge, as to the machinery  on the road, and  the circumstances connected  with  it, but simply  states his itfjormation, unlderstanding and belief:
MR. THOMAS,
In the Troy and Schenectady Case,               In this Case,
Page 15, cross-interrogatory 7 of defen-        In plaintiff's proof,
dants' copy, and page 7, cross-interrogatory 7 plaintiff's proof, says, in answer,to the following question:
"Was there any running gear com-   John Elgar, Glenn, and others of the
posed of eight wheels used for transpor- plaintiff's witnesses, swear, and the
tation of timber or other articles on said plaintiff's counsel here have expressly
road before the construction of the Co- admitted before this court, that the
lumbus  "                             eight-wheel timber cars were on the road
To which lie answers: "That none in 1830, the year before the Columbus was
wvas used that he is aware of."       built.
In answer to the 6th cross-interrog-   In plaintiff's proof, page 16, folio 65,
atory, he says: "That he means to say, Mr. Thomas says: "That as affirmant
that in speaking of the eight-wheel cars, believes, in the year 1831, and in the early
he refers to the running machinery. As part of it, the plaintiff produced a drawto the body, a carpenter could do that. ing of a car for passenger transportaHe refers to the running gear."       tion, consisting of a body longer than
In answer to cross-interrogatory 8th, the car body then in use, and mounted
he says: "That he has no recollection upon eight wheels.  Upon this plan a
that he ever saw him (Winans) engaged car was afterwards built at the expense
in the construction of an eight-wheel of the company in their shops; that it
passenger car; affirmant had other duties was called the Columbus," &c.




WILLIAM W. HUBBELL.                           121
to perform, which prevented him from
looking into Winans' manipulations."
In reply to cross-interrogatory 11,   At folio 69. "And the passenger cars
he states: " That he has no recollection for the said Washington branch were
of said Conduce Gatch at all."        directed to be built on the plan the
I now refer to the tenth cross-ques- plaintiff recommended, and which is the
tion and his answer.                  plani of those at present in use on said
Question.-"Have you a sufficient ac- road, so far as this affirmant underquaintance with the construction of rail- stands and believes; that the Washington
reoad cars, as of the running gear and branch was completed in 1835; and that
bodies, to designate differences of con- the consideration and discussion, above
strewtion in various kinds of eight-wheel referred to, must have taken place some
passenger cars 2"                    time previous, though this affirmant is
To the tenth cross-interrogatory he not now able to give the exact date of
answers, "That he has NOT."           it; that when the Washington branch
1. Additional interrogatory:        was opened in 1835, as aforesaid, the
"To what were your duties, as presi- cars used upon it were those which, as
dent of the said company, especially di- affirmant believes, had been invented
rected?  Did they extend to the super- and perfected by said plaintiff."
vision of the department of machinery,
or was that confided to others, and if so,
to whom was it confided?" To the additional interrogatory by plaintiff, he
answers: "That the details of the business of the company were divided into
departments. The business of the company was complicated, and ramified
itself into  many different branches.
Afirsant's duty was to preside at the
meetinqls of the board of dierectors; to
receive the reports monthly, and submit
them to the board; to attend to the general financial affairs of the company,
and conduct the corresponzdence, and to
have a general superintendence of its
concerns. To the best of his recollection, George Gillingham was the superilltendent of machinery."
I should violate my feelings of respect for that venerable
gentleman, Mr. Thomas, were I to impute to him  an intention,
in the affidavit in this case, to mislead the court. He uses
the language that he  "understands and believes," in relation to
the drawing which now  appears as the smoked drawing, and




1 2                   ARGUMENT OF
as to the construction of the Columbus and the Washington
cars. He testifies in the Troy case that he has not sufficient
acquaintance with the construction of cars, to designate differences of construction.  He is not able therefore to distinguish between the smoked drawing and the Columbus, nor
between the Washington cars and the specification; and hIis
bclief as to them, under such circumstances, is not evidence,
and amounts to nothing against the positive testimony of
Schryack and Shultz, who built them, that they are essentially different from the specification.  He never saw Winans engaged in the construction of' an eight-wheel passenger car,
and possesses no know/etldge as to what he was doing.  He
testifies that he does not recollect the timber cars on eight
whlieels, nor Conduce Gatch, showing most conclusively thlat
he kncw nothing of the machinery, nor lp-inciplal mechanics who
produced it.  The plaintiff himself' here proves that both the
eiglht-wheel tia-mber cars and Conduce Gatch were there in
1830, and thus shows that his own witness, MIr. Tllomas, had
not such knowledge of these matters of machinery and men
as to make him a reliable witness in this case in relation to
them.
It is also a noticetable fact, on the face of Mr. Thomas' affidavit, that he makes a clear distinction between his bel/if and
his remembrance.  At foblio 65, p. 16 plaintiff's proofs, he states,
in referring to matters not involving the issues here, and of no
importance in this suit, that 6" the above facts are iremnembered
by him;" and then he goes on to speak of matters of importance in this suit, connected with the mnachinery, but is first
cautious to preface his remarks with the words, 4" that as affirmant BELIEVES, &c.," thus making a. marked difference
between belief and memory.
Ile also shows clearly, as he testifies, that he cannot designate differences in mechanics, or is not possessed of or has
not cultivated a capacity to discrinlinate; for he testifies to a
friction wheel and box, while Winans' patent of 1S28 does not
describe a box to the friction wheel, and the box inclosing the
wheel was in fact invented in 1831.




WILLIAM   W. IIUBBELL.                          123
Mr. Thomas' duties were the  usual financial and  corresponding  duties of a president; lhe was not a mechanic, and
hence cannot discriminate as to drawings or maclhinery.  He
possessed no knowledge, in fact, in the'Froy case, and htence his
assertions of' understandinlg and bcli'f are not cvidencc, anldl cannot have weight attached to them in this case.
George Brown is the next of' tile pllinitiff's witnesses, to
whose testimony I will call the attention of' the  court.  He
was the  treasurer of the company in  fict, and  for a  short
time  held  the  nominal position  of acting  superintendent of'
machinery.  He  does not swear that hle is acquainted with
machinery.  He is a very respectable banllker; andt( has been
such since about 1S09, in the city of' B}altimore. There are
discrepancies and errors in his testimony, anid a general
insufficiency of mechanical knowledge manifested.
He says, in the Troy Case,                  In this Case,
Page 7, in answer to interrogatories put   Plaintiff's proofs, page 20, folio 79:
by the plaintiff in person:
To the second interrogatory, he an-   "That he is acquninted with the plainswers: "That he thinks the plaintiff was tiff, and has been since on or about the
in the employment of the said Baltimore year 1828; in the fall of which year
and Ohio Railroad Company, and to the plaintiff visited the said city of Balassist Mr. Knight in matters of ma- timore, having previously, in said year,
chinery. Mr. Knight was chief engi- obtained letteis patent of the United
neer. He cannot fix the date; thinks it States, to wit. on or about the 1 1th day
was in 1829 or 1830, on Winans' return of October, for a fiiction wheel and
from England."                         box."
3. "Do you know anything in regard    At fol. 80. "Thatthe plaintiff entered
to the introduction of the eight-wheel upon the duties of his said appointment
car into use on the saidl railroad, and (of assistant engineer of mnleehinery) on
whether the said plaintiff had anything or about the first day of June, 1830."
to do therewith?  State all that you   Folio 78. "That in the year 1831, in
recollect on the subject, and what op- addition to his duties as treasurer, this
portunities you had of knowing any- deponent also acted as superintendent
thing a! out it."                     of machinery."
To the third interrogatory, he an-   82. " That in the winter of the years
swers:  "That with regard to the date he 1830 and 1831, the plaintiff showed to
cannot speak; but one thing lie distinctly this deponent a drawing of an eightrecollects —that he was the treasurer of wheeled passenger car, or carriage."
the company about that time; and that   83. "And a carriage was afterwards
Evan Thomas, Ross Winans and himself built and put on the road, in the summer




124                         ARGUMENT OF
were talking over machinery; and whe- of the year 1831, and its construction
ther it was suggested by deponent, by was superintended by the plaintiff."
Mr. Winans or Mr. Thomas, he cannot   84. "That at different times alterasay; but it was suggested by some one tions were afterwards made in said exof them, how much safer an eight-wheel perimental car or carriage, and particucar would be for PASSENGERS over the larly in the running gear; but he cannot
four-wheel car; and Mr. Winans then now state with certainty what alterations
went on to make a drawing of such an were made, but that each and all of the
eight-wheel car as he supposed would said alterations were made under the dianswer the purpose."                  rection and at the suggestion of the
4. "Look at the drawing, marked plaintiff."'Oliver Cromwell, No. 1,' and say whe-   91. "And this deponent further says,
ther you ever saw it before, to the best that a copy of the drawing and plan of
of your recollection, and when, and whe- the car or carriage Columbus, the orither it represents the car Columbus, as ginal eight-wheel passenger car or caryou remember it."                     riage hereinbefore mentioned, is hereto
To the fourth interrogatory, he an- attached, and marked with the name of
swers: "Thatthe drawing, marked'Oli- this deponent.  That the said copy has
ver Cromwell, No. 1,' represents the car been carefully examined and compared
Columbus, which witness superintended with the original drawing and plan, and
the building of, or saw building every day the same is correct."
after Winans made the drawing.  Depo-              In Troy Case,
nent got the board of directors to have    Plaintiff's proof, pages 19, 20:
a car made after the drawing, as an ex-   I now refer to the testimony of Jonaperiment."                            than Knight, chief engineer of the BalTo the first cross-interrogatory, he timore and Ohio  Railroad Company
answers: "That when Mr. Winans first from 1830 until 1842, to prove that this
came, he brought a plan of friction statement of George Brown, that Wiwheels; but when he came into the comn- nans was appointed assistant engineer
pany's employnment, or in what partieular of machinery about the first day of
capacity, he cannot say," &e.         June, 1830, is erroneous.
To the fourth cross-interrogatory, he   I will read the third and fourth interanswers: "That after the drawing was rogatories, with their answers.
completed, deponent never heard of any   3. "Were you chief engineer of the
person mentioned as being the inventor railroad, constructed by the Baltimore
of the eight-wheel car, except Mr. Wi- and Ohio Railroad Company, during the
nans, which the suggestions of Mlr. Evans years 1831 to 1836, both inclusive?"
Thonzas, deponent, and deponent'sfather   Ans. —"I was chief engineer for the
may have communicated to him in con- Baltimore and Ohio Railroad Company,
versation. What deponent communicated as stated in my answer to the first interto him was this: that the eig/ht-wheel car rogatory."  ( i. e. "I was chief engineer
would be safer than the four-wheel car; of the Baltimore and Ohio Railroad
and this led to their making a little Company, from  the commencement of
drawing, of the manner in which they the year 1830, till the 31st of March,
supposed it could be arranged, in a rude 1842.")




WILLIAM  W. HUBBELL.                      1 25
way. The first suggestion to deponent's  4. " Was the plaintiff, during any pormind were two long beams of wood, in tion of that time, in the service of the
which the wheels were to work singly; Baltimore and Ohio Railroad Company?
a plan which was not adopted."    If yea, state when, to the best of your
knowledge, his engagement commenced
-and what were his duties in the service of said company."
Ans. —"The plaintiff returned from
England to Baltimore, Md., in the year
1830; and by authority from the board
of president and directors of said company, I, as the chief engineer, appointed
said Ross Winans to be my assistant in
the department of machinery of said
company. The appointment was made in
the year 1831, and I believe took date
from thefirst of that year."
The court will perceive that in Mr. Brown's testimony, he
does not show any precise knowledge of either drawings or
machinery; and wherever he is called upon to distinguish, he
either says that he does not recollect, or, if he attempts, he
makes mechanical errors.  It is not to be expected that a respectable banker like M.own, whose mind is on his legitimate business, would be kble to discriminate either in
mechanical drawings or in machinery. He speaks of Winans'
patent for a friction wheel and box. The patent is here produced, and it describes td claims the friction wheel alone.
There is no box in it.  The box inclosing the wheel was a subsequent invention.
He speaks of alterations.n the running gear in the Columbus being made, but cannot describe them.   He therefore
cannot know how she was originally, or at first built; because
he cannot recollect particulars of structure.
He swears, in the Troy case, that he cannot fix the date of
Winans' appointment. In this, he attempts to fix it, but
makes an error.  He states, in the Troy case, that he superintended the construction of the Columbus. In this, he states that
the plaintiff superintended the same. He states that the drawing
was made in the winter of 1830-31, and that a true copy is




126                   ARGUMENT OF
annexed of tile smoked drawing, which he verily belicves is the
original.  Thle copy, on examination here, differs from  thle
smoked drawing in the most essential particulars —that is, in
not having any kinlg-bolts for the trucks to swivel.
A great error is also made by Mr. Brown as to the time of
Winans' appointment as " assistant engineer of malllchinery."
He says it was about the first of June, 1830.  Jonathan
Knight, who made tile appointment, swears that lie appointed
bim  his assistant engineer of machinery in 1831, to tlake tffcct
fromn theJirst of the year.  It was therefore a nunc plro Iunc a(ppointment; and altllough Mr. Brown, and others of the plaintiff's witnesses, namely, Elgar, Reynolds, Thomas and
Woodville, state that Mr. Winans was appointed in Jutie,
IS30, still, the very man who made the appointment, and wllo
was the clhief engineer of the road, aboult whlose business Winans was employed, asserts that it took place in 1S31, and
that it datcd from  the first of that year, and therefore not in
June, 1S30.
The reports of the president and directors of the Baltimore
and Ohio railroad, for 1830, made in October of that year, d(o not
meiltion Winans as being engage in the service of the company.  Mr. Brown and these otl er four witnesses have therefore antedated the appointment of Mr. Winans as assistant
engineer of macllinery; for as soop as AIr. Winans was appointed by Mr. Knight, namely, iNItS31, the reports of thlat
year make notice to thiat effect, and speak of the manner in
which lie was employed. On page.2 of the 5th annual report,
in the 1st volume of reports of' thle president and directors
to the stockholders of the company, dated Oct. 1st, 1S31,
it is stated: "In making tllese experiments, as well as in the
arrangement of the maclinery, I have been aided by my assistalts, John Elgar and Rloss Winans.  The latter gen7tl'an is
now  nowg,cdc(  in -lanuiug- the machinery and fixtures for the inclitcd pllanaes."
Thils is signed by J. Knight, chief engineer, the gentleman
who made the appointment, and wllo of course cannot be
mistaken, as his deposition is corroborated by the report just
read.




WILLIAM WV. HUBBELL.                             127
T/ is statemcnzt al1so shows that [V;inans wuas NOT experimenting
with tile CoUlmlbtts, but thatt he was engaged in ]planning the machiner! (indl fixtlres for the inclined plalnes.
Mr. Geo-ge  Brown was treasurer of the  company, and a
banker then  and  now; financial affiiirs, therefore, pre-occ',lpy
his mind acnd;lcemory, anld  his testimony or beli/f  appears  lot
relialble as to  mechanlical drawilngs or mnechanical structure, or
the circumstances connected with their details of arrangement
or operation.
I now  ask the attention Qf the court to the infirmities, contradictions and discrep)ancies in the testimony of John Elgar,
one  of plaintiff's  witnesses, apparently much  relied  on  by
him.
Ma. ELGAR testifies,
In Troy Case,                          In this Case,
Patge 9 defendants' copy, plage 12 plain-        Page 24, folio 102:
tiff's proof, in these words, in answer
to the third interrogato ry:
"Alout the first of June following,   "And  this affirmant further says,
Ross Winans returned from England, that early in the summer of 1830, the
and clllle to Baltimore, and, he believes, said plaintiff produced a plan and drawentersd into the service of the company, ing of an eight-wheel passenger cafr,
and was the clhief of his time out at the that is, for a long bodied car resting on
deplot of the company at Mount Clare. two bearing carriages of four wheels
Some short time f{/ter this, he, or some each; that he has seen to-day what he
one, he cannot distinctly now recollect, believes to be the same drawing, a (opy
showed affirlnant a drawing; but he of which is hereto annexed, marked
thilnks it was a young man, by the name'John Elgar, A,' which plan was apof Cromwell, who was building or re- proved by the directors of said compapairing the passenger cars. This draw- ny, and a car ordered to be built thereing, to the best of his recollection, exhi- from, at the said shops, under the direcbited an eight-wheel passenger car, body tion of the plaintiff."
and trucks together; and affi;rmant un-   CROMWELL himself, at page 45, folios
derstood, from  general fame, that Ross 206 to 208 of plaintiff's proofs, says:
Winans was the or'iginator of this draw-   "That in the nionth of June, 1830,
ilig.  Affirmant does not recolle:.t that the plaintiff was engaged by the railhe hald any particular conversation with road company, as this deponent was at
Ross Winans on thlle subject then. Soi-e that time informed, as assistant engineer,
time in the year following, to the best of to aid in getting up the required nmachihis recollection, a car, which he thinks nery of the road, and, together with
corresponded to the drawing, was put on John Elgar, also an engineer of machithe railway, and this car was called the nery, and the chief engineer, Jonathan




128                           ARGUMENT OF
Columbus; hethinksso.  Affirmantrode Knight, was frequently at said shops,
in it once to Ellicott's Mills that summer which were situate at what is known as
— the summer of 1831.  In 1832, affir- the'Mount Clare Depot;' that early
mant left Baltimore, and was engaged in the year 1831, George Brown, Esq.,
on theCol umbia railroad, Pennsylvania." then treasurer of the company, was inll
In answer to the fifth interrogatory, the carriage-makers' shop, and while
Mr. Elgar says: "That he has looked at there, commenced a conversation with
the drawing, marked'Oliver Cromwell, this deponent about the road and the
No. 1,' and attached to the deposition of carriages in use thereon; that in that
Oliver Cromwell, and has read the spe- conversation he mentioned the name of
cification of the plaintiff's patent.  He the plaint if, who he said was getting np a
does not consider the car Columbus, suP- drawing of a passenger carriage?pon a
POSING it to be truly represented on said new and improved plan, and which was
drawing, fnlfils the requisition of said spe- different from any carriage at that time
cification.  He thinks the specification in use; that shortly afterwards, and within
calls for the axles and wheels of each a few  days, a drawing and plan of an
truck to be placed as near to each other as eight-wheeled  passenger  carriage  was
may be, to work freely; and that each brought to the carriage-makers' shop by
truck should be separated from the other, the plaintiff, and handed to this dtponent
under the body of the car, as far apart by him, with instructions that a carriage
as the strength of materials and conveni- should be built therefrom; that he has
ence will admit; and on this drawing, the this day seen the same drawing, and he
wheels of each trnck are farther apart than is positive as to its identity, a copy of
is called for in the specification, and the tswo which is hereto annexed, signed by this
trscks are placed nearer together, or deponent.  The drawing shows the body
farther from the ends of the body, than is and the running gear, as the carriage was
called for in the specification.  He thinks built.  The drawing was handed to this dethe differences he has stated are impor. ponent in the month of Februtary or March,
taut.  Hecannot say that the drawing 1831, and the work upon the body was
now shown him is the one shown him  begatn within a day or two afterwards."
by Oliver Cromwell; but said drawing is   210. "That there was but one drawing
a fair representation of the eight-wheel and plan," &kc.
car Columbus, as he now recollects it."    Mr. Thomas, page 16, folio 65, plainOn page 13, defendants' Troy case, tiff's proofs, says: "That, asaffirmant
page 15 of plaintiff's proofs:          believes, in the year 1831, and in the
1. " In answer to the first interrogatory, early part of it, the plaintiff produced
you say you understood that Mr. Wi- a drawing of a car for passenger transnans was employed as an assistant en- portation."
gineer of machinery, in 1830, by the    George Brown says, folio 82 plaintiff's
Baltimore and Ohio Railroad Company; proof: " That in the wointer of the years
can you say, positively, that he was so 1830-1831, the plaintiff showed to this
employed, and why you have that im- deponent a drauing of an eight-wheeled
pression?"                             passenger car or carriage," &c.
To the first cross-interrogatory, he   Michael Glenn says, at page 36, folios
answers: "That he cannot state it posi- 162, 163, plaintiff's proof: "That the




WILLIAM W. HUBBELL.                             129
tively, but he understood from  Winans first car that he ever saw, to which the
that soon alter his return he was taken name of'a double-truck, long-bodied
into the company's employ-within a car' could be applied, was the eightmonth, or two or three months; he thinks wheel car, Columbus, the invention of
he understood this from  Winans; he the plaintiff, built at the shops hereincannot be positive about Winans being before mentioned, commenced in March,
an assistant engineer at that time; but, 1831, and finished on or about the 1st day
affirmant is positive that he was an as- of July, 1831. That the facts and cirsistant engineer in 1831; he heard Wi- cumstances connected, with the building
nans say so in 1831, or the spring of of said car, Columbus, are as follows:
1832, and he heard the chief engineer, that, during the month of February, preJonathan Knight, say that Mr. Winans ceding the commencement of said car, Cowas his assistant engineer of machinery. lumbus, or about that time, this depoAffirmant was at that time assistant en- nent heard it spoken of, in the shop
gineer of machinery; and when Winans where he worked, that the plaintiff was
first came there he thinks Winans was getling up a new kind of car, and that a
assisting affirmant, and both of them  plan or drawing, on paper, showing the
assisting the chief engineer; and shortly invention, would be brought to the shop
before he went to Pennsylvania he heard in a few days."  "That, within a few
Jonathan Knight say that Winans was days after this deponent heard that the
his principal assistant engineer of ma- plaintiff was getting up a new  kind of
ehinery."                             car, theplaintiff brought to the shop a
8. "How often did you see the draw- plan or drawing, showing a side elevation of an eight-wheel passenger car,"'
ing, which you say was shown you by
Cromwell, of the car Columbus, and do
ou know that the running gear of the   John Elgar, also, who testified in the
you know that the running gear of the
Columbus was built after that drawing. TrTroy case that he does not recollect to
To the eighth cross-interrogatory, he ave looked at said drawing more thanhe
once, and that it then was in Cromwell's
answers: " That he does NOT recollect to
have looked at said drawing more than possession, in this case says, folio 104.  mayave done so. Hedoes plaintiff's proof: "That the said drawing was often seen by this affirmant, in
not know that the running gear of the
open vie wat the shop of Mr. Cromwell,
Columbus was buzilt after that drawing."-                 
while the said car was building, viz: ill
The report of James P. Stablee, suthe spring of 1831.  The drawiug and
perintendent of construction, dated September 30, 1832, page 102 of 6th annual car are as familiar to this aoflrmant as
any event connected with sazd road."
report, volume 2, states:
"I feel bound also to acknowledge
the important aid derived from John
Egar, engineer of machinery, who has
been engaged in superintending the construction of the turn-outs, from the commencement of the work until July last.
"The superiority of his improved
turn-out (a drawing of which was given
9




130                      ARGUMENT OF
in the last annual report) over any other
as yet in use, and his indefatigable exertions in bringing to its present perfection
this important imnprovement in the machinery
of the Baltimore and Ohio railroad,
deserve the highest commendation.
"Much credit is also due to Amos
Farquhar and Ross Winans, for the very
efficient manner in which their services
were rendered during the months of
October and November, 1831, in the
procurement of materials and the erection
of the chambers for the machinery at the
inclined planes.
"Signed,
" Respectfully,
" JAMES P. STABLER."
This Mr. Elgar, in his testimony in this case, states that
he had the superintendence of the department, including the
work-shops, and he " gave his directions, for the construction of
machinery to be put on the road, to said Gatch." What were his
directions, and to what machinery did they refer?  He is proved
by the reports to have been engaged personally, from the
commencement of the work to July, 1832, with his turn-out;
and the fair, legal inference therefore is, that his directions referred to patterns for this, his invention, the object of his
" indefatigable exertions," and primarily, if not almost exclusively, occupying his mind. While Winans was planning
machinery for the inclined planes, and experimenting to improve his friction wheel, Elgar attempts to make it appear
that Winans was experimenting on the Columbus; he says,
" that he has been familiar with the said experimelts since the
building of the Columbus, and the several cars known as the
Winans eight-wheel cars, upon plans which, though differing
from said car Columbus, were built with a view to improve
the idea attempted to be developed in that car, as hereinbefore
mentioned. That the said cars, and each of them, as he fully
believes, were the invention of said plaintiff, and were so spoken
of at the time of their construction;" "that he left the service of
the said company about the/first of July, 1832, and entered that




WILLIAM W. HUBBELL.                131
of the Columbia Railroad Company, of Pennsylvania, in which
service he remained about two years."
It is proved by the reports, and the witnesses on both sides,
that the Winchester, Dromedary and Comet were constructed
in 1833-34, and were all in use in the summer of 1834. NMr.
Elgar had been absent in Pennsylvania; yet he professes to believe that he has the capacity to discern, fromn the State of
Pennsylvania, minute particulars as to plans, persons, remarks
and mechanical changes, if any, going on in the workshops
at Baltimore. Such pretensions or assumptions are incredible.
The report of Oct. 1, 1831, by Mr. Knight, speaks of the manner in which both Mr. Elgar and Mr. Winans had been employed, the experiments that they were engaged in, and yet
nowhere, in any of said reports, is there the slightest allusion
to Conduce Gatch's car, " Columbus," and not the slightest
pretence that Ross Winans had either invented or was engaged in experimenting on that or any other eight-wheel car.
Had he been thus occupied, a report which narrated the
doings of Mr. Elgar and Mr. Winans would certainly have
made, at least, allusion to it; but such a structure as an
eight-wheel car is not even hinted at, and yet both sides of
this case admit that the " Columbus" at that time existed, and
the newspapers of June and July, 1831, speak of her as i" a
capacious new car, on eight-wheels."
Mr. Elgar, signing himself " assistant engineer," makes a
report, dated 30th Sept., 1831, at pages 100, 101, 102, of the
5th annual report of the 1st volume of reports, and addressed
to Jonathan Knight, chief engineer of the Baltimore and Ohio
road, in which he names experiments, made in connection
with the motive or steam power, and the machinery of the
road; but he does not make the slighest mention of experiments with eight-wheel cars by Winans.
If what Mr. Elgar states in his affidavit be true as facts, not
as his belief only, why did he omit it in his report of 1831?
And more especially, why, as he and Mr. Knight were in the
habit of reporting all that Mr. Winans did?




132                 ARGUMENT OF
MIr. Winans' name is expressly connected with certain experiments, specified in these reports, to show how the chief
engineer and his assistants were engaged; but strange to say,
if these be true statements in fact, not a syllable is lisped, not
a word uttered, which would imply that they had even noticed that an eight-wheel car was on the road, or which would
compel or even suggest the inference that he, Winans, was
making improvements on the eight-wheel car.
Also, the fact is shown that Mr. Elgar himself was engaged
in making experiments with chilled boxes of his invention,
and other matters which are here enumerated, displaying an
intention to show how their time and minds were occupied;
yet neither he nor Winans appear connected with, nor take
any notice of Gatch's eight-wheel car.
In the report of James P. Stabler, it is further shown that
Ross Winans, in the months of October and November, was
engaged in procuring materials and constructing the chambers
at the inclined planes. He had been previously during the year
engaged in planning and constructing the machinery itseyf, and
now we find him constructing chambers at the planes to apply
the machinery. The occupation of Mr. Elgar and Winans,
during 1831 and 1832, is fully shown by the reports made at
the time, and by our testimony; and hence Mr. Elgar is directly contradicted in his asserstions as to Winans inventing and
experimenting with the eight-wheel car.
The plaintiff's counsel have said that Mr. Elgar's statement
in his affidavit, p. 24 plaintiff's proofs, just now referred to,
carries the invention back to the summer of 1830. But we
have already shown, by MIr. Knight's testimony, that Mr. Elgar
is mistaken as to the date of Winans' appointment as assistant engineer; and if he be mistaken as to one date, the
strong probability is that he is also mistaken in relation to
the other.
In his affidavit in this case, also, he states that the plaintiff
produced the plan; and that it was often seen by him, in open
view, at Cromwell's shop; and that the drawing and car are as
familiar to him as any event connected with said road. While in




WILLIAM W. HUBBELL.                 133
the Troy case he swore that he thought it was Cromwell who
showed him the drawing; that he had no conversation with Winans
on the subject; that he did not recollect to have looked at the drawing more than ONCE; and that he did not know that the running
gear of the Columbus was built after the drawing.
And Cromwell himself, in this case, page 45-folio 208,
says: " That the drawing was handed to this deponent in the month
of February or March, 1831, and the work upon the body was
begun within a day or two afterwards."  Mr. Thomas, Mr.
George Brown, and Michael Glenn, who are plaintiff's witnesses, and also all the defendants' witnesses, fix the first
production of a drawing, in point of time, in the latter part of
February or early part of March, 1531.
That Mr. Elgar is wrong in the date, both in the year and
time of the year, as to the first production of a drawing, is
clear, both from his testimony as to seeing it only once, and
then in Cromwell's possession, and the testimony of Cromwell,
Thomas, Brown, Glenn and all defendants' witnesses on the
subject, who fix the time about the first of March or latter
part of February, 1831; although the belief of the plaintiff's
witnesses differs from the knowledge of the defendants' witnesses as to what was, and what was not, on the drawing.
They agree as to time, and that Winans produced it. We are
therefore led to the undoubted conclusion that Mr. Elgar is
in error as to the time.
His assertion as to " general fame, that the plaintiff was
the originator of the drawing," I will remark, is not sufficient
ground to admit of his testifying to that as a fact, and his
belief is not evidence. He only thinks that he saw a drawing
in Cromwell's possession, and saw it once only, and he understood that Winans produced it; and he only rode once on the
Columbus. He is not, therefore, jtmiliar with either the drawing or the car. What his familiarity with other events may
be, with which he designs to compare familiarity with the
drawing and car, does not appear; old age and the vicissitudes
of life have probably clouded and confused his mind and
memory. His testimony is neither reconcilable nor reliable.




134                  ARGUMENT OF
I will recall the fact that he, in this and the Troy case, totally contradicts himself as to the number of times he saw
the drawing, where he first saw it, as to the Columbus corresponding with it, and as to his opportunity of knowing the
peculiarities of the eight-wheel cars in use. His affidavit in
this case is drawn in the most exaggerated terms, as compared
with his own words in the Troy case; and he swears to facts
on beli'f now, that he did not know before. This phraseology,
then, of Mr. Elgar's affidavit cannot be relied upon, as it is
contradicted by himself and others so flatly and materially.
In the Troy case, no pretence was set up by the plaintiff to
a drawing before the beginning of March, 1831, and here it
is evidently with the intent,of trying to go behind the eightwheel Allen engine, and the eight-wheel Wood cars, and the
eight-wheel Trussel cars, in point of time; but the truth that
these cars existed before the drawing was made, is too apparent, from the testimony, to require any further remarks on
Mr. Elgar's affidavit.
The next of the plaintiff's witnesses, to whose evidence I:shall bring the attention of the court, is Airr. Woodville, a respectable gentleman no doubt, now an exchange broker. He
was auditor and superintendent of transportation of the Baltimore and Ohio railroad.
He says, in substance, that Mr. Gatch had no right to
invent; it was not his business to invent, or reflect, or to
think, or possess a knowledge of the business of the road, or
improve in the machinery of the department of which Gatch
had charge; although he, Woodville, as if disposed to credit
himself, lays claim to the merit of an invention in the backs
of seats, without stating or describing particularly what he
did, and in what mechanical peculiarity his invention consisted. He certainly was not appointed to invent; he was superintendent of transportation and auditor only. Whether the
right to invent was a prerogative of his offices, or not, he,does not explain.
Notwithstanding the pretensions set up by this gentleman
over the " workmen," as he has been pleased to term the other




WILLIAM  W. HUBBELL.                      135
respectable gentlemen who have testified for the defendants
here, after denouncing them and their rights and privileges,
we will now proceed to show that this gentleman, Mr.
W\oodville, not only was not, from the nature of his occupation, qualified to know much of the details of mechanical
structure and principles, but he does not even know when he
was appointed superintendent of transportation.
He says, on page 31, at folio 136 of In his own report, dated October 1st,
plaintiff's proofs: "That he was former- 1831, at page 128 of the first volume of
ly, and until the year 1836, an officer reports, he states:
of the Baltimore and Ohio Railroad   "Having, in addition to my duty as
Company, as master of transportation, auditor, been appointed superintendent
and continued as such from the opening of of transportation on the railroad, I resthe road, in the month of May, 1830, until pectfully submit to you the aecompanythe month of July, 1836."        ing documents, as the result of the operatiozs in that department,from the 1st qf January to the 30th of September, of this year."
His report, made at the usual time of making the reports,
the first of October, instead of embracing the transportation
from the 1st of October, 1830, or from May 22d, 1830, when
the road was opened, embraces only from the 1st of January,
1831, showing that he was appointed superintendent of transportation the "1st of January, 1831," and not " in the month
of May, 1830."  He previously was appointed auditor.  Evidently, his were office or book-keeping duties, not mechanical
either in invention, construction, nor in  observation.  This
proves that he is in error as to dates; and a fair inference is,
that he is also in error as to the time that he first observed
the eight-wheel wood cars, if his capacity for observation in
mechanics, at an early day, was sufficient to distinguish them
from the eight-wheel timber cars; and if he had reflected a
moment, he would have remembered or ascertained that another gentleman, since dead, took charge of the transportation in 1830.
In order to show the aristocratic tone of his testimony, and
its unreasonable character, particularly in the courts of this
republican country, where, I trust, such feelings will never
find support, I refer to page 32-folio 142 of plaintiff's proofs.




136                  ARGUMENT OF
Mr. Woodville says: " That the said Gatch had no connection
whatever with said road, and had no authority to get up, or build,
or put a car or cars on said road, or any control of any kind thereon;
that he was a carpenter in the company's shops; confined to
his shops, without control in any way, beyond the limits of
such shops; and that the said Rupp was a carpenter, Eichelberger a painter, and Forrest a blacksmith, neither having a
control of nor a knowledge of the business of said road; that
each and all were workmen."
As to this, I have but to remark that Mr. Woodville probably knew nothing but the state of his transportation and
audited accounts; he pretends to know, and swears to entirely
too much, when he attempts, as he has, to swear four of the
most respectable, intelligent and skillful mechanics and gentlemen of Baltimore into utter ignorance of things daily seen
by them; and the pay rolls produced by plaintiff show exactly what Mr. Gatch's position was. He was master of the car
building; Woodville was master of transportation, and auditor. Gatch controlled and directed his department, and was
entrusted with large sums of money to defray its expenses;
Woodville reports as to the  " commerce" of the railroad.
Gatch plans and builds cars to carry thefrieight; one is no more
an officer, and no higher in position, in fact, than the other.
Mr. Woodville, with all this manifest feeling, error as to time,
and want of knowledge in mechanical structure, is certainly
not reliable as a witness on such points. His mind must
have been occupied with his audits and transportation accounts. All of the plaintiff's witnesses have spoken of "burden cars," as such; which are distinct from the eight-wheel
wood and trussel cars, and for a different purpose. As an instance of this, I will call attention to the affidavit of Mr. B.
H. Latrobe. At page 34-folios 149, 150 of plaintiff's proofs,
he states: "' That in the spring of the year 1831, this deponent was an assistant engineer, in the service of the Baltimore
and Ohio Railroad Company, and was engaged in making drawigs  f' the cars and machinery in use on said road.  That he is
very confident that had there been an eight-wheel car for




WILLIAM  W. HUBBELL.                       13S7
burden or passengers then in use, he would have known the
same and made a drawing thereof, as his object was to represent the road and its machinery, with all its improvements up
to that time, in detail.  The drawing, marked'B. H. L., No.
1,' represents the only burden cars then in use, which were
four-wheeled cars; the form of body and minor parts differing in some cases."
By the report of Jonathan Knight, dated Oct. 1st, 1S31,
at the end of page 22 of 1st volume of reports, in the 5th
annual report, we prove that this drawing was a flour car, to
haul flour barrels alone, and not intended to represent the passenger, platform, eight-wheel wood and trussel cars, or any
other car, of all which no drawings were intended to be
given. It was drawn and presented, in the report, simply as
a convenient car to haul flour in barrels to Baltimore. Taking
this as an example of the legitimate meaning of the use of the
words s" burden cars," which is frequent in the plaintiff's testimony, it does not refer in any way to the wood and trussel
cars in controversy here, and all that testimony is therefore
equivocal and irrelevant.
I will now refer to the testimony of Michael M. Glenn, on
whom the plaintiffs seem to rely, to show that he contradicts
himself, and in fact is entitled to no weight; that he really
recollects nothing that is true and material in this matter.
He testifies,
In the Troy Case,                    In this Case,
Page 33 plaintiff's proof, and page 28 Plaintiff's proofs, folio 165, &c., Glenn
defendants' Troy case:             says:
" In 1830, or 1831, I first saw a draw-  " That within a few days after this,
ing of an eight-wheel car.  It was deponent heard that the plaintiff was getbrought to the shop, I believe, by ting up a new kind of car. The plainWinans, and laid on Cromwell's table; tiff brought to the shop a plan or
it is the one shown to me, marked drawing, showing a side elevation of'Cromwell, No. 1.' I first saw it on an eight-wheel passenger car." "The
Cromwell's bench; I don't remember hear- bearing carriages were shown on a
ing it previously spoken of."      plan or drawing, corresponding in all
" I assisted building the trucks of the respects to the four-wheel carriage at the
Columbus, in the shop adjoining Crom- time in ltse upon the road for passenger
well's. I think the trucks were built cars; and the only carriage which had




138                          ARGUMENT OF
while the body was being built from been known or used upon the road for
the drawing. Jacob Rupp and I were the that purpose, up to and including the
workmen.  We considered they were built invention of the Columbus."  "The
under Winans' direction."  " The trucks plan or drawing was projected for threewere built in the form shown in the draw- quarters of an inch to a foot. The
ing."                                  length of the drawing upon the paper
"' The Columbus was twenty-seven feet was and is eighteen inches; and was and
long."                                 is eight inches in height, to the top of
"I never knew an eight-wheel car railing, which would give and did give a
built before the Columbus, after that length of twenty-four feet to the body."
plan.  I had never met with any such   " That during the building of the Cotruck before that, or knew of any."    luzmbus, the plan or drawing was in open
On cross-examination, he says: " The view in each of the shops, although princifirst time I saw the drawing, it lay on pally in the carriage shop."
Cromwell's bench. I did not see it brought   "T lhat the plaintiff was at the shops
there."  "Idid nothavethedrawing before nearly every day; and lie believes that
me when we worked at the trucks of the Co- he may truly say, frequently many times
lumbus.  Conduce Gatch gave us directions, a day.  That he gave ALL the directions
but not more than the plaintiff. Mr. about the building of the car Columbus."
Gatch directed us to go on and make the " And this deponent further says, that
trucks.  We worked from the drawings there were not any trucks built for use,
on a board. I think Mr. Gatch made or upon said road, in any way, with a bolthat drawing."  " I think Winans saw  ster piece or bolster pieces extending across
the drawing on Gatch's board. I have the frame of the truck, or with each truck
no doubt he saw it."                   having four wheels, &ntil the year 1834."
Jacob Rupp himself contradicts this   Jacob Rupp, to whom Glenn so conMr. Glenn, and testifies, at defendants' fidently refers, also contradicts him in
No. 2, page 15, folio 59, &c.:         defendants' No. 4, pages 60, 61.
"The next car built on this principle   He savs: " I have examined the mowas the Columbus, intended to carry del now before me, marked'defendants'
passengers for fare on the road.  This model, K,' and signed by me. It is a
car was built in 1831.  She was coin- true model or representation of the car
menced in March, 1831, and finished Columbus, as built at the Mt. Clare deand put on the road by the 1st of July, pot in the spring, and finished about the
1831, and on the 4th of July, 1831, she 1st of July, 1831. The trucks then had
ran to Ellicott's Mills.  I myself, wuith plain boxes on, and were constructed like
the assistance of Francis Gatch, now de- those in the model I built them, with the
ceased, built the trucks and bolsters of the car assistance of Francis Gatch, by Conduce
Columbus, under the instructions and di- Galch's directions.  This car also had on
rections of Mr. Conduce Gatch, and I also her, when she first went on the road, iron
put the cornice around the body of the car. baggage rods, lake the model; they were
" I did this work altogether by MIr. made and put on by Leonard Forrest.
Gatch's instructions.  To direct us to The Columbus had nine or ten sliding
make the trucks, he, Mr. Gatch, made a windows on a side, each about two feet
drawing on a board, giving the dimen- square, and twenty-seven or thirty panes




WILLIA3M W. HUBBELL.                          139
sions of the timbers of the trucks and of glass, of small size, about seven by
the bolsters; and we bored the holes for nine, over the sliding windows on each
centre pivots or bolts, on which the side.  John Rupp, my brother, made
bolsters turned, by Mr. Conduce Gatch's the sash. I put the cornice around the
instructions and directions.  Reuben body of the Columbus, under the eave.
Naylor, now deceased, cut the stuff for The model K is a true model of the Cothe trucks out of the rough, by Conduce lumbus, as she was first built, in every
Gatch's directions. No other persons particular, upon Conduce Gatch's plan
worked vpon making the trucks and bolsters and directions.
of the car Columbus. The centre bolts   " I have examined a lithograph drawto go through the bolsters, and all the ing, marked or printed on the face' Coother iron work, except the axles and lumbus,' and in the lower right-hand
wheels, were made by Leonard Forrest, corner' Lith. of Rich'd A. Pease, Albaunder Conduce Gatch's instructions. I ny.' It is not at all like the drawingsfrom
saw Mr. Gatch give him these instruc- which the car Colvumbus was built, and is
tions to make the centre pin, and other not like the car Columbus when she was
iron work. When the Columbus was built.
first put on the road she had a plain   "This drawing or lithograph I have
top, without any railing; after she had placed my signature on, to identify the
been on the road between one and two same. It has a wooden railing on top, with
months, Leonard Forrest made an iron the uprights continued up above the top
railing and put on the top, and seats side pieces, to form the uprights of the
were put on the top for passengers to railing, and has only six sliding winsit on. This iron railing was designed dows on a side, with eighteen panes of
after the Columbus was put on the road. glass. The Columbus neverhad awooden
I saw the drawing given by Conduce railing on0 top, and the sliding windows
Gatch to Oliver Cromwell, and saw it and panes of glass were not so few in
afterwards in Oliver Cromwell's pos- number nor so large in size; they were
session. It was intended to represent more in number and smaller in size.
a car body without any upper bolsters, The Columbus also had a door at one
and without any railing on top, and end, and a pair of steps, and a panel at
there was not any truck or other run- the other, on each side, like the model.
ning gear on that drawing.  The draw- This lithograph has two doors on a side,
ing was on paper, and marked with one at eac j corner.  The trucks on this
yellow paint to show the frame. Oli- drawing are not such as I builtfor the Cover Cromwell was instructed in build- lurabus; the finish and manner of putting
ing the body of the Columbus by Con- the truc- frame together is notlikethe trucks
duce Gatch. I worked in the next shop; made by me for the Columbus in 1831. This
Cromwell also had the drawing in his drawing has Winans' friction wheel
shop; it was a common sketch, and boxes on the tru ks; the friction wheel
there were no dimens ous of the frame and boxes were afterwards put on, in
on it,-not that I saw. There were no 1832, and required double side pieces,
alterations made in the e istance apart being a different construction of truck
of the wheels of the car Columbus. I from  this  put under the Columbus
had charge of that part of the work, wh n she was first built, in 1831. The
that is, the trucks. The beo sters were trucks then had single side pieces, with




140                        ARGUMENT OF
made of locust wood; and sometime plain boxes,andthe percheshadhownes
after she had run on the road, I put and were put together like the model K.
stouter bolsters under her, to carry a I recollect distinctly, for I did the work, asheavier load; the first bolster would sisted by Francis Gatch.  The ground
spring with a heavy load, but the wheels plan of body framing shown in the lithowere not altered, and were ten or twelve graph is not at all like the Columbus.
inches apart, between the flanches, She had four long pieces to sustain the
about the same distance they are used floor,and the two side pieces extended benow on the Baltimore and Ohio road. yond the end pieces, all as shown by the
Mr. Ross lWinans never gave me any in- model K. This lithograph has the side
structions in building the Columbus, and pieces flush with the end pieces, and no
I do not know of his giving any to Oli- long middle pieces to sustain the floor;
ver Cromwell. Idid not know, or hear, it has one cross piece in the middle, exthat I recollect, of Ross TVinans at that tending across in the same direction as
day. The next eight-wheel car built the floor boards shown at the end, and
was the Winchester, and the next was therefore could not sustain them.
the Dromedary; all these cars were the   "Among the many eight-wheel cars
same, in principle of construction and built by me for the Baltimore and Ohio
operation, as Conduce Gatch's cord- Railroad Company, and which I assisted
wood and freight car, with permanent to build, were the trussel cars, on eight
frame, put in operation on the road in wheels, or two trucks of four wheels
November, 1830."                     each; of which great numbers were built
for carrying carriages and horses, and
wagons and stock, and such freight. The
first one or two of these trussel cars for
carrying carriages and horses altogether
harnessed up, in them, was to the best
of my recollection built and used late in
the year 1830. I think in December,
1830, it was used to carry the carriage
and horses of sorle distinguished person
out to the Relay House, sometimes called the Half-way House. I do not recollect the name of the person. This trussel car had two four-wheel trucks, with
bolsters to swivel under the body, the
same in principle as the eight-wheel
wood cars then in use, and the same as
the trussel and other eight-wheel cars
now in general use. The ends of the
trussel or frame let down, with hinges,
for the carriage and horses to go up into
the car. It was about twenty feet long;
long enough for a carriage with the
horses attached to stand up in, and be
transported along the road. Numbers




WILLIAM W. HUBBELL.                              141
of such trussel cars were built in 1831,
and used for transporting stock, hogs
and cattle, when the road opened to
Frederick, in the latter part of 1831.
They were placed upon two four-wheel
trucks which swivelled the same in principle as the eight-wheel cars now in use
generally.  These one or two eightwheel trussel cars, and the eight-wheel
wood cars, of which I have before testified, were all on the same principle, and
were in use on the road in 1830, before
the car Columbus was commenced; she
was commenced in March and finished
in July, 1831, like the model K."
Michael Glenn swears, on page 41   Mr. Nathan Randall, page 72, folio
plaintiff's proofs, folio  184:  "That 280, in speaking of this Michael Glenn,
Francis A. Gatch was a workman with testifies: " I conversed with him in the
Oliver Cromwell; that he did not work in presence of Mr. W. WV. Hubbell about
the carpenters' shop at any time, nor did he his testimony in the Troy and Schenecassist in making the bearing carriages, or tady case. He denied swearing, in that
trucks, or bolsters of the car Columbus, nor case, that the Winchester drew by the
any part of said trucks or bolsters."  body.  He said that it was impossible
Glenn also swears, page 35, folio 157 for him to recollect about the cars; his
plaintiff's proof: " That he was em- mind had been on other pursuits,-he
ployed by said John Elgar in building had been farming for about twelve years,
turn-outs and other work upon the line of and had not had his mind on the subsaidroad, but thathe frequently returned ject of cars. On seeing the model K of
and was employed in said shops; that the Columbus, he voluntarily said,'why,
sometime in the year 1834, the said that is a model of the old Columbus!
Gatch left the employment of said com- here is the perch; I recollect it and the
pany, and did not return again."       iron railing on top.' He said that when
its the employ of the company, his chief employment was in laying down switches; that
he knewl more about laying down switches
than anything else; that he could not recollect much about the cars,-it could not be
expected of him."
It also appears on page 7, defendants'
No. 4, folio 272, that he was agent for
Winans in Baltimore. Edward May
states: " Michael Glenn first came to
me, and asked me to tell him all about
what I knew of the eight-wheel cars.
I was not acquainted with him; and in a
few days afterwards Glenn came again,
and brought Chas. D. Gould with him."




142                 ARGUMENT OF
This Michael M. Glenn shows conclusively that he is not
to be believed in his testimony. He contradicts himself as to
knowing and not knowing that the plaintiff brought a drawing to the shop. He says, in this case, he did not see it
brought there. In the Troy case, he says it was brought to
the shop, I believe by Winans, and laid on Cromwell's table.
The fact is, Gatch brought the drawing to the shop; he
received it from  George Brown, to whom  Winans produced it.
In this case, Glenn makes the Columbus 24 feet long;
in the Troy case, he swore she was 27 feet long. She has
therefore shrunk three feet in his mind, as he now testifies
on a smoked drawing before him, assuming it to be the original, and assuming that the Columbus was built from and exactly like it.
He testified, in the Troy case, that Jacob Rupp and he built
the trucks, and considered it Winans' invention; Jacob Rupp
himself has since been found, and he swears that Francis A.
Gatch and he, Rupp, built the trucks, and Winans gave no
directions, and had nothing to do with them; and that the
smoked drawing, of which the lithograph is a copy, is not like
the drawings from which the car was built, and not like the
car when she was built; the differences he enumerates show
it impossible to have built the car from such a drawing.
Francis A. Gatch worked on both the body and the trucks;
Glenn testifies that he did not work on the trucks.
These facts are corroborated by Conduce Gatch, Forrest and
Eichelberger.
Glenn's statements are flatly contradicted; he professes to
know entirely too much.
His admissions to Mr. Randall, and his own statement,
show that he was principally engaged in laying down turnouts with John Elgar, who it will be recollected was so employed from the commencement of the road until July, 1S32.
Hence Glenn, not knowing the facts as to the work at the
shop, contradicts himself and the other witnesses, and makes
a statement which is inconsistent, as it would be impossible




WILLIAM  W. HUBBELL.                      143
for him to know what was going on in the shops, when he
was away on the unfinished portions of the road, constructing
turn-outs.
The court cannot fail to notice that he contradicts himself,
also, directly as to the trucks. In the Troy case, he seems to
have recollected that the Columbus had thorough brace bolsters, and swore he never saw  such trucks before.  In this
case, he is apprised that that will not do, as now he finds, on
looking at the smoked drawing, that it does not agree, and
hence he swears directly the reverse; he swears that the
trucks were the same as in common use.
In the Troy case, he swore that Gatch gave directions to
build the trucks.  In this, he swears that Winans gave all the
directions.
The truth is, Mr Glenn knows nothing in fact of the particulars of this matter, and his statements cannot be believed.
His belief is not evidence.
I now turn to Oliver Cromwell's testimony, one of plaintiff's
witnesses, who smoked and produced the drawing, at the trial
of the Newcastle and Frenchtown case, to prove that his story
is unfounded, and improbable on its face; and that he is contradicted, and not entitled to weight.
At page 44 plaintiff's proofs, folio   I now turn to Gatch's evidence, plain202, he states, that: "This deponent tf'fs proofs, page 103, folio 491, where,
was employed by the superintendent of in answer to the question as to what
machinery of the Baltimore and Ohio was his position and duty, &c., he says:
Railroad Company."                  " Isuas called the master carpenter; superintended building cars, of various kinds;
purchased all the materials, and had the
supervision qf all the men employed in the
building of such cars.  All the cars that
were built at the company's expense were
built under my direction (except a few
passenger cars), during the years 1830
and 1831."
The court will observe that Cromwell states, in his affidavit, that he was employed by the superintendent of machinery.
I now turn to voucher No. 32, page 106, plaintiff's proofs,
where it will be further seen, from the following pay-roll,




144                  ARGUMENT OF
that Conduce Gatch was master carpenter, and employed, directed and paid Cromwell: "We, the undersigned, do acknowledge to have received from C. Gatch, master capenter,
the amount hereunto set opposite our names, respectively, in
full payment of our services for the time herein specified,
while employed under his direction on duties relating to the construction of wagons, &c., for the Baltimore and Ohio Railroad
Company, November 30th, 1830."
At No. 8, of the list of names of the undersigned, we find:
"No.  Names.        Occupation.
"8. 0. Cromwell,.... Coachmaker, A'c.,.Signed, O. Cromwell."
Showing, by his own signature and acknowledgment, that
he was under the employment and direction of Conduce
Gatch, and was paid by him.
At page 104, plaintiff's proofs, folio 498, in reply to a question, Mr. Gatch says: "Yes, sir; Ipaid them for all the work
done about the making and repairing of cars, whether done in or out
of the shops, and the time was included in the ]pay-rolls I returned."
It appears to us from the statement in Mr. Cromwell's affidavit, "that he was employed by the superintendent of
machinery," that it is intended to leave the impression on
the mind of the court that he was a principal man or conductor, and that Mr. Winans, therefore, handed the drawing
to him, as he testifies. But the fact, as shown in Gatch's
testimony and the plaintiff's pay-rolls, that he was under his
employ as a journeyman, proves that he (Cromwell) was not
the person, in all probability, to whom it was given. He was
a journeyman; and therefore not the person to whom a drawing, with orders to build a car, could or would properly be
given on its first presentation.
In plaintiff's Troy case, also, page 29, Cromwell himself
says that he "commenced working for the Baltimore and
Ohio Railroad Company in 1S30, as ajourneyman; Conduce
Gatch was foreman of the shop." He was not, therefore, a
principal, as has been stated in one of the plaintiff's affidavits, and not the person to whom Winans could give a drawing and orders to build a car.




WILLIAM  W. HUBBELL.                     145
His story, in the material particular of the manner in which
he obtained possession of the drawing, is improbable on its
face, and strongly contradicted by the testimony in the case.
At page 45, plaintiff's proofs, folio  In plaintiff's Troy case, page 67, Reu208, Cromwell says:'" The drawing ben Aler testifies: "It differs in the
shows the body and the running gear, as the trucks; the said drawing shows the
carriage was built."             perch to run all the way through, while,
to the best of my recollection, the perch
only ran half way through ill the C,,lumbus. My recollection is, that the
perch stopped at the bolster, and was
connected with a pair of hownes. The
panels of the body in said drawing ap
pear to me to be wider than they were
in the Columbus  I think the railing on
top is represented differently, but I caninot say positively."
Cromwell is also contradicted on that point by Jacob
Rupp, defendants' No. 4, pages 22, 23-folios 84 to 87; by
Henry Shultz, defendants' No. 4, page 41-folios 155 to 157;
by Edward Gillingham, defendants' No. 4, page 57-folios
220, 221; by Conduce Gatch, defendants' No. 4, pages 25,
26-folios 94 to 101; by Leonard Forrest, defendants' No. 4,
pages 37, 38-folios 140 to 146; by Jno. MI. Eichelberger,
defendants' No. 4, pages 20, 21-folios 75 to 80, and defendants' No. 4, pages 36, 37-folios 135 to 139; by James B.
Dorsey, defendants' No. 4, pages 76, 77 —folios 289 to 290;
by the "Baltimore Patriot," referred to in the affidavit of
John  F. McJilton, defendants' No. 4, page 39-folios 148,
149, of date June 24th, 1831.  Plaintiff's proofs, pages 112,
114, vouchers Nos. 31 and 39, also show that Conduce
Gatch was superintendent, or master carpenter; that the
work was done under his direction, and that he received moneys and paid all the hands in the department.
The counsel on the opposite side attempted to make it appear that Gatch had said at one time that Winans gave him
the drawing, and, at another, that it was given to him by
George Brown. Gatch's testimony here shows that the
drawing wasfurnished by Winans, and handed to him by George
10




146                    ARGUMENT OF
Brown, which reconciles this apparent discrepancy. Cromwell's story, that Winans gave him the drawing, in folio 221,
page 48, plaintiff's proofs, therefore, is quite improbable, as
he was not the principal; and being a journeyman, not the
person to whom it would be given.  But Gatch was the proper man to receive it, as he was appointed, and had power to
direct and superinten(l the work to be done in relation to the
cars.  Cromwell's idea is very extraordinary-that the mere
lengthening of a car shop, as he says, should impress upon his
mind the circumstances connected with the drawing, as he
states them on page 46, folio 211, plaintiff's proofs. He evidently is mistaken; his story is erroneous, it is a delusion.
At page 30, plaintiff's Troy case,  Mr. John A. Currie states, defendCromwell says: "I had the drawing in ants' proof No. 4, page 93: "Smoking
my possession for seven years. I put it drawings or paintings on paper is the mode
up over the stove hole;" which, it is generally resorted to, to give new paintings
alleged, was the cause of the drawing an old appearance."
being smoked irregularly, as it appears.
The drawing does not represent the Columbus; is not the
same from  which the car was built; was not handed to
Gatch, nor seen by our witnesses. Cromwell was a journeyman, and produces it, smoked, at the Newcastle and
Frenchtown trial.
Taking all these circumstances into consideration, it appears
that the smoked drawing, irregularly smoked as it is, was
manufactured for the Newcastle and Frenchtown case; and
that it was thus smoked to conceal the fact that it had not
been used in building the car.  If it had been evenly smoked
on the face, the fact that it had not been soiled, and not been
used, would have been apparent from its fresh and new, or
even and unsoiled, aprearance; but it is smoked in shades,
or irregular-as it would have been soiled by use-to conceal the fact that it had not been used.
It further appears, that Cromwell has been acting as agent
of the plaintiff, from  the testimony of Jacob Rupp, defendants' No. 4, page 23-folio 87, where he says: "Last fall, a
considerable time after I had given my affidavit in this case,




WILLIAM W. HUBBELL.                147
Mr. Oliver Cromwell and Mr. Gould, and some person with
them who I do not know, called on me at my residence in
St. Mary's-street, Baltimore.  l was sick at the time; and
they insisted on talking to me about this matter, and the
affidavit I had given. Mr. Gould said he was astonished at
my affidavit; and said that he had five companies to fight, and
that I ought to lean on his side just a little."
Michael Glenn, it appears, also called on John P. Mittan,
as Mr. Mittan's affidavit shows, page 60, deferdants' No. 4folio 229. He says: "About ten or twelve days ago, Michael Glenn brought a person to me and introduced him; he
took my affidavit."
Then, Oliver Cromwell and Michael Glenn, the plaintiff's
two principal witnesses. it appears, were both agents of the
piaintiff, according to the testimony of Jacob Rupp and Jno.
P. Mittan.
John M. Eichelberger, at page 20, defendants' No. 4-folio
77, states further: 1" Oliver Cromwell, and two persons with
him whom I did not know, called on me at the corner of
Paca and German streets, Baltimore."
All of these facts and circumstances certainly show that no
reliance ought to be placed on Oliver Cromwell.
Henry R. Reynolds is the next witness for the plaintiff.
We will prove that his statement is erroneous. He says, as
to the carriage and horse car of December, 1S30, at page 52
-folio 241: " That one of the four-wheel cars, used for wood
was taken, and boards nailed on the standards. The horses
were then placed on the said car, and other boards were
nailed across the end, so as to inclose the horses on said car,
and prevent them from. being injured while passing over the
road. Another car was then obtained, on which the carriage
was placed; and the two cars-one with the horses as a
load, and the other with the carriage as another load-were
sent from the said Mount Clare depot up the said road."
Now we submit, as a common sense conclusion, that it is
not at all probable that simply nailing boards on the standards
of cars out on the road would have been entered as " two




148                  ARGUMENT OF
trussels for the transportation of horses and carriages," and
returned as work done in the shops.
In plaintiff's proofs, page 109, we find entered, as work
done in the shop, in December, 1830, 1" two trussels for the
tranrsportation of horses and carriages."
At page 104, plaintiff's proofs, in answer to the question,
"Will you look at the papers now shown to you, marked'A, B, C, D and E,' and state what they are?" Mr. Gatch
says: " They are monthly pay-rolls; vouchers for materials
purchased, and repits of work done in the month in the shop, for
the respective months specified in them."
In reply to the next question, on page 104, plaintiff's
proofs, Mr. Gatch says: " The hands were sometimes employed for other purposes than building cars. Such work
was generally charged to the department it belonged to, so
as to charge it to the construction of the road, or wherever
it belonged.  The monthly reports did not mention work done
about the yard, such as relpairing cars and such like; it was of
work done and Jinished in the shop.  There was no other report
made by me."
That shows conclusively that the nailing of these boards
on the standards was not work done in the shop, and not
making trussels, and not such work as was reported. In connection with this, I will read a publication to be found in the
affidavit of Thomas Murphy, defendants' No. 4, p. 55-fols.
210 to 213.
Mr. Murphy states: "'I am seventy-one years of age, and
have been one of the proprietors and publishers of the newspaper printed and published in the city of Baltimore, entitled
the' American and Commercial Daily Advertiser,' from the
1st July, 1810, up to the 30th June, 1853; and have kept
regular office files of the said newspaper, in the office thereof in the city of Baltimore, during the said period, to which
files I now have access. In the said newspaper, printed and
published on December 18, 1830, are the following wordsThe heading reads' American and Commercial Daily Advertiser. Vol. LXII. Baltimore, Saturday morning, December 18,




WILLIAM  W. HUBBELL.                 149
1830. Whole No. 9871.' And at the head of the second editorial
column of said paper of December 1S, 1830, is the following
article:'We learn from  the Gazette, that ex-President
Adams and his lady, Sir William Campbell, and several other
strangers, accompanied by the president and some of the
directors of the Baltimore and Ohio Railroad Company, made
an excursion up the road yesterday morning.  Mrs. Adams'
carriage, with the horses, was, we learn, placed upon a trussel attached to one of the railroad cars, and taken as far as to the Relay House, at Elk Ridge Landing, from which place it proceeded to Washington by the turnpike road.
"' Wale understand that the railroad company have prepared several
of these trussels, by which either wagons or pleasure carriages may
be transported along the road without being unloaded or putting the
passengers to the inconvenience of getting out of their own carriages.
This is certainly a new and imrnportant facility which this admirable
system is capable of affording.'
"r The above is a true copy of the whole of the said publication, and it was printed and published in the said newspaper
on the said 1Sth of December, 1830, and I believe the facts
therein stated to be correct; I never heard them contradicted
nor their truth questioned."
That this was an eight-wheel car is also proved by Edward Gillingham, by Jacob Rupp, and in the plaintiff's suppressed affidavit, presented by the defendants; by Conduce
Gatch and by Leonard Forrest, who, at that time, were
higher in position, and older and more responsible men, than
Glenn and Reynolds.  He and Reynolds must refer to other
circumstances and cars, entirely, if any such boards were
nailed up as he states.
Thomas Walmsley, plaintiff's witness, I will refer to as
unreliable.  In plaintiff's proofs, page 54 —folio 24S, says:
" That he has the impression, but is not positive, that the
said four-wheeled cars were always used singly."
He declined, therefore, to swear positively that there were
no eight-wheeled wood and trussel cars.
I will here remark, generally, that the plaintiff's witnesses




150                  ARGUMENT OF
show that they had no idea of the mechanical organization
of' an eight-wheel wood car or trussel car, as consisting of'
two ordinary four-wheel trucks, with king-bolts and bolsters
supporting the body. And, not having this idea in their
minds, they could not negative that construction and arrangemnent, and hence their affidavits are, throughout,
ambiguous.
Mr. Walmsley, at folio 251 —page 54 of plaintiff's proofs,
speaks of the drawing, and professes to recollect more, after
a lapse of twenty-two years, than he can certify to with the
natter immediately before him. In fact, all the plaintiff's
witnesses swear from impressions or belief as to the drawings; while, with drawings before them, and others presented
to them as copies, they cannot determine whether they are
true copies of the drawings or not; they testify that the copies
are true, omittitng a vital part, the king-bolts, to which I have
before referred. And yet they say, on their oaths, that they
believe the smoked drawing to be the original. We believe
that it is manifestly easier to compare two drawings, than
recollect one for twenty-two years.
The plaintiff also took an affidavit of Jno. P. Mittan; we
took a cross-affidavit.  In the plaintiff's affidavit, Mr. Mittan
is represented as using' the same indefinite language, as to
mechanics, as the others; he, however, does not say that
Winans was the inventor of the eight-wheel car. In the
plaintiff's affidavit he is represented as being employed in
building burden cars; whereas, we show that he was engaged
in?laning up green wood alone. He did not know the principle and construction of the eight-wheel car. He says he did
not notice the cars; and hence his affidavit, as produced by
plaintiff, was written in the same strain with the others, as
though each one recollected all that was done and going on;
when the fact is, that they were not in a situation and capacitated to observe, particularly and exactly, the mechanical
principle and construction of the cars, and consequently were
not competent to testify on the subject.




WILLIAM W. HUBBELL.                151
In the plaintiff's version of Mr. Mittan's affidavit, it is
stated that the Columbus drew by the body, but the time
when it did so is entirely omitted, thus endeavoring to make
appear as if it were soon after the Columbus was built;
whereas, Mr. Mittan, as shown by our affidavit, was away
from Baltimore, out of the employ of the Baltimore and Ohio
Railroad Company, six years; and the time of which he speaks
is in 1537, when he returned and saw the Columbus in all
altered condition.
I will now refer to the testimony of Mr. Jeremiah Myers,
plaintiff's proofs, page 85 —folios 400, 401.  The plaintif-F
pretends that the first eight-wvheel cars used on any roads going
out of Boston were built by him at Attleboro, for a branch of
the Boston and Lowell railroad, by measurement made by
him personally at Philadelphia, from an eight-wheel car built
at Baltimore upon the plan and construction then USED by
the patentee, and that the plan was the same as described
and laid down in the patent.
This affidavit, it appears to us, is intended to give a false
impression as to the time when Myers went to Philadelphia,
and a false statement of the fxcts.  The time is not stated,
neither the road where he made the measurement. IHe also
conceals the measurements; and not only so, but the construction, or machinery, is not stated or described.
The time at which Myers went to Philadelphia was not
till 1837, since no eight-wheel cars were introduced on tlhe
Boston and Lowell road until this time, as shown by the
affidavit of Mr. Lee, page 112 —folios 445, 446 of defendants'
No. 3; and Mr. Grigg's, defendants' No. 3, page 105 —folios
417, 418.
The statement of Mr. Myers is also false in substance, because not one car was constructed according to Winans' plan,
as shown by Mr. Lee, defendants' No. 3, page 112-folios 445,
446; and Mr. Higginson, engineer of the road, defendants'
No. 4, page 83-folio 314; and the Boston and Lowell road
only began to operate in 1835, as shown by Mr. Higginson's
affidavit, same reference.




1 5 2                ARGUMENT OF
Mr. Myers made entirely satisfactory eight-wheel cars, by
joining the bodies of two four-wheel cars on long timbers.
Now, he pretends that he used the old wheels, and made
trucks according to Winans' patent, and placed them on the
Boston and Providence road, and that they were there used
for many years.
The affidavit of Mr. Griggs, in defendants' No. 3, page 104folio 414, shows that the first eight-wheel cars on the Boston
and Providence road-to which Myers also refers-were built
in 1S38; that the distance of the bearing points of the wheels
apart was five feet; that the breadth of the track was four
feet eight and a half inches; and that the distance between
the wheels was twenty-seven inches. So that it is not true
that those cars, nor any cars, were ever built according to
Winans' patent. Myers does not state that he ever built a
car fiton the specification.
Mr. Griggs, defendants' No. 3, page 110-folio 438, says
that the wheels in all the bearing carriages are about the
same distance apart, and that the frames are rigid and square.
Myers says that he measured a Philadelphia car, and built
them according to said measurements; and the fact that the cars
on the Boston and Lowell, and Poston and Providence roads
were constructed with the machinery that Mr. Griggs and Mr.
Lee describe and set forth, proves conclusively that they were
not in accordance with Winans' patent.  The bearing points
of the wheels were as far, and in some cases further apart
than the guage of the track. The trucks were rigid wheelframes, and about seven feet from the ends of the body.
I will also refer, upon that point, to the affidavits of Mr.
Parrott, defendants' No. 3, page 152-folios 608 and 612; and
Godfrey B. King, defendants' No. 4, page 79-folios 298, 299,
309; page S1 —folios 308, 309. We say that, after all, it appears by the testimony that instead of adopting Winans'
running gear, his plan, or his theory, they adopted the Quincy
car, so fitr as the running gear was concerned, as to the distance of axles, and the stiff, rigid wheel frame truck and side
bearing s; and the body was, of course, fashioned for conveni



WILLIAM W. HUBBELL.                153
ence. As Myers does not give the measurements that he
took, it cannot be inferred that he measured the trucks or
running gear; and, in fact, he does not pretend to have done
so. At the time Myers went to Philadelphia, and measured
a car there, eight-wheel passenger cars were in use all over
the country, viz: in 1S38. He went there two years after
the car "Victory" had sprung into existence, and after
many other cars had been built from her.
Tile intent of his statement is to create an impression that
the car he measured came from Ross W\inans.  This is also
contradicted by Henry Shultz, car builder, in defendants' No.
4, page 40-folio 154; and pages 43, 44-folios 165 to 170,
who states that no car whatever, constructed according to
Winans' specification, was in use on the Philadelphia, Wilmington and Baltimore railroad.
1 will now speak of a matter in which my very highly respected friend, Mr. Latrobe, who was a witness in the Troy
case, is involved; and which relates to this drawing of the
Dromedary, now before the court, a copy of which is annexed
as an exhibit to the testimony of Michael M. Glenn, page 40
plaintiff's proofs, folio 182, and page 40-folio 190. Of Oliver
Cromwell, pages 47, 4S —fols. 218 to 221; of John Ferry, page
59-folio 2'74; and Thomas Davis, page 61-folios 2S3, 2S5.
To contradict the statement of these witnesses, which is,
that this drawing represents the Dromedary, I will refer to
the testimony of' John H. B. Latrobe, defendants' Troy case,
pages 19, 20, and plaintiff's Troy case, page 23, in his answer
to the 3d interrogatory:
Mr. LATROBE.-I have not the slightest confidence in my
own mlemory.
Mr. HUBBELL.-At the same time, as you are contradicting your own witnesses, and as you set them up as perfectly
reliable to contradict ours, I am bound to show that in which
you differ from them, that you do not agree among yourselves.
To the third interrogatory,?Mr. Latrobe answers: " That he
recollects distinctly three cars of eight wheels built after the
Columbus, and put on the railroad in 1S34. The first was




154                   ARGUMENT OF
named the Winchester, which was composed of three carriage bodies, built with swelled sides, after the fashion of common coaches, and resting on a framing, which in its turn rested on two trucks, which, as near as witness recollects, were
under the centre of the outer bodies.  The next car was
called the'Comet,' and consisted of five small carriage bodies,
the three inner ones being suspended between the trucks, and
the two outer ones being immediately over the trucks.
"These bodies rested on a platform, composed of two sidepieces, plated with iron, and curved so as to permit the inner
bodies to hang between; the trucks were composed of four
wheels each; and the bolster, instead of resting upon an ordinary
f,5ame, rested upon strong springs, that connected the axles as they
rested upon the outside journals.  The wheels of the trucks were
brought as close together as could be, leaving room for the lower
bolster to rest on the springs between them. The trucks
were under the centres of the outer bodies.  This car was
subsequently altered, but the date is not recollected by witness, so as to put all the bodies on the same line.  Witness
appends hereto a rough diagram, marked' J. H. B. L., No. 1,'
to explain his testimony more fully as regards the form and
construction of the cars above mentioned.
4"The last car was the' Dromedary,' which witness believes
to be represented by the drawing, market' J. H. B. L., No. 2,'
with the exception that the spaces over the truecks were closed up, so as
to make a sort of box' or car body.
I' Deponent does not recollect when these cars were commenced; he speaks of the order only in which they appeared
on tile road; he believes they were all being built at the
same time."  All the other plaintiff's witnesses swear without
reservation that the drawing represents the Dromedary.
This shows that the witnesses do not fiully understand the
drawings and arrangements about which they speak; for the
drawing, it is plain, has not the body extending over the trucks
the car itself had.  Their descriptions are inaccurate in regard to highly important matters in this case, with reference
to the drawings, and are not reliable.




WILLIAM W. HUBBELL.                  1 r 5
I had intended to call the attention of the court to the kind
of wheel used on railroads, and also to the manner of applying
springs and pedestals, as used by the defendants; but for
the present I will, in regard to the wheel, refer to Tredgold's
Treatise, published in 1825, pages 42, 43, fig. 24, plate 3,
where it is shown:
Page 42-3.  "Resistance of the surfaces of the rails.-It
often happens that the great part of the resistance of the
rails arises from  the lateral rubbing of the guides of the
wheels; therefore, it is desirable to give the wheels a tendency to keep in their path with as little assistance from the
guides as possible. For edge-rail carriages, this may be
accomplished by making the rinms of the wheels slightly conical,
or rather curved, as shown in fig. 24.  The carriage will then
return of itself to its proper position on the rails, if' it be
disturbed from  it by any irregularity."  Mr. Hubbell here
explains the figure, and states that this is the kind of wheel
now in general use by the defendants and railroads, the
conical tread and flange being in all cases alike; the connection between the hub and the rill being by spokes in some;
in others, by compensating plates, shaped in various ways.
For the mode of applying springs to the truck-frames,
we refer to plate 111, chap. iv., pages 75, 76, Wood's Treatise
of 1831; and to the Novelty, in Earle's Treatise of 1830.
In Wood's, the pedestal, holding the box of the journal,
and confining the action of the spring normal or perpendicular to the track, is fillly described and shown.  That
is the plan now in general use on both four-wheel and eightwheel cars.
My next point is, as to the extent of railroad track laid in
May, 1830, east and west of Mount Clare.  That the extent
of railroad track laid in May, 1830, west of Mount Clare,
was about 13 miles; and the amount laid east of Mount
Clare, into the suburbs of Baltimore, was about one mile.
I make this reference in order to rebut plaintiff's assertion,
that Rutter and Alay-our witnesses-were in error as to
the track laid in 1S30 and 1831 and'32.




156                    ARGUMENT OF
That the road was open on May 22d, 1830, to Ellicott's
Mills, a distance of about 13 miles, I refer to the testimony
of Jno. Elgar, plaintiff's  proofs, page 24-folio 100. As
to the portion of road opened east of' Mount Clare into the
suburbs of Baltimore, I refer to the 1st volume and 4th annual report of the Baltimore and Ohio Railroad Company,
page 91.
In the report of James P. Stabler, assistant engineer, dated
Sept. 30, 1830, addressed to Jonathan Knight, chief engineer,
it is stated: "6 It will be remembered that, previous to the
determination to run the flanges on the inside of the rails, a
single track had been laid on, the city division, to accommodate
the arrangement for the flange on the outside.  This change
in the mode of using the flange required an alteration in the
said track, which was made by contract during the months of
April and May.  The expense attending this alteration was
as follows, viz.:
"For the straight line, east of MUount Clare, $1.75; and for
the remainder $2.50, per rod run.
Signed,  "JAMES P. STABLER,':Assistant Engineer."
In the same report, dated October 1st, 1S30, we find the
following:
" The City Di.vision1.- This division, which commences at Prattstreet, extends to the'first stone,' or western boundary of the city,
and embraces a distance of one mile and 1 11-3o2- poles, was not
put under contract until about the middle of June, 1S29."
Signed by
" CASPAR W. WEAVER,
" Superintendent."
The road, therefore, was laid east of Mount Clare, about one
mile, in April and May, 1830; and the statement of Rutter,
that he saw the eight-wheel wood cars on it in the fall and
winter of 1830, stands sustained; and of Edward May, that
the rails were laid up Charles-street, to connect with it in
the early part of 1832, is also sustained.




WILLIAM W. HUBBELL.               157
Without further comment on this point, I proceed to my
next subject, which is Mr. Gatch's position.
CONDUCE GATCH.
He is one of the most important witnesses on behalf of
the defendants, and has been very violently attacked by the
opening counsel for the plaintiff, and my object is to show,
as briefly as possible, his position.
In the defendants' Troy case, page 33, it appears that he is
a millwright; that is his trade or occupation, and was at the
time of his employment by the Baltimore and Ohio Railroad
Company. He belonged to a class of men like Oliver Evans,
the inventor of the locomotive steam engine, and numerous
other improvements in various branches of machinery, who
have been among the foremost in improvements, and who,
although millwrights, have not been excelled in ability and
invention in any branch of the mechanic arts by any other
class of mechanics; and are as fully competentto invent, even
more competent, than the majority of other men. Experience.
has singularly shown this to be the fact.
In defendants' Troy case, at page 35, he testifies that 6" he
had the direction of car building." And also in plaintiff's
proofs, page 103-folios 490, 491; and page 104-folios 495,
496, he says: 1" That he had direction of the car building; he
employed and controlled the hands; received and paid them
their wages, and conducted the whole business belonging to
that department." In this he is also fully corroborated by
the vouchers produced by the plaintiff himself, on pages 106
to 114, inclusive, of plaintiff's proofs. I will read from one of
them, on pages 108, 109:




"(C. GATCH.)                                      (VOUCHER No. 58.)                                                     (B.).
W4,e, the undersigned. dr )acknowledge to have received of C  Catch, master  carpenter, the amou,t hereussLo set opposite our names, respectively, in   (
full pa.?meutt of our services f)r the time herein snectfied, white employed under his direction on dutties relating to the construction of Wagons, 4.c., for
the Baltimore and Ohio Railroad Company.  December, 1830.
NJo.          NNAIMes.            Occupation or nature of expen- No. of Term of service. No. of Rate per Aggregate.  Signers' names.   Witnesses,
N o.1~N                                          o _ _ _ _   _ _ __        _ __          _            _ _  _ _  _   _  _ _
diture.           voucher.                days.   day.                                 names, &c.
IC. GCatch................. Master Carpenter.......  From  Dec. 1,   26   $2 00   $52 00  C. Gatch.....
21 l. Glenn................ Carpenter..............to Dec. 31.    13    1 25                      16 25  M. Glenn...
3 J. Rupp..................         do..do                             26    1 25    32 50  J.  ~ Rupp,.    F. A. Gatch.
4F. A. Gatch...............         do..do                             16    1 25    20 00  F. A. Gatch,.
5WV. 0. Frost............           do..do                             26     1 25    32 50  WV. 0. Frost,...
6 E. Eichelberger,.do...............               do          26    1 25    32 50  E. Eichelberger,
7 J. Eichelberger..........Painter..............do                                 16    1 50    24 00  J. Eichelberger,
8 0. Cromnwell,.Coachmaker...................                           do          26    1 50    39 00  0. Cromwell,..
9 H. Reynolds.............. Carpenter......                   do          26    1 25    32 50  HlenryReynolds                       ci
10 L. Forrest.                   Smith..................                   do          26    1 42    26 92  L.   Forrest,           Cromwell 
11 C. Parraway.............. Helper.................do                                26        75    19 50  C.  Parraway 
12 P. Fullerton...                Laborei................                   do         26        15    19 50  P. Fullerton,..                    H
13 D. MeAvoy.Drayman............6...  1.............. 6 91-1 
14 R. Greenough.............Stone, window, sash & glass,    2  1.........    4 00
15iDeaver, Tibles & Jenkins,.. Turning leather nuts, &c. &c    3.............1. 75
16 Wi~n. S. B~rowning.      H-Iardware, glass, oil & paints,    4.............19 16
17 Gillingham & Jessup,          Hardware................    5...2.............I...                   1  91
$416    90~-  _ _ _  __   _ _  _  _  _
"I certify that the above account, amounting to $416.90i is correct, and that the articles and items therein charged were procured and
applied in aid of the construction of the Wagon for the Baltimore and Ohio Railroad Company, December 31, 1830.    C. GATCH, Al. C.
Amount.................................... $416 90j
Error inNo. 1..............................              10
$416 80j
"Baltimore, 1st January, 1831, Received of Geo. Brown, Treasurer, the amount of the above account.                             C. CATCH.




"I believe the above is correct.                                                 G. BROWN, Treasurer.
"Audited. Four hundred and sixteen dollars and eighty and a half cents, (416.801.)  W. WOODVILLE, Auditor.
"(Approved.)       P. E. THOMAS, P.                                          JOHN N. BROWN.
Work done in December, 1830.
"Two plain box wagons, Nos. 41 and 42.
"Two trussclsfor the transportation of horses and carriages.
"One baggage wagon.
"One plain box wagon, No. 43.
" Tofitting up Col. Long's wagon with springs, glass, 4c.
"To making 160 lights sash for shop.
"To making 4 plain box wagons, Nos. 44, 45, 46 and 47.
"To making new sides for coach, with brakes, complete.
"1 new pair of shafts; 13 pair repaired.
"Smith work for the above; painting."
C-0




160                 ARGUMENT OF
He then, as shown, was a person in the trust and full confidence of the Baltimore and Ohio Railroad Company, and
was not a mere hired workman, as it has been insinuated, for'the purpose of casting odium upon him. No greater reliance
could have been placed in any man than was reposed in Mr.
Gatch; and therefore the imputations attempted to be fastened on him are not only disproved by the vouchers produced by plaintiff, but display an improper and prejudiced
feeling on the part of the plaintiff's counsel and witnesses.
And at this time, also, there is no more respectable man,
nor any more deserving of confidence and esteem, than Conduce Gatch. He is a mechanic of the highest order of' intellect; sound and unflinching in his views; of inflexible
integrity; and all the stigmas that have been hurled at him
fall harmless at the feet of such a man]; they rather recoil
on those who have aimed them at hill.
With a view further to show that Mr. Gatch took charge
of the shops, and employed men to work under his direction,
as early as the 3d April, 1830, I refer to his affidavit in defendants' No. 4, page 35-folios 131, 132. And I introduce
this here for the double purpose of showing the time at which
the persons there named commenced their work under his
direction, and that lie was in full charge of this department as
carly as April 3d, 1830.
Timber Cars, 1S30.
The next point to which I shall allude is as to the timber
cars. And here I make this proposition: That, under Chief
Justice Taney's instructions, the timber cars, on eight wheels,
used in the spring of 1830, embodied the same principle and
mechanical construction as the cars of the defendants. I say
again:
1st. That they practically embodied the principle of the
eight-wheel car, as built by the defendants, in the fact that
the timbers, as secured by the standards, held by their own
weight on the bolsters, and the trucks swivelled under the
body, burden, or load.




WILLIAM W. HUBBELL.                 161
2d. No new principle, nor substantially new arrangement
would be effected by bolting the body of timber fast to the
bolsters, to make the connection more permanent. Such an
act would be no new invention.
The plaintiff, I understand, admits that the timber cars
existed before Winans' alleged invention; and therefore I
will not refer to all the testimony on this matter.
I will, however, call the attention of the court to the affidavit of Conduce Gatch, in defendants' No. 1, page 29-folios
181, 186, and particularly to folio 183, as to the distance of
the axles apart, which he states was " two feet ten inches in
each of the trucks."  Also, the deposition of Jacob Rupp,
defendants' No. 2, pages 14, 15-folios 53 to 58. Also, to the
testimony of Thomas McAMechen, in defendants' No. 3, pages
41, 42, 43-folios 163 to 170, inclusive. Jacob Rupp there
testifies that "he built these cars by Gatch's instructions,
and under his directions;" that "they were used in May,
1830;" that 4"the distance, apart, of the wheels in each
truck was about six or eight inches;" and that "the timber
held by its own weight;" "and that persons often rode on
the timber."
The counsel for the plaintiff has contended that the timber
will slip; and in order to illustrate this, a piece of wood, proportionately a little larger than and in the shape of a lath,
that a school-boy could carry, was brought into court.
When the cars are loaded, they have a very heavy weight
or load of timber upon them, causing, of course, considerable
adhesion, or violent contact between the bolsters and the
body of the timber.
Now, till the counsel can prove-which he never can-that
it requires less power to cause timber to slip or slide on bolsters than it does to compel the wheels of a carriage to revolve
on their diminished journals, he cannot demonstrate that the
timber would slip. It is perfectly manifest that the weight
of the timber will hold with greater tenacity to the bolsters
than will the lubricated axles to the boxes. It requires the
one four-hundreth part of the weight only to draw a car, by
11




162                   ARGUMENT OF
causing the wheels to revolve; and that timber would remain
in a body on the bolsters, just as steady as though it had fifty
spikes driven through it into the bolsters. The simple addition of spikes driven through the timber does not enable the
trucks to fulfill their functions with greater completeness,
neither does it alter the principle of the car and the physical
organization of the running gear. And when a man comes
before a court of justice, and attempts to convice it that more
power is required to cause the wheels to move on their axles,
lubricated as they are, than to compel the timbers to slip, he
undertakes to prove that which no living man can prove.
Were such the case, wheels had better be dispensed with altogether, and freight and passengers be propelled on a sledge,
to slip or slide along the rails without the use of wheels.
Such arguments as plaintiff's are very frail and feeble.
They will not answer for a sound, practical mind; and hence
Judge Taney's views are to the point precisely. We, however, do not use the timber cars to destroy the plaintiff's patent, unless it should be construed so largely as to include
both the defendants' cars a'id the timber cars.
In the fourth section of Chief Justice Taney's instructions
to the jury, that judge shows that he knew what mechanical
principles were, and he knew the relations between a rolling
and sliding surface; and the very basis and elements of mechanics is infused into those views and instructions.
The chief justice says, at section 4, page 21, plaintiff's
proofs: "' The plaintiff having claimed, in his specification,
as his invention, the manner of arranging and connecting the
eight wheels of a railroad carriage, in the manner mentioned in his
patent, for the purpose of enabling burthen and passenger cars
to pursue a more smooth, even and safe course over the
curves and irregularities of a railroad, he is not entitled to recover, if the jury find from the evidence that, before the time
when the plaintiff claims to have made this discovery, carriages with eight wheels, arranged and connected substantially
in the same manner, and upon, the same substantial principles with
those described by the plaintiff in his patent, were known




WILLIAM W. HUBBELL.                  163
and had been publicly usedfor the purplose of transportilg long
timber more smoothly, evenly and safely over the curves and irregularities of a railroad than could have been done in cars of the
ordinary construction, with fouzr wheels. And the circumstance that
those timber cars were used only for temporary purposes, and were
formed by using two ordinary four-wheel cars, with the hind and for
wheels close together, as bearing' carriages, and without any car body
upon them, cannot affect the question now before the court."
These latter words show that the judge understood mechanics sufficiently well to know that the draft applied to
cause the wheels to move did not affect the whole body of
timber, in its position on the bolsters, in relation to the active
principle of the arrangement.
The defendants in that case, however, asked that such
organization should be considered as invalidating the plaintiff's patent. But, under our construction and view of Winans'
patent, we do not present it in that light here. We present
it as an organization of the principle of an eight-wheel car, or
swivelling motion of two four-wheel trucks, under the one
body, burden, or load, with the trucks constructed, as defendants' witnesses testify, of rigid wheel-fiames, and the wheels
six or eight inches apart in each truck; substantially the same
construction and action as the defendants' cars, with the exception that the wheels are closer together than they manufacture them, although they are not so close as Winans' specification calls for.
One of these timber cars, as shown by Thomas McMechen,
"was permanently connected," to distinguish it from permanently holding by the load. It was connected by a piece
extending from the king-bolt of one truck to the king-bolt of
the other.
To explain what he states, more fully, I will read his evidence on this subject:
He says: "I was one of the superintendents and contractors on the Baltimore and Ohio railroad, in the years
eighteen hundred and twenty-nine and eighteen hundred and
thirty.  I was superintendent in 1829, and contractor in 1830.




164                  ARGUMENT OF
While I was contractor, in 1830, between the month of
March and the month of May, the long timbers, called stringpieces, used in making the track-the pieces being six inches
square, and from sixteen to forty-eight feet in length-were
hauled on the track nearest Baltimore, on eight-wheeled cars;
and, by means of these eight-wheeled cars, they were delivered wherever required. One of these eight-wheeled cars
consisted of two four-wheel trucks, having regular truckframes, holding the axles of the pairs of wheels parallel to
each other, and the wheels in each truck were about six or
eight inches apart; and in this space between them was a
brake, similar to what is in use now on various roads in
eight-wheeled cars. The frames of these trucks had stout
cross pieces for bolsters, and were planked over with the
other part of the framing, holding the whole frame firmly
together. On top of each of these four-wheel trucks was
placed an upper bolster, secured to the middle of the trucks
by a vertical centre pivot; and these two trucks, with their
bolsters, were permanently fastened together, a considerable
distance apart - about twenty feet apart — by a long stringpiece, six inches square; being one of the pieces, the same
as the rails were laid with. This piece of timber secured
the trucks this distance apart by resting on the middle of
the bolsters, and the centre pivot of the bolsters going down
through a hole in each end of the timber, and through the
bolsters.
" Upon top of the bolsters, also, of this eight-wheeled
carriage, thus permanently connected or organized, the long
timbers or string-pieces were placed and transported on the
road wherever required; and on their removal from the car,
the car still remained as before, an organized body, and was
drawn back for another load. This was the construction and
operation of the eight-wheeled car, that delivered the timber
on the road along side of my contract.
" The car ran on a road that was laid in 1829, and on the
track that it was running or finishing out; and I saw the car
daily. I finished my contract in May, 1830, and, after




WILLIAM W. HUBBELL.                165
visiting Pottsville, Pennsylvania, I returned; and in July,
18S30, for about three weeks, I superintended the laying of
rails on the second division of the Baltimore and Ohio railroad, beyond or west of Ellicott's Mills; and after this, in
August, 1830, I was attached to the engineer corps, on the
survey of the Baltimore and Susquehanna railroad, and had
no further connection with the Baltimore and Ohio railroad.
I am certain that this eight-wheeled car, constructed and
operated as I have described, was used during the latter part
of April and fore part of May, 1830; and persons used to
often ride on it when it was running on the road. The
trucks turned under the bolsters, to suit the curves and other
inequalities of the road; and in point of principle of construction and operation, my opinion is, that it was the same
substantially as the eight-wheeled platform, and freight and
passenger cars, now used on the various roads."
The connection with a bolt or pivot through the bolster,
was an arrangement which could be accomplished in 15
minutes; and the only difference between that and the timber
resting on its own weight is, that the one has the bolt through
it, and the other has not; but depends on the adhesion of
its great weight alone. The timber connected with its own
weight and side standards, was just as secure for the practical
purpose of transportation and use of the swivelling principle.
It developed the combination and organization for the time,
as much as though it had been bolted there; and, as Judge
Taney very properly says: " The circumstance that those
timber cars were used only for temporary purposes, &c.," or
"for a limited time, without any car body on them" (for all cars
and machines are limited when it comes to time), "cannot
affect the question now before the court."
It certainly cannot be contended, for a moment, that the
exercise of a common mechanical act in driving spikes through
boards is the invention of an eight-wheel car; and yet, mechanically, it comes down to that. The principle, the operation, the user, are there proved in 1830, and that is everything, as Chief Justice Taney's instructions show; for the same




166                 ARGUMENT OF
impression is so apparent in that charge that it cannot be
viewed in any other light; and we say that they are substantially-in their features of construction and action, in their
principle and general character —the same as the cars made
by the defendants, as distinguished from the plaintiff's specification.
This is also confirmed by Leonard Forrest, in defendants'
No. 2, page 18 —folio 74, who says: " That the timber cars
were the same as the wood cars, with the exception that the
timber laid by its own weight," and thus formed the connection and organization in principle, the same as defendants use.
Wood Cars, 1830.
My next object will be to prove that eight-wheel, doubletruck, swivelling, long-bodied wood cars, for the transportation of amounts of' cord-wood, were made and put in use, in
the ordinary business of transportation on the Baltimore and
Ohio railroad, as early as November, 1S30, and continued in
use for years; thus being prior to the Colunmbus, and embodying all the essential principles of that car, so far as relates to
the running gear, and the connection of the same with the
frame or body.
Mr. Elgar's testimony as to the time when the smoked
drawing of the Columbus was produced, and the facts connected with it, was contradicted by himself in the Troy case,
and by all the other witnesses of the plaintiff. The testimony on both shows that there was a drawing in February, 1831; whilst these eight-wheel wood cars went into
operation in November, 1830, prior to the alleged drawing
some three or four months. To prove this, we rely upon the
following testimony:
First.-Conduce Gatch, defendants' No. 2, pages 20, 21folios 81 to 84; No. 4, page 24-folios 90 to 94; No. 4, pages
34, 35 —folios 129 to 134.
The construction of these wood cars, as differing from the
timber cars, consisted in driving bolts through the stringpieces, which had been procured for the construction of the




WILLIAM W. HUBBELL.                167
road; a slight change, requiring but a few hours' work. Mr.
Gatch testifies that these cars were fitted up on the track in that
manner, with string-pieces or timbers originally procuredfor the
construction of the road, in November, 1S30, and that they were
used for the transportation of cord-wood. We see at once that
the first article, naturally presented for transportation on a
railroad, would be the wood in the line of the road; and
we also see how natural it would be, after having used these
timber cars, organized in May, 1830, and during the following
months, for the construction of the road-how natural it
would be for any mechanic, having charge of the construction of cars, to drive bolts through two of these string-pieces
for the purpose of laying the cord-wood thereon, and to move
the standards to support the wood at the ends.
To the testimony of Jacob Rupp, defendants' No. 2, pages
14, 15-folios 54 to 59, and 65; defendants' No. 4, page 22
-folios 82 to 84; defendants' No. 4, page 62-fdlio 239.
Mr. Rupp assisted in making these cars. He was a prominent workman; and a more open, honorable, honest man
than Jacob Rupp is not to be found in the city of Baltimore.
He has, by his uprightness and industry, made himself comfortably well off. Such a man is an ornament to the
community in which he lives, and to a country like this.
Upon such men the country is to rely for its stability and
practical advancement; and such men are entitled to great
weight and consideration in a court of justice. An attempt
has been made to stigmatize him as a workman, as though
there were an aristocracy and a feudal system here; as if
some were to be believed because they wore fine clothes or
assumed official distinctions, and others not, because they
were industrious, and earned their bread by the sweat of
their brow. We know no such doctrines and principles in
this republic; and we depart from the true character of our
government, and the fundamental principles of our institutions,
when such notions as this are sustained, or become popular.
By the testimony of Leonard Forrest, defendants' No. 2,
pages 18, 19 —folios 72 to 77; defendants' No. 4, page 17



168                 ARGUMENT OF
folios 62 to 63; defendants' No. 4, page 18-folio 67; defendants' No. 4, page 19-folio 73; defendants' No. 4, page
38 -folio 146.
Mr. Forrest is a man with none to excel him in his branch
of business. The very best of work produced by smiths is
the work of Leonard Forrest; and it is so known, generally,
in the city of Baltimore. A more reliable man-a more
sound man-a more skilfull man in the working of irona man of more strength of mind, tenacious memory and accurate observation-is not to be found than Mr. Forrest.
He testifies to the same mode of building these wood cars;
and, as he did the iron work for them, it cannot be supposed
that he is ignorant of the fact, and the circumstances connected therewith.
Better witnesses than these cannot be obtained.  To
whom does the law look for knowledge and evidence on such
subjects? Will this court look to men who were engaged in
keeping books, without sufficient mechanical discrimination
to distinguish between one piece of machinery and another,
as to its arrangement, construction and development of action,
rather than to those who did the work, who had it before
them —not only by observation, but who had it in their
minds to give it form-to make it-to create it?  Certainly
not. The latter is the class, and whom we have produced;
to whom the law looks, and to whom the law would send us,
for the purpose of ascertaining the facts.
By the testimony of John A. McClarie, defendants' No. 3,
pages 83, 84-folios 331 to 334; and Murphy's affidavit, immediately following.
McClarie is now in the prime of life, and at that time
was a smart and observing boy; and there is this fact connected with him-that his pursuits in after life show-that
his tendency of mind was towards railroad cars, for he has
been since connected for years with the running of them.
The observation of them has become his pursuit in life.
It was natural, therefore, for him to observe and recollect
such a fact; and a boy of that kind, with such a predisposi



WILLIAM W. HUBBELL.               169
tion, could remember that he saw some of the rioters brought
into Baltimore, on an eight-wheel car, with boards put on
it; hence there is strong probability that McClarie is correct,
particularly as the men who manufactured the cars testify to
their having been in existence before and at that time.
By the testimony of William E. Rutter, defendants' No. 3,
pages 156 to 158-folios 624 to 632.
Mr. Rutter says that he saw these cars, in the winter of
1830, take cord-wood down the slope east from Mount Clare.
The plaintiff attempted to contradict that statement, by
saying that there was no track laid there; but we prove that
there was a track laid there in April and May, 1830, by the
report of James P. Stabler, assistant engineer on the Baltimore and Ohio railroad, dated Oct. 1st, 1830, and contained
in the 1st volume of reports of the company.
Mr. Rutter worked for Buddy and Colvin; and he says that
they built some cars for the Baltimore and Ohio Railroad
Company, before they had a shop of their own sufficiently
large to do their business; and Wm. Woodville, auditor and
master of transportation of the Baltimore and Ohio road, and
one of the plaintiff's witnesses, fully supports him in this, at
plaintiffs' proofs, page 32-folios 137, 138.
MIr. Rutter also says that he is positive that he saw these eightwheel wood cars running on the Baltimore and Ohio road in 1830,
before the Columbus was commenced; and he recollects when she
was begun, was in the habit of going where she was being
constructed, and knew the men who built her.
This is positive and direct evidence; and how can it be
possible —as the plaintiff's witnesses assert-that these wood
cars were not there until 1835?
Conduce Gatch, who left the road in May, 1834, testifies
to the same fact; so that it is utterly incredible and impossible
that the plaintiff's witnesses are correct when they say, and
simply from recollection, that they were not there until 1835.
The very men who made them left the employ of the company previous to that time, and they cannot be mistaken.




170                 ARGUIMNENT OF
Mr. Rutter was entirely independent of the company; but
his mind had a strong inclination to observe railroad machinery, as his after life shows, and he testifies positively that he
saw them before the Columbus was commenced; that they
were the first eight-wheel cars that he had seen in his life, and
that he left Baltimore in the summer of 1S32.
By the testimony of Edward Gillingham, Defendants' No.
4, pages 56, 57, 58-folios 214 to 222.
This gentleman is the son of George Gillingham, who was
the superintendent of machinery of the Baltimore and Ohio
road, and since dead; and, although we have lost what he
knew upon the subject, still we have the positive testimony
of his son that these eight-wheel wood cars were on the road in
1830, and before the Columbus. He describes them of the
same construction as do the others of our witnesses; i. e.,
two four-wheel trucks, having king-bolts and bolsters, with
string-pieces bolted to the bolsters, and standards at the ends
of the string-pieces. He saw these wood cars there in 1830,
and recollects them distinctly. His father had a shop there,
and did work for the conlpany; and he was often there, assisting in mechanical duties. His mind was on mechanical
subjects, and he cannot, therefore, be mistaken.
He is now in the employ of the Baltimore and Ohio Railroad Company, as a clerk in the machinery department; is
a gentleman of much respectability; one whose observations
on such a subject enable him to determine how these wood
cars were constructed, and the date at which they existed;
which he testifies was in 1830, and before the Columbus was
built, or even thought of.
By the testimony of John Rupp, Defendants' No. 3, pages
43, 44-folios 172 to 1.79.
John Rupp resides in Hanover, Pennsylvania. He went
to Baltimore in April, 1831, worked on the Columbus, and
when he arrived there these eight-wheel wood cars were in
existence on the Baltimore and Ohio road, and he, of course,
as he testifies, saw them at that time. He left in 1832, and
returned to Hanover, and cannot, therefore, be mistaken.




WILLIAM W. HUBBELL.              1 1
The entries in the time book of Gatch prove Mr. Rupp's
statements as to time, showing that he came in April, 1831;
which shows that the plaintiff's witnesses cannot be correct
in drawing the inference that they were not there until 1835,
simply because they do not recollect them, or did not particularly observe them.
By the testimony of John M. Eichelberger, Defendants'
No. 4, page 21 —folio 80; and page 37-folio 139.
Mr. Eichelberger was engaged as a painter in the service
of the Baltimore and Ohio Railroad Company, and recollects
these wood cars. There was no question in his mind but
that they were eight-wheel wood cars, and that they hauled
cord-wood.
I next refer to the extract from the Baltimore Gazette, of
date Wednesday, January 19, 1831. 4" The Railroad is now
furnishing," &c., &c., to be found in defendants' No. 4, pages
45. 46 - folios 172 to 174, inclusive. That newspaper makes
a matter of record on January 19th, 1831, of the fact " that
a conveyance for wood had been furnished by the Baltimore
and Ohio Railroad Company;" that the effect had been
to keep the price of wood down that winter; that they
would continue to do so, from the quantity furnished; and
that the cars were exactly suited to this purpose.
By the testimony of James B. Dorsey, defendants' No. 4,
page 75-folios 282 to 285, and 289; and page 77-folios
277, 27S, 291 to 296.
Mr. Dorsey testifies that he went up to Frederick, in the
latter part of 1831, and remembers examining one of these
wood cars, which had been s" constructed in Frederick, under
the direction of Joshua Dill, the agent of the railroad company;" so that the building of these cars was not confined
to Mount Clare, but they were so well known that one, with
a railing around, was put together some sixty miles from
Baltimore, in 1832, and was seen by Mr. Dorsey, and when
he came to Baltimore he saw on the road large numbers of
these eight-wheel wood cars, fixed with string-pieces; they
were then a common car, in extensive use. Neither can he be




172                  ARGIUMENT OF
mistaken in the time; for he left in 1832, and went to Columbia, and thence on the Frenchtown road. The plaintiff's
witnesses, therefore, must be in error.
I next call attention to the second volume and sixth annual
report of the president and directors to the stockholders of
the Baltimore and Ohio Railroad Company; and therein, to
the report of William Woodville, superintendent of transportation, dated 1st October, 1832, commencing: "Sir, the
period," &c., &c.: " By reference to these papers," &c., &c.
And, in the table "M, No. 7," to the article "4450 tons of
firewood," &c., under the entry of transportation, as wood carried during the winter of 1831.
I have shown, by a public newspaper as well as by witnesses, that wood was transported in 1830. And although
there was no account of it kept and reported in 1830, and
from the 1st of January, 1831, still, in corroboration, we find
in the reports that, from the 1st October, 1831, to the 1st October, 1832, the large amount of "4480 tons of firewood"
were transported.
The testimony of Gatch, Rupp and Gillingham shows that
more of these wood cars were constructed in 1831; that they
then carried double tiers of wood; that it was a very cold
and inclement winter; and, that four-wheeled cars were also
pressed into use, in consequence thereof, some of them having standards set up in the boxes, and others, pieces laid on
the platforms, and fixed or fastened in that way.
All these facts, so far as they go, confirm, fully and entirely,
the evidence of the defendants' witnesses-that eight-wheel
cars commenced carrying wood in the fall of 1830.
By the testimony of Edward May, defendants' No. 3, page
46-folios 181, 184, 186 to 188.
Mr. May is now a merchant, and a hardware dealer in the
city of Baltimore. He was, originally, a carpenter by trade
and occupation; has been very successful, and is an intelligent and respectable man. He went to the Charles-street
shop in the latter part of 1831, to assist in fitting up the
shop; and did assist in putting new standards in these wood




WILLIAM W. HUBBELL.               17 3
cars. The track was laid from the Charles-street shop, running up Pratt-street, to Mount Clare. It had been laid in
Pratt-street before; it ran in the direction of Mt. Clare.
This track was laid from the corner of Charles and Camden,
up to Pratt streets, in the early part of 1S32; and Mr. May
there saw some 15 or 20 of these wood cars, during the
exceedingly cold winter, in which the greatest demand for
them occurred. They had been brought there for the purpose of having new standards put to them, which repairs
Mr. May did himself. He left in 1833; and one of the eightwheel cars —the Winchester or the Dromedary-was then
being constructed. In the spring of 1832, he testifies to these
wood cars being there. He assisted in putting standards on
them, and they were old cars; they had the appearance of
having been in use a long time. It was his business, not
only to see and observe, but to understand their construction,
organization and their condition. It was perfectly natural
for him to do so, because it related in a measure to the history of his life as connected with that road; it was something
he had done and observed, and bore a close relation to his
regular business. Men are more likely to remember that
which is intimately connected with their business, and their
own acts, than those who, from mere observation, testify as
to what their recollection was or was not, in regard to events
in which they were not actually concerned.
By the testimony of Henry Shultz, defendants' No. 4,
pages 40 and 42-folios 154, 157 to 159 inclusive, who was
there with Mr. May, and states the same facts as to the cars.
I next refer to the report of James P. Stabler, assistant
engineer to Jonathan Knight, chief engineer, dated September 30th, 1830. On page 81 of the 4th annual report of the
president and directors to the stockholders of the Baltimore
and Ohio Railroad Company, 1st volume of reports, commencing with the words —" After the commencement," &c.,
Mr. Stabler there reports that a large quantity of these
string-pieces, which the witnesses testify they used to construct these wood cars, was deposited near Mount Clare and




174                  ARGUMENT OF
Pratt-street; and that it was then thought they might not be
required for building the road, as stone sills were to be used.
And hence the string-pieces, being so well suited for the construction of these cars, were at hand for consumption, and
a few of them were used for that purpose.
I also refer to the 6th annual report, volume 2, pages 75 to
82. On page 75, to " office of construction," &c., 1"Sept. 30,
1832," from "the following report," &c., as far as "from
the commencement of the work." On page 78, to i" scantling
procured for the railway has been used for building, for
bridges, for various ]parts of the machinery connected with the road,
and for a variety of other purposes."  On page 79, to "the
whole amount," &c., and from  " 6x 6 inch yellow pine and
other scantling," &c. On page 82, to "leaving 64,260 feet
appropriated to other puqrloses, as before mentioned."
That report of Mr. Stabler shows that 64,260 feet of this
timber was used for machinery and bridges, &c., and hence,
the plaintiff's assertion, that the entries on the pay rolls should
have shown the purchase and use of these string-pieces, is
unfounded.  The string-pieces were there, already purchased
by the superintendent of construction, and the work was
rough, out of door work; they were put together out on the
track, and hence Mr. Gatch very properly did not report them
as new cars, nor as new stock. There was no report of such
work needed, and none was made; and he could not have been
expected to have reported them as lumber, purchased by him
for the company, when he did not purchase it; it was already in their possession. All these witnesses whom I have
referred to, prove clearly and fully that the mere change, occupying but a few hours, of bolting these string-pieces fast to
the bolsters of the timber cars, and allowing them to remain
permanently in that way, was done in 1830, and that cordwood was transported upon these wood cars prior to the comnencement of the Columbus; so that the plaintiff's witnesses
must be mistaken in the inference which the plaintiff attempts
to draw from their testimony, because they do not recollect
that the cars were there until 1835, whilst the very men who




WILLIAM W. HUBBELL.               175
built them had left the service of the company, many of them
long before that time. They were certainly there and in use
in November, 1830.
Trussel Cars, 1830.
My next object is to prove that the eight-wheel, double
truck, trussel cars were made, and in use for transporting
horses and a carriage together in the same trussel, and upon
eight wheels, at least as early as December 17th, 1830, being
prior to the planning and building of any eight-wheel passenger car; and for which I rely upon the following witnesses:
Jacob Rupp, defendants' No. 4, pages 63 to 6S-folios 141
to 264; Jacob Rupp, defendants' No. 4, pages 61, 62 —folios
237 to 239; Leonard Forrest, defendants' No. 4, page 38folios 144 to 146; Jno. M. Eichelberger, defendants' No. 4,
page 37-folio 139; Edward Gillingham, defendants' No. 4,
page 56-folios 214 to 219; Conduce Gatch, defendants' No.
4, page 35-folios 132 to 134; Conduce Gatch, plaintiff's
proofs, page 104-folios 495 to 497; " Exhibit B," plaintiff's
proofs, page 109; containing " Two trussels for the transportation of horses and carriages;" Extract from "Baltimore
American," date December 18S, 1830; Defendants' No. 4, page
55-folios 210 to 213; Extract from "Baltimore Gazette,"
date December 17, 1830; and, Jno. S. Sumner, defendants'
No. 4, page 48-folios 184 to 186; John Rupp, defendants'
No. 3, page 43-folio 172; John Rupp, defendants' No. 3,
page 44-folio 174.
Mr. Jno. Rupp assisted to fix up a car, similar in description, in 1831; but all these other witnesses, and the entries,
show clearly that in December, 1830, two of these eightwheel trussel cars, with a framing around, and end pieces to
let down with hinges, were constructed and in use; that they
transported the carriage and horses of John Quincy Adams;
and that the construction of the trussel part was made a
matter of record upon the pay-rolls, because it required considerable work, was an addition of new stock, and comparatively expensive.




176                 ARGUMENT OF
The newspaper publications fixed the date fully, and the
descriptions contained in them corroborate the witnesses who
built the cars.
Our witnesses testify that it was one long body (thle trussel) resting upon two ordinary four-wheel trucks, which were
well suited for such a purpose; that they were strong and
comparatively small in size; that the carriage and horses were
put in this trussel or car, and thus taken on the road. The
pay-rolls show that two were built, and the newspapers show
that more than one was built; that one trussel carried the
carriage and horses; that it was hitched behind one of the
passenger cars, in which some of the directors and Mr. Adams
were seated; and that it was a novel and convenient mode
of transporting horses and carriages, as they could be driven
up the slopes that let down on to the platform, or trussel,
without being unloaded.
The plaintiff's witnesses say that they nailed some rough
pieces of board on two four-wheeled cars, to carry the carriage and horses of Mr. Adams; if they did nail such boards
on such cars, they are mistaken as to the person, and it must
have been before that time.
It is not at all probable that a mere casual rough piece of
work, as that would be, was reported in the newspapers; it is
utterly inconsistent; it cannot be believed; for they were
very different cars described in the papers and reported in
the pay-rolls.
The meaning of the word " trussel," is a body supported
on two objects; which shows it to have been an eight-wheel
car-consisting of two four-wheel trucks-to the mechanical
mind, and it was very natural to have organized such a construction, after the timber and wood cars.
There was, however, no new principle about it, and no
invention to form the basis of a patent, especially not by the
plaintiff, who was not the originator of it.
The plaintiff alleges that there could not have been any
wood or trussel cars on the road before the appearance of the
Columbus, in July, 1S31, and relies upon the following statements:




WILLIAM W. HUBBELL.                17
1st. That the officers and others connected with the road,
in more or less responsible positions, do not remember seeing
such cars until 1835.
2d. That the said trussel and wood cars were not specifically mentioned in the reports as eight-wheel cars.
3d. That no specified charge appears in relation to them in
the pay-rolls of the company.
In answer to the first proposition, I say that Philip E.
Thomas does not dispute their existence, and he was president of the road; neither does George Brown, the treasurer;
John Ferry, the clerk; George Maxwell, a machinist; Lloyd
Claridge, a painter; and Thomas Davis, a conductor; and all
these are the plaintiff's witnesses. Edward May, plaintiff's
witness, page 124 plaintiff's proofs, folio 542, says that in
"1832 he saw the wood cars," and thus contradicts others of the
plaintiff's witnesses, who say they were not there until 1835.'William Woodville, another of the plaintiff's witnesses, does
not dispute the existence of the trussel cars; and all the
other witnesses of the plaintiff were not concerned in building such cars; Glenn was laying down switches, Cromwell
was a coachmaker, and Woodville was keeping the transportation books; and besides which, it does not appear that he
had a mechanical mind, and powers of observation and discrimination in mechanics, sufficient to identify a change as
to principle in any cars whatever.
In reply to the second proposition, I say that the car Columbus was in existence in July, 1831, on eight wheels, and
no mention is made of her in the reports between that time
and 1834, although she cost a considerable sum of money;
still she was there on the road, and so were the others; and,
if she were not noticed, it is natural to suppose that the wood
and trussel cars, which were but of trifling expense, comparatively, should be omitted also, although they were there.
In answer to the third proposition, I say that the trussel
cars are reported in December, 1830, on the pay-roll; that
the timber for the wood cars was purchased for the construction of the road, by the superintendent of construction, and
12




178                 ARGUMENT OF
is stated to be at the depot, September 30th, 1830, in the
report of James P. Stabler.
James P. Stabler, in his 6th annual report, accounts for all
this timber since the commencement of the construction of
the road; and reports that 64,260 feet, running measure, were
used for bridges and machinery on the road.
Judge NELSON.-These wood cars, of which you speak,
are of no moment in the case, unless it can be shown that
they were brought out before the Columbus; it is of no importance to show that they were there after the Columbus.
Mr. HUBBELL. — We show, conclusively, may it please the
court, that they were there as early as November, 1830,
which is long prior to the existence of the Columbus. Their
use, after the Columbus, goes to the question of abandonment.
The pay-rolls that the plaintiff produces do not show work
done on the Columbus; and neither was suclh work done on
the wood cars in the shop. It was done out on the road, as the
testimony of Conduce Gatch shows. It is also a reasonable
supposition that, had such work been done in the shop, it
would not have made its appearance on the pay-rolls, as it
was not attended with an outlay of money by Gatch.'" Winans' cars," as reported, were "friction wheel cars."
This gave rise to the name, "Winans' cars," being fiequently used. The appellation, " Winans' cars," did not
refer to the eight wheel cars; and whenever " Winans' cars"
were mentioned by Gatch and others, it meant the friction
wheel cars, and not the eight-wheel cars. See Gatch's payroll, page 111, plaintiff's proofs for November, 1831, before
the Columbus was thought of.
Columbus.
I will now advert briefly to the Columbus; and, although
Ross Winans probably produced a sketch or plan of the body
framing of the car Columbus, without any bolsters or running gear, yet, that the person who made the arrangement
of the running gear, which was merely repeating what had




WILLIAM W. HUBBELL.                179
before been done upon the wood and trussel cars, was Conduce Gatch. To prove this, we rely upon Conduce Gatch,
Troy case, pages 33, 34, from " In the first passenger car,"
&c., down to " date of Mr. Winans' patent."  The time
being corrected through his time book entries, defendants'
No. 4, page 35 —folio 131; defendants' No. 1, page 29folios 185, 186; defendants' No. 1, page 30-folios 191, 192,
193; defendants' No. 2, pages 2t, 22-folios 85, 86; defendants' No. 3, pages 25, 26-folios 94 to 101; defendants' No.
3, page 27 -folios 104, 105.
John M. Eichelberger, defendants' No. 2, pages 23, 24folios 94 to 96; defendants' No. 4, pages 20, 21 —folios 75
to SO.
Jacob Rupp, defendants' No. 2, pages 15, 16-folios 59 to
64; defendants' No. 4, pages 22, 23-folios 84 to 89.
Leonard Forrest, defendants' No. 2, pages 18S, 19-folios
74 to 76, 77; defendants' No. 4, pages 17, 18, 19-folios 64
to 72.
John Rupp, defendants' No. 3, pages 43, 44 —folios 172
to 179.
William  E. Rutter, defendants' No. 3, pages 157, 158folios 626, 631, 632.
Edward Gillingham, defendants' No. 4, pages 57, 58bfolios 219, 220 to 222.
John P. Mittan, defendants' No. 4, page 5S-folios 223
to 225.
Henry Shultz, defendants' No. 4, page 41-folio 157.
Thomas Murphy, defendants' No. 4, page 10-folios 152,
153.
Extract from "Baltimore American," of date July 4, 1831.
John S. Sumner, defendants' No. 4, page 47 —folios 179,
180.
Extract fromn " Baltimore Gazette," of date July 2d, 1S31.
Many of these witnesses swear positively that they saw
the drawing from which the Columbus was built; and that
it was simply the body framing, similar to the exhibit which
was handed to the court with their testimony, without




180                 ARGUMENT OF
boards nailed upon it, and without finish, without bolsters
and without trucks. They testify positively to that representing the drawing from which the Columbus was built, as
to the body. They also testify that Gatch drew the running
gear on a board, similar to the drawing handed to the court;
and from it the trucks were built.
In the building of the Columbus, it is manifest, from the
history of the development of this principle on the Baltimore and Ohio road, that it was unnecessary to give Gatch
any directions as to the passenger cars; for all he wanted
was the size and dimensions of the body, which was precisely what the drawing contained. He could ascertain, by
laying his rule on it, whether the scale was 3 or ~ an inch to
a foot. He could tell that it was not I an inch, because that
would be 36 feet long and 10 feet high, and entirely out of
proportion.
In the Troy case, one of the witnesses says that he saw
him measure it, and so he did; and the drawing being 18
inches long and 5 inches high, with a scale of a of an inch
to a foot, would make it 24 feet long and 6- feet high,
which is about the proper size; and that was the size of the
body. He measured it to obtain this scale and size. He
had fixed the running gear before on similar cars. It was no
trouble for him to make a similar drawing of the two trucks;
which he did, and from which the men worked in building
the car. There was no trouble about it, nor was it anything
new. In that way, the Columbus was planned and built;
and when she appeared on the road she was not spoken of
by the papers of the day, nor by the reports of the company,
as a new principle, but simply as a large car, on eight wheels,
for passengers.
Winans' friction wheel is spoken of in the company's reports as a new and important invention; and if Winans was
the inventor of the Columbus, why was she not spoken of as
his, and something new and important as an invention, and
not simply as a large and capacious car on eight wheels?
Winans himself did not consider that he had invented her,




WILLIAM W. HUBBELL.                181
and never has sworn that he did. All that we find recorded
in relation to her is consistent with what our testimony shows
was done before, because she did not embody any novel principle or material change of organization.
As the court has heard the testimony on this point, I will
not consume time by repeating it, but will pass to another
part of the same subject.
The plaintiff, in order to prove that Winans really planned
and contrived the arrangement of the running gear of the car
Columbus, relies upon two species of testimony:
First.-Witnesses.
Second.-A smoked drawing.
In answer to the plaintiff's witnesses, the defendants rely
upon the following testimony; and in answer to the plaintiff's alleged drawing, the defendants prove that the car Colurnbus was not built in conformity with the alleged drawing,
in any material particular, but was produced according to
defendants' model presented to the court.
The defendants' witnesses are James B. Dorsey, defendants' No. 4, pages 76, 77-folios 287 to 291; John M. Eiclielberger, defendants' No. 4, pages 36, 37-folios 135 to 139;
Leonard Forrest, defendants' No. 4, pages 37, 38 —folios 140
to 144; John P. McJilton, defendants' No. 4, page 39-folios
147 to 150; Extract from " Baltimore Patriot," of date June
24th, 1831: " Surrounded by an IRON railing," &c.; Henry
Shultz, defendants' No. 4, page 41 —folios 155 to 158; Jollhn
P. Mittan, defendants' No. 4, pages 58, 59-folios 228 to 230;
Jacob Rupp, defendants' No. 4, pages 60, 61-folios 231 to
239; Edward Gillingham, defendants' No. 4, pages 56, 57folios 214 to 222; Conduce Gatch, defendants' No. 4, pages
29 to 34-folios 107 to 129.
The plaintiff's witnesses evidently speak, in their testimony, from their general recollection of the appearance of the
Columbus, she being a yellow car, with trucks and perches,
and the drawing is also painted yellow, displaying trucks and
perches. They do not specify any details either in physics
or mechanics sufficient to prove that they recollect the con



182                  ARGUMENT OF
struction, or the manner in which the pieces were connected
with each other. And when they testify to the best of their
remembrance, they are very likely to be mistaken in regard
to the identity of the drawing with the Columbus.  That
species of evidence, on a matter of this kind, cannot prevail
against a close examination into the mechanics. The question whether a certain car was built from a certain drawing,
cannot be determined from a general glance at a drawing, or
recollection of the car. It can only be determined by a close
comparison of the mechanical structure and arrangement,
the mode of fixing the parts together, and their formation.
And it is upon such an examination that the defendants' witnesses show that the drawing now before the court, and produced by the plaintiff, was never seen by them, and was not
the design from which the Columbus was constructed.
The defendants' witnesses gave particulars; they say that
the trucks in the drawing are not like it; that they are friction wheel boxes, and that the Columbus had not, when first
built, friction wheel boxes, but she had plain boxes; that she
subsequently had friction wheel boxes, which, not answering,
plain boxes were again put on the trucks. Leonard Forrest made
the bolts for the plain boxes when she was first built, and
Conduce Gatch testifies that she had plain boxes on at first;
that she was afterwards altered, and friction wheel boxes put
on; that the trucks had to be constructed to suit the alteration; that they were tried, and after finding they would not
answer, they were removed, and plain boxes were again put
on. The witnesses do not contradict each other, but those
on behalf of the plaintiff fall short of the statement of all the
facts.
Mr. Gillingham, who is the son of the person who made
these friction wheel boxes, testifies that she had plain boxes
on when first built; that subsequently the friction wheel
boxes were made at his father's establishment, and put on in
1832, at the Charles.street shop.
The smoked drawing has not the same construction of
trucks that the Columbus at first had; the timbers are not put




WILLIAM W. HUBBELL.              183
together in the same way; the perch is not of the same formation as when she was first built; she then had a straight
perch, with hownes. This perch on the drawing is tapered, and
has no hownes. The drawing shows friction wheel boxes;
whilst she had plain boxes when first built. The drawing
shows six sliding windows on a side, three feet by two feet
each; she had nine or ten sliding windows on a side, each
about two feet square. Such windows as the drawing shows
could not have been put there with such a frame-the number of uprights is too few; the car was built with more uprights on a side. The bottom framing is not the same; they
are not placed in the same way. It has only two longitudinal
timbers; the Columbus had four; she had middle timbers
running lengthways to support the floor. The side pieces
did not terminate flush with the end pieces, as appears in this
smoked drawing —they projected beyond the end pieces.
This smoked drawing also shows the uprights continuing up
through the roof, thus making a wooden railing; whilst there
never was a wooden railing on the Columbus, and the dimensions of the panes of glass over each shutter were not so
large; also the shutters and panes of glass were more numerous. It is utter folly to say that the Columbus was built
from that drawing, as it is not, in the first place, even a working drawing. A drawing from which a car is to be built
must be a drawing in detail - such a one as Mr. Gatch made,
and such a one as was handed to him; and when the plaintiff attempts to support this drawing by showing that the
Columbus was built from it, it is utterly an impossibility. In
the drawing, there is no eave to the roof; the Columbus had
an eave to turn off the rain; it is said also that the Columbus carried great weight on the top; and is it to be supposed
that in such case the side pieces would be run up through the
roof, as shown in this drawing, instead of the ends supporting
it, as exhibited by the model?  They are alike only in the yellow
and drab paint on the body and doors. There are no thorough
brace bolsters in the drawing, and the Columbus had them.
It does not approach her construction in 1831; and when a




184                 ARGVUMENT OF
comparison is made between them, the attempt utterly fails,
and seventeen material mechanical differences, which tell no
false tales, are found to exist, every one of them sufficient to
prove that she was not built from the smoked drawing.
They are enumerated and fully stated in the following testilnony: page 129-folio 109-defendants' No. 4:
1st. This drawing has the bottom side pieces of the body
frame flush with the box part of the body at the ends.
The car Columbus had these side pieces to project about
four inches beyond the box part of the body at each end, and
rounded off like the model.
2d. This drawing has a body representing two doors on the
same side, one at each end of the side. The car Columbus had
one door at one end and a pair of steps at the other end of the
same side of the body, and the two doors, and the two pair of
steps were placed, the doors diagonally to each other, and the
steps diagonally to each other, as shown in the model.
3d. This drawing has seven side, and two end uprights,
showing two doors and six sliding windows on a side. The
dimensions of the open space of the sliding windows is one
and a half inch high, by two'and a quarter~inches long, which,
at three-quarters of an inch to the foot, would be two feet
high and three feet long.
The car Columbus had ten or eleven side uprights and two
end uprights, forming nine or ten sliding windows, one door
and a panel for a pair of steps on a side; and the dimensions
of the open spaces of the sliding windows was about two feet
square, like the model.
4th. This drawing has panes of glass above the sliding
windows, which measure five-eights of an inch broad by threequarters of an inch high, which, at three-quarters of an inch
to the foot, would be ten by twelve inch panes of glass.
The car Columbus had panes of glass above the sliding
windows about seven by nine inches, certainly not larger than
seven by nines, and instead of being only eighteen in number
over the slides, there were in the car twenty-seven or thirty
in number on each side.




WILLIAM W. HUIBBELL.              185
5th. This drawing represents wooden uprights of the same
size as the uprights of the body, and a wooden railing with
net work on top of the body.
The car Columbus never had a wooden railing on top.
When she first came out on the road she had iron uprights,
with a scroll and iron baggage rods on top, as shown by the
model; and in the spring of 1832, she had iron uprights put
on her to secure an awning to, and a wire net-work secured
to these iron uprights, for the convenience of passengers.
6th. This drawing represents the top of the car as without
any eave to project over the top side framing pieces.
The car Columbus had an eave projecting over each side
of the body, to throw the rain off clear of the sides of the
body.
In my opinion, no mechanic, who understood his business,
would build a car with a roof to be supported inside of the
framing, as indicated by the drawing, as it would neither
throw the water off at the sides nor rest on a firm basis; it
would not properly sustain a heavy load of baggage or passengers. The roof of the car Columbus rested on top of the
framing of the body.
7th. This drawing has no opening at each end through the
railing there shown, for passengers or persons to pass through,
and no visible means for persons or baggage to be taken on
top. The car Columbus had two iron uprights, tipped with
brass balls at the head of the steps at each end, and ropes
from them for persons to ascend the steps and pass through
on top, and these formed a finish to the baggage rods, all as
shown by the model.
8th. This drawing measures four and a quarter inches from
the middle of the bottom framing pieces to the top framing
pieces, which, at three-quarters of an inch to the foot, would
give five feet eight inches as the height from the floor to the
top, inside. This would be too low for an ordinary sized man
to stand up in with his hat on.
The car Columbus was high enough inside for a tall man
to stand up in with his hat on, and have it just touch the




186                  ARGUMENT OF
top, and was about six feet six inches high inside from the
floor to the top.
9th. This drawing has the side fiaming piece immediately
below the panes of glass, to measure on the scale of threequarters of an inch to the foot, about three and half inches
in width, and the top side framing piece to measure two inches in width. Two inches in width would not be sufficiently strong to support a roof safely, particularly when it is to
carry a load on top, and the uprights are three feet apart, as
in the drawing or lithograph.
The car Columbus had the uprights of the frame about two
feet apart, and the side framing pieces at the top rested on
the uprights; they were mortised into it, and the roof rested,
with an eave projecting over the sides, on top of these upper
side framing pieces; and these upper side framing pieces were
wider and stronger than the framing pieces that were immediately below the glass, because the upper framing pieces had
the weight of the roof and any load that might be placed
on it to sustain, and therefore needed to be the largest and
strongest.
10th. Referring now to the ground plan of the framing for
a car body, shown in this drawing or lithograph, the same
difference, as mentioned first, is seen in the side framing pieces
not projecting beyond the end pieces. Also this ground plan
has no middle pieces extending longitudinally and parallel
with the side framing pieces to support the floor in the middle.
The car Columbus had two middle pieces, or timbers between the side pieces, extending longitudinally and parallel
with the side pieces to support the floor of the body, as shown
in the model.
11th. As to the running gear. This drawing shows bolsters at a distance from the centre of' the bolsters to the end
of the body, a little over one-fourth the length of' the body.
The car Columbus, as built by me, had the bolsters distant
from the ends of the body to their centres each one-fifth the
length of the body. I recollect distinctly that I placed them
at one-fifth, so that two-fifths should balance each other; one



WILLIAM W. HUBBELL.                187
fifth on each side of each bolster, and the remaining fifth in
the middle of the body should be sustained by the main
strength of the body itself.
12th. This drawing or lithograph shows a plain bolster to
the trucks and body, and does not show any king-bolt.
The car Columbus had a thorough brace bolster and kingbolt to each truck, as shown in the model.
13th. This drawing does not show any side bearing friction
rollers to enable the trucks to swivel easily.
The car Columbus had side bearing friction rollers in the
truck bolsters, two to each truck, as shown in the model.
14th. This drawing shows perches, tapered and passing
directly through the body of the truck bolsters, and without
any hownes or braces.
The perches of the car Columbus were not tapered; they
were straight, and did not pass directly through the body of
the truck bolsters; they were pillowed upon and notched into
the top of the truck bolsters, as shown in the model, and had
hownes.
15th. The car Columbus had the end pieces and bolsters
of the trucks notched into the tops of the side pieces, and an
iron rod or bolt passing under each bolster, securing the side
pieces; and the side pieces were rounded at the ends, horizontally, all as shown in the model.
This drawing has no iron rod or bolt under the truck bolsters to secure the side pieces together; has the bolsters and
end pieces pillowed on the side pieces, but not notched into
them; and has the ends of the side pieces rounded vertically,
not horizontally.
16th. This drawing shows the large semi-circular boxes on
the trucks that were used to inclose Winans' friction wheels,
in the latter part of 1831, on some four-wheeled cars, and in
the early part of 1832 were tried with Winans' friction wheels,
chilled on the inner surface, on the Columbus, for which she
had to have new truck-frames made, with the side pieces, consisting of two timbers, bolted together, and a curved mortise
in them for the friction wheels to run in, and thus protect




188                  ARGUMENT OF
them from dust as much as possible; the side pieces of the
first trucks put under her were single timbers, and not such
as the inclosed Winans' friction wheels were afterwards
applied to. The journals of the friction wheels did not,
though, come through the metal of the box inclosing them,
as appears in the drawing; that is not mechanical; the journals of the friction wheels rested in boxes bolted to the side
pieces, inside of the boxes, such as shown in the drawing,
and the sides of these large boxes were solid, and inclosed
the under side of the friction wheel and its bearings. The
chilling of the inner surface of the friction wheels and inclosing them in these boxes was, at that time, thought to be an
improvement worth a trial; but owing to the accumulation
of dust in the box, by passing through the hole where the
axle passed into the friction wheel, and the cutting of the
metal, it was found impossible to make the friction wheels
answer, and they were abandoned generally, and plain boxes
were again put on the Columbus.  The car Columbus, when
first built, had small plain boxes on her, and the side pieces
of the trucks were single timbers, like the model.
17th. This drawing or lithograph,in the ground plan, shows
a body cross piece or bolster to the framing, and then a
shorter bolster, having a ring to pass between it and the body
timber or bolster. This ring passing between them indicates
that they move upon each other, or that the shorter one is
the truck bolster. This position of' the ring between them
will not, in mechanics, admit of any other conclusion than
that the shortest bolster is a truck bolster. This truck bolster measures, on the lithograph, three inches and nine-sixteenths, which, at three-quarters of an inch to the fobot, would
make it 57 inches long, being the same length as the guage
of the track of the Baltimore and Ohio railroad, and wholly
insufficient to reach across the truck from one side piece to
the other of such trucks as the Columbus was built with, as
the side pieces were outside of the wheels, like the model.
The car Columbus had truck bolsters about seven feet long,
and also had a safety coupling rod between the trucks, like
the model, which this drawing has not.




WILLIAM W. HUBBELL.               189
It is proved, seventeen times over, therefore, that the position of the plaintiff is incorrect, and that the drawing had no
existence at that time, and of course was subsequently made,
in 1832-'33 or'34. We prove, by two processes, that the
drawing did not exist at the time, but that it was subsequently
made, with friction boxes corresponding, in a measure, with
those under the Columbus in 1832. The draughtsman who
made that smoked drawing has not been particular enough to
make the body correspond with the Columbus, or with the
skeleton drawing which was handed to Gatch in 1831. The
principle was not new, and Gatch needed nothing more than
the outline of the body. The plaintiff's witnesses are entirely mistaken in their recollection or belief on the subject.
Winans himself was engaged in engineering pursuits and
iron machinery, experimenting with chilled and friction
wheels, planning machinery for the inclined planes, and looking after the steam engines, in 1831. And for reference, in
relation to the manner in which he was engaged, I will, in
addition, call the attention of the court to the fifth annual report of the company, in 1831. To the report of John Elgar,
of date September 30, 1831, pages 99, 100. To the report
of Jonathan Knight, of date October 1st, 1831, page 22, vol.
1, of reports. Also, to the report of Jonathan Knight, of
1833, pages 36, 37, 38. Also, the report of Jonathan Knight,
of 1834, pages 26, 27; also to page 28.
In all these reports, there is not a single statement made
from which the inference can be drawn that WVinans was experimenting on eight-wheel cars. I also refer to the report
of Geo. Gillingham, dated Oct. 1st, 1834, in which he mentioned the Winchester, the Dromedary, the Comet, and four
others, made out of four-wheel cars; but he does not pretend to
say that Winans was the inventor of them. The reason is
evident, i. e., it was not for a moment openly pretended that
he invented the eight-wheel car, and the engineers consequently did not so report; but had it been so, as they were in the
habit of stating how Winans was employed, the fact would
have appeared prominently in the reports before the 1st of




190                  ARGUMENT OF
October, 1834; and as it is not mentioned, it not only shows
that Winans was not the inventor, but it proves that it was
in general use on the road, and that the principle, in this country and in England, was old.
Conduce Gatch left the employ of the company in May,
1834; and it appears that Winans' long cherished hope and folly,
thefriction wheel, had utterly fjiled in 1833 and 1834, and as his
fortunes were sinkilng, and Gatch was away, he conceived the idea of
getting uly a speccfication for an eight-wheel car. He thought
somebody might get some sort of a patent, and he did so, in
the language in which it now appears, apparently avoiding
the wood and trussel cars, and Columbus, previously constructed.
According to our understanding of it, it does not include or
comprehend the Columbus, in her original construction; it
does not include the wood cars; it does not include the trussel cars; neither does it include the cars made by the defendants; but if it be construed to include them, then we say
the specification and patent are too broad.
We have exercised our best judgments in regard to the
extent of Winans' patent; and we have arrived at the conclusion in our own minds, that its phraseology and conditions,
and peculiar features, have required us to present the testimony in the.manner in which it has been submitted. Of
course, we have no right to pre-suppose that this court will
decide in any particular way, and therefore we rely upon an
alternative, viz: if Winans' patent be so broad as to cover
the rigid wheel-frame eighlt-wheel cars, with the wheels say
fifteen or twenty inches apart, and not " as close together as
possible, to nearly coincide with the mean radial line," then
it is too broad, and void in consequence thereof.
That is our position in relation to the wood cars as well as
the others, and we contend that they in 1830 were substantially the same as those now manufactured by the defendants and in general use, and we have offered the testimony of
Messrs. Stewart and McAlpine, and many others, as showing
that fact. We submit that we have proved fully:




WILLIAM W. HUBBELL.                191
1st. That the wood cars, or frame on eight wheels, used in
1830, are substantially the same as the defendants', and before
the time of the plaintiff's alleged invention.
2d. That the trussel car on eight wheels, used to transport
carriages and horses in December, 1830, is substantially the
same as the defendants', and before the time of the plaintiff's
alleged invention.
3d. That the eight-wheel car Columbus, contrived and
built by Conduce Gatch, and in operation July 4, 1831, is
substantially the same as the defendants', and before the time
of the plaintiff's alleged invention.
The Comet, 1834.
The next and last point to which I will very briefly adveit
is, that the plaintiff's alleged invention was first embodied in
the Comet, which was the last car built in 1834, before the
date of his patent, and is described by his specification. The
car Comet had the big springs, connecting the axles with the
wheels, as close as could be without touching; there being a
space of half an inch between them, and coupled under one
body. It was different in its machinery, in that particular,
from the Columbus, the wood and trussel and the other cars.
He therefore intended to describe it in his specification, and
does describe it; and such is the theory that he has embodied in it. He does not state whether she had inside or outside bearing, although I presume that his intention was to
include both. There is no mode of drawing the car described,
and consequently the mode of drawing by the body cannot
be claimed.
Winans' Specification.
And in order to prove that the whole theory and machinery
of WVinans' specification is a fallacy and pernicious, I will refer to the following list of witnesses, with reference to their
testimony on this important part of the case:
William B. Aitken, defendants' No. 2, page 5 -folio 19.




192                 ARGUMENT OF
Henry Waterman, defendants' No. 3, pages 64 to 66- folios 256 to 262.
Jacob Schryack, defendants' No. 3, page 40 -folios 157 to
159.
WVm. T. Ragland, defendants' No. 3, page 68 -folios 269
to 272.
Albert S. Adams, defendants' No. 3, pages 114, 115 -folios'456 to 458.
George Stark, defendants' No. 3, page 70 —folios 278 to
280.
Charles B. Stuart, defendants' No. 3, pages 89, 90- folios
356, 357.
Walter MIcQueen, defendants'. No. 3, page 103 - folios 409
to 411.
George W. Smith, defendants' No. 3, pages 81, 82 —folios
321 to 327.
George S. Griggs, defendants' No. 3, pages 109, 110-folios
425 to 439.
Wim. J. McAlpine, defendants' No. 3, page 93 - folios 370,
371.
Wm. Raymond Lee, defendants' No. 3, page 111-folios
441 to 443. In which he corrects his affidavit in defendants'
No. 1.
James H. Anderson, defendants' No. 3, page 118-folios
470, 471.
Asahel Durgan, defendants' No. 3, pages 114, 115 -folios
456 to 458.
John B. Winslow, defendants' No. 3, page 121 -folios
482, 483.
Henry W. Farley, defendants' No. 3, page 129 - folios 513
to 515.
John Crombie, defendants' No. 3, page 126 -folios 502 to
504.
Albert Bridges, defendants' No. 3, pages 134 to 136 - folios 536 to 542. In which he corrects his deposition in defendant's No. 1.




WILLIAM W. HUBBELL.               193
Robert Higham, defendants' No. 3, pages 133, 134 —folios 529 to 534. Also a correction of testimony in defendants'
No. 1.
Isaac Adams, defendants' No. 3, pages 138, 139 —folios
551 to 560. Also a correction of affidavit in defendants'
No. 1.
J. Van Rensselaer, defendants' No. 3, page 137 —folios
544 to 548. Also a correction of affidavit in defendants' No. 1.
Wm. C. Young, defendants' No. 3, page 150 -folios 598 to
600.
Wm. P. Parrott, defendants' No. 3, pages 153, 154- folios
611 to 614.
Charles Minot, defendants' No. 3, page 159 -folio 637.
Godfrey B. King, defendants' No. 4, pages 81, 82-folios
307 to 309.
Stephen Ustick, defendants' No. 2, page 6 —folios 21, 22.
Oliver Byrne, defendants' No. 2, pages 12, 13 -folios 47
to 50.
Edward Martin, defendants' No. 2, pages,. 34, 35 -folios
143 to 145.
George Beach, defendants' No. 2, pages 36, 37 — folios
151 to 155.
Stephen W. Worden, defendants' No. 2, pages 39, 40 — folios 164 to 168.
Henry Shultz, defendants' No. 3, page 44 —folios 168 to
170.
These prove the doctrines and machinery of the specification false and pernicious.
I must thank your honor for the kind attention manifested,
confident that I have to some extent wearied you-but with
a consciousness that I have endeavored to progress in this
matter as fully and carefully as possible-although, perhaps,
I have fallen short of the extent that its importance deserves.
I will now leave it in the hands of my able colleague.
13








NTOTE.
The following is the specification of Ross Winans, as embraced in his patent, upon which this suit is based:
THE UNITED STATES PATENT OFFICE.
To all persons to whom these presents shall come, Greeting:
Tis IS TO CERTIFY, That the annexed is a true copy from the Records of this
office of Letters Patent, issued to Ross Winans on the first day of October,
eighteen hundred and thirty-four.
IN TESTIMONY WHEREOF, I, Charles Mason, Commissioner of Patents, have caused
the Seal of the Patent Office to be hereunto affixed this seventh day of
[L. s.] June, in the year of our Lord one thousand eight hundred and fiftythree, and of the Independence of the United States the seventy-seventh.
CHARLES MASON.
TIE UNITED STATES OF AMERICA.
To all to whom these Letters Patent shall come:
WHEREAS, Ross WVinans, a citizen of the United States, hath alleged that he has
invented a new and useful improvement in the construction of Cars or Carriages
intended to run on Railroads, which improvement he states has not been known
or used before his application; hath sworn that he does verily believe that he is
the true inventor or discoverer of the said improvement; hath paid into the
Treasury of the United States the sum of thirty dollars, delivered a receipt for
the same, and presented a petition to the Secretary of State, signifying a desire
of obtaining an exclusive property in the said improvement, and praying that a
Patent may be granted for that purpose: These are therefore to grant, according
to law, to the said Ross Winans, his heirs, administrators or assigns, for the term
of fourteen years, from the first day of October, one thousand eight hundred
and thirty-four, the full and exclusive right and liberty of making, constructing,
using, and vending to others to be used, the said improvement: a description
whereof is given in the words of the said Ross Winans himself, in the schedule
hereto annexed, and is made a part of these presents.




196                               NOTE.
IN TESTIMONY WHEREOF, I have caused these Letters to be made Patent, and the
Seal of the United States to be hereunto affixed.
GIVEN under my hand, at the CITY OF WASHINGTON, this first day of OcI[. s.]  tober, in the year of our Lord one thousand eight hundred and thirtyfour, and of the Independence of the United States of America the
fifty-ninth.
BY THE PRESIDENT:    ANDREW  JACKSON.
JOHN FORSYTH, Secretary of State.
CITY OF WASHINGTON, to wit:
I DO HEREBY CERTIFY, That theforegoing Letters Patent were delivered to me on
the first day of October, in the year of our Lord one thousand eight hundred and thirtyfour, to be examined; that I have examined the same, and find them conformable to law;
and I do hereby return the same to the SECRETARY OF STATE within fifteen days from
the date aforesaid, to wit, on this first day of October, in the year aforesaid.
B. F. BUTLER,
Attorney General of the United States.
The Schedule referred to in these Letters Patent, and making part of the same,
containing a description in the words of the said Ross Winans himself of his
improvement in the construction of cars or carriages intended to run upon railroads.
To ALL WHOM IT MAY CONCERN: Be it known that I, Ross Winans, civil engineer of the city of Baltimore, in the State of Maryland, have invented a new
and useful improvement in the construction of cars or carriages intended to travel
upon railroads, which improvement is particularly adapted to passenger cars, as
will more fully appear by an exposition of the difficulties heretofore experienced
in the running of such cars at high velocities, which exposition I think it best to
give in this specification for the purpose of exemplifying the more clearly the
object of my said improvement.
In the construction of all railroads in this country which extend to any considerable distance, it has been found necessary to admit of lateral curvatures, the
radius of which is sometimes but a few hundred feet, and it becomes important
therefore so to construct the. cars as to enable them to overcome the difficulties
presented by such curvatures, and to adapt them for running with the least
friction practicable upon all parts of the road. The friction to which I now
allude is that which arises from the contact between the flanches of the wheels
and the rails, which, when it occurs, causes a great loss of power, and a rapid
destruction of or injury to both the wheel and the rail, and is otherwise injurious.
The high velocities attained by the improvements made in locomotive engines,
and which are not only sanctioned but demanded by public opinion, render it
necessary that certain points of construction and arrangement, both in the roads




NOTE.                             197
and wheels, which were not viewed as important at former rates of traveling,
should now receive special attention. The greater momentum of the load, and
the intensity of the shocks and concussions, which are unavoidable even under
the best constructions, are among those circumstances which must not be neglected; as the liability to accident is thereby not only greatly increased, but the
consequences to be apprehended much more serious. The passenger and other
cars in general use upon railroads have four wheels, the axles of which are placed
from three and a half to five feet apart; this distance being governed by the
nature of the road upon which they run, and other considerations. When the
cars are so constructed that the axles retain their parallelism, and are at a considerable distance apart, there is a necessary tendency in the flanches of the
wheel to come into contact with the rails, especially on the curvatures of least
radius, as the axles then vary more from the direction of the radii. From this
consideration, when taken alone, it would appear to be best to place the axles as
near to each other as possible; thus causing them to approach more nearly to
the direction of the radii of the curves and the planes of the wheels, to conform
to the line of the rails. There are, however, other circumstances which must
not be overlooked in their construction. I have already alluded to the increased
force of the shocks from obstructions at high velocities; and whatever care may
be taken, there will be inequalities in the rails and wheels, which, though small,
are numerous, and the perpetual operation of which produces effects which
cannot be disregarded. The greater the distance between the axles, while the
length of the body remains the same, the less is the influence of these shocks or
concussions; and this has led, in many instances, to the placing them in passenger cars at or near their extreme ends. Now, however, a compromise is most
commonly made between the evils resulting from a considerable separation and
a near approach, as by the modes of construction now in use, one of the advantages must be sacrificed to the other.
But it is not to the lateral curvatures and inequalities of the road alone that
the foregoing remarks apply. The incessant vibration felt in traveling over a
railroad is mainly dependent upon the vertical motion of the cars in surmounting
those numerous, though minute obstructions which unavoidably exist. The
nearer the axles are placed to each other, the greater is the effect of this motion
upon the passengers, and the greater its power to derange the machinery and the
road. It becomes very important, therefore, both as regards comfort, safety and
economy, to devise a mode of combining the advantages derived from placing
the axles at a considerable distance apart with those of allowing them to be
situated near to each other. It has been attempted, and with some success, to
correct the tendency of the flanches to come into contact with the rails on curved
and other parts of the road, making the tread of the wheel conical. And if the
traveling upon railroads was not required to be very rapid, this would so far
prove an effectual corrective, as the two rails would find diameters upon the
wheels which would correspond with the difference in length, the constant tendency to'deviation being as constantly counterbalanced by this construction;
but at high velocities, the momentum of the body in motion tends so powerfully
to carry it in a right line as to cause the wheel on the longer rail to ascend considerably above that part of the cone which corresponds therewith. The conse



198                               NOTIE.
quence of this is a continued serpentine motion, principally, but not entirely, in
a lateral direction.  Nor is this confined to the curved parts of the road, but it
exists to an equal or greater extent upon those which are straight, especially
when the axles are near to each other; the irregularities before spoken of, constantly changing the direct course of the wheels, whilst there is no general
curvature of the rails to counteract it. To avoid this effect, and the unpleasant
motion and tendency to derangement consequent upon it, an additional motive is
furnished for placing the axles at a considerable distance apart.
The object of my invention is, among other things, to make such an adjustment
of the wheels and axles as shall cause tile body of the car or carriage to pursue
a more smooth, even, direct and safe course than it does, as cars are ordinarily
constructed, both over the curved and straight parts of the road, by the beforementioned desideratum  of combining the advantages of the near and distant
coLuplilg of the axles, and other means to be hereinafter described.  For this
purpose, I construct two bearing carriages, each with four wheels, which are to
sustain the body of the passenger or other car, by placing one of them  at or
near each end of it, in a way to be presently described.  The two wheels on
either side of these carriages are to be placed very near to each other; the
spaces between their flanches need be no greater than is necessary to prevent
their contact with each other. These wheels I connect together by means of a
very strong spring-say double the usual strength employed for ordinary carsthe ends of which spring are bolted, or otherwise secured, to the upper sides of
the boxes, which rest on the journals of the axles; the longer leaves of the
springs being placed downwards, and surmounted by the shorter leaves.  HIaving thus connected two pairs of wheels together, I unite them into a four-wheel
bearing carriage by means of their axles, and a bolster of the proper length, extending across, between two pairs of wheels, from the centre of one spring to
that of the other, and securely fastened to the tops of them.  This bolster must
be of sufficient strength to bear a load upon its centre of four or five tons.  Upon
this first bolster I place another of equal strength, and connect the two together
by a centre pin, or bolt, passing down through them, and thus allowing them  to
swivel or turn upon each other, in the manner of the front bolster of a common
road wagon.  I prefer making these bolsters of wrought or cast iron; wood,
however, may be used. I prepare each of the bearing caltriages in precisely the
same -way. The body of the passenger or other car I make of double the ordinary length of those which run on four wheels, and capable of carrying double
their load. This body I place so as to rest its whole weight upon the two upper
bolsters of the two beforemention-ed bearing carriages or running gear. I sometimes place these bolsters so far within the ends of the body of the car as to
bring all the wheels under it, and in this case, less strength is necessary in the
car body than when the bolster is situated at its extreme ends.  In some cases,
however, I place the bolster so far without the body of the car, at either end, as
to allow the latter to hang down between the two sets of wheels, or bearing carriages, and to run, if desired, within a foot of the rails.
When this is done, a stronlg frame-work projects out fi'om either end of the car
or carriage body, and rests upon the upper bolsters of the two bearing carriages.
This last arrangement, by which the body of the car is hung so low down, maui



NOTE.                              199
festly affords a great security to the passengers, exempting them, in a great degree, from those accidents to which they are liable when the load is raised.
Several bodies may be connected, or rest on a common frame, and be supported
on the bearing carriage, in a manner similar to that of a single bo(ly. When the
bolsters of the bearing carriages are placed under the extreme ends of the body,
the relief from  shocks and concussions, and from lateral vibrations, is greater
than it is when the bolsters are placed between the middle and the ends of the
body, and this relief is not materially varied by increasing or diminishing the
length of the body, while the extreme ends of it continue to rest on the bolster
of the bearing cars, the load being supposed to be equally distributed over the
entire length of the body.
Although I prefer the use of a single spring to a pair of wheels as above described, instead of the ordinary spring to each wheel, and consider it as more simple,
cheap and convenient than any other arrangement; the end which I have in
view may, nevertheless, be obtained by constructing the bearing carriages in
any of the modes usually practiced, provided that the fore and hind wheels of
each of them be placed very near together; because the closeness of the fore and
hind wheels of each bearing carriage, taken in connection with the use of two
bearing carriages coupled remotely from each other as can conveniently be done,
for the support of one body, with a view to the objects and on the principles
herein set forth, is considered by me as a, most important feature of my invention,
for by contiguity of the fore and hind wheels of each fobearing carriagend  wheile the
two bearing carriages may be at any desirable distance apart, the lateral friction
from the rubbing of the flanches against the rails is most effectually avoided,
whilst, at the same time all the advantages attendant upon placing the axles of
a four-wheeled car far apart, are thus obtained. The bearing of the load on the
centre of the bolster, which also is the centre of each bearing carriage, likewise
affords great relief from the shocks occasioned by the percussion of the wheels on
protuberant parts of the rails or other objects, and from the vibrations consequent to the use of coned wheels; as the lateral and vertical movements of the
body of the car resulting from the above causes, are much diminished. The two
wheels on either side of one of the bearing carriages may, from their proximity,
be considered as acting like a single wheel, and as these two bearing carriages
may be placed at any distance from each other, consistent with the required
strength of the body of the car, it is evident that all the advantage is obtained
which results from having the two axles of a four-wheeled car at a distance from
each other, whilst its inconveniences are avoided.
Another advantage of this car, compared with those in common use, and
which is viewed by me as very important, is the increased safety offered by
it to passengers, not only from the diminished liability to breakage, or derangement in the frame work, but also from the less disastrous consequences to be apprehended from the breaking of a wheel, axle, or other part of the running gear,
as the car body depends for its support and safety upon a greater number of
wheels and bearing points on the road. I do not claim as my invention the running of cars or carriages upon eight wheels, this having been previously done;
not, however, in the manner or for the purposes herein described, but merely
with a view of distributing the weight carried, more evenly upon a rail or other




200                             NOTE.
road, and for objects distinct in character from those which I have had in view, as
hereinbefore set forth. Nor have the wheels, when thus increased in number, been
so arranged and connected with each other, either by design or accident, as to
accomplish this purpose. What I claim, therefore, as my invention, and for
which I ask a patent, is, the before described manner of arranging and connecting the eight wheels, which constitute the two bearing carriages with a railroad
car, so as to accomplish the end proposed by the means set forth, or by any others
which are analogous and dependent upon the same principles.
ROSS WINANTS.
G.;BROWN,         W Iitnesses.
JNO. H. B. LATROBE,'




ARGU M ENT
OF
WILLIAM WHITING, ESQ.,
IN THE CASE OF
ROSS WINANS v. ORSAMUS EATON et al.,
FOR AN ALLEGED
INFRINGEMENT OF HIS
PATENT FOR THE EIGHT-WHEEL RAILROAD CAR,
BEFORE
ION. SAMUEL NELSON,
JUSTICE OF THE UNITED STATES CIRCUIT COURT FOR THE
NORTHERN DISTRICT OF NElW YORK.
PHONOGRAPHICALLY REPORTED
33P arthur Czannou, of VVi(alehp!tr.
BOST ON:
J. M. HEWES & CO., PRINTERS, 81 CORNHILL.
1853.








AR G U MENT.
INJUNCTION.
MAY IT PLEASE YOUR HONOR:THE great length to which this trial has been protracted,
the unusual array of counsel, the thorough preparation of the
evidence, and the elaborate arguments, which we have heard with
so much pleasure, indicate that this cause is believed to be one
of no ordinary importance. If success shall crown their enterprise, the parties really interested in the patent of Ross Winans,
will be enabled to grasp a speculation worthy to be styled " magnificent."
Nor is the result of this struggle of less moment to the Respondents, Messrs.-Eaton, Gilbert and Company. But however deeply
the issue of this trial may affect the rights of the parties to the
Record, their private contests sink into insignificance compared
with the great public interests which must be affected by your
decision.
Accidentally perusing a New York newspaper this morning,
I observed the following paragraph:" The cost of one of the long railway passenger cars is, on an
average, about $2,000. There are, in the United States, upwards of eighty private car manufactories, exclusive of those railways which make and repair all for their use, and it is calculated
that a capital of $6,000,000 is invested in this branch of industry,
producing about $17,000,000 annually, and employing about six
thousand men."
Whether that is an accurate statement, or on what authority it
is founded, we know not; but there is, beyond doubt, a vast
amount of capital and many thousands of workmen employed in




4                       INJUNCTION.
constructing eight-wheel cars for Railroad Companies in different
sections of the country. The questions involved in these suits in
equity, therefore, may be deemed, in no inconsiderable degree, as
public questions. The same reasons which would authorize an
injunction against the Respondents would require the Court to
enjoin all the railroads of the State of New York; and will lay
the foundation in every Circuit Court of the United States, for
putting a stop to the railway travel in the cars now in general
use. It is rarely that we have known, or been connected with
any cause, which affects a greater variety of public and private
interests than that which is now before this Court. And it is our
good fortune to appear before a tribunal patient in investigating
truth and anxious to administer justice, with even hand, no less
to the unknown stranger than to the familiar friend.  And if, indeed,-if a prayer had really been made for process to run
throughout every State of this Union, and that prayer were now
under consideration, this Court would feel no higher responsibility than it now feels in pronouncing judgment in this case, and
thus giving a direction to the judicial mind of the country.
This cause is important in another aspect; namely, as settling, or tending to settle novel and intricate questions of law relating to patents, arising not merely in this case, but affecting
many others.  We will not linger upon this view of the subject,
feeling confident that it must long since have attracted the attention of the Court.  We feel sure that your Honor will consider,
with anxious deliberation, questions which embrace such vast interests, and on the decision of which the business, the property
and the pursuits of so many thousands of individuals depend.
What are the grounds upon which the Complainant asks for
your Honor's interposition? As I understand the learned counsel
on the opposite side, they say that the Plaintiff has a patent, and,
also, that he has a valid extension thereof.  That he has had for
a long time uninterrupted enjoyment, or what he calls public acquiescence in his claims; that he has obtained two verdicts; and
a judgment in this Court upon one of them; that the Defendants have infringed his patent, and are doing irreparable
injury to the Plaintiff, by building cars and selling them to the
Railroad Companies; and that he has not said or done any thing,




INJUNCTION.                       5
which would render it inequitable to put a sudden stop to the
business of these Defendants ere he can establish his rights before a jury, and thus pave the way to annihilate all the travel on
the railroads of this busy community. Such are his assertions,
such he contends are the facts; and thereupon he demands your
Honor's intervention.
I do not propose to spend a moment in stating elemental principles which regulate the issuing of injunctions, excepting so far
as to call your mind back, for a single moment, to the reasons on
which the power of granting them is founded, and to the just
limits of the exercise of judicial discretion.
By the statute of 1789,-the Judiciary Act,-the power to
grant injunctions is only where " there is no plain, adequate and
complete remedy at law."  The Act of 1836, —the Patent Act,authorizes injunctions but according to the course and usages of
Courts in Equity.  Not according to the course and usages of
English Courts of Equity, but according to the course and usages
of the Courts of Equity as established by the Judiciary Act.
Now there ARE CASES of infringement in which a suit at law does
not give a FULL and ADEQUATE REMEDY. As 1st, Where the
Defendant is IRRESPONSIBLE; 2d, Where his business is of a
fugitive character; 3d, Where he has had a trial, and being
sued a second time, has discovered NO NEW DEFENCE; for the
Court will not waste its time in hearing the same thing over
again; and 4th, Where the same case, on the part of the Plaintiff, has been repeatedly sustained, and the same defence then set
up has been repeatedly OVERTHROWN, WITHOUT COLLUSION, or
the appearance of collusion, and when there has been a full and
HONEST DEFENCE.
In SUCH CASES an injunction alone will protect the rights of the
Complainant, because, otherwise, he might be forever compelled to
litigate, and there might be no spot of ground on the face of the
globe where he could rest his foot and find his title to that enclosure secured to him by the Courts of his country. BUT, an
injunction is not necessary, nor within the true scope of the power
of the Courts, where a suit at law is " a plain, complete and adequate remedy." And an injunction Is NOT to be resorted to in
such cases; e. g., where the Defendants are unquestionably re1*




6                        INJUNCTION.
sponsible; where their business is local and permanent, there
being no chance of escape from responding to judgments at law;
and where the Plaintiff is not engaged in any line of business in
which an injunction is necessary for his protection against competition. The character of our Government requires that every man
should have his common law rights, and first among them his right
of trial by jury preserved to him, unless some extraordinary circumstance warrants EQUITY in interfering and withholding them.
To preserve these rights was one of the great objects of the
Judiciary Act.  Now, the granting or withholding of injunctions, is always discretionary. It is never compulsory. There is
no state of facts that can be proved, in which the Court is absolutely bound to yield up its judicial discretion, no matter what are
the merits of the inventor; no matter how many verdicts have
been rendered in favor of the Plaintiff against strangers; nay,
even against the same parties; the injunction is still held within
the Judge's hand, and it may be allowed to go forth or be held
back, according to the opinion of the Court, considering all the
circumstances of the case. We mean to say that there is no imperative rule upon the subject, and we need not refer to the
many cases disposed of, not only in this Court, but in others. We
will suggest that of Maney vs. Sizer, in the District of Massachusetts; where, after long investigation by some of the most distinguished counsel in our neighborhood, a verdict was rendered
sustaining the patent right, and finding that the Defendants had
infringed that right, nevertheless, the Judges who presided at that
trial refused to grant an injunction, under the circumstances,
against even the Defendant himself.  Numerous cases, to the
same point, are cited in " Orr vs. Littlefield."
I also call the attention of your Honor to the decision of this
Court in this case, in Wood and Minot's Reports, cited by the
learned counsel for the Complainant. And in this very cause
Judge Conkling has refused to grant an injunction notwithstanding what has transpired before this Court. We are free to admit,
that injunctions are usually granted in the Courts of the United
States, when the Plaintiff's right is WELL ESTABLISHED in the
following manner.
First.  By unimpeachable verdicts, which have been rendered




INJUNCTION.                       7
tpon a fall investigation of ALL THE FACTS brought to the notice of
the Judge, before whom  the motion is pending.  With your
Honor's permission, I will repeat that statement.'" By unimpeachable verdicts, which have been rendered upon a full investigation of ALI, THE FACTS brought to the notice of the Judge,
before whom the motion is pending."  That is the qualification.
That is, if a verdict had been rendered upon all the facts that
we have now been spreading before your Honor, we should have
comparatively little ground to object to the issuing of the injunction.
Second.  By LONG and EXCLUSIVE and UNDISPUTED acknowledgment, on the part of the public, of the rights of the Plaintif
as he claims to have them construecl in this Court. Not of soOME
rights.  Not of soME claims.  Not of SOME patent.  But of the
very rights which he claims your Honor's sanction to uphold.
Third. Where there are NO CONSIDERATIONS brought to the
attention of the Court, that would make a sudden interruption of
the Defendant's business unjust and inequitable.
Fourth. When the injufry to the Defendant's business would
not be irreparable (in case the Plaintiff should, at last, fail to
maintain his claims).
And lastly.  Where the injunction would be the only effectual
means of securing the Plaintiff from IRREPARABLE LOSS. Not
where he is SURE of OBTAINING ample satisfaction for the use of
his invention, in case he succeed in establishing his claims.
These are familiar rules, and we cite no authority to support
them. At the trial before Judge Conkling, it did not appear that
there had been any thing approaching an undisputed possession
of the rights claimed by the Complainant,-any substantial acknowledgment on the part of the public as to the validity of those
rights; nor, any such proceedings in the shape of verdicts as
would sanction the Court in using this tremendous power of injunction; and the attention of the learned counsel for the Plaintiff was called, we presume, to that fact, in the excellent opinion
of his Honor.  The Plaintiff has come forward a second time to
build up, somewhat higher, his airy castle, and having produced
some farther evidence in regard to public acquiescence,-although
the testimony that was produced on the former trial was quite in



8                        INJUNCTION.
sufficient to move his IHonor's mind, —it is my duty to present it
to the attention of this Court, to state the evidence fairly and the
answers that are to be made to it.
That evidence consists of two classes of proofs. First,-LICENSES.  And, second,-SuITs.  I speak, first, of the Licenses,
or what may be treated'as some evidence of acquiescence on the
part of the Railroad Companies.  The first mentioned is the
transaction with the Baltimoreand Ohio Railroad Company; and
I need say no more than:that a contract was entered into between'that Company and the Plaintiff, not relating to this latent, and
having no reference to it, but merely giving that road a title to
the services of Mr. Winans in any improvements that he mnightl
have made, or might therecafter.cmake, in relation to the lachinery
of the road.  This patent was not at that time in existence, and,
as it was no part of that contract,-or rather, as nothing in particular was said aboutit in that contract, —we may presume that this
went into the general category of all other improvements that
might thereafter be made; and it could not be treated as a license
appertaining to this patent, nor an admission of the validity of
that claim, which did not, at that time, exist.
Second.  The Frenchtown and Philadelphia, and Wilmington
and Baltimore Roads subsequently united into one road.  The
evidence on that point proves, that a suit was brought against the
York and Frenchtown road, before his honor Chief Justice
Taney, some time since.  The Plaintiff in that case failed to obtain a verdict. After the suit had been thus suspended, and the
Jury disagreed  without acknowledging  the Plaintiff's rights,
the small sum of 8500 was paid to the Complainant, eausa
Pacis and to avoid all further litigation; a sum which I trust
was far less than the fees of the learned counsel who managed
that cause.  I know not that anything need be added to these remarks upon that subject, except to refer the Court to the testimony of Shultz and Dorsey, who both say, that they never
did use a car substantially like the Plaintiffs upon that road.
Therefore, taking this fact in connection with this quiet and
peaceable adjustment of litigation for the small sum of $500, it
seems to me the circumstances are far from proving a quiet enjoyment of the rights claimed by the Plaintiff, or the receiving




INJUNCTION.                       9
from him any license, or employing or using under such license,
cars substantially like that which he claims. I think that this
Court will not look upon such adjustments as admissions of rights,
and that it will not be ready to discourage peace-making by misconstruing the motives of the parties.
The third alleged license is that comprehended in a contract
with the Boston and Lowell Railroad Company. But, on looking at that contract, which is annexed to the affidavit of Mr. Higginson, your Honor will find that it embraced the right to use
four of Mr. Winans's patents, including this, and that the engineers of the road, and others acquainted with it, —as, for example,
Mr. Higginson, Mr. Lee, Mr. Parrott, and Mr. Griggs,-all united
in stating that the Boston and Lowell Railroad Company have
never used a car constructed substantially like that of AMr. Winans.
Mr. Higginson goes further, and says that of so little worth was
that license, so far as it related to Winans's eight-wheel trucks,
they would not have given any thing for the contract, if it had not
embraced the other three patents, which were supposed, unhappily
for them, to be of some value.
Again.  The Reading Railroad Company is the last mentioned
in the evidence to which my attention has been turned. And it
is stated that Mr. Tucker, the President of that road, purchased
of Mr. Winans the right to use his eight-wheel trucks under all
the freight and passenger cars on that immense road, of ninety
miles in extent, and doing a business of more millions of dollars
per annum, than I dare undertake to remember.  My colleague
at this moment informs me that the sum annually earned is between two and three millions of dollars on freight, thus employing
thousands of cars.  For the paltry sum of $500 Mr. Winans sold
the right to use his invention, if he had any, to that Company.
Mr. Winans states in his bill, that one, whom we all know to be
among the most distinguished members of the bar in the United
States, I refer to Mr. Meredith, was his counsel. And it also
appears in the evidence in this case, that MIr. Meredith was at
the same time the counsel of the Reading Railroad Company,
from which facts, together with the high character of that gentleman, both in and out of the profession, I infer that this paltry
sum of $500 was rather paid as a compliment, and out of respect




10                       INJUNCTION.
to iMr. Winans's counsel, than with any view of acknowledging
Winans's claims, and not as a compromise.  I-ad it been $50,000,
it would be more like what Winans pretends that his patent is worth.
And if your Honor will look at the grant for which $500 was
given, you will see that a little douceur of that kind, obtained from
the Company which  Mr. Meredith represented, was a matter of
courtesy or compliment, rather than to be considered as a formal
acknowledgment of Mr. Winans's claims, be they what they may.
And further, Mr. Tucker has sworn, in his affidavit, that no
such car as Mr. Winans's either now is, or has been used upon the
Reading Railroad; notwithstanding the right of the Company to
use it if they pleased.
Now if the Plaintiff RELIES upon his sale of licenses to a few
Companies, as evidence of undisputed possession, or acquiescence
on the part of the public, we state in reply three things: First,
that of alleged licenses, considering the very small A:mmber, (being
four only with the largest construction,) compared with the universal use of what the Plaintiff claims as his invention, the fact of
there being any licenses existing, only causes the almost universal
NON ACQUIESCENCE to appear the more boldly and clearly. And
Secondly, that these licenses were for paltry sums of money, taken causa pacss, WITHOUT a pretence of their being adequate to
any substantive right.  And, Thirdly, that such licenses, unless
numerous, are not evidence of much value, and unless acquiescence is general, it has no force in a Court of Justice. A man
can always obtain acquiescence on the part of his friends, and
unless it is universal or approaching to universality, the evidence
is but of trifling import.
I now, with your Honor's leave, approach a more important
matter. The Plaintiff relies upon former trials and verdicts, and
a judgment upon one of them, doubtless, as putting the validity
of his claims beyond dispute.  There have been three trials in the
Courts of the United States, and each of them has some importance.  First, the trial in 1838 of Winans vs. The Newcastle and
Frenchtown Railroad Company, before his-Honor Chief Justice
Taney. I must say of that trial, although it resulted in favor of
the Defendants, that having examined the minutes, and particularly
the opinion, the real facts, now disclosed, were then but partially




INJUNCTION.                       11
known; and they were brought forward under every disadvantage,
on the part of the defence; and notwithstanding this, the Jury did
not find a verdictfor the Plaintiff! The trial was a failure: it was
too near home; too near the source of information in regard to
the early history of the Baltimore and Ohio Railroad; too near to
make it desirable to repeat the application for an injunction, in
that part of the country.
Nine years after the first effort, in 1838, which was four years
from the date of the patent, what does the Plaintiff?   He waits
in the first instance four years, before he gets defeated, and then
goes off with the paltry peace-offering of which I have spoken.
What does he next? Does he go forward and press for another
trial against some other party? Does he seek another forum, and
there endeavor to enforce his long deserted claims? I think, that
large as your Honor's experience has been in patent cases, the
memory of the Court will be taxed in vain to recall a single instance, in which an inventor who did not believe his patent worthless, should wait NINE long years before making his second
appeal to the Courts, and SIXTEEN years before he obtains his
first verdict.  What would the country infer, if the trial before
Chief Justice Taney had been made known?  Would it not be
said that there has been an effort to sustain these pretended claims
before a Chief Justice of the United States, which had utterly
failed? And when the Plaintiff, after one defeat, is unheard of in
the Courts for nine long years, —I ask what inference a business
man would justly draw from that fact? Such a defeat would not,
as the Plaintiff alleges, tend to mqake every one settle with him,
and admit his asserted rights, but it would lead them to suppose
that he would cease from enforcing his patent in any other quarter.
Then Winans waits until 1847, in which year we hear of the
suit of Winans against the Troy and Schenectady Railroad Company, and after that has been allowed to linger by the wayside
until 1850,-sixteen years after the patent was originally granted,
-he then obtained a verdict for $100! and had judgment upon
the verdict! And now, I ask your most careful consideration of
the true weight to be attributed to that verdict, in the decision of
the present cause. I hope your Honor will not take me to be
one, who desires to diminish in the slightest degree the solemnity




12                      INJUNCTION.
and importance of a verdict rendered in this Court of the United
States. I do not intend to utter a syllable against the verdict,
nor to ask your Honor to undervalue, to the thousandth part of a
drachm, the true weight to be given to it. And I know that your
Honor will take care that the weight which does not belong to it
shall not be given to it, in the disposition of the cause which we
have the honor to present.  If it had been a verdict like those in
the ordinary course of trials, no objection to be made to it, and
nothing to be said of it, except that it disposed of the whole case,
I should not have come here to argue this cause. But allow me
to call your attention to some of its peculiarities.  And, in the
first place; it is not doing injustice to the shrewd management of
the younger counsel of Mr. Winans, to give him the credit of saying, that this patent has been pushed forward, in these last days
of its existence, with an adroitness which is worthy of a greyheaded counsellor. And the first step in such cases is, of course,
to gain verdicts where they can be most easily obtained; to attack Defendants at their weak points; just as an invading army
attacks another, namely, where they are most hopeful of victory,
and where the least resistance is to be met with. Why did they not
go to Baltimore and attack some of the Railroad Companies,
which are so ably represented by the counsel for the Plaintiff?
Why not go to Massachusetts? They come to the State of New
York, it is true, but they select their victim. It is the Troy and
Schenectady Railroad Company.  I am  free to say that the
cause was in the hands of the ablest men that this neighborhood
affords; but we say that the road itself was so situated, that it
had not the means or the disposition to go into a tedious and expensive investigation of the facts of this case. That is enough.
A road which, at that time, was about expiring, and which has
since been sold out for a small part of its original cost,-that road
was attacked while struggling for existence and scarcely able to
stand alone.  Another feature of the trial which deserves consideration, is, that there was an agreement between counsel at that
trial that the verdict, if rendered in favor of the Plaintiff, should
be only for the nominal sum of $100.  The Plaintiff stating, as
of course, that the object of that suit was merely to establish the
right, and not to injure the Defendants.  And although such




INJUNCTION.                       13
agreements are not unusual, and are made in good faith, I must
say that they greatly facilitate the jury in passing to a verdict in
favor of the Plaintiff, and that verdicts thus obtained are entitled
to less weight than if rendered by an unbiassed jury, and intended
to indemnify the Plaintiff for the damages actually sustained in
the alleged infringements of his rights.
It was not a ground of defence in the Troy case, that after
the date of the Plaintiff's patent he had acquiesced in the public
use of his invention without objection or claim  of right.  For
proof, I refer to the affidavit of one of the gentlemen who was of
counsel in that case, Mr. Buel.
The defence rested, mainly, upon the testimony of a few experts, who supposed that the true legal construction of the claims
of the patentee was such as to embrace every description of eightwheel car which had two swivelling trucks under it.  That as
Chapman, Wood, and Jervis had invented and put into public use
running gear which answered this description, these prior inventions were sufficient to defeat the patent.
These experts misunderstood the nature and extent of Winans's
claims, as shown by the subsequent decisions of this Court; they,
therefore, misapplied and misused the testimony contained in the
books and drawings produced at the trial.  For although the
Chapman car might not be sufficient to defeat the Plaintiff's right
to a patent, for the alteration he introduced, or the improvements he made upon that car, yet it might be and was sufficient to protect the Defendants in their right to use precisely
what the Chapman car embodied.
The Chapman car, therefore, should have been put in proof,
not to show that Winans was not the first inventor of what he
claimed, but that the Defendants had used nothing in the construction of their cars, excepting what is found in Chapman.
This mistake of the experts rendered the evidence wholly
worthless at the trial of the Troy case; and it is presented at this
argument for purposes wholly different from those entertained
before.
We assert, thirdly, that the principles of the eight-wheel car
had not then been fully and scientifically investigated and practically tested by experts who were known to the Defendants,
2




14                      INJUNCTION.
These cars had gone into public use, without attracting particular
attention, had never been the subject of that species of discriminating analytical investigation which is necessary to distinguish
the mechanical principles of one peculiarity from another in the
construction, organization, or modes of operation of different structures.
Fourth. That the Wood and Trussel Cars were not inquired
of in that case. The Defendants in the Troy and Schenectady
Railroad Company —what did they know about the history of Wood
and Trussel Cars in Baltimore in 1830? Not a solitary sentence
was uttered upon the subject, although the pay-rolls of the Baltimore and Ohio Railroad Company spoke of their manufacture and
use; and, therefore, we know that they existed. The Defendants
did not know it.
Fifth. We now offer overwhelming testimony, that if the patent be so construed as to cover the Defendants' cars, that the invention was absolutely abandoned before the patent was taken out.
Also, the conduct of Winans towards these Defendants would
amount to a license to them to make use of the Complainant's
invention. These considerations had great weight with Judge
Conkling.
Sixth.  The true use of evidence as to the old Chapman Car
was wholly misunderstood, not only by the experts, as already
shown, but by the Court and counsel.  And inasmuch as the idea
of the Chapman Car was not accurately comprehended, it was
said that Chapman's invention was the same as that of Winans.
We now say, that the Chapman Car is the same as ours, and that
Winans's differs from  both. In other words we say, that what
distinguishes Winans's from Chapman's, also distinguishes Winans's from the Defendants'.
Seventh. A great body of evidence, of new  and different
cars, the same in principle as those of the Defendants, is now
brought to the attention of this Court for the first time. I refer
to the Tredgold Car, the Allen Steam  Carriage, the Trussel
Cars, the Wood Cars, the Fairlamb Patent and the Quiney Cars.
Now, if these cars had been known at the trial before Chief Justice Taney, and his instructions to the jury had been applied to.them, where would the Newcastle and Frenchtown case have




INJUnCTION.                       15
landed?  If these cars had been known to the counsel for the
defence in the Troy case, how would that have resulted?
No person has more profound respect than myself for every
considerate decision of an enlightened judicial tribunal.  But I
think that there is no class of subjects on which there is more
danger that the judges may be uninformed and mistaken, than
in questions of patent law, in its application to particular cases.
The principles of the law are plain.  But there is diffibulty in the
application of those principles to facts.  And is it surprising that
errors should sometimes occur in deciding cases, which require a
court to dispose of profound and disputed questions, purely scientific in their character, in addition to the questions of law?  I
will ask your Honor, if it be not true, that this Court decides the
construction of every patent according to the language of the
patent itself;-and by aid of the light of all surrounding facts and
circumstances proved to exist, at the date of the invention? If
the Plaintiff were supposed by the Court to be an original inventor
of the first eight-wheel double truck swivelling car that had ever
been organized, or, in other words, that he was the inventor of the
principle of the eight-wheel car, and your Honor was not informed
that any other had been made before the Plaintiff's invention,
then, another eight-wheel car is constructed, which is alleged to
be an infringement of the first, would not you say at once, that
the Plaintiff, being the first to discover and produce any doubletruck swivelling car, is entitled to the principle as embodied in
that structure; and that, as the Defendant embodies that principle in one form or another, he is an infringer? But how would
your Honor's construction at once be changed, if it be proved that
there existed twenty or thirty eight-wheel swivelling cars of various
constructions, prior to the Plaintiff's invention? You would say,
that every patentee's claim  shall be so construed, " ut mayis
valeat quam rereat."   You would say, that if there be any
construction of the Plaintiff's claim, coextensive with his invention, and which may be arrived at by fair interpretation of the
language used by the claimant, so as not to affect his claim  to
novelty, the patent would be construed in such a manner as that
the Plaintiff should go unscathed, if possible. His claim should
cover his own invention, and no more. If a series of trials on the




16                       INJUNCTION.
same patent should arise in this Court, every successive investigation brirnging new and important facts to the notice of the jury,
you would be compelled to draw  the claim  into more narrow
limits, from  time to time, upon taking into consideration those
facts, which would render a broader construction fatal to the patentee; and thus the construction of the same patent in different
Courts, or in the same Court at different times, would seem to be
irreconcilable.  Such cases have already occurred in the Circuit
Courts.  And, therefore, while I entertain the most profound
respect for former constructions by the judges, of the claims
of the patentee, I say, that it is upon the facts before the Court,
in each particular case, that that case is to be determined. When,
therefore, a new set of facts arise, I do not presume that the
Court will, necessarily, arrive at the same results as in the former
case, as to the construction of the patentee's claim.  It would be
unjust to the Plaintiff and Defendant to insist upon drawing the
same conclusion, no matter how different the premises.
And now, applying these remarks to the Troy and Schenectady
case, what should have been the construction of the patent at that
time, if the Court hacd known the existence prior to the Plaintiff's
invention, of ten or twelve well-organized cars, very much like the
Plaintiff's, and incorporating in their structure the general principles of the swivelling truck? How different from that which the
Court must now adopt in view of all the newo prior inventions?
What injustice was done to the Defendant by their own experts,
in their idea on the subject of infringement 
The next consideration inll relation to this Troy case, is, that we
have offered a large amount of evidence to show, that Winans was
not the inventor of the arrangement of the wheels and running
gear in the car CYolumzbus, but Conduce Gatch was.
The Court will notice, that I do not say, that Winans was not
the inventor of some peculiarities in the car; but what I say, is,
that the running gear, the arrangement of the wheels in trucks,
and their connection with the car body by a swivelling pin, was
not first devised and first in use even on the Baltimore and Ohio
Road, by Ross Winans, but this was first done at that place by
Conduce Gatch.
In the Troy suits, the testimony as to the Baltimore cars on




INJUNCTION.                      17
the part of the Defendants rested chiefly on Gatch; and the
learned Court, in their opinion, seemed to think that it was quite
incredible, that Gatch could have made the arrangement of the
wheels; although he was at work on them every day of his life;
that he required some authority to be given to him, in order to
put his inventive faculties into legitimate action, or to place the
wheels nearer together or- further off, although very little alteration, if any, was made.  But now we have some twelve men, surrounding and s~upporting him  with a mass of testimony that
I cannot suppose it probable, or even possible, that a jury could
resist.  We have now also proved, that the drawing attached to
Mr. Winans's patent did not illustrate the specifications; and not
only so, but it did not represent anything existing at the date of
his invention.  But it represented a car, built in 1837, and from
which the drawings were taken.  And I do not hesitate to say,
that the ruling of his Honor Judge Conkling, in regard to the
effect of that drawing, is erroneous.  If my memory serves me, it
was held, that that drawing had thQ same effect as if it had been
a part of the original patent.  But such is not the effect which the
statute gives to a drawing that has been restored; it certainly
does not give such an effect to a drawing, not restored according
to the statute, and containing things which the patentee never discovered or invented. Again; it wa~ there asserted, and very
little proof, if any, was offered to the contrary, that the smoked
drawing, on which the Plaintiff lays the foundation of his claim,
was in fact a drawing that contained the running gear of the car
Columbus, which was the only subject of controversy. And it is
now, we think, clearly proved, that however much Winans might
have done in planning, or furnishing plans of the various shapes
of bodies, the plan of the running gear was no part of the original
drawing. On this point the testimony is conflicting; but we are
of opinion that any jury would decide with us. It is now proved
that the Columbus, and the eight-wheel cars which preceded it,
embodied all that the Plaintiff claims. It embodies more perhaps,
and possibly it does not embody the exact details of structure,
but it includes what his counsel claim as Winans's invention, as I
understand them, although they now assert that the Columbus was an experiment, and that the experiment failed. Now
2*




"18                    INJUNCTION.
it is proved, that eight-wheel cars, for different purposes, were in
general use, both before and after the Plaintiff's patent.  That
fact was not dreamed of in the Troy case. Again; it is now
shown, that Winans's pretended invention, taking him at his word,
is impracticable and useless, in so far as he departed from what
was well-known before. Then it was supp~osed that Winans was
the first man who had made any description of eight-wheel car,
and that his claim covered every species of swivelling apparatus
that could be imagined. That was the general idea at the time of
that suit; and in this mistaken idea, you find the reason why the
Chapman car was made use of in the manner before-mentioned,
and the idea unfortunately led to an entire misconception of the
whole defence.
It is enough, in addition to what I have already said on this
subject, to say that Judge Conkling refused the injunction twice,
notwithstanding the verdict. And he knew well all these facts.
This Court has pronounced its decisions by instalments, and Judge
Conkling has twice decided these questions.  I am aware, that
the second time, the refusal was not absolute; and he refused
the injunction, even though there was an erroneous statement in
Winans's bill, and one much relied upon by the Judge, namely,
that he (Winans) had published his specification in the American
Railroad Journal, and thus made the claim early and extensively
known to the country.  Subsequent investigation has shown this
statement to be incorrect.
These are all the facts which I intend to bring to your attention, to show that.this suit was comnmenced and prosecuted under
peculiar circumstances; that, except the evidence upon the
Chapman car, (which we propose to discuss at the proper
time,) no part of the defence now relied upon was produced or
known to exist at the time when that case was tried and decided.
And under these circumstances, this case stands before your
Honor as favorably as though there had never been a trial. And
we say further, that this case, and those facts now for the first
time proved, have never been passed upon in this or in any other
Court.
The third suit I have to mention is that of " Winans vs. The
York and Maryland Line Railroad Company."  Upon this point




INJUNCTION.                     19
we shall detain you but one moment, and we beg leave to refer
to the affidavit of Mr. Magraw, page 49, and more particularly to
that of Mr. Robert S. Hollins, page 46, both in Defendants No. 2.
Mr. Hollins states the facts under which that suit was commenced
and prosecuted. There was no trial on the merits, and no investigation of the rights of either party. It was taken for granted,
that Winans's patent was good, and that the cars complained of
were built on Winans's plan, and reliance was placed on one
great question, which has yet to be settled, namely, Whether or
not the Railroad Company, which was the Defendant in that case,
had used any cars, or whether such user was by another and
different corporation? And that question was decided in favor of
the Plaintiff, much to the astonishment of the Defendant.  I do
not mean to assert that it was not rightly decided, but my object
is to show your Honor, that no jury has pronounced upon the
questions now submitted to this Court. And the reason why the
Plaintiff's pretension and the alleged infringement were not dis,
puted, is explained by the affidavits of these gentlemen. They
placed their reliance upon the fact that they had not used the
cars. That case, however, has not yet been finally determined;
it is pending in the Supreme Court, there having been no judgment; therefore this verdict cannot affect your Honor's mind.
The use made of a verdict is, to inform the Court whether the
allegations of the parties are true, or not true-whether the
defences relied upon have been subjected to the examination
and opinion of a jury; and of course, as that cause now stands,
you cannot be thus informed. Again; and in the same case, the
Plaintiffs have avoided bringing suit where he resided, and where
the Company held its office; but he has caught the President of
that Road on a visit to Philadelphia, and there brought the action.
And yet the use of the patent right was offered by Winans to
that Company for $500, which sum they refused to pay. There
is, therefore, no intention to admit, and no real admission is to
be inferred from that case. Notwithstanding that this trial was
before Judge Conkling, he refused the injunction.  That, I
consider as an opinion given by this Court upon the insignificance of the case, in relation to the question of granting the
injunction now prayed for. In not one of these suits was the




20                       INJUNCTION.
main bulk of our testimony brought to the notice of the Courts,
and only part of it was offered before Judge Conkling, at the
hearing when he refused to enjoin, and we have added great
strength to our defence since that refusal. And, if any thing is to
be considered in the course of this trial by this Court as settled,
it is this: that a motion for an injunction cannot be granted,
unless the complainant makes out a much better case than when
the former injunctions were refused.  This is the third motion for
injunction! and I think it shows the great liberality of Courts of
Equity, that a third attempt to obtain an injunction is for a
moment tolerated.
I have now done with the verdicts and the licenses; and with
all that which the Plaintiff sets up as furnishing any evidence of
acquiescence on the part of the public, or as tending to substantiate his claims by aid of any judicial proceedings.
I now propose to show that the Plaintiff ought not to have an
injunction under the peculiar clrcumstances of his case, and of our
position.  The Plaintiff is ESTOPPED from relief in equiity by his
acquiescence in, and encouragement of, the use of the invention
(if it ever was used) by the Deffendants and by the public.  I
will not take time in reading authorities, but I beg to cite three or
four, and then leave this subject.  I refer to Curtis on Patents,
p. 395, note 2; —Wyeth and Stone, 1 Story, 273;-Neill vs.
Thompson;-W-ebster's Patent Cases, 275;-same case in Hindmarch, 319, 20;-Saunders vs. Smith, 3d Mylne and Craig, 711.
Also see pp. 720 and 736, Greenhalgh vs. Manchester;-same
book,. p. 785.  And I further add upon that point,' that this is
trite even though such acquiescence should not go so far as to
constitute an abandonmnent, in law, of the Plaintiffs rights.  For
equity will not tolerate a trick, a fraud, a surprise.  Winans well
knew that the Defendants were engaged in cmaking and vending
eight-wheel cars for years.  He made no objection; he gave no
notice.  He assented impliedly; and even joined the Defendants
in sending eight-wheel double truck cars, such as he now claims
are in violation of his patent, to Germany. He united with my
client here, (Mr. Orsamus Eaton), in sending just such cars to
Germany; but he never lisped a word about any patent, nor
objected to it, as in any manner infringing upon his alleged inven



INJUNCTION.                      21
tion.  Again.  It is shown that Winans has been selling car
wheels, out of his own establishmenlt, to Eaton, Gilbert & Co.,
well knowing that these wheels were to be used in making the cars
commonly built in this country, and which he here claims as violating his patent.
These three things: uniting with the Defendants in sending
cars to Germany; selling wheels to thems for the purpose of being
used under those cars; and having numerous conversations with
them, without alluding to this szubject,-are, what any man could
not help calling a consent on the part of the Plaintiff to what was
going on.  It would be a fraud by Mr. Winans to set up a claim
to damages for an infringement, after such conduct as that.
Again.  Eight-wheel cars are'known by everybody to have been
in use on all the Railways in the United States.  And the Plaintiff knew it, and yet made no objection to it until recently.  Up
to 1847, thirteen years after the date of the patent, and until
one year of the end of its natural existence, nobody ever heard of
a claim to such an invention.  It is not until after its death and
resurrection, that it assumes a menacing attitude.  i will not go
further than to say that I hold before me the list of names of
twenty-one witnesses, who show that Winans well knew  that the
eight-wheel car was in universal use; that he made no objection
to such use, and no claim to it; so that he must have known that
such cars were no violation of his patent, or that his patent was
good for nothing.  And I will simply refer the Court to the
name and the page where their testimony is recorded.  See asdavits of
1. John Murphy,          Defendants', No. 3, p. 9
2. Laban ]B. Proctor,                 "  3,      8
2. Wm. Raymond Lee,                   "1,    41
4. Charles Minot,                     "  3    159
5. John Wilkinson,           2,    42
6. Robert Higher,                     "  3,   132
7. Jeremiah Van Rensaellaer, "        "  4,    44
do.                        "  3,   136
8. Albert Bridges,                      1,    37
do.                    cc         v  3,   134




22                      INJUNCTION.
9. Charles Davenport,    Defendants', No. 3, p. 39
10. D. N. Pickering,           "       "  1,    39
11. Geoige S. Griggs,          "       "  1,    40
12. Timothy S. Smith,          "       "  1,    37
13. James L. Morris,           "       "  1,    39
14. Edward Martin,             "       "  1,    45
15. John Stephenson,           "       "  1,  42-3
16. Leonard R. Sargent,        "       "  1,  43-4
17. George Law,                "       "  2,    29
18. David Beggs,               "       "  2,    31
19. David Mathew,              "       "  2,    32
20. Israel Adams,              "       "  3,   138
21. George Beach,              "       "  2,   136
Now,,that is the list.  There are twenty-one of them; and
without turning to the evidence, I will simply say, that they comprise prominent men connected with some of the most important
railroads in the Union.
Now, what is the rule of Equity and Law, with regard to acquiescence? The rule of law is, that where an owner stands by and
sees others sell or use his property without objection, he waives his
right to claim it.  If a man sell my horse in my presence, and I
do not object to it, I cannot afterwards set up my title as against
the vendee. And the law applies with equal force to patent
rights, as to any other description of property; and it appears to
me with justice-because a patent right is in some sense a species
of intellectual, not a tangible property; more liable to be appropriated to the use of others, without intentional wrong, than any
other species of property.  Ideas have no " ear mark" by which
they can be traced to their owners, and therefore the greater good
faith is required by all patentees, that they do not so conduct
themselves as to mislead others by acquiescence in the public use
of their inventions.
I next pass to the consideration of the evidence as to the notice
which is said to have been given by the Plaintiff to Defendants.
As to this, there are two witnesses on the part of the Complainant, who assert that a notice was given to one of the Respondents,
the Plaintiff himself, and Mr. Gould who is a party in interest.




INJUNCTION.                      23
The counsel on the opposite side, say that Mr. Winans had a
conversation with one of the firm of Eaton, Gilbert & Co., and
that he made some remarks about his patent.  And Mr. Gould
asserts distinctly, that after the Troy suit, he gave some notice to
the Defendants. These are the two gentlemen by whom alone the
assertion of any notice whatever, is made. Now, Eaton, Gilbert &
Co., all three of them, come into Court and ANSWER under oath,
and positively and unequivocally deny that they received notice of
any description from Winans or Gould. And, on the contrary,
they state, that they never received such a notice.
I am speaking of notice asserted since the Troy suit.  Here
is a direct contradiction on this question. Three on one side and
two on the other, and I do not wish to suppose that any one of
the gentlemen intends to state that which he does not suppose to
be correct.  But I do suppose that Mr. Gould, having a
large area to travel over, and a vast number of persons to see,
might have confounded one of the firm of Eaton, Gilbert & Co.
with some one else. And in regard to Mr. Winans, he may have
supposed that he might have said something about his patent.
Therefore, as it stands upon the affirmation of the Plaintiff, and
denied by the Defendants, it is not proved. And Mr. Gould, although not a party in the suit, is a party in interest, and he ought
to have been made a joint Plaintiff.  It is proved by Minot'that
he is a party in interest.  Thus we have one, speaking of a conversation,-if it ever did take place,-and another asserting that
a remark was made in the presence of one of the Defendants, and
both of which assertions are denied by them in toto.  I will now
pass to the notice which it is alleged has been given to the pub6lic.
The Plaintiff asserts that he published his specification in the
American Railroad Journal.  If that be true, it would be giving
those parties mostly interested in railroads a notice of his claim,
and a man could not be expected to do more. But the fact is,
that he did not give that notice, and I refer to the affidavit of Mr.
Randall, and to the fact that we have given notice to produce
that Journal, and it has been produced and the notice does not
exist.  Therefore it is a mistake of Mr. Winans, and he has been
led into some error, I know not how; but, of course, no man is
free from mistakes.




24                      INJUNCTION.
Then, again.  It is alleged that the extension is relied upon,
and that there was a publication then.  All I have to say on that
point is, to ask your Honor to look at the papers for yourself, and
you will find that it is not so.  There was no insertion in the' True Sun,' in which it was ordered to be published.  But it
was substantially concealed, by placing it in a small ephemeral
paper not generally circulated, and, therefore, we did not get the
notice that we ought to have had. For, if it had been known
here, it is not to be supposed or imagined but that there
would have been an opposition to the extension. At all events,
the Patent Office would have had to examine the evidence that
has been submitted to your Honor. I will briefly refer to the
statement of Mr. Winans, to show that he has made four mistakes,
and that perhaps his memory is not so reliable now as when he
was a younger man.
First.  I refer to the publication in the Railroad Journal, three
or four times sworn to, and erroneous in point of fact.  Second.
To the opposition of the extension of his patent being on behalf of
the New England Roads.  On this point I refer to the affidavit
of "Lee.  Defendants, No. 3, p. 110; to the record the gentlemen produced; and to Wilkinson's affidavit, No. 3, p. 50; and
your Honor will see how incorrect his statements are. Then,
thirdly.  To the fact, that the Boston and Providence Railroad
Company are said, by Winans, to have given an order for building cars on his plan, which is erroneous.  See affidavit of Lee.
No. 3, p. 110, and also to that of George S. Griggs.  No. 3,
p. 110.  And the last is the one in controversy, namely-; the
conversation in which it is alleged that Mr. Winans said that he
had a patent, and intended to enforce his rights.  And, therefore, I argue that as Mr. Winans is mistaken as to documentary
evidence, the probability is that he is also mistaken on this point.
I am not aware that any intimation was given to any body of the
existence of the patent before the Troy and Schenectady suit,
while the patent had been laying dormant for so many years.
And hence the palpable injustice to the railroads who would be
prejudiced by a sudden injunction, after being lulled into security
and led into danger by the Plaintiff's own conduct, as the roads
have been led to buy and use these trucks, under the belief that




INJUNCTION.                       25
they were common property, neither Winans nor any one else
appearing to claim the invention.
Then, I ask your Honor to consider another reason for refusing
the injunction, whatever the merits of the Plaintiff may be. It
is, that the Plaintiff's LACHES in enforcing his claims is enough to
prevent the Court from enjoining the Defendants at this late day.
If the Plaintiff could wait from 1834 to 1852, without an injunction, there is no more probability of any injury being done to
him now, and for the next three years, than during any one
of the past nineteen years, when his own conduct shows that the
Plaintiff did not consider that any irreparable injury had been
done. He is now, as he has heretofore been, a manufacturer of
steam engines and machinery.  He is not in the same line of
business as the Defendants, and, therefore, an injunction is not
wanted to prevent competition or injury to the Plaintiff's manufactory.
Furthermore.  The Plaintiff has never had any exclusive use of
thle patented invention, as he now claims it. His rights have
never been admitted,-except once or twice,-causa pacis.  He
never asserted and followed up the claim which his counsel now
set forth. And I ask your Honor, what irreparable injury will be
done to Mr. Winans, by refusing an injunction until his rights
shall be settled on final hearing, either in this Court or in Massachusetts? In the case to which I have referred in Massachusetts,
the Court have ordered that the evidence shall be in in October,
and it is our intention to try it as soon as possible.. But no irreparable injury will follow before the case can be decided in one
Court for the whole country. Another reason for denying the injunction is, that the Plaintiff has no claim whatever, to cover by
his patent right, the cars made by the Defendants. We deny the
validity of the original patent, if such be his claim, and the legality of the extension. And we deny, also, the alleged infringement.
Of these subjects I shall speak at another time. But the principle of law is, that an injunction shall go out only to protect unquestionable rights. SNot to give one party an advantage before
the question of right is settled. On this subject I have but a
further word or two to say, and I ask your Honor's most serious
3




INJUNCTION.
and deliberate attention to it. By examining the affidavits of the
Defendants, (and their answers, you will see that the injury to
tlhenm, in case this injunction be granted, will be irreparable.
They have a capital of over $80,000 invested in the manufacture
of these eight-wheel cars.  They employ a large number of workmen, who, with their families, are dependent upon them for their
daily bread, and who I believe cannot be employed by them,
unless in the manufacture of these articles.  The Defendants
themselves would be broken up in business, for they tell your
Honor upon oath, that they cannot apply their capital, or their
structures, or employ their hands, excepting in the pursuits to
which they have been heretofore devoted. I say nothing of the
painful feelings with which they are brought here as trespassers,
because your Honor will be influenced by no feelings of sympathy,
however well deserved. But I will ask you to consider the statements in their affidavit, made without flourish and in all simplicity,
and you will perceive the disastrous consequences to themselves
and their business.
You will also see that these gentlemen are men of property,
and of undoubted responsibility and integrity.  They stand at the
head of the car building establishments in the country, and are
able and ready and willing, instantaneously, to respond to any just
claim of Mr. Winans, in dollars and cents, if they have, in fact,
in any way invaded his rights. And as the case in Massachusetts is so near its approach, it seems unnecessary, for the protection of Mr. Winans, under any circumstances, to inflict such a
heavy blow upon these Defendants.
An injunction is sought here, nominally, against the car builders; but this is really an attempt to get control of all the railroads
in the country.  And if this injunction be granted, your Honor's
Court will be thronged with applications for injunctions in order
to compel parties to pay what is demanded of them, whether it be
right or wrong. To suspend the business of a railroad for a single
month might be utter ruin to the Company, and it would better
submit to the most exorbitant demands, rather than stop the business on their road.  Such power cannot properly be granted to
the parties interested in this speculation in the exercise of sound
discretion, whatever be the supposed merits of the Plaintiff's




EXTENSION.                      27
claim.  To confirm these views, I will here refer your Honor to
Judge Grier's opinion in the case of Oliver H. P. Parker vs.
Sears et al., in which he absolutely refused an injunction, notwithstanding the Plaintiff had previously recovered repeated verdicts
in different Courts of the United States; because he considered
that the evil effects of an injunction would not end with the Defendants, but that they would involve other interests and other
parties, and put a stop to their employment. It is an opinion
filled with sound views on the subject of granting injunctions;
wholly applicable to this case, and sustains the positions assumed
in what has been already submitted.
In conclusion, upon this branch of the subject, we cannot but
think it the greatest injustice to the Defendants suddenly to break
up their business, and to throw their workmen out of employ,
under the circumstances of the case.
It would be unjust to the Railroad Companies, to put a stop to
their income from public travel; or subject them to the grasping
cupidity of speculators in exhumed patent rights.
It would be unjust to the travelling public, whose business and
pleasures would most unnecessarily be interfered with, by depriving them of the ordinary means of conveyance.
The builders of these cars, and the Companies who have invested money in their purchase, have made these investments innocently, honestly, and without intending to wrong any one.  Such
investments should be protected in Courts of Equity.
EXTE N SIO  N.
THIE Defendants deny, that the extension of thisoatent is valid.
First.  Because the Commissioner failed to order such notice
as was required by the statute, which alone gave him jurisdiction
of the case.
The notice actually ordered, is found in Wilkinson's affidavit,
No. 3, p. 50.  The statute passed May 27, 1848, about one
week before the Plaintiff's application-required sixty days notice to be given. The former statute of July 4, 1836, required
only three weeks notice.  The notice ordered required three




28                      EXTENSION.
weeks, ending sixty days before the hearing.  See Wilkinson, ut
szup2ra. Is this order sufficient, or does the law require the
Commissioner to order a notice to be published sixty days, instead
of three weeks ending sixty days before the time of the hearing?
Second.  The notice which was ordered to be given was not
given in fact.  See Wilkinson's affidavit, ut supra, for the facts.
Third.  The statute regulations for the extension of a patent,
must be strictly followed.  The notice was, in effect, concealed
from  New York and Massachusetts.  The evidence actually existing, as to prior inventions, was not made known at the Patent
Office.  See the Record, which shows that fact.  All the evidence, including the Fairlamb Patent, (which we suppose was
then mislaid,) was unknown to the officer who extended that
patent. The extension was opposed, only upon a very limited
ground, without investigation of merits or knowledge of facts;
and no notice was received, by those most interested to oppose
it.  The ground of objection taken, was, that the chief clerk
had no right to make the extension. See affidavits of Lee, and
Wilkinson, p. 54, No. 3.
Fourth Query.  Is this matter discretionary, as to what notice
is to be given? If it be so, and the Commissioner orders a certain notice which is not given, has he any more power?
Suppose that only ONE paper actually published the notice,
could he pronounce that sufficient, after having required and
ordered notice to be given in eight or ten papers? Suppose no
notice is published: Can he dispense with it? Is not the compliance with an order of notice, as necessary to give him jurisdiction, as the compliance with an order of a Court of justice?
Does the granting of the EXTENSION foreclose all inquiry? Is that
CONCLUSIVE? Cannot the question of jurisdiction be investigated?
Supposing that no notice had been given, it is clear that the
Commissioner has no right to extend the patent. It may be said,
that the statute is directory; yet it is nevertheless obligatory.
It may be said also, that it is no fault of the patentee, that the
notice ordered by the officer is not given. Nor is it the fault of
the Plaintiff in a suit at law, that the sheriff fails to serve a notice
ordered by the Court,-yet the jurisdiction fails.
Again.  The patent was not extended by TIHE COMMISSIONER,




EXTENSION.                       29
but by a cLERi, who had no right to makce the EXTENSION.  The
Commissioner's authority is under statute.  His duty in respect
to extensions is quasi judicial.
Powers of this description cannot be delegated by a party
to a substitute, though he be appointed by the government.
Last winter an attempt was made to pass a statute remedying this defect.  But it did not succeed.  The effort clearly
shows the feeling which was entertained by gentlemen on the subject.  The question of the extension is very different from that of
the ORIGINAL GRANT. The public have an interest and right, at
the end of fourteen years, in the invention of the patentee. And
the invention once having become public, or likely to become public, when the extension is asked for, the community have a vested
right, and that is to be divested only by the exercise of a judicial
act.  The origin and history of the formation of the Board, to
whom the duty of adjudging upon the extension of patents was
assigned, shows the importance attributed to the exercise of their
functions; and it is obvious that under-clerks were not in contemplation of Congress, as proper members of the Board.  The only
authority of the chief clerk to do anything is under the Act of
1836, section 2.  See Curtis, p. 471. At the time that statute
was passed, the powers of extending patents was invested in a
separate independent tribunal: the Secretary of State, the Attorney of the United States, and the United States Commissioner.
Their united action was necessary. The only power that the
clerk had, was to do the duties which belonged solely to the Commissioner.  The statute of 1836, which was sufficient to authorize
the chief clerk to do all the Commissioner could then do, is not to
be construed as extending to all duties that might thereafter be
devolved upon the Commissioner. This is the nucleus of the
whole argument. Powers, duties and capacities subsequently conferred upon the Commissioner, could not be transferred to his
substitute, when those powers and capacities did not exist at the
time when that substitute's authority was limited. The statute of
March 3, 1837, section 2, provides that " copies of records certified by the Commissioner, and, in his absence, by the chief clerk,
should be prima facie evidence," &c. That provision of the statute indicates that it was understood that whatever powers or
3*S




30                     CONSTRUCTION.
duties were imposed upon the Commissioner, by statutes subsequent to 1836, were not imposed upon the chief cleric, or, without
special authority, conferred upon him, even in so slight a matter
as certifying copies out of the office; and even though there were
no words of restriction or limitation in the statute.  I mean
by that, that although the statute did not limit the power of
making these copies to the Commissioner by any phraseology, yet it
expressly conferred that power on the chief clerk, as well as upon
the Commissioner.  The argument ab inconvenienti on this subject is undoubtedly a strong one against us.  For it would be
sometimes attended with great injustice to a party, if an extension
were defeated, because the chief clerk could not do any thing in
the absence of the Commissioner.  I admit all its force, and I think
that the case ought to be provided for by statute. But that fact
will not make the Court construe a statute more widely than the
terms would warrant.
It has been decided, that for all duties devolving on the Commissioner alone, previously to the Act of 1836, the clerk was the
Commissioner pro hac vice, in case of absence; and also, that the
Commissioner could take up an application for extension, pending
before the Board, and go on and grant it.  These two points are
decided and settled by the cases cited on the other side.  But
neither of those authorities touch this question. And I have only to
add, that as this is a matter of great moment, and as it lies at the
foundation of this case, and as it is now in a situation to be decided by your Honor, in connection with your brethren at Washington, during the coming session, I will not go into the argument at
large upon this question, but leave it here.
C ONST RUCTION.
IF the Plaintiff's claim be so construed as to include the cars
of the Defendants, then we deny the validity of the original
patent.  But in order to render the objections to such a construction of the Plaintiff's claim intelligible, it is necessary to examine
into the nature and extent of those claims. In other words, to
put some legal construction upon the terms used in the letters




CONSTRUCTION.                      31
patent.  The subject, therefore, of the remarks I am now proceeding to, is, the legal construction of the Plaintif's claims.
And that construction may be ascertained by considering three
questions or points.
First.  The admissions of the Patentee, as derived from  an
analysis of the patent itself.
Second.  By examining the language of the claims and the
principles of Patent law, as to what is, and what is not, patentable, or capable of being embraced within the terms used.
Third.  By ascertaining the state of the art of building the
running gear for eight-wheel cars at the date of the Plaintiff's
alleged invention, so as to determine in what sense he must be
construed, to have used his language of description and of claim.
First.  The admissions by the Patentee in his patent, are
these: —. That he was not the first inventor of any one of the
parts that compose the car.
2.  Nor of any particular form, or shape, or length of car
body.
3. Of no mode of draft-none being stated, and none
claimed.
4.  That the Plaintiffs invention is for a FREIGHT or burden
car, as well as for a passenger car.
5.  Not for any exclusive right to place two swivelling trucks
of four wheels each, under a long bodied car.
6. No particular size of wheels is recommended, and no statement made whether the wheels revolve with, or on the iaxes.
7.  No particular distance apart of the bearing points of the
-wheels on the rails.
8. No particular distance of flanges; by particular, I mean
exact, excepting that they must be very close together —" as near
as may be without touching."
9. There is a statement of the peculiar theory upon which his
whole philosophy rests, —of which I shall presently make an
exposition.
10. No proportions of parts to each other given.
11. That Winans was not the first inventor of eight-wheel
cars.
12.  That bearing carriages were in common use,-which we




32                      CONSTRUCTION.
call " trucks "-and, that these would answer the Plaintiff's purpose, provided that "the wheels were close together."  See the
Patent, p. 114, in Plaintiff's proofs, fol. 14. Nothing being
claimed as new  about those trucks, excepting the approximation
of the wheels.
13.  And, lastly, that there were  eight-wheel  swivelling
double-truck cars, before his invention was made.  Such are the
admissions found in the patent itself. And I refer to Chief
Justice Taney's opinion to show, that his Honor understood, precisely as I understand, these admissions of the Patentee.
What are the peculiarities of the car, as Winans would have it
constructed?  Let us examine  them  AS HE  STATES THEM.
They are,
1.  Connecting the axles of the wheels in each truck, by a
long spring, bolted to the boxes, twice as strong as those in the
four-wheel cars.
2. Placing the wheels of each truck very near together, so
that the two shall act, as nearly as may be, like a single wheel;
the two trucks being at or near the end of the body.
3.  Connecting the trucks with the body, by means of bolsters
swivelling on a king-bolt, in the manner of a common road
wagon, dispensing with any of the side bearings.  And, your
HIonor will please notice:-And "s bearing the load on the centre
of the bolster," this is the language of the patent, "c which is also
the centre of each bearing carriage."  See the Patent, folio 23,
p. 5, Plaintiff's copy.    This arrangement", (he says,)'" of the
bolster, and the connection of it with the body in this peculiar
way, affords great relief (Folios 15 and 16,) from  shocks, occasioned by percussions of the wheels on protuberant parts of
the rails, or other objects; and from  the vibrations consequent
upon the use of coned wheels, as the lateral and vertical movements of the body of the car, resulting from the above causes, are
much diminished."  Plaintiff's proofs, p. 114, folios 15 and 16.
He accomplishes the object of running smoothly and evenly
over the road, freeing the car from vibrations, and giving great
relief from shocks, by this peculiar arrangement of resting the
weight of the body upon the centre of the bolsters, without side
bearings, and the weight of the centre of the bolsters upon the




CONSTRUCTION.                     33
centre of the truck; while others in former times, and we at the
present time, adopt a very different plan, of which I shall hereafter speak.
Before critically examining the language of the Plaintiff's
claims, let us see and understand what the Plaintiff's experts suppose that his invention consisted in. There are but two witnesses
of any importance on this point. The first is W. C. Hibbard; p.
81, folio 384: and in a moment I will state the substance of his
evidence.  He says, that the eight-wheel car has three advantages over the four-wheel car; pp. 77-8.  Second, that there are
three essential points in the construction of the eight-wheel car;
p. 79, folios 370, 371.   Then he proceeds to  distinguish
Winans's from preceding inventions, by showing that it has three
peculiarities; p. 81, folio 384, and which I will state.  The
First is, "' the closeness of the wheels to avoid friction." Second,
"' to support the body on two swivelling trucks."  And, Third,
the application of the motive power to the body.
This is what he says Mr. Winans's invention consisted in;
and it is q'uite important that the attention of the Court should be
addressed; to what witnesses supposed the inventor invented; so
that your Honor should see what their views are in speaking,
both on the question of novelty and on the question of infringement.  The other is John Elgar.  P. 25, folios 106 —10 of
Plaintiff's proofs. He also gives his views of what the Plaintiff
invented.  1st. He says, that he thinks the invention was a long
body.  2d. Swivelling trucks at or near the end; and 3d. The
wheels of the truck closer than would do in a four-wheel car.
These are the Plaintiff's experts' ideas of what Winans invented.
On what ground do his counsel place his claims to invention?
The learned counsel who opened the argument stated, that " the
complete principle of Winans's invention required 1st.'The organization to have two four-wheel trucks;' and 2d.' Swivelling
freely under the body, by reason of transmitting the draft by the
body, and the near proximity of the wheels in the truck, and the
separation of the trucks from each other."'  So, that, if all other
things are used by the, Defendants, except drawing by TIE BODY,
they do not infringe!
What I consider important in this admission is, that if there




34                      CONSTRUCTION.
were "the near proximity of the wheels, and the remote position of the trucks," and every other feature stated in Winans's
patent, excepting the draft by the body, that the invention was
worthless, and those who used it would not infringe Winans's
claim.  If Mr. Keller is right in his view of what Winans invented, the claim would then be for a combination between an
eight-wheel double truck swivelling car, and some apparatus for
drawing it by the body. And the counsel do claim in reality,
(though not in terms,) a combination between some mode of
drawing by the body, and an eight-wheel car, which car, he says
we may use without infringement.  Because, if we may use the
car without infringing, until we take that feature of the invention,
then it is clear, that what he, in reality, means to claim, is a combination between some new mode of draft, and an old eight-wheel
car. After having stated this much of what the counsel and the
experts consider Mr. Winans's invention, I will now come to the
language of the patent itself, and see if we cannot obtain some
clear and definite idea of what that patent is for.  He says:and I read the language of the patent — " I do NOT claim running
cars on eight wheels, this having previously been done." Not as
he says in the manner, or for tle pur2poses herein described.  But
merely, with a view of distributing the weight carried, more evenly
upon a road, and for objects distinct in CHARACTER from those
which I have had in view, as herein set fortth."  The objects set
forth in the patent are these.
" The OBJECT of my invention is, among other things, to make
such an ADJUSTMENT of the WHEELS AND AXLES as shall cause
the BODY of the car to pursue a more smooth, even, direct and
safe course " than it does as cars are ordinarily built, that is, on
four wheels.  As stated in this manner his object is to do certain
things.  The statement is not exactly correct, for he has confused
the structure he describes, with the end or object for which the
structure is designed. But the object is clear, plain, definite and
distinct.  It is to make the car travel more smoothly, directly(not wabbling) —and safely.  And there are no other OBJECTS
stated in his patent.  Various means, however, of effecting this
result are stated.  Now Winans denies in his patent, that railroad cars or carriages having eight wheels, were ever before ar



CONSTRUCTION.                      35
ranged with the same object. The object is, " to run smoothly
and evenly upon the straight and curved parts of the road."
That statement might be accounted for, and is accounted for, if
Winans was not aware, that there had been any preceding double
truck eight-wheel cars, and he only knew of four-wheel cars being
used.  For, in comparison with the four-wheel cars the remark is
just; but in comparison with the eight-wheel cars, the remark is
most mistaken.  I ask for what objects were the eight wheels of
the Allen Engines, the Trussel, the Wood, and various other cars
constructed; and for what object were they made to swivel at all,
unless it was to run smoothly over the inequalities of the road,
and go round the curves?  But, whether these cars were built
with that object in the mind of the constructor or not, still, if they
were calculated to OBTAIN THAT OBJECT, it iS not nmaterial.  If
the arrangement or invention EXISTED, it is no matter what was
the object of the inventor. One who discovers the value of a PRECEDING INVENTION, is not thereby entitled to the exclusive use of
that invention. Besides, if the eight-wheel double truck car had
been originally constructed merely for the purpose of equally distributing the weight on the rails; and if it was also found that it
would run smoother than the four-wheel car, that discovery is not
such as to entitle the discoverer to a patent.  For what object, or
upon what design, were the eight wheels put in two trucks of four
wheels each, other than to turn curves, and run smoothly? Eight
wheels in a common stiff frame, would distribute the weight, under
certain circumstances. But these eight wheels were put in two
trucks; and the two trucks were to swivel, and turn curves, and
run smoothly undoubtedly.
The claim  goes on to say, " Nor have the wheels," when
thus increased in number,'" been so arranged and connected with
each other"-either by DESIGN or ACCIDENT-as to accomplish
this purpose.  What I claim therefore as my invention is, the
before-DESCRIBED manner of arranging and connecting the eight
wheels, SO as to accomplish the end proposed by the MEANS SET
FORTH, or ANY OTHERS which are ANALOGOUS and dependent on
the SAME PRINCIPLES." If Winans had simply claimed the before
described manner of arranging and connecting the eight wheels,
this would have been intelligible to some extent; but thisiss NOT




36                     CONSTRUCTION.
HIS CLAIM.  IHe does not confine his claims to THAT MANNER, or
the means set forth, but he claims ALL OTHER means, modes, or
manners, (besides those set forth,) which are analogous, and dependent on the same principles.  So that he claims every mode
there can be, of making a car run more smoothly and safely than
a foutr-wheel car, by any arrangement and CONNECTION OF THE
WHEELS, even though NOT DESCRIBED, or invented, or thought of
BY HIMSELF, where it comes within a peculiar principle or theory
which he sets out.  Now, as the Plaintiff does not confine himself
in his claim to the MEANS-and the machinery set forth-and to
that which is substantially the same, but to ANY mode of accomplishing THE OBJECT, by other means than what he has discovered,
it is too broad a claim.  It is an attempt to get a PATENT for a
RESULT- not a machine-or, rather, for every mode of arranging
the wheels by which a certain result may be accomplished.  If
Winans means to confine himself to the arrangement and connection of the parts he has particularly described, THERE IS NO VIOLATION PRETENDED.
As the patent cannot be for a RESULT; that is, the result of running smoothly and swivelling to the curves-not being for any of
the PARTS of the MACHINE —not being for the trucks alone, or the
mode of marcCin  them; not being for the principle of the two trucks
swivelling under one body, it is obvious that it CANNOT be for
merely the position of the truclcs, in relation to their distance from
the ends of the body, as no change of position developes any new
physical mechanical principle.
The patent cannot be for the mere distance of the wheels in
each truck, as changes of distance develop no new mechanical
principle; and the old statute declares, " that the change of proportion CANNOT be the subject of a patent."  Any one has as
good a right as Winans has, to use the old elements in the same
substantial construction, with a change of proportion of distances
between THEM.  Change of PROPORTION iS a property incidental
to all machinery, and, as I have said, not patentable. Another
reason why the Plaintiff cannot claim the nearness of wheels in
each truck is, because he says, that the trucks in common use
would answer his purpose, provided the wheels were close together.
It is proved, that the common bearing carriages had wheels from




CONSTRUCTION.                      37
three to twelve inches apart; and that is far nearer than they are
now put. So that, it must be supposed that Winans meant to
claim, the putting them less than three inches apart, if distance
has any thing to do with his claim.
Now, if his patent be for coupling the wheels in each truck, so
that theflanges shall come close together, and the two trucksfar
apart, without reference to the peculiar mechanism by which this
is accomplished, then it is void for four reasons.
_First. That would be a, mere change of proportion.
Second. It would not embody the true principles of an eightwheel car, but the departure from those principles would be a pernicious change.
Third.  The true principle of the eight-wheel-car was known
before, and is used by the Defendants now.
Fourth. This arrangement as to distance, separately considered, is not original with Winans.
What is Winans's theory?  What is his philosophy?  What is
the basis, the radical idea of his invention?   It is this.  To
bring the axles of the wheels, as near as possible, to coincide with
the radial line of the curves of the road, so as to approximate to
the action of a single wheel. That is his theory, so far as regards the arrangement of the wheels; and, it is highly important
that it should be clearly comprehended as we proceed. I will refer to four passages of the patent, to show that this is an exact
statement of his theory. The first is on p. 2, folio 6. He says:
"From this consideration, when taken alone, it would appear to be
best, to place the axles as near to each other as possible, thus
causing them to approach more nearly to the direction of the radii of the curves, and the planes of the wheels to conform to the
line of the rails."  The next passage is at the end of folio 13,
and at the beginning of folio 14.  He there says.  "For this
purpose, I construct two bearing carriages, each with four wheels,
which are to sustain the body of the passenger, or other car, by
placing one of them at or near each end of it, in a way to be presently described. The two wheels on either side of the carriages
are to be placed very near to each other, the spaces between their
flanges need be no greater than is necessary to prevent their contact with -each other."  I will now turn your attention to p. 5,
4




38                    CONSTRUCTION.
folio 21, where he says:  " The end which I have in view, may
nevertheless be obtained by constructing the bearing carriage in
any of the modes usually practised, provided, that the fore and
hind wheels of each of them be placed near together, because the
closeness of the fore and hind wheels of each bearing carriage,
taken in connection with the use of the two bearing carriages,
coupled remotely from each other as can conveniently be done,
for the support of one body, with a view to the objects, and on
the principles herein set forth, is considered by me as a most important feature of my invention."
You see that he says,;" the closeness of the fore and hind
wheels" is considered a most important feature of his invention.
The next passage is in folio 23, where it reads.  " The two wheels
on either side of one of the bearing carriages may, from their
proximity, be considered as acting like a single wheel."  I will
now read again the passage to which I first referred on p. 2.
1" From this consideration, when taken alone, it would appear to
be best to place the axles as near to each other as possible, thus
causing them to approach more nearly to the direction of the radii
of the curves, and the planes of the wheels to conform to the
line of the rails." There is the beginning and introduction of the
philosophy of Winans, and the idea or principle is repeated
four times in different parts of the patent.  And I have read
them to show that this is precisely the fundamental idea of all his
arrangements. So far as regards this part of his structure, the predominant notion in his mind was, that the curves could be passed
more easily, and a better car made, if the axles of the trucks
were only brought as close together as you could possibly make,them run. The whole patent is founded, and the whole inven-,tion is moulded upon exactly that notion. Let me ask your
Honor's attention to the second branch of the theory; for
it embraces two parts. The second branch relates to the connection of the two trucks with the body. Both these theories
are the subject of the Plaintiff's claim.
I will refer to a few passages in the patent, which describe the
peculiarity of Winans's mode of connecting the body with the
trucks.  I read from folio 16, of the Patent.  " Upon this first
bolster, I place another of equal strength, and connect the two




CONSTRUCTIoN.                     39
together by a centre pin, or bolt, passing down through them, and
thus allowing them to swivel or turn upon each other, in the manner of the front bolster of a common road wagon." I will also
read the sentence preceding.  "This bolster must be of sufficient
strength to bear a load UPON ITS CENTRE~ of four or five tons."
Your Honor will take notice that it says" " upon its centre," for
that is important.  Then again in folio 23.  " The bearing of the
load on THE CENTRE of the bolster, which also is the centre of
each bearing carriage, likewise affords great relief," (see how
much importance is attributed to this, in carrying out Winans's&
idea) " from the shocks occasioned by the percussion of the wheels,
on protuberant parts of the rails, and other objects, and from the
vibrations consequent to the use of coned wheels; as the lateral
and vertical movements of the body of the car resulting from the
above causes are much diminished." And there is another part
of his patent where he states, that he wishes to have his bolster
swivel, "in the manner of a common road wagon."  Now everybody knows, that there is nothing new in the swivelling of a common road wagon, nor in suspending the weight of the load upon
that part of the bolster which is close to the centre-pin. Nor is
it asserted by the patentee that there is any thing new in it; and
yet he adopted that, as an essential and elemental part in his theory of construction.
The next paragraph to which I refer is found in folio 20.
" When the bolsters of the bearing carriages are placed under the
extreme ends of the body, the relief from shocks and concussions,
and from lateral vibrations, is greater than it is when the bolsters
are placed between the middle and the ends of the body, and "(this is the important passage)-"this relief is not materially
varied by increasing or diminishing the length of body, while the,
extreme ends of it continue to rest on the bolsters of the bearing
carriages, the load being supposed to be equally distributed over
the entire length of the body." According to his idea or theory,
the length or shortness of the body made no difference, provided
it was suspended at the extreme ends. Hence the injustice of
claiming as Winans's plan, or as any part of his idea, the use of
a VERY LONG body; such as is now in common use, and such as




40                     CONSTRUCTION.
his experts and his counsel claim as one of the important and distinctive features of his invention.
Such then is Winans's theory on the two branches of his claim.
I proceed now to say a word further in regard to the legal CONSTRUCTION of his claim.
Is not this the true construction of the claims of Winans?
Namely, The coupling of the wheels in each truck, so that the
flanges shall come very close together, and the two trucks at or
near the end of the body by MEANS PECULIAR to him, viz: by long
springs bolted to the tops of the boxes of the axles, and bolsters
bolted across the tops of the springs; and swivelling like a common road wagon, and bearing the load on the centre of the bolsters; dispensing with side bearings?  That is the structure of
the car that Mr. Winans specially described and recommended as
the best to embody his ideas.  Id est: making " such an adjustment of the wheels and axles" (to use his own language) as
will give a new ease of motion to the car, by the peculiar uses of
the SPRING TRUCK, and connecting the truck with the body by the
uwagon bolster, dispensing with the side-bearings and the thoroughbrace, which side bearings, without extra springs, would give a
hard motion to the car.
The theoretical idea was very GOOD on paper, but the practical
trial was very disastrous. Yet is not this his claim? Can any
man deny, that that, which he has specifically pointed out and
recommended, is not his claim? Such was Winans's theory, such
his OBJECTS, and such his peculiar mode of embodying that theory.
As this matter of construction is so vital in this case, and such
extraordinary ideas have been entertained from the day when this
litigation began before the Chief Justice of the United States, to
the present hour, and so remarkable have been the shifting
grounds upon which the patent has from time to time been put,
that I propose to throw out some suggestions of argument upon
the constructions that I have stated as the true construction of
Mr. Winans's claim, and the only construction upon which the
patent can stand consistently with any pretence that Winans
was the first and original inventor of the things claimed by him.
Suppose that the patent is not confined to the mechanical contrivances of LONG SPRINGS, bolted to the boxes of the axles, with




CONSTRUCTION.                    41
road wagon bolsters, bolted across the middle of the springs, as
the means of arranying and connecting the wheels with each
other and with the body. And suppose that by the true construction of the patent, it is for that mode or any other mode or
mechanism-arranged without frame or otherwise-by which the
wheels could be connected closely in pairs to form bearing carriages, and the bearing carriages remotely from each other, to
sustain the body.  Then in that case the patent would be for the
principle of the eight-wheel car, reduced to practice not only by
the mode described, but by any other mode that will embody the
same principle, and therefore void.
1st. Because the specific mode described and recommended
is pernicious as a mode, and would require experiment to discover
the error in the specification, and to develop other modes better
adapted to embody that principle not described in the specification.
2d. It is void for want of originality, because the true principle oft he eight-wheel car was prior to Winans's patent, described
and used and embodied in mechanism  different from Winans's,
and the same as that now in general use.
3d. That if it could be deduced, from the Plaintiff's specification, that he intended to place the wheels at a distance from
each other, different from what was before known and used; such
difference would not be the discovery of a NEW PRINCIPLE, and it
is not clearly definite and distinct from previously known distances.
And, as a difference in distance is a difference in proportion,
and an incident common to all machines, such variation of distance is not a matter of invention, and does not develop any new
physical law or principle.
It does not introduce any new elements, and form a new combination.
It does not constitute a new machine in its substantial parts, or
in its essential character.
It is not the subject of a patent. You cannot patent a principle, and you cannot claim all modes of developing a principle.
Now, as the principle of the eight-wheel car existed in Chapman, Tredgold, the Wood car, the Trussell car; in Fairlamb's
4*




42                     CON STRUCTION.
patent, in the Quincy car, in the Columbus, and in all the old
cars, Winans's patent Is voID, if he intended to cover the principle of any of them, because it is too broad.  So said Judge Conkling.
We shall presently show, that whichever construction is taken
by the Court, it is equally safe for the Defendants. For under
the first construction, we do not ivfringe; and under the second,
the PATENT iS VOID.
If the Plaintiff could sustain a patent for ANY MECHANISM,
coupling the two wheels close together, and placing the trucks at
the ends of the body, notwithstanding the prior existence of the
Chapman, Tredgold, Wood, and Trussell cars, the Columbus, the
Winchester, &c., and the Allen engine, then the Defendants do
not infringe, because THEY place their wheels FURTHER APART
than the Wood and Trussell cars, and the Columbus and the Winchester, &c.; and substantially AS far apart as Chapman, Tredgold, Quincy and Allen; and vmuch further apart than the Plaintiff allows them to be placed.
Suppose the Plaintiff means to claim as his invention " the before-described manner of arranging and connecting the eight
wheels so as to accomplish the end proposed, that is-to run
smoothly —by the means set forth, OR ANY OTHERS WHICH ARE
ANALOGOUS and dependent on the same principles; this patent Is
VOID, because the Plaintiff claims TOO MUCH. If change of proportions prevents the preceding eight-wheel from being analogous
or dependent on the same principles as Winans's, we do NOT
INFRINGE.
The plaintiff must STRIKE through Chapman, Tredgold, Quincy,
Allen, Wood and the Trussell cars, because Winans's is at the
mninimum distance, and the Defendant at the maximum distance;
and the prior inventions are between them both. The first makes
the Plaintiff's patent VOID, or else the Defendants are not infringers. In other words: Winans embodies the theory of conforming the axles to the mean radial line of the curves, while the
preceding inventors did not, and the Defendants DO NOT.
Although Winans's theory be ever so distinct and clear,
yet, if the Plaintiff could claim a Patent for nearness of wheels in
one truck, it would be equal to claiming a patent for putting a




COsaTRUcTION.                     43
large wheel in place of a small wheel-for your Honor will see by
the models, that by putting larger wheels on the same trucks, you
bring them closer together.
Again.  If the Plaintiff could claim remoteness of two trucks,
lengthening of the body is all that is wanted to produce that remoteness.  It is a mere change of proportion alone, and nothing
else.  Withl these remarks, upon what is not-I pass again to
WHAT IS the legal construction to be given to Mr. Winans's claim.
Taking into view the fact, that there were other eight-wheel
double truck Railroad cars for freight, if not for passengers, existing many years before his patent, and capable of carrying passengers as well as freight; also, that the patent must, by law, be so
construed, if possible, " ut magis valeat quam pereat "-that if
the construction can, without violence to the language, it should
be so made as not to render the patent vOID, as embracing
that which Winans did not invent.  Also, considering, that
while the placing of the wheels near together in each truck,
and the trucks far apart, was a mere change of proportions,
and was not original with Winans, and he can have no exclusive
right to use that mode of arrangement, yet he was the first to
couple the axles with a long spring, and to use the wagon bolster,
which nobody ever used before or since the date of his patent,
Winans's claim, if he has any valid one, must be confined to
these peculiarities of mechanical structure, leaving others to couple
their wheels as they please; and to use the rigid rectangular
wheel-frames, with one spring to each wheel, as was done of old.
And the " analogous modes, dependent on the same principles,"
must be confined to any other mode of connecting the axles by
some elastic material, so as to allow of the wheels separating and
approaching each other as the body rises up and down.
And, as Winans cannot patent his THEORY, he can claim the
peculiar devices by which he embodied that theory,-springs, &c.,
if they were first invented by him, as distinguished from what was
known and used before.
Now the other theory, as to the connection of the trucks with the
body, was to carry the body more smoothly, by suspending it in a new
way, so as to give it new freedom of motion upon springs. 1st. By
placing the bolsters on long elastic springs. 2d. By resting the




44                     CONSTRIUCTION.
whole weight of the body upon the central part of the bolster,
(and not on side bearings,) the manner of a common road
wagon.
TIhis theory also required the peculiar devices above stated.
See patent, p. 6, where it says; " The bearing of the load on the
centre of the bolster, which also is the centre of each bearing carriage, likewise affords great relief from the shocks occasioned by
the percussion of the wheels on protuberant parts of the rails or
other objects, and from the vibrations consequent to the use of
coned wheels."
Now let us look at the theory of the Plaintiff's counsel, as to
construction.
They admit and assert, that the claim is not for any part of the
structure, unless combined with some apparatus for drawing the
car by the body. If I am right, there is an end of their claim.
Mr. Keller.  Permit me.  We say that the drawing by the
body was the only mode by which the principle of the invention
could be practically carried out.
Mr. Whiting.  That is what I mean precisely.  It is a vital
principle; and if you do not draw by the body, you do not use
that which embodies the vital principle of the Plaintiff. They
also say, that it is not for the near coupling of the wheels, and
the distant position of the two trucks and their connection with
the body, for the purposes stated, UNLESS combined with some apparatus for drawing the car by the body.
This is the substance of their claim they say, and if their
patent does not embrace that claim, they have no claim that will
stand.
They do not claim the drawing by the body as the Plaintiff's
invention; but their claim is to be deemed applicable only to
cars which are drawn by the body, and not by the perch.
So that, if the patent covers cars which draw by the perch,
such a construction of the car is worthless, and does not embody the
principle of the Plaintiff's invention, and the use of such a car is
not an infringement of the real claims of the patent, as the Plaintiff's counsel understand them.  And in such a case, the patent
would be void, because it would cover prior inventions.




CONSTRUCTION.                    45
Now, my conclusions are these:1st.  That this admission is equivalent to an abandonment of all
claim to novelty of every part, and every combination of parts of
the eight-wheel car, except when used in this way.
2d. As this mode of drawing is not mentioned, or described,
or claimed in the patent, it results from the Plaintiff's admission
that we may use every thing that the patentee has described or
claimed, without infringement of his invention; and we become infringers only when we use something not there described or alluded
to in the remotest manner! This is the most remarkable doctrine
that I have ever listened to in a patent case. And an attempt,
however adroit, to smuggle into the patent that theory of construction, and those ingenious claims which are not found in the
language of the specification, nor in the intentions of the patentee,
and which are palpably inconsistent with both, cannot be successful.
The learned counsel are driven to the use of vague phraseology, because it is impossible, in clear language and upon settled
principles of construction, to discriminate between what Winans,
-(using the language of the specification,)-really claims as
distinguishing his invention, from what was well known before,
without, at the same time, so narrowing his claim as to render
him unable to make out a case of infringement.
Hence, instead of using terms which are familiar to patent lawyers, instead of claiming either the specific parts, or some combination of the parts of the machine for transporting freight or passengers, he says his claim is not for the parts, nor for any combination or arrangement of parts, but for a whole!
A patent for an improvement on any machine, be it a car or
not, must be either for some new part, or some combination of
parts, whether new or old; and that combination may embrace all
the parts or only a certain number of parts. But when, as in this
case, all the parts were old, most, if not all, the combinations of
these parts were old, the Plaintiff can claim only such combination as is new. He can claim nothing more or less than some
combination. He cannot claim the CAR AS A WHOLE.  Otherwise, he would cover many parts and many combinations which it
is admitted he did not invent, and so his patent would be void.




46                      CONSTRUCTION.
The true construction is as I have before stated, and in accordance with the opinions of the learned Judges who have had the
claim under judicial consideration. See Chief Justice Taney's
construction, Plaintiff's book, p. 20, (at the end;) and which has
been adopted by Judge Conkling and your Honor; in which he
says,-" But he claims as his invention, the MANNER of arranging and connecting the eight wheels, as specified in his patent, for
the end above mentioned. And also the connection of a railroad
carriage body with them, adapted either to the transportation of
merchandise or of passengers."
The object of the invention has been already stated; and the
means by which it is to be attained are classified thus in the language of the patentee.  1st. By the beforemnentioned desideratum
of combining the advantages of the near and distant coupling of
the axles; and 2d. By other mneans to be hereinafter described.
The ONLY MEANS stated or described in any part of the patent,
are as follows:1st. By constructing the spring bearing-carriage with the
wheels very close together.
2d.  By the distant coupling of the trucks, so that the body is
supported at or near the ends.
3d. That the body be twice the length of the ordinary fourwheel car; but the length is stated to be immaterial.
4th.  The trucks swivelling in the manner of a common road
wagon.
5th. The bearing of the load on the centre of the bolster.
There is no part of the patent where any thing is said about
the means of draft. There is nothing said or intimated as to the
absolute freedom  of swivelling as being necessary or desirable.
The subject itself is not alluded to in any part of the patent.
On the contrary. Two facts are mentioned expressly, which
are inconsistent with the pretension, that the great idea of the
patent is absolute freedom of swivelling.
1st.  The trucks are to be " coupled," as well as the axles of
each bearing carriage or truck.
Then, 2d.  The two trucks are to " swivel," in the manner of
a " common road wagon."  They are not to be left to fly round
" ad libitam." Each truck was to act substantiallg like a single




DISCRIMINATION.                     47
pair of wheels; which every one knows could not run on a road
without the guidance of a perch.
8d.  The patentee says, that all the advantages contemplated
by him may be obtained by substituting, instead of his springtruck, any of the ordinary bearing carriages; and those all drew
by the perch.
There is not only absolutely nothing in the patent to sustain
the idea put forth by Mr. Keller, that absolute freedom of swivelling was essential to the construction of the car as described in
the patent, but the whole patent is directly in the teeth of it.
Therefore the Plaintiff's patent cannot be construed, as embracing or embodying any idea of the absolute free swivelling of
the trucks; nor as applicable only to such an arrangement; nor
as being distinguished from other inventions by any such criterion.
Thus far we have shown what we believe to be the legal construction of Winans's claims.
Ist. By considering the admissions of the patentee, in his specification, and an analysis thereof.
2d.  By a close examination of the language of the specification and claim.
3d. By judicial authority.
Now, there is left only, on the subject of construction, and to
throw light upon it, a consideration of the state of the art of making the running gear of the eight-wheel cars, at the time of the
alleged invention.
This is important, both to the Patentee and to the Defendants.
But the statement of the evidence must be postponed till we come to
the proposition, "' That Winans was not the first inventor of the
first' double truck eight-wheel car,'" such as is used by the Defendants.
DISCRIMINATION.
The next point to which I ask your Honor's attention is this.
That the patent is not valid, except for the peculiar devices described in the patent, because, being an improvement on what was
known and in use before, the patentee is bound to discriminate




48                   ]DISCRIMINATION.
between his own improvements, and the cars nearest like his own,
viz.: the preceding eight-wheel cars.
The questions arising upon this subject at the present trial are
very different from  those which have been formerly discussed.
On previous occasions, the only questions which arose were simply
whether the Plaintiff had, in his specification and claim, sufficiently
discriminated between the eight-wheel car, described by him, and
the old four-wheel cars, and the Courts held that the Plaintiff had
done so.  Now we have introduced evidence of other eight-wheel
cars prior to the Plaintiff's, which embodied the main features of
that which the Plaintiff describes.  And the issue now is an
entirely new one, arising upon a new state of facts. I should not
have argued this question before your Honor, if this were not so.
The new evidence to which I allude is, that there were sundry
eight-wheel double truck swivelling cars in existence prior to the
Plaintiff's patent, which had not been proved on any former trial.
Now, if the description is not sufficient to discriminate his
invention from others, that description is too vague and ambiguous to come within the requirements of the patent law.
Next. If his claims do not also clearly distinguish between
new and old, they are void; because the patent is too broad.
It is a fact that many eight-wheel cars were in use on the
Baltimore and Ohio Railroad, from  the fall of 1830 to October
ist, 1834, inclusive, not invented by Winans.  To say nothing of
the Columbus, the Wood and Trussell cars, there were the Dromedary, the Winchester, and other passenger cars; also the Quincy
cars, and the Allen engine, &c.
In what particulars was Winans bound to show the difference
between what he claims and those that we show were in use,
and upon which his improvements were founded?
We say that he was bound to discriminate between what was
old and what he claimed as new, in all the particulars in which he
claimed that his invention consisted.  What he does not thus discriminate is admitted to be old, or not his invention.
And what has he discriminated and recommended? It is only
the spring truck and the wagon bolsters.
In this alone has he conformed to the requirements of law;
and for this alone, therefore, is his patent valid.  What difficulty




DISCRIMINATION.                     49
was there in Winans being definite, and in discriminating between
his pretended claim and others? If his body were twice the
length of the ordinary four-wheel car; —(i. e. from 20 to 24
feet,)- why not tell how long other eight-wheel cars, for passengers and freight, as the Quincy and Trussell cars, &c., hIad been?
If he placed the bolsters differently from others, why not say
so; and tell how far from the end of the body they must be placed
in order to come within his plan?
As to the distance of the wheels in the truck, others had
placed them 3, feet apart, as he acdmits.  Is that too far? If so,
why not say, so?  In truth, others had already placed them  as
near as Winans did, and, therefore, he dared not specify the distance, although his counsel now claim that he did in fact introduce a substantive improvement, by diminishing the distance between the flanges.
Why not show what he meant to claim by some original drawing? None has been proved, or referred to, and the inference
that we draw is, that none really existed.
The present drawings do not help the difficulty. They were
not made till 1838, as preparatory to the suit of Winans vs. The
Newcastle and Frenchtown Railroad Company.
The drawing before the Court, representing a car that was not
built in 1837, does not in any way illustrate the specification?
but embraces things not in the patent, and portrays modes of
construction entirely the reverse of what is there described.
I shall ask  your Honor's attention to numerous particulars, in which there are diversities between the drawing and
the patent.  And your Honor will have to settle first the question;- What will be the legal effect of a drawing, no part of the
original patent, and not restored when the patent was restored,
and not made until it became necessary for the purpose of founding a lawsuit; made, therefore, "'endente lite," andclportraying a
car that was not in existence until four years after the date of
the patent, whereby it is attempted to grasp and comprehend things
which are not in the patent; and not that only, but also to shonw
things which are directly inconsistent with what is contained
in the specification, and directly the reverse of what the patent
prescribes?




t50                   DISCRIMINATION.
(Presenting the drawing to the Court.)
This drawving represents a freight car and not a passenger
car, which is the only one described in Mr. Winans's specification.  The drawing  represents a rigid rectangular wheel frame
for the trucks.  In the specification, instead of a rigid wheel
frame, the axles of the wheels were connected only by a steel
spring, bolted to- the boxes of the axles, with a bolster bolted
across to the tops of the springs.  The drawing represents two
springs on each side of the truck frame, the action and reaction
of which may not tend to throw the axes of the wheels out of parallelism. The specification particularly recommends one spring
only on each side of the truck to connect the axes of the wheels,
and the action of that spring would necessarily throw the axes out
of parallelism.  The drawing represents the springs with the
shorter leaves downwards.. The specification directs exactly the
reverse.
In the drawing, the bolsters on which the body rests are placed
between five and six feet from the ends of the platform of the car;
whereas the specification requires the same to be placed at or
near or beyond the ends of the body, and in any event no farther
under the body than that the wheels shall come just within the
ends, and the trucks are to be coupled as remotely from each other
as can conveniently be done for the support of one body.  In the
drawing the wheels are placed sufficiently far apart to put a
brake in between them; while in the specification the wheels are
directed to be as close as possible, without the flanges touching, to
have them act as near as may be like a single wheel.
The drawings represent a conical pivot marked X, with sockets
and side bearings, forming a solid bolster in onfe solid piece, with a
lower bolster and pocket Y to correspond-while the specification
describes a plain bolster of wood or iron, reaching across from
spring to spring, united to an upper bolster by a king bolt swivelling in the manner of the front bolster of a- common road wagon.
The drawing shows a mode of coupling or drawing the car by
two pieces bolted across the' bottom framing, and a coupling bolt
with a ring to it to drop through the coupling, to draw the car
from the middle of the end of the body-the specification neither
describes nor intimates any mode whatever by which the cars are




DISCRIMINATION.                     51
to be drawn2.  The drawing shows cast iron pockets for the ends
of the springs to work in-the specification prescribes a different
mode of fastening the ends of the sptings, viz.:-bolting the ends
of them on to the boxes of the axles.  The drawing shows an arrangement of brakes suited to the swivelling trucks of the eightwheel car —the specification does not describe nor mention any
mode of arranging or using brakes.
-Now, what are we to do with a drawing that comes so directly
across the track of the patent?
The patent is not to be enlarged by reference to the drawing.
The drawing does not help the Plaintiff upon these defects of
discrimination.  The specification must always govern the patent.
There is nothing in the drawing which shows how other preceding cars were made, so as to aid the specification in its fatal defect
of non discrimination.  If the Plaintiff meant to cover any thing
beyond the elastic spring trucks, why should he not have said so?
Why not discriminate between his invention and the other preceding eight-wheel cars, viz.:1. The Chapman.
2. The Tredgold.
3. The Allen Carriage.
4.  The Quincy Cars.
5. The Wood Cars.
6. The Trussel Cars, for horses and carriages and soldiers.;7.  The Columbus, the Dromedary, &c., and also the Victory,
at Philadelphia?
These all had running gear adapted to passenger cars, as well
as for freight, and were the same as those now used; (and
Winans claimsfreight as well as passenger cars.)
We say that there was no patentable discrimination to be made,
excepting as to the peculiar devices by which Winans embodied
his theory, which were:1st. The approximate coincidence of the axles with the radii
of the curves.
2d.  The central bearing of the bolsters.
And finally as to discrimination.  If the Columbus were invented by Winans, and the Winchester and Dromedary and other
eight-wheel cars, being allowed to go into public use before the




52                      ABANDONMENT.
patent, with Winans's knowledge and consent, they became public
property (the statute of the 3d of March, 1839, not applying to
this case).
Being public property, if they did embody Winans's pretended
invention, then the Plaintiff's patent is void, by reason of abandonment.  If they did not embody Winans's invention, the Plaintiff
was bound to discriminate between them and his own invention, or
else his patent is void for want of discrimination.
His patent does not discriminate except in respect to spring
truclcs and wagon bolsters; these are, therefore, all he can claim;
and these the Defendants do not use.  Your Honor sees the Defendants are safe in either alternative.
ABAND ONMENT.
I now pass to another subject, on which the evidence is somewhat volunlinous, but which it will not be necessary to recite to
the Court.
It is this: That if such running gear as the -Defendants build,
is embraced woithiin the truite meaning of the Plaintiff's patent;
and if IWinans were, in fact, the first and original inventor thereof, get his letters patent are void in law, said invention having
goinieinto public use, with his knowledge, and without objection on
his p2art, prior to the date of his patent.
If a man stand by, and see his own property sold by a person
having no title, he loses all legal right to reclaim it from the vendee.  So a patentee, allowing his invention to go into public use
without objection, virtually admits the right of the public to use
it. This is just.  Otherwise, he might be permitted to lie by,
until many innocent parties had rendered'themselves liable as infringers, had invested their capital in the business, and thus put
themselves in the power of the patentee, and be liable either to
utter ruin, or to most exorbitant damages.
The act of Congress, in force before 1834, provided, that a patentee, who had allowed his invention to go into public use at any
time before the date of his patent, thereby lost his exclusive right
to his invention; and therefore the patent was void. The statute




ABANDONMENT.                      53
of 1839 provides, that public use of the thing patented must be
for two years preceding the date of the application for a patent, in
order to be construed as an abandonment.  This last statute is
not applicable to the present case.  See Chief Justice Taney's
opinion. The reason of the rule is, that dedication once made,
cannot be revoked.
Now, what are the facts? None dispute that the Columbus, the
Winchester, the Comet, and three or four other eight-wheel double
truck railroad passenger cars were in open and public use upon the
Baltimore and Ohio Railroad, both previously to and at the time
when this patent was taken out; which was in 1834. I will read
the extract from the Report of Mr. Gillingham, who was the superintendent of machinery on the Baltimore and Ohio Railroad, in
the eighth Annual Report of the President and Directors, to the
Stockholders of that Road, made October 1st, 1834.
At page 32, vol. 2, he says:
"Four new passenger cars have been constructed during the
present year, viz.
"1st.  The'Winchester,' carrying thirty-six passengers, on
eight wheels.
"2d.  The'Dromedary,' a large and commodious car, on
eight wheels.
"3d. The'Comet,' a car with five bodies, carrying forty
passengers, on eight wheels.
4th. The' Patterson,' on four wheels.
"F'our of the old cars have been repaired, and placed upon
eight wheels."
There were then these eight eight-wheel cars in use on that
road at this time, which was before October, 1834.
Now, if Winans invented the" Columbus," the "' Winchester,"
the " Dromedary," and " Comet," they being eight-wheel cars,
then these were allowed to go into public use, with his consent,
and by contract; and also, necessarily, with his knowledge and
consent, the great number of Wood cars, and Trussel cars, that
were built after the Columbus, together with those built before the
Columbus, also these other four-wheel cars, were never pretended
by any witness to have been experimental cars.




54                    ABANDONMENT.
If these cars had their wheels near together and coupled far
apart, the trucks being the common bearing carriages, as referred
to in the patent, they embodied Winans's pretended invention
substantially; and so completely, that he cannot discriminate
between them and his.
Therefore Winans's pretended invention was dedicated to the
public, not merely for a few months, but for nearly four years, as
we have already shown.
Unless Winans clearly discriminates between what he claims,
(by a fair construction of the terms of the specification,) and
these preceding running gears, or, in other words, if his patent is
sufficient to cover running gear such as they had, then the invention described in the patent was in public use, and the abandonment complete.
But the Plaintiff says, that although these cars were used on a
Railroad, yet that use was for the purpose of EXPERIMENT only,
and that such use, although continued for so long a time, is not to
be construed as an abandonment of the invention.  Then the
question is, whether the use of so many eight-wheel cars for so
long time, in such a way, can properly be considered as a use
for the purposes of experiment only, or is it a use not merely
for the purpose of experiment, but for the ordinary business of the
Railroad on which they were placed!
What does it mean to experiment? The word comes from the
good old Latin " Experior"-to try and find out something, and
something not settled and familiar. And it is vain for the Plaintiff to say, that he was experimenting four years; because far too
many cars, both for passengers and for freight, were in public use,
to be considered as an experiment.
What did Winans do, that looked like experimenting?
If the Plaintiff pretends that he was experimenting, to discover
a mode of drawing the car, this cannot be true; for the specification does not describe any mode of drawing as known or discovered, or as having been the subject of experiment.
The mode of drawing now used, and shewn on the restored
drawing, was first suggested in 1835, by Jacob Rupp, after the
specification was drawn and the patent issued.




ABANDONMENT.                      55
The last car built and tried, previously to or during the making of
the specification, was the " Comet," which drew by the perch, and
which car the patent describes, without suggesting any mode of
drawing. Moreover, experiment was not necessary to discover
the mode of drawing by the body, because that mode was described in all the books long before 1830.
How does it happen that so much experiment was necessary in
the enlightened city of Baltimore, to find out how to make a good
car, when Dorsey could build one at once, he having seen nothing
else but the alleged failed experiments at Baltimore?
He was at ohce successful, without experiment.
Their experiments marched like the apparent course of some of
the comets, more with a retrograde than a progressive motion.
The " Victory" also, in Philadelphia, was successful at once,
without experiment. The invention leapt from the head of its
author all perfect and complete.
How many years was it necessary that the Columbus should
continue to run off the track, to complete the experiment?
Still the Plaintiff insists, that the car Columbus was an experiment merely, used from July 4, 1831 to October 1, 1834-three
years and a quarter —and other cars followed in 1833 and 4, two
or three years after, and he asserts that he had a right, while trying these experiments, to put these cars in public use,- without
losing his right to a patent.
My answer to that is, that it is not an experiment merely because
the use was continued for several years.  That seven other passenger cars followed in gradual-succession, not for any such purpose as to try experiments, but as the business of the road called
for them. If such use of eight different cars can be made, without being held to be a public use, any inventor may put his
machines into use, and run them year after year, and pretend
it is an experiment, provided that he at last takes out a patent.
That is not the true understanding and construction of the Patent Law. I admit, that a'man shall have a reasonable time to
try his invention; and if it be required, that he shall use it before
the eyes of all mankind while perfecting it. And if a man have a
patent for a wagon, he may satisfy himself by making a rea



56                    ABANDONMENT.
sonable number of experiments with it upon the public roads;
and the fact of his driving on a public road is immaterial;
and if it be an experiment on a Railroad car, that it shall run
upon a Railroad, for that will not constitute the abando.nment-of
his invention.  But, Sir, there is reason in all things.  A man
has no business to let loose upon the public his crude and incomplete notions and half-finished inventions —to permit them to go
into public use, and thus become public property, and by-and-by
undertake to recall that which is no longer his own, because
some lucky idea has given a new value to an old invention, which
was not, in its original form, worth the expense of a patent.
But the same description of trucks, which the Plaintiff claims,
(excepting only the PECULIARITY OF SPRINGS) were used under a
variety of cars long before the Plaintiff's invention; and the
claim in the patent relates only to the trucks, or running gear.
The only experiments, therefore, which can have any connection
with th7is patent, must be those which related to the running gear
or trucks, and their connection with the body.
Now there is no evidence of any series of experiments having
been tried on this running gear, whereby the results attained and
described in the patent, vary in any substantial particular from
the result attained in the Columbus.  So that whatever experiments may have been tried as to the former size, shape or length
of the body; or even as to the position of the trucks, no experiments can be shewn to have been made with special reference to
that part of the car which is the subject of the Plaintiff's claims.
And therefore experiments on other parts, or for other purposes,
could not be such experiments as would be an answer to our
claim of abandonment.
We must not forget what is the subject of our investigation.
We must not use the word "' car " in the sense that the patentees'
witnesses have given to it.  The "car" means the body and the
trucks, and I know that they have experimented a long time on
the construction of the body; but, in regard to the running gear,
they ceased to perform their experiments after the Columbus had
run a short time.
Your Honor will recollect an important piece of testimony on




ABANDONMENT.                      57
this subject, and that is, the contract which Winans made, and on
which an opinion was given by the Chief Justice.
The testimony of Mr. Thomas also shows, that the contract was
in force from the time that the. Columbus was put in use, until the
date of the patent, and also that there was a verbal agreement
besides the written one, that all the inventions made by Winans
-should belong to the company, or be subject to their use. Now
the Comet was the last car built before the issuing of the patent,
and not the Washington cars.  These were not built, and no experiment was tried on them before the patent was issued. Now,
Sir, was the running gear on the Comet an improvement'on that
which had long been in public use on that road?  Was it an embodiment of some new principle? No. On the contrary, so far as
relates to the running parts and their connection with the body,
they were precisely the same as those which had previously been
in public use upon a variety of Wood and Trussell cars, and other
eight-wheel cars. I am- aware that it has been:alleged that there
were changes made as to the nearness of the wheels, but these
changes, taken alone, and considered by themselves, are not
deemed even by the learned counsel of the Complainant as material. And I challenge them to point out a change in the running
gear, which they dare to say to your Honor is a change in its
mechanical principles, or mode of operation, or one which is material and ESSENTIAL, and not formal.
If Winans made experiments three years, and tried to improve
upon former eight-wheel double truck cars, why did he not in his
patent, inform the public clearly, what was the result of his experiments?
The language of the patent covers the Columbus, and all the
other cars, as well as the Wood and Trussell and Quincy cars,
etc., then why did he claim that which he had found to be unsuccessful?
Experiment of three and a quarter years duration, did not develop any thing as to the\ running part of the Columbus. How
easy would it have been to alter the running part, if any alteration
was necessary, while they did alter other parts of the car. If the
arrangement of the running part of the Columbus did not embody
the principle which Winans claims, he was bound to discriminate




58                     ABANDONMENT.
between that and what he did claim; otherwise the public are
left in the dark.  And not having discriminated, but having finally claimed the precise arrangement used in the Columbus, after
the same arrangement has been used for years, on the Wood and
Trussell cars, etc., and on the Columbus itself, this fact shows
conclusively that the arrangement of the wheels, and the connection of the trucks with the body, which were the only subjects of the
claim, were not a matter of experiment, but were left in October,
1834, just where they were in July 4, 1831.
In the cars of the IDefendants, the wheels in each truck are
more distant, and the trucks farther from the ends of the bodies
than in the Columbus, and the body far more resembles the Columbus than the Dromedary or the Comet, so that if the patent
covers the cars of the Defendants, it must also cover the Columbus; and if the Columbus did not embody the Plaintiff's principle,
then the Defendants' cars do not.
If the Plaintiff contends that his experiment was to ascertain the
proper position of the truck under the body, and that the Columbus was wrong because they were placed too far from the ends of
the body, we answer:
Ist.  That the statement is not true.
2d.  That the position of the trucks in the Defendants' cars is
farther from the end of the body than in the Columbus.
3d. That all the different positions of the trucks, both at and
near the ends of the body, had been used before the Columbus on
the Wood cars, on the Trussell cars, and on the Quincy cars.
All points of support at or near the end had been used, and that
embodied' in the Columbus is nearer like that which is now in use
than Winans's.
4th. This distance of trucks must vary according to the proportions of the body.  (See Winans's contract with the Reading
Railroad Company, which shows an instance where the eight-wheels
must be brought close together, in order to place two swivelling
trucks under one locomotive.)  Allen did the same thing.
The fact of allowing these running parts to go into use
on the Baltimore and Ohio Railroad, with Winans's knowledge and consent, it being under contract, is conclusive evidence of abandonment.  I will refer your Honor to the opin



ABANDONMENT.                       59
ion of Chief Justice Taney on this subject, and add that it
is proved in this case: clearly, and admitted, (what indeed was
not admitted before) that there were double-truck swivelling
timber cars in use before the Plaintiff's patent, and that they
were long-bodied, if you choose so to call them.  Your Honor
will not forget the elaborate, the philosophical, and the admirable exposition of the principles of physics involved in that
structure, which was given the day before yesterday by my
learned colleague.* Applying the instructions of the Chief Justice
to that subject, it seems to me that the Court must decide on this
point in favor of the Defendants, unless the judgment of the
Chief Justice is erroneous; and your Honor cannot fail to perceive how much stronger the evidence of public use of the running gear now is, than it'was when that case was tried.
If the gentlemen undertake to tell us that there was something
very peculiar in the structure of the Baltimore and Ohio Railroad,
I answer: that the curves were no sharper than on other roads.
The curves of the road on which the Quincy cars ran were the
sharpest, not exceeding in some instances 150 feet radius.  And
on the Baltimore and Ohio Railroad there are none of less than
400 feet radius.  There is no curve now used on any roads so
sharp as those formed by the switches, and no better arrangement
of wheels was required than that contained in the Wood and
Trussell cars after they were put into successful operation.
The increase of speed required that the wheels of each truck
should be put farther apart, not that they should be brought closer
together.
Now Sir, what seems to us as quite conclusive on this subject
of experiment is, that no such car, as Mr. Ross Winans has
claimed to be peculiarly his, has ever been put into successful operation on any road in the country. On the contrary, science
and experiment have shown the fallacy of his whole theory, and the
uselessness of his construction.  All experiment has established
this fact, that what I shall call the " Simon Pure" Winans's
Car, has undergone but one experiment, and that ended in its
abandonment and destruction. I refer to the testimony of
* William W. Hubbell, Esq. of Philadelphia.




60                    ABANDONMENT.
Schryack, Worden and Shultz; and these three witnesses, uncontradicted, have stated that to be the result of all the experiments on this car of Mr. Winans.
The Columbus was altered in 1832, then having new trucks
placed under her-or, as the Plaintiff's witnesses say, having the
wheels brought nearer in each truck, and the trucks farther apart
— she then in 1832, embodied the principles of Winans, and being publicly used from that date to the date of the patent, there
was an abandonment of the invention.  The witnesses who prove
these alterations are: "Michael Glenn, Henry Shultz, John W.
Eichelberger, Edward Gillingham, Conduce Gatch and Jacob
Rupp; and almost all the Plaintiff's witnesses agree to the fact
that the alteration was made, but they do not fix the date at
which it was done. Indeed it is useless to talk about Winans's
experiments so far as concerns the running part, since, in truth,
long before the Columbus, and long before Winans pretends to
have begun his experiments, the Wood and Trussell cars, in 1830,
had embodied all the principles of the eight-wheel-car, in a form
farnearer what the Defendants use, than are described by the
Plaintiff.
Finally. Whether Winans was, or was not, experimenting for
four years before he took out his patent, it is not material, if he
allowed the Columbus to be in public use by a Railroad Company.
I believe that I may refer your Honor to the opinion of this
Court on the motion for a new trial in the Troy case. See pp.
7, 8. The judgment, as to the question of abandonment, was
founded upon the state of facts then presented in the evidence.
And there the Court say, that " there were repeated failures in
the experiments tried, and the cars abandoned, before the perfection of the car described in the patent." That was the statement
pressed upon Judge Conkling's mind, and it was entirely a mistake. What evidence is there that any one of these cars was
abandoned, or that these experiments resulted in failure?
On the contrary, it is proved that the cars were used in the
ordinary business of the road, —no one knows how long; but I
suppose until they were out of fashion.
These things show that the Winchester, the Dromedary and
the Comet were in public use on the 1st of October, 1834, and




ABANDONMENT.                     6.1
not abandoned, and how the Court happened to be misinformed, I know not, in regard to the true state of facts on the
subject of abandonment.
It was not the cars, but it was the alleged invention that was
abandoned. And while these facts took place upon the Baltimore
and Ohio Railroad, the use of the same double truck running gear
had spread over the whole country, almost from Massachusetts
to, South Carolina.
The witnesses on whom we rely to prove the abandonment before the patent, by showing public use, with Winans's knowledge
and without objection, are,
1. Philip E. Thomas.  Troy case, p. 4. Answer to Int. 2.
2. Edward May.
3. Leonard Forest.
4.  Conduce Gatch.
5. John Rupp.
6. Jacob Rupp.
7. John M. Eichelbergher.
8. Edward Gillingham.
9. Henry Shultz.
10. W. E. Rutter.
11. John P. Mittan.
12. The "' Baltimore Patriot."
13. Winans's contract with the Baltimore and Ohio Railroad
Company.
I will also refer to Chief Justice Taney's charge, and also the
charge of Judge Conkling, in Defendants' No. 1, p. 46, fol. 304,
on the subject of acquiescence.
I refer to this opinion because a question there arose, whether
abandonment depended upon the intention of the patentee, and
which may be important here.
To show that the question of abandonment does not depend
gupon the intention of the inventor, but that it does depend upon
his acts or conduct, I refer to Curtis on Patents, p. 328-the
note; also to the case of Shaw vs. Cooper, in 6th Peters, p. 218;
and to the case in 7th Peters, pp. 292, 321 —3; and to the
opinion of his Honor, Judge Nelson, in McCormick's case, p. 12
of the pamphlet report.
6




632                      LACHES.
I think that the Court will be satisfied, upon examining those
authorities, that this is the doctrine of the Courts of the United
States at the present moment. I, therefore, have nothing further
to add upon the subject of abandonment of the alleged invention
before the patent was taken out.
LACHES.
There is another fact of importance, viz.: That after the patent
was issued, it laid dormant, and the public were permitted to suzppose and believe that Winans did not pretend to claim the ordinary eighzt-wheel ear.  Its use became universal, and with
Winans's knowledge, and with scarcely any objection.
The D)efendants' witnesses on Winans's knowledge of eightwheel cars being in use witlzout claim  or pretence of invention
after the date of the patent, are:1. Laban B. Proctor,       Defendants' No. 3, p.   8.
2. John Murphy,                 "       "  3,       9.
3.  Charles Minot,                      "  3,   159.
4.  Wm. Raymond Lee,            "       "  1, "  41.
5.  George Law,                         "  2, "  29.
6. David Beggs,                         "  2, "  31.
7. David Matthew,                       "  2, "  82.
8. Albert Bridges,                        1, "  37.
3, " 134.
9. Timothy L. Smith,                      1, "  37.
10. James L. Morris,                     "  1, "  39.
11. Daniel N. Pickering,                 "  1, "  39.
12.  Charles Davenport,                  "  1, 39 40.
13.  George S. Griggs,                   "  1, "  40.
14.  Robert Highamn,                       1, "  40.
3,' 132.
Winans himself says, that he knew they were in general use in
his bill.
15. John Stephenson,       Defendants' No. I, p. 42-3.
16. Leonard R. Sargent,         "       "  1, " 43-4.




LACHES.                        63
17.  Jeremiah Yan,Rensselaer,  Defend. No. 1, p.   44.
"  "      "              "    "  3, "  136.
18. Edward Martin,                 "    "  1, "   45.
19.  Isaac Adams,                 "    "  3, "  138.
20.  George Beach,                "    "  2,'   36.
21. John Wilkinson,               "    "  2, "   43.
Under these circumstances, having thus allowed the running
gear (which he now claims) to go into public use before the patent, and having made such slight claims up to 1847,-nearly the
whole life-time of the patent, —stronger evidence of dedication or
abandonment before, and of laches after the patent, could not be
offered to any Court.
The next proposition on which the defence rests, I shall state
briefly, but not argue. It is, That the patent is void, because
7Tinans's changes from what was known before, are bad in theory
and pernicious, not useful in practice.  And I do not wish your
Honor to understand that I lay great stress upon this point, because an invention may be, upon the whole, pernicious, and yet,
if it were not intended to be pernicious, it may have SOME utility,
and that utility may be sufficient to prevent the Court from pronouncing the patent void in law. Still, I have stated the point
strongly, that the Court may see the bearing of the evidence
that I intend to adduce, and which has a more important bearing
on another part of the case. Not to occupy your Honor's time, I
will furnish a list of witnesses who prove that Winans's theory in
his specification is pernicious. This will dispose of that part of my
subject.
Therefore, in recapitulation on the subject of the construction
of the claims of the patent, we say:Ist.  That the pa-tent is not valid, because the patentee has
not discriminated between his own alleged invention and what was
well known and in public use before; and that whether Winans
did, or did not invent the Columbus, it is immaterial on this point.
2d. That the alleged invention, —if it be construed to embrace such cars as the Defendants use,-was in common and public
use with the consent of the patentee before, as well as after, the
date of his patent, and, therefore, he had no right to any patent,




64                       NOVELTY.
whether he was or was not the inventor; and upon this point, it is
not material whether the Plaintiff was or was not the inventor of
the Columbus.
3d. That the patent is void, because, so far as it introduces
any changes from what was well known before, these changes
were not useful in any degree, but pernicious.
NOVELTY.
The next main ground of defence is, that Ross Winans was not the
first and original inventor of that arrangement of the eight wheels,
nor of that connection thereof with the body of the car, which are
used in the railroad cars built by Messrs. Eaton, Gilbert & Company.
To maintain these propositions, we shall rely:
1st.  Upon the conduct of the patentee, before and after the
date of his patent.
2d. Upon the clear proof of numerous inventions of eightwheel double truck railroad carriages, prior to the invention of the
Columbus; also of many more, prior to October, 1834.  We
shall develop their history, their peculiarities of structure, and
answer the criticisms made upon them by the Plaintiff's witnesses.
3d. That Ross Winans was not the inventor of the Columbus; but has attempted to impose upon the Court a fictitious,
smoked drawing, in relation thereto.
4th.  That Winans, in his specification, developed no new
principles of mechanics, but merely borrowed all that is sensible
in his philosophy from Allen, Jervis, Chapman and Tredgold.
5th.  That his patent was issued immediately after the building
of the " Cromet," which was in no way,-excepting the shape of
body,-different from the Columbus, and, that the " Washington
Cars," which were the alleged result of his experiments, were
built after the invention and construction of the Philadelphia car,
"Victory," which was the predecessor of all the modern railroad
cars.
6th. That Winans's claim has nothing to do with drawing by




NOVELTY.                       65
the body, and he had nothing to do with the invention of that
mode of draft.
7.  That putting other men's machines to new uses, gives
Winans no right to a patent; and especially, that using old running gear to carry one kind of a load rather than another, gives
the Plaintiff no right to a patent.
8th. That in order to defeat a patent, it is not necessary to
show that prior machines existed in every respect similar to the
one patented; as a change of proportions will not support a
patent.
It is not expected that the Court will be able to remember 600
pages of printed testimony, therefore I shall take no time in
readings. I can only refer to and make comments upon it, requesting your Honor to verify my references at your leisure.
The conduct of Winans from the time of his return from Europe,-where he had been trying to sell his friction wheel,-to
the 1st of October, 18384, shows plainly that he did not dare to
claim any invention of the running gear of the eight-wheel car.
ist.  Consider his relations to Conduce Gatch,-the inventor.
2d.  While in the Reports of the Engineers and others connected with the Baltimore and Ohio Railroad Company, mention
is made of every little invention which any of them laid claim
to, Winans is not mentioned in any part of the reports up to
the 1st of October, 1834, in any particular, as the inventor of the
eight-wheel car.
3d.  That the newspapers of the day, so far as they are
brought to the notice of the Court, do not mention Winans in connection with this invention, though he is mentioned in connection
with the friction wheel and other inventions.
4th. The running gear going into use before his eyes; in all
sorts of cars, without objection or claim.
5th.  The probability that Winans was one of the parties, from
the South, who visited the Quincy Railway. See the affidavits of
Bryant and others.
6th. Winans lying by until nearly the expiration of his patent,
and making but one attempt to enforce it, and that unsuccessful.
I mean one attempt at law. That is enough for my purpose on
that point.
6*




66                       NOVELTY.
I now proceed, in the second place, to call your HIonor's attention to some of the more important inventions which were prior to
that of Mr. Winans.
CHAPMAN CARRIAGE.
Of these the first is the " Chapman Carriace," described in
the Repertory of Arts. Vol. 24, in 1814.
Chapman's carriage, as described and proved, represents both
the six-wheel carriage now used, and also the eight-wheel carriage now used.
It was to be drawn by a connection with the body.
The motive power, as well as the passengers and freight, might
be contained in it. And the very same thing is now being done
in Boston, where they have a steam omnibus.
It was an engine and passenger carriage, such as were used in
England, and called steam passenger coaches.
The trucks were left free to conform to the curves of the road;
the axles were kept parallel; the bearing points of the wheels a
distance apart equal to the guage of the track.
The trucks had the rigid wheel frames, consisting of the three
cross-pieces, and the two side-pieces.
The middle cross-piece bore the body on a transom centre,
and side bearings, with friction rollers, and was connected by king
bolts with the truck.
The trucks supported the body, as all swivelling running gear
always supported the body, that is, at or near the ends of the
body.
It was to run on railroads, and it combined every essential
principle of construction, arrangement and action, to run easily
and smoothly on curves and the straight track.
It is proved the same in principle as the eight-wheel cars now
in use.
That, Sir, is the construction of Chapman, and I have now only
to add a very few words in regard to the criticisms upon it.
Criticism 1st is: That it was a steam carriage, and that the
double truck, swivelling under a platform, bore an engine instead




CHAPMAN CARRIAGE.                   67
of freight.  I answer: That the kind of load borne on the inside
of the body, is quite immaterial to the arrangement and connection of the running gear; and the specification provides that this
Chapman car may be driven by steam power, placed within the
body, or any other kind of power, placed inside or out, horsepower or any other.
The 2d Criticism is, That the body was not quite so long as
Winans's passenger or freight car.
Winans's car was from twenty to twenty-four feet long, and
Chapman's car must have been about the same length, being about
double the length of the ordinary car that then existed; but mere
change in length cannot be material.
The 3d Criticism is, That the wheels were not quite so near in
each truck as in Winans's patent.
We say, that they are as near as the wheels of the Defendant
between the bearing points thereof, which is the essential distance.
In other words: the distances of the axles in Chapman is as
near as the Defendant's; that is, the material distance, and not
the distance of the flanges. (See Byrne, p. 12.)
That there were other cars besides those which carried the
engine-called the Chapman freight cars. The Plaintiff's criticisms had no application to those cars-as they were merely
freight cars, and were called " Chapman's cars."
These, Sir, are all the objections that have been made. I think,
however, if my memory serves me, that Mr. Keller suggested that
there was no mode of drawing this car by the body shewn in the
book, though there was a mode of drawing the six-wheel car by
the body thus shewn.
I think Mr. Keller said that there was no mode of drawing described; if he did say so, he is mistaken, as he will see by looking
at the book from which the patent is taken.'If he did not say
so, no further answer to that objection is necessary.  The Chapman book shows cars as drawn by the body, and trains also, as
drawn by the body. I think that the learned Counsel made another objection, which was, that this car was made for a tram-road,
which I answer by saying that the description and the specification speaks of the edgye-rail, which is the same thing as that




68                       NOVELTY.
which we call the T rail; and which we use at this day. The
wheels had a ledge or flange, which shows that it ran upon rails of
the same description as we use, and whether constructed in the T
shape or any other, it is no matter.
I think that one further objection was made, and which was so
unfounded that it almost escaped my notice,-that the wheels revolved on the axles, and not with the axes.
In the first place, we do not admit that the fact is so. But if
it be so, it is quite immaterial to the principle of the Chapman
car, because the revolving of wheels with their axes, was a wellknown mechanical equivalent for revolving the wheels on their
axes; and this fact would not change the combination of principles upon which the double-truck swivelling car is constructed.
And we further deny, that it is the true construction of the
Chapman car, so far as relates to the wheels. And, inasmuch as
the invention of Chapman has been repeated by other inventors
over and over again before the patent, I do not perceive how any
little supposed difference of that sort can be thought to be material.
TREDGOLD CAR.
I now proceed to the consideration of the " Tr'edygold Car."
The mode of its construction and operation having been carefully examined, as it is shewn and described in the treatise, by
many distinguished scientific and practical engineers and machinists, is proved by the testimony of the following witnesses,
viz:i.  Conduce Gatch,              page 24.
2.  Oliver Byrne,                    11, 62, 3, 4, 5.
3. John C. A. Smith,                29.
4. Isaac Knight,                     32.
5. Edward Martin,                    36.
6.  George Beach,:                   39.
7.  Stephen W. Worden,               40.
8. L. R. Sargent,                    41, 2.
9. John Wilkinson,                   52, 3.




TREDGOLD CAR.                    69
10.  George Law,                     54.
11. Jacob Schryack,                  73, 4.
12. Winm. T. Ragland,                93.
13. Henry Waterman,                  97.
14.  George W. Smith,                99.
15.  Charles B. Stuart,             111.
16. Wm. J. McAlpine,                114.
17. Vincent Blackburne,             117.
18. Walter McQueen,                 120.
19.  George S. Griggs,              126.
20. Albert S. Adams,                128.
21. James H. Anderson,              131.
22. John B. Winslow,                133.
23. Asahel Durgan,                  136, 7.
24. John Crombie,                   139.
25. Henry W. Farley,                128.
26.  Godfrey B. King,               163.
27. John Edgar Thompson,            16'6.
28. John Murphy,                    175.
29. William Pettit,                 178.
30. Asa Whitney,                    179.
31. William C. Young,               191.
32. William P. Parrott,             199.
33.  Charles Minot,                 202.
Now, what were the objects described by Tredgold, for which
his eight-wheel car was designed?
1st. To carry great weights on railroads. (See p. 94.)
2d. To carry them upon such railroads as were then built,on roads with such curvatures, grades and inequalities as then
existed.
To accomplish this object, he recommends a plan, which is precisely the same as Chapman had patented; and the same as a
double Newcastle coal wagon.
What were the conditions to which it was necessary that this
carriage should be made to conform?
As to the roads, the conditions were:
1st. They were full of short curvatures.




T70                     TNOVELTY.
2d.  They had switches and turnouts.
3d. They had changes of grade.
4th. They had inequalities in the rails round every curve.
(See p. 135.)
5th.  Also, other irregularities, occasioned by local depressions
or elevations of one or the other rail, both at the joints and in the
general line of the road.
6th. I will now illustrate, by the model of the track, another
of those inequalities in the level of the rails, particularly mentioned in Tredgold's book.
On all parts of the road where curves are constructed, the inner
rail usually continues in the same plane throughout its entire
length. The outer rail rises gradually from the beginning to the
centre of the curve, and then descends again to the plane of the
opposite rail.
Both these rails cannot be contained in the same plane, and
the curves they make are therefore called curves of double curvature, the same as those mentioned in Tredgold on page 135, and
which I will now read.
Then how did Tredgold make his structure, so as to conform
to any of these irregularities and inequalities?
1st. As he must carry a heavy load, he began with a long
body.
2d. As eight wheels fastened by their axle-trees to the frame
work without swivelling would not pass the curves or switches, he
placed the then old fashioned four-wheel swivelling bearing carriages under each end of the body.
3d. The draft is presumed to be tie same as that of every
other car shown in the book: namely by the body. (See plate 1.)
Two advantages were presented by this structure besides the
carrying of great loads, viz:
1st.  To distribute the weight equally on all the eight wheels.
2d. To distribute it over a considerable EXTENT' of the road
as much as was useful, besides swivelling and conforming to all
the inequalities and curvatures of the track.
Now let us examine as to the manner and philosophy of this
distributing the weight equally on all the eight WHEELS.
This object of making the weight borne on each one of the




TREDGOLD CAR.                     71
eight WHEELS EQUAL, we say is accomplished, whether the two
trucks are near or remote, each wheel bearing one-eighth of the
whole load, because all the load is borne on the CENTRE of the
trucks, and each truck is equi-distant from the two ends of the
body.  (Mr. Whiting here explained his views by aid of the models, and then proceeded.) The point which I wish to explain is,
that each wheel bears an equal portion of that load. Half the
body being supported by each truck, and each truck (having four
wheels) swivelling in the centre, each wheel must therefore bear
one quarter of what each truck bears.
We will say that the whole load shall be 800 lbs.  Each truck
will bear 400 pounds, and each wheel will bear one-fourth part of
what the whole trucks bear, viz: 100 lbs., and this equal bearing
of the wheels results from the introduction of the swivelling principle of the trucks.
Well, each wheel bears an equal weight, whether the body be
short, so that the eight wheels need not be long or equi-distant
to accomplish that object. It would not be the case, that is,
each wheel would not bear an equal weight, if the eight wheels
were fixed to a body, wit7out swivelling at all.
Suppose you make a long rigid car body with eight wheels,
each pair turning on or with an axis which is unable to swivel,
being fastened to the body like the rear axles of a road wagon;
suppose that with such a car you undertake to pass round a curve.
How would you succeed? Could this be done in such a manner
as directed by Tredgold, viz: so as that at all times, the stress of
all the wheels upon the rails shall be EQUAL, SO that one shall bear
upon the rail with just as many pounds weight as the other seven
wheels?
With such a structure this is impossible. For as soon as
such a car enters upon the curve, the bearing point of one
of the two forward wheels is lifted above the plane which it
has ascended, so that the weight of the load may be borne
principally, if not wholly, on the front and rear wheels; while
the intermediate ones bear little, if any, of the weight.  So
also whenever in passing on an even grade, there occurs a sinking
of the rail for a distance less than the distance of the bearing




72                       NOVELTY.
points of the front and rear wheels; the intermediate ones bearing
little, or none of the weight: unless the body of the car gives way.
The same inequality of stress occurs when there is a mere
change of grade in the rails.
Furthermore, the same difficulties would occur, excepting the last
above stated, if the car should have four-wheel trucks, which
could not swivel VERTICALLY, but only HORIZONTALLY by means
of an axis, like that shown in the model.
In the first place you could not pass a curve, and why? Because the wheel-frames remaining fixed, prevent the least lateral swivelling whatever, and therefore you cannot get round the
curves, and when you come to a switch you could not pass in or
out of a depot, because a switch is sharper usually than the curves
on the road.
To state the proposition abstractly. Any inequality on the
rail, which would tend to lift up one wheel, or throw the axes out
of the same plane, it would prevent the equal bearing of the
wheels on the rails at that time.  Therefore, to pass any inequality in the rails, and distribute the weight equally on all the wheels
at all times, the trucks must swivel laterally on a king-bolt.
Now, as neither of the structures just supposed would answer
any of the purposes proposed by Tredgold, while the trucks swivelling on a centre pin or king-bolt would answer all these purposes, and as swivelling trucks had been familiar to the English
engineers from 1812, when Chapman took out his patent, down to
1825, when Tredgold wrote, It is incredible that so distinguished
a mechanician as he was should devise and recommend a car so
constructed as to be incapable of answering one of the purposes
for which it was devised.
The next object of Tredgold is, to distribute the bearing of the
load over as large a reach of the rail as might be useful, and no
farther.
Now what is the rule of utility and necessity that is laid clown
in Tredyold? It is, that the body must not be so short, and the
wheels in each truck must not be so near as to bring two wheels,
or the crushing force of two wheels at any one time BETWVEEN
TWO SLEEPERS, or, on one SPAN of the rail.
It is quite immaterial to this question whether a rail is nine




TREDGOLD CAR.                       73
feet long or twenty feet long. It depends upon the sleepers for its
support, and these are sometimes made of stone and sometimes of
timber.
The rule laid down by Tredgold is the sensible rule which is
now followed in the arrangement of the wheels, and which is, to
put them so far apart that two wheels shall not come together at
one time, with their crushing weight, on any one span of the rail.
And, after you have separated the wheels in each truck to lthat
extent, there is no use in spreading them any, wider, so far as
regards the. strength of the rails.- The distance to which the two:trucks:are separated -i wholly immaterial, provided this rule above
stated is observed.
It is the using *of the two swivelling trucks supporting the
whole load or body at two points, that makes each truck support one half the load; and each wheel in each truck supports
one quarter of the burden that the whole truck bears.  The distance or nearness of the trucks does not change this law.
It has been supposed,,that it is a fundamental -principle -of the
Tredgold car, to distribute the weight as equally-as -possible upon
the rails, and this:is certainly done;'but this equal distributitn
does not depend ztpon tlhe equi-distance of the wheels.
And it has also been supposed that this equal distribution of'
the weight on:the wheels, and through them on the rails, was incompatible or inconsistent with having a long body, and the weight
all borne by two trucks far distant from each other.
Now it has been demonstrated, that each wheel bears:one
eighth of the load, wherever the load is placed.  The present
eight-wheel cars are all so arranged as to distribute the weight'on the rail precisely as stated by'Tredgold, viz.: that the wheels
are so far apart that two cannot rest at once:on one span.
Jaudge Nelson.  The stress of all the wheels on the rails, where
the bearing points are, will be -equal, no doubt.
Mri. Whiting.  (Presenting to the:Court a diagram.)  What
does Tredgold mean here, (in diagram,) —is it for distributing the
weight evenly upon the RAIL?
Now let Tredgold explain his:own:idea.  (Referring to Plate
4.)  He says, " This is -a diagram'to show how a wagon may be
made with eight wheels,:so that the stress of each WHEEL upon
7




74                        NOVELTY.'
the RAILS may be made equal."  It is an equality in the stress
on each wheel which he desires to secure.  There is no statement
of Tredgold in which he says that his object is to do any thing else.
Is not the stress of each wheel on the rail always equal so
long as you use a truck swivelling on a king-bolt? But the moment you put on side hearings, it is not so; and the moment you
put on a truck that does not swivel, it is not so. It is the equalizing of the stress on each WHEEL that is the GREAT IDEA of Tredgold, in order that each wheel should ALWAYS support one eighth
part of the load.
Mr. Hubbell.  I'will read a passage where he shows that
clearly.  It is on p. 95 of Tredgold.  " The load on EACH WHEEL
must be limited to suit the strength of the rails, and the weight is
seldom to exceed two tons."
MJlr. Whiting.  Your Honor's desire is, to see if Tredgold's
plan is inconsistent with the long body.  Now, if it had not happened, merely as a convenient mode of drawing, that these
wheels (referring to the diagram) had been placed'about equidistant from each other-(which is a mere accident,) and not an
essential feature in his car, —no question of this sort would have
arisen.
To prove that there is nothing in Tredgold's plan inconsistent
with substituting a long body instead of a shorter one, whereby
the two trucks are placed farther apart and the eight wheels no
longer equi-distant from each other, I point to the opinions of
some forty scientific and practical men, who have carefully examined the subject, who ought to be competent to read and understand a treatise on machinery like Tredgold's, and who ought
to be able to inform this Court what is and what is not consistent
with Tredgold's plan, as described and shown in his work.  And
as these are questions not of law but of physical science, it is not
too much to suppose that those who have devoted their lives to
these subjects can understand them  as well as we.
If Tredgold can be shown, by the gentlemen on the other side,
or by anybody else, to say in direct language, or by fair implication, that in order to answer the purposes for which his car is
designed, it is necessary to place all the wheels equi-distant from
each other along the line of the track, then I will give up the case.




TREDGOLD CAR.                      75
And, if they cannot find any such statement, and I can find expressions which are wholly consistent with placing the Tredgold
trucks at the ends of a long-bodied car as well as a short-bodied
car, then the length of the body is wholly imnnzterial.
We say that there is nothing in Tredgold which prescribes the
distance of the wheels from one another, with one exception, and
that is, that you shall not put two wheels on the same span of rail.
And there is nothing in Tredgold's book, or drawings, or in
the idea or plan of his car, or in the uses to which it was intended
to be put, that is in the slightest degree inconsistent with the substitution of a long instead of a short body, whereby the eight
wheels would no longer be equi-distant from each other upon the
rails.
I have already said that there is but one rule laid down by
him as to the distance of the wheels from each other; that rule is
to prevent the wheels from  being, under any circumstances, too
close together.
After stating, on page 29, the length, size and strength of the
cast iton edge rail in actual use, and the proper mode of supporting the rails on sleepers of stone or wood, solidly embedded, and
of great weight, he proceeds, on page 133, to show what is the
best length, as well as the best shape of rails.  And he says,
-" Now it is obvious that if ANY support be incapable of sustaining
half the weight of the wagon without injury, it is insufficient for
this purpose; consequently, if the supports be ever so numerous,
the same degree of firmness becomes as necessary as if they were
at a great distance alpart."  See also page 132, for the best
manner of. embedding these unyielding supports or sleepers.
Each sleeper being thus sufficient to support a greater weight
than can ever be placed upon it by the stress of any one wheel,
and the wheels being placed so far apart that only one wheel can
rest at one time on any one span of rail.
The Court will notice that the STRESS on the RAILS, is, in all
cases, equal to the stress on TIlE WHEELS.
To equalize the stress on each wheel will equalize the stress of
the wheels on the rails, so that ONE bearing point on any part of
the rails will never have more weight or stress upon it than any
of the seven other bearing points must bear at the same time.




76                       NOVELTY.
And the great idea of Tredgolci was, that by making his double
truck swivelling carriage, he should always make the number of
TONS WEIGHT borne upon one of the eiyht wheels, and by that
wheel upon the rail, equal to one eighth of the whole load, and
thus equal to the number of tons weight on either of the other
seven bearing points, wherever they should happen to be placed.
I will now read to the Court the following extracts from Tredgold's Treatise to prove that this is his plan, and that it is wholly
without reference to the equi-distance of the wheels.
It will be remembered that in constructing passenger cars, he
recommends (see page 93) the application of springs.  The first
passage to which I refer is in chapter 5, page 94, in Tredgold,
where he says: " Small carriages must obviously be both heavier
and more expensive, in proportion, than large ones.  But as the
stress on a wheel must be limited on a railroad, we cannot much,enlarge the carriages without adding to the number of wheels."
On page 94, the subject of the author is eight-wheel carriages.
He says: " When a carriage has more than four wheels, the body
must be sustained so that its pressure may be divided.equally
among the wheels. In the case where eight wheels are applied
to support one body, if the body rests upon the wheel-frame of
each set of four wheels, in the middle of its length, (see Fig. 26,
Plate 4,) and is connected with those frames so as,to allow the
greatest possible change of level on the rails, it is obvious that
each wheel must bear an equal pressure. If one frame with its
four wheels be removed, and an axis with two wheels applied in
its place, the carriage would have six wheels, and it would be easy
to adjust the load so that the pressure on each pair of wheels
would be equal."
The next is at the end of page 94 and beginning of page 95,
where it is said,," The load on each' wheel must be limited to suit
the strength of the rails; it will seldom exceed two tons on a
wheel, nor be less than half a ton.  The size of the axles may
therefore vary from 2'2 inches to 3'5 inches.  Perhaps the most:advantageous load will be about one and a fourth tons on each
wheel, which will require an axis of three inches in diameter."
The next is on page 179, Plate 4, Fig. 26.  "A diagram to
show how a wagon may be made with eight wheels, so that the




TREDGOLD CAR.                     77
stress of each wheel on the rails of a Railroad may be equtal.  The
body of the wagon rests on the wheel-frames at A. A., and is
connected to them by an axis on which the frames turn, when,
from any inequality, the axes of the wheels are not in the same
plane. See p. 94."
The next is on page 101.  "In proportioning the body of a
carriage, it should be kept in view that the load should be as low
as possible, and particularly where the inclined planes are steep,
for a high load in such cases produces a very unequal stress upon
the wheels, and consequently upon the rails."
The next is on page 173. "For carriages on springs, and
steam carriages, consider the stress on each wheel only two-thirds
of the actual load upon it, which will be about an equivalent excess of strength for this case."
The next commences on page 135. "When a considerable
degree pf curvature is given to a railroad, the rails of the outer
curve should have a slight rise to the middle of the curve, and the
rails should be stronger in a lateral direction in both lines. The
object of making a slight ascent to the middle of the curve of the
outer rail, is to counteract the tendency of the carriage to proceed
in a straight direction, without its rubbing so forcibly against the
guides as we have observed in cases where roads have had a considerable curvature."
Next on page 126.  " The distance between the wheels of the
carriages should be such that the unsupported part of a rail should
have to carry only one wAeel."
Next, commencing on page 12.  " In some parts near the
staiths we observed malleable iron rails, in fifteen feet lengths,
supported at every three feet. (See Figs. 9 and 10.)  They are
three and a half inches deep in the middle between the supports,
and two and one-fourth inches in breadth at the upper surface;
one yard in length weighs about twenty-eight pounds.,
The wheels of the coal-wagons are 2 feet 11 inches in diameter,
with ten spokes, and weigh 23 cwt.; and their axles are 3 inches
in diameter, and revolve in fixed bushes."
And again on page 13. "The wheels of the engine carriage
are 3 feet 2 inches diameter, with twelve spokes in each, and each
weighs 3~ cwt."
7*




78                        NOVELTY.
Next on page 31.  " The length of each rail being 9 feet, it
is supported at every three feet, and is 21 inches deep, and - of
an inch thick; the wagons carry about 35 cwt."
Next on page 43.' It often habppens that a great part of the
resistance at the rails arises from the lateral rubbing of the guides
of the wheels; therefore it is desirable to give the wheels a tendency to keep in their path, with as little assistance from the
guides as possible.
" For edge-rail carriages this may be accomplished by making
the rims of the' wheels slightly conical, or rather curved, as shown
in Fig. 24; the carriage will then return of itself to its proper position on the rails, if it be disturbed from it by any irregularity."
Next on page 93.  " Carriages for common railroads are made
strong, to resist the shocks they are exposed to at every change of
velocity; and it is necessary to make the parts which come in
contact solid pieces, extending a little more than the length of the
body of the carriage, and hooped at the extremities to p'revent;splitting.  But carriages for passengers and for various kinds of:goods must be provided with springs to reduce the force of these
shocks."
Not one word is said in the whole book, as to there being any
necessity to place the bearing points of the wheels at equal distances from each other along the line of the rail.
And now I will read the lines opposite to Plate 4, on page 179.;-A diagram to show how a wagon may be made with eight wheels,,so that the stress of each wheel on the rails of a railroad may be
equal. The body of the wagon rests on the wheel frames at A A,;and is connected to them by an axis on which the frames turn,
when, from any inequality, the axes of the wheels are not in the:same plane."
Of course the stress must be on the rails. Therefore, in the
four or five times in which this matter is introduced, in every instance he has mentioned that it is among the WHEELS that the
weight is to be divided, and not a distribution of the load at equidistant points along any given length of the rails.
It is obvious that NOTHING is gained in the way of distributing
the weight along a greater or less extent of rails, provided each
wheel has one span of rail to itself at all times.




TREDGOLD CAR.                     79
And as one wheel cannot rest but on one span at one time, it is
quite immaterial whether the spans on which the wheels respectively rest, follow each other in consecutive order; so that the first
wheel stands on span No. 1, the, second on span No. 2, the third
on span No. 3, and the fourth on span No. 4; or whether the
wheel No. 3 stands on span No. 20, and wheel No. 4 on span No.
21. Because each span bears one wheel; each wheel bears one
eighth part of the load. And therefore it is obviously of no importance whether the wheels are equi-distant or not. Following
Tredgold's rule-no position of the wheels can be imagined in
which one span of rail can support more or less than one wheel,
or one eighth of the load, whether these spans are consecutive or
ever so far apart.
If I understand rightly, Mr. Keller contends that the Tredgold
car did not have an axis or king-bolt, that would swivel laterally,
but that the axis would only swivel vertically.
LMr. Keller.  I said, whether Tredgold had a vertical or horizontal axis, so long as the wheels were upon axes permanently
connected with the frame, and no springs were interposed, it was
impossible that the wheels could bear equally upon the rails, anymore
than a chair with unequal legs could bear equally upon the floor.
iMr. Whiting. This. remark shows that the car must have had
an axis swivelling laterally; otherwise it could not conform to
the curves, bear equally on-the rail, or answer any one of the objects for which it was made; and that the connection between
the car and the truck could be permanent in no other sense than
is applicable to the ordinary connection of the truck to the body
by the king-bolt. I understood another objection to be, that if
this car in Tredgold had what we call a vertical axis, or pivot, it
could not rise up grade.  To which I simply answer, that all modern cars which have the king-bolt, -do rise up grade, and go
round inequalities without difficulty.
And in regard to the necessity for springs; the result of experience is, that there is no necessity of springs for that purpose;
and this is shown by the Quincy cars, which carried some sixty
tons up steep inclined planes without springs, and swivelled round
curves, and did not require them.
Another consideration is, that as Tredgold was a man of science
and not a sciolist, and as he had Chapman's book before him,




80                        NOVELTY.
with a wlzeelframe, and cars with swivelling trucks pictured,as
standing and swivelling on the curves of a railroad in a situation
that demonstrated the impossibility of having a long body with
eight wheels without swivelling, can it be possible that he could
have been so stupid as to recommend such e car as the Cdunsel
for the Plaintiff would attribute to him?
To put an end to'such a pretence, I will refer to Plate 5, Vol.
24, (Chapman's Patentj) p. 136 of the Repertory of Arts, also
pp. 130 and 139.
Is it possible, that having that work before him, that so eminent
a -scientific engineer as Tredgold, who received a pension from the
English government for his public services, should have stultified himself so as to have made such a miserable boy's toy, as the
learned Counsel on the opposite side would have your Honor understand it?
But suppose, for the sake of argument, that the design of Tredgold was to have the wheels of his carriage placed at equal distances apart, along the rail, and that he had not thought of the
fact that by doubling or quadrupling the length of the body (the
trucks remaining the same), the car would run more steadily on
the track.
Can it be said, that any one who first put a longer body in
place of a shorter one, can have a patent for such a mere alteration of form or proportions?
How absurd for the Plaintiff to set up a pretence that making
the body longer or shorter introduces into Tredclgold any new prinpie, when he himself states the CONTRARY in. substance.  He says
in his specification, page 5, fol. 20, " When the bolsters of the bearing carriages are placed under the extreme ends of the body,
the relief from shocks and concussions and from lateral vibrations
is greater than when the bolsters are placed between the middle
and the ends of the body, and the relief is not materially. varied
by increasing or diminishizg THE LENGTH of tle body," &c.
Again.  As we find in Tredgold a double truck swivelling
eight-wheel car, having the capacity, when put to use, of accomplishing all the objects for which the Defendants construct their
cars, viz., swivelling to the curves, travelling smoothly and evenly
over the curves and inequalities of the roads, it is of NO cONSEQUENCE what was the'OBJECT or DESIGN for which Tredgold's car




TREDGOLD CAR.                     81
was made.  If the thing made, answers our purpose, thatdis suflicient to protect us. No other person can maintain a patent for
the old car, because he has found out that it has more advantages
in practical use than the original inventor -knew of.
If Tredgold were. now living, he could not be enjoined -from
using his own invention, with a longer or shorter body, because a
subsequent party had discovered that it would carry its load still
more, easily if made of greater length. Tredgold would have had
a right to his own invention and to all those CHANGES of proportion
which were incidental to the use of this, as well as of all other
machinery.
And I now proceed to I'the Quincy, Allen, Baltimore trussell
and wood cars, and other inventions prior to the Plaintiff's.
But in order to do justice to our case, it is necessary, before
approaching those topics, to draw the attention of the Court to some
extraordinary doctrines that have been put forth by the other side.
One of the notions I refer to is, that if Winans had seen an
eight-wheel car in all respects perf6ct, except that it drew by the
truck, and that he then devised a mode of drawing it by the body,
he would be entitled to a patent for the car as a whole.
That, Sir, is strange law, and your Honor will observe that
counsel so able to present their case in its best aspects, would not
have taken such a position unless they were driven to it by
stress of weather.
MODE OF TRACTION.
Another of the Plaintifi's notions is that Winans discovered a
new idea, viz: that drawing the car by the body, instead of by
the perch, would allow the trucks absolute freedom of swivelling!
In answer to that I say, that the same mode of traction by a coupling
from the middle of the ends of the body was shown in Chapman's
patent in 1814; in Tredgold's works in 1825; and in Strickland's in 1826.
These two modes of drawing therefore, by the perch, and by
the body, in cars with swivelling trucks, were well known, and in
public use before the date of the patent, though not adopted by




82                      NOVEtTY.
Winans. Also drawing by the king-bolt, which is substantially
the same thing as drawing by the body, was inl public use in
1833 and 1834, on the New Castle and Frenchtown Railroad,
and on the Philadelphia, Wilmington and Baltimore Railroads.
(See Dorsey, Defendants' No. 4, p. 77, folio 293.)  We also say,
that the Allen engine embodied the same idea, as the power that
propelled the trucks was delivered to the trucks through the
king-bolt, leaving the trucks free to swivel.
The sixteen-wheel Quincy cars had three trucks swivelling
under them, and the draft was by one of the truck frames.
When the cars are to be drawn singly or by horse-power, it is
very doubtful which way is best. Each has its advantage. But
when cars are to work in trains, drawing by the body is the most
convenient.  We say that, in point of fact, the mode of drawing by the middle of the end of the body, was invented and introduced first on the Baltimore and Ohio Railroad by Jacob Rupp, in
February or March, 1835, after the date of Winans's patent, on
the 110 freight cars, which were built by him for that road. And
it was while they were building, that the idea of-drawing the
Washington cars, by the body, was first suggested. On this point
I will refer to
1. Rupp,           Defendants' No. 2, p. 17.
2.  Shryack,                      3,p. 40.
3.  Gatch,                  "      3, p. 27.
4. May,
5. Forest,                      "  2, p. 19.
6.  Shultz,                 "      3, p. 43.
The Car "Victory," which was invented by George Fultz in
Philadelphia, modelled in' 1829 or 1830, and commenced in September of 1834, although not in operation until July 4, 1835, had
a draft by the middle of the end of the body, and was 35 feet
long, and'square in form.
Moreover there is no description in the specification of any
mode of draft, nor is there reference made in the patent to any
drawing by which any mode of traction is shown.
There is no intimation, that the body of the car was to be drawn
otherwise than by the perch, although -both ways had been tried
and were well known.




MODE OF TRACTION.                  83
There is no claim in the patent relating or alluding to any
mode of drawing.
Mr. Keller says, that it is absurd to suppose that Winans did
not intend to embody this great principle of drawing by the body,
when this was the great fact that gave vitality to the whole structure.
Then let me ask, why did they build the " Comet" to draw by
the perch, after this wonderful discovery had been made, and had
already been embodied in the Winchester, as the Plaintiff pretends
it was?
Why did Winans not mention so important an idea in his patent,
which is so full of ideas that are not important?
Why did he not claim it? Surely the persons who drew the
claim were shrewd enough.
If there was any drawing originally sent to the Patent office,
why does not Winans produce a copy of it?
Did he never have it?
What was the mode of traction of the car as shown in that
drawing?
Had he no model?
Why does Winans not swear in his affidavit, that he applied, or
intended to apply, that mode of drawing, if that statement is true?
We have shown that the picture of the freight car, sent in 1837
to the patent office, does not aid the specification, but is directly
at variance with its directions.
If there was any grand idea which gave vitality to the whole
invention, why did not any body get hold of it? Why was it not
expressed by Winans himself, or by Dr. Jones, or Mr. Latrobe,
his counsel?
Why was it not alluded to by some one of those who had a hand
in making Winans's specification?
Since drawing by the perch had been the common way, why
leave people in the dark, if any new way was to be substituted?
Why is not any allusion made in the patent to the shbject of
drawing trains of cars together, a subject so much dwelt on by the
Plaintiff's counsel?
What was all the alleged experimenting for, if the result be not
stated?




84                       -NOVELTY.
The perch prevented the trucks from  swivelling too much or
bobbing from one side to the other, when the wheels were close
together.  Drawing by the body became necessary and was introduced generally wvhen the wheels of each truck were spread wider
apart.
But when the rails alone were relied on, to keep the trpck
square, the perch being dispensed with, the wheels in each truck
were placed further apart for safety.
And if the mode of drawing be essential to the principle of
Winans's pretended invention, it not being stated, makes his
specification defective in a vital part.
If I were to come before your Honor, expecting:to maintain a
patent, and if the mode of drawing was a material and substantial
element in the invention, and if it had not been described or alluded to in the specification or claim, I should' expect to be told
that my patent could not be sustained, and that it would be absolutely necessary for me to get it re-issued. No court could sus-'tain a suit, where such a material element was not alluded -to, described or claimed.
Chief Justice Taney has decided that the mode of drawing
constitutes no part of Winans's claim, whether he did or did not
invent it.
Therefore, the more:inportance the Plaintiff attributes to this
feature, the worse for him.'Judge Conkling says the same thing
in Plaintiff's proofs, p. 7, as follows: —" If, indeed, the infringement complained of had consisted in the use by the Defendants of
-this new mode of traction, the action I think could not be main-:tainel, for I am of opinion, that according to the true construction of the specification, the Plaintiff's claim does not extend to:this mode of coupling, it not being mentioned at all in the written
specification, and his claim being' the before described manner
of arranging and connecting the eight wheels,' &c., he has limited himself to what he had before described; nor do I understand him now to claim any thing beyond this."
And that opinion was given, notwithstanding the Judge was, under a mistaken impression as to the extent to which the drawing
annexed to the Letters Patent was'to be used, for he'thought that
it was to be taken as part of the original patent.




MODE OF TRACTION.                    85
There is not even a suggestion relating to a train of cars in his
specification, and the patent is to be treated as though only one
passenger car were to be.used at one time, as had been usually
the case.
Who will believe that Winans had any knowledge as to the importance of drawing by the body in trains, when he is so particular as to other things, but never mentions this?
The Plaintiff's counsel has admitted that there is no infringement, if we use all other things constituting Winans's car, except
drawing- by the body; and it has been judicially settled that this
constituted no part of the Plaintiff's invention or claim.
The car as described by the Plaintiff's patent was to draw, not
by the body, but by the perch, and the Plaintiff says, in express
terms, that " the end which I have in view may, nevertheless, be
obtained by constructing the bearing carriages in any of the
modes usually practised, provided that the fore and hind wheels
of each of them be placed very near together." Plaintiff's proofs,
p. 174, fol. 14.
The Plaintiff's counsel says that this refers to the bearing carriages on the Baltimore and Ohio Railroad;- but as the specification does not describe them, none of Defendants' experts knew
how they were built. But the evidence now offered at this trial
shows how the bearing carriages were constructed.
They were all drawn by the perch, and I will refer to the following of the Plaintiff's witnesses on this point.
1.  John Elgar,         Plaintiff's proofs, p. 27, fol. 116.
2.  Win. Woodville,         "       "    " 32, "  140.
3. Michael AM.* Glenn,      "       "   " 37, "  165.'"        "(         "''' 38, "  170.
"         "          "       "    " 39,' 174.
4.  Oliver Cromwell,        "       "    " 46, 209,212.
5.  Thomas Walmsley,''            " 58, fol. 250.
6. John Ferry, Plaintiff's proofs, p. 58, fol. 269,270-272.
All the Defendants' witnesses agree, that all the "ordinary
bearing carriages" drew by the perch, and by the perch alone.
NoW the Plaintiff has suggested one alteration of the ordinary
bearing carriage, in order to suit it completely to the requisitions
8




86                       NOVELTY.
of his patent; that is, " to bring the wheels very near together;"
and no'other alteration being suggested, " expressio unius, exclusio
alterius."
To secure the alleged-new idea, of the entire freedom of the
swivelling of the trucks under the body, (if Winans had conceived
such an idea,) his plan, described in his specification, is to bring
the axles of the wheels as near together as possible, so as to resemble the action of a " single wheel," and not by the mode of
drawing by the body, as the Plaintiff's counsel contend.
And to make such trucks safe or practical,-owing to their
tendency to swivel too much,-it is necessary that this tendency
should be controlled by a perch.  Now, as Winans says that all
the advantages claimed by him could be enjoyed by using the
coammon bearing carriage, which drew by the perch, it amounts to
the same thing as saying that none of the advantages contemplated by him, were lost or impaired by drawing the trucks by
the perch.'The free swivelling of the forward truck was not intended, for'it would have been dangerous.
To show the reason of this, I refer to the testimony of Godfrey
13. King.  Defendants', No. 3, p. 81, fol. 308-9.
Now:consider the admission %of counsel, that you may take
every thing else in Winans's patent, if you do not draw by the
body, and you do not infringe; then, clearly, you may take the
very car described by Winans and not infringe.
The true principle of the Winans car; according to the counsel's
version, is not embodied in any car that does not draw by the body.
According to the Plaintiff's testimony, the difficulty that occasioned running off the track, was not by drawing by the perch,
but by having the perch too long, so that the bodies of the cars
did not come together, when stopped, as they now do.
If the- perch were too long, it must come in contact with the
engine or-other cars when the train stopped.
The idea, that connecting by the perch was more dangerous in
practice than connecting by the body, is erroneous in theory.and
untrue in practice.
The draft, in both,cases, proceeds from the same point, and is
applied at the king-bolt.




MODE OF. TRACTION.                    87
On the other hand, if the carriages were united by a rear
perch and a front perch, the draft would be still in accordance
with the line of forward motion, because; it would be nearer to
the cord of the arc in which the cars were passing, instead of a
tangent to that curve.
To prove, further, that the idea of drawing by the body was no
part of the plan of the Plaintiff at the date of his patent, we shall
show that the Comet was the last and most perfect of all the preceding cars, and that the patent describes particularly that car,
and that that car drew by the perch.  And we do so by referring to
1st.  Oliver Cromwell.  Troy case, p. 26.  He says that
"the Winchester was next to the Columbus, the next was the
Dromedary.  I do not recollect any other car car being built while I
was there.  My recollection is not distinct as to the Comet."
His- memory grew better in 1853.  He then swears, at p. 48,
that "' the Comet was the fourth and last car previous to the 1st
of October, 1834.''"  Fol. 220.
2d. Michael Glenn, in the Troy case, p. 28, and Plaintiff's
proofs, p. 40, fol. 182. He says that "the Comet was built
last."'
3d. In Judge Conkling's charge, p. 11, he states the same
thing.
4thi  Judge Taney's charge, p. 22, he is not quite so distinct.
He states that the Winchester was built in March, 1834, the
Dromedary in August, 1834, and the Comet came next before
Oct. Ist, 1834.
Mr. Latrobe.: We admit the fact as you have stated it, as it
may save time.
fr:. Whiting.  The admission will save time.  Now, the
drawing shown by the Plaintiff, of the "I Comet," corresponds with
the description of the patent, particularly as to one spring, and
also-in various other respects; but I will simply say, no other one
of the cars preceding or following it corresponded, in its peculiarities, with the descriptions of'the patent.
Now, how was the Comet drawn? I shall show, by the following witnesses, that it was drawn by the perch.




88                      NOVELTY.
In Defendants' No. 2, Jacob Rupp says, p. 16, fol. 64-5,
" the Drom'edary and Comet drew by the perch."
In Defendants' No. 2, Leonard Forest says, p. 19, fol. 76-7,?
"the DroMnedary and Comet drew by the perch."
In Defendants' No. 2, Conduce Gatch says, on p. 22, fol. 87,
"that the Comet drew by the perch,"
These affidavits have been more than a year before the Court,
and none of the Plaintiff's witnesses have sworn that the Comet,
which was the last of the -four, drew by the body. In fact it is
not alleged.
All the Defendants' witnesses unite in this testimony, and, therefore, the -Plaintiff's experiments resulted in abandoning the draft by
the body,-if he ever used it,-and this accounts for his silence
on the subject of draft; and there is an end of all the philosophy
on that point, so much talked of by counsel in this case; so much
boasted of; so elaborately displayed. It was not thought of, described, alluded to or claimed by Winans or any of his able counsel who drafted the patent; and the whole theory, that Winans
discovered the great importance of drawing by the body, and.
covered in'his patent only such cars as do draw by the body, is
wholly without founcdation.
Judge Nelson. It cannot be necessary, Mr. Whiting, to go
further in your argument upon this point; nothing is clearer
to my mind than that Winans's patent has nothing to do with the
mode of drawing the cars. He has not alluded to it in any part
of the specification.
Mr. Whiting. I should not have taken so much pains to overthrow the arguments of my learned opponent, if he had not rested
his whole case upon the hypothesis, that drawing by the body was
an essential element in the invention of Winans, and that without
this the invention was worthless and the patent practically good
for nothing; and if the counsel, who thus staked the whole fortunes of the case upon this assumption had not spent nearly half
a day in trying to satisfy your Honor that he was right.,Jydge Nelson. -The argument made no impression whatever
on my mind. The patent has nothing to do with the mode of
drawing.
Mr. Whiting. - I will then pass on to my next point.




WASHINGTON CAR.                    89
THE WA$SHINGTON CAR.
It has been asserted more than once, that the Plaintiff's patent
was founded upon improvements which were not developed until
the building of the Washington Cars, so called. That until these
were built, all preceding cars were merely a series of unsatisfactory experiments; that when these cars were planned and built,
the experiments completed, and the philosophy developed, the specification was drawn up, and was intended to embody the principles
of those cars as contra-distinguished from all that had preceded
them.
Now we aver that these assertions are totally untrue.
The Washington cars were not planned before the date of
Winans's application for his patent, and they cannot, therefore,
be considered as a result arrived at before that application.
I have also shown that the patentee described, and intended to
describe, the peculiar organization embodied in the " Comet."
To prove that the Washington cars were not planned before the
specification was drawn up, the Plaintiff relies on these witnesses:
1st. Philip E. Thomas, p. 17, Plaintiff's proofs, fol. 68-9,
who says;'" that when the' Washington cars' were about to be
built, the plan of said cars was made a subject of much consideration and discussion, and the passenger cars for the said Washington Branch were directed to be built on the plan the Plaintiffrecommended, and which is the plan of those AT PRESENT IN USE.
on said-road; so far as this affirmant understands and believesthat the Washington Branch was completed in 1835, and that the,
consideration and discussion above referred to, must have taken
place some time previous, though this affirmant is not now able to,
give the exact date of it."
Mr.:Thomas, therefore, does not fix the date as having been
before September or October, 1834.
2d. George Brown, pages 21, 22; Plaintiff's proofs, folio 87
and 91 says, that at the meeting of the board of directors, which
was held on the first day of September, 1834, the superintendent
of transportation having charge of the carriages and moveable
machinery on the road, suggested to the board of directors the
8*




90                       NOVELTY.expediency of providiig the carriages and the locomotives to be
used on the Washington Railroad.  That the President in consequence of the said suggestion, was authorized to submit a plan of
carriages of the most approved form for consideration.
Again he says at folio 89-, "that the said car or carriage invented and patented by the Plaintiff was recommended and adopted by the board of directors."  But he does not say, at what
meeting, " and which was ajftervwards built," not before or at the
time, and'" put. upon said road for use." If the car thus recommended had been patented, it is clear that the car could not have
been any other than what was described in the patent, and the recommendation could not have been made until after the patent
came into existence, viz. Oct. 1, 1834.
3d. John Elgar, Plaintiff's proofs, p. 25, folio 108. He says,
" and that this improved car" (namely, the one described in Winans's specification) "'was first brought into general use at the
opening of the Baltimore and Ohio Railroad, on the 1st July,
1835," and not on, or before October, 1834.
4th. Michael M. Glenn, on p. 41, folio 185.  Plaintiff's proof
says, " that several of said cars were completed and ready for use
in the latter part of the year 1834.  That there were ten of the
said Washington cars built before the said road was opened on the
1st July, 1835."
He does not state that any were begun before the date of the
patent.
At p. 42, folio 192, he says, "that he has been familiar with
the Washington cars, so called, since the year 1835, in the fall of
said year."
He does not fix the time in the fall, but it is certain that it
was after the first of October, the date of the Plaintiff's patent.
5th.  Oliver Cromwell, Defendants' proofs, p. 49, fol. 223224, does not fix the time at all.
6th.  George Maxwell, p. 62-63, does not fix the time except
in 1833- 4.
Thus far not one of the Plaintiff's witnesses asserts, that these
Washington cars were planned previous to October 1, 1834, the
time when the patent was issued.
6th. Mr. Latrobe himself fixes the time when the drawing of




WASHINGTON CAR.                    91
the Washington cars was first shown him by Winans; which was
after the 7th of February, 1835. (See Troy case Plaintiff's
proofs, p. 26, ans. to Int. 7.):
These are all the Plaintiff's witnesses.  The Defendant's witnesses on this point are:
1st. Jacob Shryack, Defendants' No. 3, fol. 156, says, "We
commenced to build the Washington cars in the early part of November, 1834, as soon as the benches and shop at Charles street
were prepared for the hands to work on them."  He also states,
"I am the foreman of the building of passenger cars of the Baltimore and Ohio Railroad Co."  Again he says, "on the- 28th
October; 1834" (which was after the date of Plaintiff's patent)
I went into the employment of the Baltimore and Ohio Railroad
Co., and have been in their employ ever since." So that the cars
could not have been begun before the 1st October 1834.
2d. Henry Shultz, Defendants' No. 4, p. 43, fol. 156, says that
he is the 1" railroad car builder for the Baltimore and Ohio Railroad Co."  He says further, "that the Washington cars were
finished in 1835, to draw by the body, and that the idea in so doing was taken from the 110 freight cars made by Rupp and himself," fol. 165.
The car Victory (which was commenced in Philadelphia in September, 1834, and which came before anything was said or done
about the Washington cars,) drew by the body.
No plan was produced for the Washington cars, because the
Plaintiff's witnesses say, that the Railroad Co. adopted Winans's
plan as described in his patent.
If any p2an had been produced, why was not that plan inserted
in the restored patent of 1837?
The Washington cars were in use in Baltimore in -1837, but the
Plaintiff did not send to the Patent office a drawing of any of
thern, but substituted a freight car, to illustrate his description of a
passenge'r car.
This fact, in connection with what was said yesterday, is conclusive that the idea of drawing cars by the middle of the end of the
body did not exist in Winans's mind as a desirable arrangement,
at the date of his patent.
Another proof that at the date of the patent, and even in 1837,




92                       NOVELTY.
when the drawing of the aforesaid freight car was sent to the
Patent office, showing that Winans did not consider the mode of
drawing as any part of his system, is the fact that he did not allude to it on the drawing, by lettering or describing it, as he did
other parts upon the drawing which he did deem important. If
he had done so, he could not have enlarged his patent.
To add still further confirmation to the proof, that the " Comet"
was the foundation of the patent and that it was the only result of
Winans's experiments, and that the Washington cars twere not a
result to which he had arrived before the specification was made,
I recall the facts:
1st.  That the "Comet" was being built in August, 1834, the
" Dromedary" having previously been put on the road in August,
the same month.
2d.  When was the' specification made?  The invention of
Winans's must have been completed before the specification was
drawn.
The specification was drawn by Winans himself and by Dr.
Jones, after which it was submitted to Mr. Latrobe.
Mr. Latrobe, in the Troy case, p. 24, Cross Int. 1, and at p.
26, Cross Int. 8, says, "that the specification was on hand in his
office, a long time; from six months to a year."  He could not fix
the time.
The patent was issued actually in October, 1834.  The specification must therefore have been drawn six or twelve months before, that is, as early as April, 1834, if not as early as October,
1833, and having embodied what Winans then knew, and being
the same specification now constituting a part of his patent; it
follows that Winans could have embodied in that specification only
such results as he had arrived at, at the time he wrote; and as it
was written many months before' any new style cars were planned
or ever thought of, it is absurd to pretend that the Washington
cars were the LAST in a series of experiments, which were never
successful until these cars were produced.
No experiment could have been tried on cars that did not exist
at the date of the patent.
No experiment could have been tried on cars, which were not
planned by any person till between six and twelve months after




WASHINGTON CAR.                     93
the whole invention of Winans, as now shown in his patent, had
been DESCRIBED and shown in his own hand writing in the specification.
Therefore in conclusion; the Plaintiff's patent was founded on
such discoveries as he had made and embodied when the Comet
was built.
It did not embrace the improvement of drawing by the body,
subsequently introduced in 1835, into the Washington cars.
And if the validity of the patent is to depend on the Plaintiff's
alleged discovery of the great importance of the mode of drawing, the fact is, that he had not made it, and he did not and does
not claim it, but he expressly says in the patent, that which is inconsistent with such a pretence.
These directions in the patent, which are inconsistent with the
absolute swivelling of trucks as derived from the drawing by the
body are:
ist.  That the bearing carriages must have the wheels very
close together, so as to resemble the actiodn of a single wheel (which
makes them liable to wabble and turn round the track) and are to
swivel under the bolster, in the manner of a common road wagon.
2d. The two trucks-after the wheels in each are coupled
together by a spring-are also not merely placed under the body,
or at or beyond the ends, but are " coupled together."  This is
the language of the patent.  The reason for it is, to prevent too
great turning on the track, of the hind truck.
3d. All the advantages that Winans claims, he says may be
derived by using, instead of the spring-trucks, any of the ordinary
bearing carriages, if the wheels were- near together, and all of
which bearing carriages drew by the perch alone.
So that the Plaintiff had not planned the Washington cars,
when he had completed his alleged experiments, and was not
aware of any advantage to be derived by drawing the cars by the
body.
These cars were not the result of any experiments arrived at
before the -specification was drawn. They are not the cars described, or intended to be described in the specification, and Winans had not in his mind the idea or plan of allowing the trucks
entire freedom of swivelling, by arranging the draft through the




94                       NOVELTY.
body.  But his plan was to have the draft through the perch, as
in the Comet, which, as I have shown, was the last car begun or
built before the patent; and while the specification was being prepared.
PUTTING AN OLD MACHINE TO A NEW USE.
Another question, arising out of a consideration of the history
of prior inventions is-how far a change in the use or application
of the running gear of a car for freight, to a car for passengers, or
to a locomotive, would justify a patent?
Indeed, it is well settled, that putting an old machine to an
entirely new use, gives no right to a patent; and.much less does
putting it to an analogous use, e. g., converting the running apparatus under a steam engine, or freight car, or passenger car, from
one of these uses to the other.
The cases in point are:
Winans vs. The Boston and Providence Railroad Company, 2
Story's Rep. 412, in which the patent friction-bearings, which the
Plaintiff claimed, had been applied to other carriages, but not to
railroads.
In this case the Court held,'that applying an old invention to a
new use was not patentable.
Bean vs. Smallwood, 2 Story, 411.
In which the patent was for making, the seat and stool of a
chair in two parts, so that while the stool remains stationary, the
seat is made to rock, &c., and enabling it to remain fixed in any
angle, &-c.
A  similar.apparatus had been applied, not to chairs, but to
other machinies, and the patent was held to-be void.::"If:this be so," says Judge  Story, " then the invention is not
new, but.at most... an old invention, or- apparatus, or machinery,
applied to a new:purpose.  Now I take it to -be clear, that a machine, or apparatus, or other mechanical contrivance, in order to
give.the party a claim to a patent therefor, must in itself be substantially new.  If it is old, and well known, and applied only to
a new purpose, that does not make it patentable.  A, coffee-mill,
applied for the first time to grind oats, or corn, or mustard, would
not give a title to a patent for the machine. A cotton gin, applied




NOVELTY.                     95
without alteration, to clean hemp, would not give a title to a
patent for the gin as new.
"A loom to weave cotton yarn, would not, if unaltered, become
a patentable machine as a new invention, by first applying it to
weave woollen yarn.  A  steam-engine, if ordinarily applied to
turn a grist-mill, would not entitle a party to a patent to it, if it
were first applied by him to turn the maini wheel-of a cotton factory.  In short, the machine must be new, not merely the purpose
to which it is apoplied. A purpose is not patentable,'but the machine only, if new, by which it is to be accomplished. In other
words, the thing itself which is patented must be new, and not the
mere application of it to a new purpose or object."
No patent can be obtained for turning an old machine to a new
use.
The Jacquardpower-loom, for weaving figured silks, &c., could
not be patented, lecause applied, without alteration, to weaving
three-ply figured carpets.
A stocking machine would not be patentable, merely because
applied to knitting seamless bags.
Blanchard's machine for turning gun-stocks would not be the
subject of a patent, by reason of its being applied to turning lasts.
Neither would Goodyear's patent for vulcanized India rubber
garments, if applied without any change of ingredients or of processes, to make car-springs, combs, or walking-sticks.
Nor the galvanic battery; because applied to the purpose of
covering over a surface with silver or gold; or to the still more
beautiful process. of electrotyping.
Nor the electric telegraph, because applied to the new and admirable astronomical clocks, so as to obtain the difference of longitude betwseen two places.,
Nor watch-work, because applied to a sub-marine torpedo, to
cause it to explode at a given time.
Nor a percussion lock of a pocket pistol, because applied to a
large pistol, gun or cannon.
Nor any kind of axles formerly applied to common road
wagons, because applied to railroad cars, or vice versa.
Nor whatever machinery has already been applied to railroad cars, by making it run faster, or carry one species of burden
rather than another.




96                       NOVELTY.
Winans himself knew that it made no difference whether his
double truck was put under a locomotive or a passenger car, as
he sold the right to use it under locomotives to John Tucker, for
the Philadelphia and Reading Railroad, in November, 1845.
See Tucker's affidavit, Defendants' No. 3, p. 88.
AS TO CHANGE OF PROPORTION.
In machinery, in order to defeat a patent, it is not necessary to
show that prior machines existed, in every respect similar to the
one. patented, as a change of formier proportions will not support a
patent.
See Woodcock vs. Parker, 1 Gall. Rep. p. 438-440.
Whittemore vs. Cutter, ib., p. 480.
It has even been held, that putting an old machine to a new
use, when the patentee has done this, in connection with the original,discovery of some new quality of matter, so that he makes a
new and useful result, is not patentable.
See Tatham et al. vs. LeRoy, in the last volume of Howard.
" A fortiori," the lengthening out of the body of the Chapman
or Tredgold car, to be used for precisely the same purposes on: the
same description of railroad, is not patentable: for that amounts
only to putting an old machine (with a slight change of proportions) to an old use.
How can it be, that we can use a certain machine of a certain
length, with trucks under it, suited to the road, and yet that we
cannot use the same machine, made longer in the body, with the
same trucks under it?
The only difference, except in the springs and wagon bolsters,
between Winans's and prior inventions, is, a c/range of proportions.
[Mr. Whiting here illustrated this proposition by explaining the
models to the Court; substituting large wheels and long body on
the Chapman and Tredgold models, produced the near coupling of
the wheels in each truck, and the remote coupling of the trucks.]
I refer to your Honor's opinion in the case of Wilbur vs. Beecher,
on this point. (Pamphlet Report, p. 14.)
If these principles of law be correct, they answer most, if not
all the Plaintiff's criticisms on prior inventions.
If any car like the Quincy car was used only for freight, it is




NOVELTY.                       97
not to be patented by Winans, because he uses it to carry passengers. Especially as his car is a freight as well as a passenger
car; and his drawing is of a freight car only.
Whether the car is used to run fast or slow makes no difference.
Whether it is to be drawn'one way or the other, is immaterial,
since, in fact, no particular mode of traction is claimed.
Allen's carriage was used under a locomotive, yet if it were
applied to a passenger car, it would be the same in principle.
If Winans can monopolize all eight-wheel running gear, Allen
could not have applied it to his locomotive without infringing.
It is immaterial what load is borne by the platform, whether
wood, stone, passengers, or a steam-boiler, or whether the machine move fast or slow, if it only has the capacity for slow and
fast motion.
Even if the eight-wheel -double-truck carriage had been made
to travel on' common roads, and had never been applied to railroads, and if Winans had been the first to make that application,
he could not sustain a patent for thus applying an old machine to
a new use, according to the decided case before cited, viz. Winans
vs. The Boston and Providence Railroad Company.
How much less could he sustain a patent for merely making
use of the same running gear, because he placed it under one kind
of a platform  or another, or carried one kind of burden rather
than another, or merely altered the proportion of parts, without
introducing any new principle of operation.
So also, if the Chapman or Tredgold car, were,originally designed merely to distribute the stress of the load, or what is the
same thing, the weight of the load —equally on eight wheels-or
even if their plan was to place and retain the wheels at equal distances apart, along the rail, would it be any invention'to put on a
longer body instead of a shorter one, upon the origincal trucks, or
to put passengers thereon, instead of freight?
If Tredgold or Chapman may answer a better purpose by merely, prolonging the body, can there be invention in lengthening
that body?
I have already denied such an hypothesis.
9




98'NOVELTY.
THE  QUINCY  CAR.
The Qainey car is the next subject for consideration.  The
Court has examined the model. It consists of a long bearing platform, which is made of solid timbers fastened together by two
cross-pieces at the ends thereof, which, while they unite these long
timbers, at the same time constitute the bolster pieces. The bolster pieces are penetrated by king-bolts, which pass through these,
and through the middle of the ends of the centre timber; the under
part of each bolster is rounded up, and it is also armed with a
transom plate and side bearings, which correspond to similar transom plate and side bearings upon the trucks underneath.
There are two trucks, one at each end of the bearing platform,
swivelling under it, upon the king-bolts.
Each truck has four wheels, and a solid, rigid rectangular
wheel-frame covered by a solid platform, and said wheel-frames
have side pieces and double cross bolsters.  The axletrees on
which the wheels revolve are metal, and bedded in the cross timbers at each end of the wheel-frame. The bearing points of the
wheels on either side of the truck, are about the same distance
from each other as the width or gauge of,the track.  The diameter of the wheels is smaller than those in general use at the present time. The trucks are coupled by the body sufficiently
remotely from each other to allow each to swivel entirely around
without interfering one with the other.
In regard to its mode of operation, it is precisely the same in
principle as the eight-wheel cars now in common use; the bearing points of the wheels being equi-distant with the gauge of
the track, and the two trucks placed at or near the ends of
the bearing platform adapt this car to a distribution of the
weight equally upon the wheels, while the swivelling of the truck
adapts it to pass smoothly and safely over the straight parts,
curves and,other inequalities of the road, and the peculiar shape
of the bolster adapts it to conform to great and sudden changes of
grade, and the side bearings to prevent the body from swaying
or tipping one way or the other.
The said Quincy car does not contain the peculiar mode of




QUINCY CAR.                      99
uniting the axles of the wheels by a spring bolted to the boxes,
and, owing to the small size of the wheels the flanges are not
brought as near as possible together without coming in contact; but
all that is material and essential in the arrangement of the eight
wheels of the car, and the connection thereof with the body, is
there reduced to practice in a manner which obtains all the advantages, while it avoids the defects of the arrangement as shown
in Winans's specification. The trucks are placed as far apart
as the length of the body will permit, and the wheels are brought
so near together that their bearing points are as far apart as the
width of the track; and this arrangement, on the whole, is better
than a closer proximity of the wheels.
Four-wheel railroad cars having been before constructed and
in use, and the Quincy car showing the manner in which two
trucks could be placed under the ends of a car body, and there
being nothing to prevent the builder from making the body as
long as the amount of travel or transportation required, or increasing the diameter of the wheels, the constructor would be
called on to do nothing else but merely change proportions and to
substitute wheels, turning with axles, which were well-known
equivalents for wheels turning on axletrees.  It is true that various improvements have been applied- to modern cars in addition
to what is in the Quincy car; but the arrangement of the wheels
and construction and connection of the truck with the body of the
car, still remains the same in its essential character.  And no
invention would be requisite, so far as regards the arrangement
of the wheels and- the connection of the trucks with the body of
the cars, to swivel to the curves and run smoothly and safely on
the road.
The position of the bearing trucks is at the end of the body,
precisely as Winans recommends. See his patent, Plaintiff's
proofs, p. 114, fol. 13.
The existence and structure and date of the Quincy car, are
proved by
1.  Gridley Bryant,         Defendants' No. 3, p. 141.
2. Jotham Cummings,                          2, " 143.
3. Noah Cummings,                        " "  3, " 145.
4. David R. Nash,               "        "  3, " 147.




100                       NOVELTY.
(5.), John L. Cofran, on the part of the Plaintiff, confirms
the same facts.
In regard to the experts on this subject, I will merely make
reference to their names and to the pages where their testimony
is to be found.
5.  John Murphy,  Defendahts' No. 4, p. 7, fol. 27-33.
6. William Pettit,'            "  4, "  3, " 51-54.'T.  Septimus Norris,    "       "  4,"  1, "   110.
S.  Joseph L. Kite,      "       "  4,'11, " 41-50.
9.  M. WY.Baldwin,       "       "  4,  3, " 116.
10. Oliver Byrne,          "        4, "  9, " 34-40.
11.  Richard French,       "      "  4,    6, " 21-26.
12.  John L. Cofran, Plaintiff's proofs, p. 74, fol. 349-352.
We have not a greater number of witnesses as to the origin
and history of the Quincy car, because it was not supposed to be
necessary, the dispute being about the principles of its operation,
and not in regard to structure.
It is admitted that the invention and the public use of the
Quincy car was prior to Plaintiff's alleged invention. On this
ground, therefore, we rest in safety.
The construction of the car, as stated, is admitted. The only
questions are, whether it embodies the peculiarities of Winans, or
the true principle of the eight-wheel car, or substantially the
principle of the eight-wheel car as made by the Defendants?
The Quincy cars being double truck eight-wheel cars for freight,
with swivelling trucks, there is no denying that they embrace and
embody all the general mechanical principles and arrangements
which are essential to the organization of an eight-wheel double
swivelling truck car, either for passengers or for freight.
After reading the affidavits, and particularly that of the distinguished mechanic who has attained so high a reputation in
Massachusetts as a( Civil Engineer, and inventor of the eightwheel car, as well as a great variety of other railroad machinery,
a man of high character as well as of inventive'genius, whose
name will be forever preserved in our history as the engineer
and builder of the first railroad in the United States,-Gridley
Bryanit, —no one can entertain a doubt that his eight-wheel car,




QUINCY CAR.                      101
which was in full and successful operation in 1829, was designed
and intended to answer the same purposes, (as to the transportation of freight,) as Winans's. Lecar was designed to answer when
used for freight, -to carry the same more smoothly and evenly
over thfe curves, straight parts, inclined planes and inequalities of
the road.  That the body or platform was made longer or shorter,
ac6ording to the strength of the materials and the weight they
were intended to bear.
The ease of motion attained by this car was produced by the
same process, which Winans subsequently adopted, so far as regards
the position of the trucks under the EXTREME ENDS of the body or
platform, the length or shortness of the body being (by Winans's
specification as already stated) immaterial.
So that the language of Winans's specification is an exact description of the Quincy car, as to the connection of the truck with
the body by the swivelling pin, -(excepting that the Quincy car
had the addition of side bearings, and so do the Defendants'
cars,) and an exact description of thb arrangement of wheels in
each truck, (except that the Quincy car uses the solid,-rigid rectangular wheel-frame, and so do the Defendants, instead of the
connection of the axles by the long springs;) and in the Quincy
trucks the bearing points of the wheels on the rails are equi-distaut with\ the gauge of the track, (and so are Defendants',) while
Winans's are far closer together.
The Winans truck is constructed upon the theory of bringing
the axles as nearly as possible to coincide with the radii of the
curves of the road, while the Quincy truck and those of the Defendants avoid that theory as pernicious in practice.
Taking the Quincy car, just as it was in 1829, and as it is at
the present day, and substitute for the freight platform  a car
body, and you have all that is really essential in the Defendants'
cars.
It is true that many modern improvements have been added
to make them' pleasant and convenient; but so far as relates to
all that Winans claims, viz.: the arrangement of the eight-wheels
in two swivelling trucks, placed under the ends of the body, and
the connection of the body and trucks by a king-bolt, so as to
allow the trucks to swivel and conform to the curves and inequal9*




102                       NOVELTY.
ities and straight parts and grades and inclined planes of the railroads, these cars are substantially the same.
And if, (as has been so often asserted and so often admitted on
this trial,) the putting the wheels in each truck a few inches
nearer to or more distant from each other, and placing the trucks
nearer or\ more remote, under the body, (especially when they
were originally placed under the extreme ends thereof,) cannot
be a subject of a patent, cannot require invention, being merely an
alteration of proportions, and'not introducing any new mechanical
principle hito the structure; and as no other alteration whatever
from the Quincy car is wanted in order to make the Defendants'
cars, except merely lengthening the body, it follows that the Defendants do not infringe. the Plaintiff's claims by using whatever
is embodied in the Quincy car, including the arrangement of
wheels there found, their connection with each other, and their
connection with the body, and the placing of the trucks at the extreme ends of the body.  If they do infringe Plaintiff's claims by'such uses, then the Plaintiff claims what was in the Quincy car,:and that being a prior invention, the patent. is void. If, on the
other hand, the Plaintiff's claims do not cover those arrangements,
but only the peculiar devices of long springs and wagon bolsters,
the Defendants do not use them, and, therefore, do not infringe.
Ii now propose to examine all the objections to the Quincy car
that have been made, or that can be anticipated.
Ist Objection.  It is a car for freight.
Answer.  So is Winans's; and it is immaterial to the construction of the running gear, whether the body or platform carries
passengers or freight.
2d. The wheels are smaller than car wheels now used.
Answer.  Mere change of proportion is not material, and the
patent describes no particular size of wheels.
3d. The flanges of the wheels are not close together in each
truck.
Answer. Merely increasing the size of the wheels (i. e. a
change of proportions) remedies that matter of the approximation
of the flanges; and putting on larger or smaller wheels does not
vary the distance of the axes, nor, consequently, the distance of
the bearing points, and there is no essential difference, whether
the flanges are nearer or further apart.




QUINCY CAR.                     103
The Court will understand me as speaking of the wheels in
each truck.
The essential distinction is, that the bearing points in the
Quincy car are distant from  each other as far as the width of the
track.  It is the same in the Defendants' cars.  It is not so in
Winans's patent.
4th. That the body, or platform, is not so long as the Winans
car, and does not extend the whole length over the platform.
Answer.  The length of the body is not material, in principle,
nor prescribed in the patent, so long as the bearing of the body
or platform on the trucks is at or near the ends.
Whether the car be long or short, the principle is the same.
The platform or frame of the sixteen-wheel car, at Quincy,
could have been as well put on to the:eight-wheel car, and then
the length of the car body would have exceeded Winans's.  And
what is more important is, that the shortness, or length' of the
body, is not a material part of Winans's plan.
The Quincy car is as long as Winans requires.  See fol. 20, of
patent, where he expressly says that the length of the body is
not material, if only the trucks are placed at the extreme ends.
Winans's patent is, therefore, no more for a long body than a
short one. It is expressly applicable to any body or frame that
will allow two of his narrow  trucks to swivel under or even.
beyond its ends.
5th. That it was only made to carry heavy stones, that could
not be subdivided.
Answer.  As I have already stated, it is not material what
kind of freight was carried.
6th. That it was not made for rapid motion.
Answer.  Neither is it material how fast the owners chose to allow it to run, if it were capable of running fast.  The principle is,applied to and developed and embodied in the organization, and n6t
the use. It would be strange if an ordianary road carriage, usually
driven at a slow rate, could be patented because a fast horse
were tackled into it.
7'th, That the wheels were not of the kind most usually employed on railroads at the present day.
Answer.  This is not true in fact.  The wheels were con



104                       NOVELTY.
structed with a conical flange, and they operated just as ours
now do.
Moreover, CONE wheels had been in use prior to 1825, and
they were used in the Quincy cars. See Tredgold, Plate 111,
Fig. 24, pp. 42-3; also, George S. Griggs, Defendants' No. 3,
p. 104, fol. 414-18, and p. 110, fol. 438-39.  And Winans
does not designate one kind of wheels more than another as a necessary part of his organization; he claims the arrangement of
every description of wheels.
8th. That the wheels turned oN their axles and not with their
axes, and that this was less safe.
Answer.  (a.)  This is a matter of practice, not theory..(b.)  The Plaintiff's expert, Hibbard, does not assert, neither
do any of the Plaintiff's witnesses say that this proposition is
true; nor, if true, that it is material.
(c.)  That the mode of substituting wheels revolving with
their axes instead of on the axles, was well known to mechanics
at that time, and has been described and shown to this Court, in
several treatises published about 1825. As for instance in Tredgold, p. 13; in Wood, p. 77 —8; and in Strickland, Plate 51.
(d.) It is admitted that' it required no invention to make a
substitute of these well-known equivalents.
(e.)  No witness pretends,that the slightest difference, practically, is introduced by the substitute.
(f.) Winans does not indicate the preference for one over
another mode, even in the truck that he specially recommends.
(y.) Both kinds were in use at that time, and each had its
advantages, therefore this objection is hypercritical.
(h.) The only expert of the Plaintiff metaphysical enough to
cavil at the Quincy car, is Hibbard. Some of his objections have
been stated by the Plaintiff's counsel and answered by us, and we
shall notice and answer the remainder.
1st.  He assumes that the object of the Quincy, and other
cars, was merely the distribution of the weight over a great extent of RAIL.
If so, it would be immaterial. If Bryant, in accomplishing that
object, made a perfect eight-wheel car, embracing all the essen



QUINCY CAR.                      105
tial principles of that used by Defendants, it is of no importance
what his original design was.
But the assumption of Hibbard is incorrect. The real objects
for which the car was made and used, are specially stated by the
inventor in this affidavit, viz: —" To carry a large load on eight
wheels without injury to the road; to turn the curves freely, descend the inclined plane, and run on the road, carrying the stone
smoothly and safely as possible." Df'dts' No. 3, p. 141, fo. 563-4.
2d. Mr. Hibbard's second objection is, that in the bearing
carriages the wheels are not so near as in Winans's trucks.
Answer.  They are as near as the Defendants place them, and
if not, the size of the wheels may, be enlarged, and then they will
be as near as Winans's.
3d.  The third objection is, that the bearing carriages are not
so remote from each other as Winans's.
Answer. They are at the extreme ends, which is the plan recommended in the patent.
(i.)  The chief objection to the Quincy car is that it is was
usually drawn by the truck and not by the frame or body.
Answers.  1st.  That where there is but one car, and the cars
are not in trains, drawing by the truck is as well as drawing by
the body, because the unrestraihed swivelling of the truck is not useful. It must be controlled when the axes of the wheels are'very
near together.
2d. Can it require invention to insert the drawing ring in one
-place rather than the other, after it had been demonstrated that
the hind truck could be allowed to swivel freely?
3d. There were two ways of using the Quincy car; one by
traction and the other by gravity.
On the inclined planes nothing controlled the free swivelling of
both trucks. They would be as free to swivel as though the car
were pushed by a locomotive and by the body along a level track.
The language of the patentee shows, that all the advantages of
his arrangement may be obtained by drawing the forward truck by
the perch, and he intended that his own car should be so drawn.
The other objections of Mr. Hibbard have been answered before.
(j.)  Mr. Keller adds an objection that the Quincy car had
no conical wheels.




106                       NOVELTY.
1st., This, if true, is of no consequence.
2d. It had conical wheels.
(k.)  Again Mr. Keller objects, that for want of springs, the
Quincy car did not so well adapt itself, to the change of grade.
To this I answer:  Ist.  That the bolster was rounded up.
2d.  It did conform to very steep grades, even to an inclined
plane.
These are all the objections.
Only one expert in the country dares deny, that the Quincy
car contains an embodiment of all the substantial parts of the
eight-wheel car of the Defendants.
The Plaintiff and his counsel knew all about this car, as early
as June 4, 1853, and therefore can make no excuse that he has
no opportunity or time to produce experts.
This fact is significant. The Quincy car has been in successful use from 1829 up to the present time, and had that road required passenger cars, these could have been used at once for that
purpose.
The theoretical opinions of Hibbard, who never had anything to
do with railroad machinery, and who has no practical knowledge
on the subject, and the fine-spull speculations of the adroit and
ingenious junior counsel of the Complainant, are all that is offered
to over-balance the ponderous weight of authority of scientific
and practical men, as to the principles of the Quincy car, and
as to its embodiment of all the essential elements of the cars as
made by the Defendants.
Now apply the same reasoning, as to the separating of the
trucks, to this car as to Tredgold. The lengthening of the body
still preserves the equal weight borne by each wheel, and the
weight borne by each span of rail.
Also; the objects of the construction of the Quincy car are not
left for inference, but are proved and not denied to be, not only
to distribute the weight, but also to swivel and run smoothly and
evenly.
Can it be while Winans says that the length of the body is not
material, if supported at the two ends, as was the Quincy car,
that we are to be deprived of using the Quincy trucks, under the
short or LONG platforms?




ALLEN CAR.                     107
THE ALLEN CAR.
I now pass to the subject of the running gear of Horatio Allen,
as applied by him to his steam carriage.
We assert that this invention was prior in time to that of
Winans.
Supposing Winans to have organized the running parts of the
Columbus as the Plaintiff claims, the earliest date to which their
evidence carries the first sketch, which preceded their first experiment is in February or March, 1831. And Mr. Elgar, being
contradicted by all the other Plaintiff's witnesses, as well as by
the Defendants', and swearihg now what he swore he did not know
at the Troy case on this very point, March, 1831, is the first moment at which the Plaintiff's'" experiments" began.
Horatio Allen's invention was matured in his mind, in 1830.'Had he stopped there this would be of no avail, but in the fall
and winter of 1830 he made complete working drawings, very little like those that Winans says he made in the following March.
We have produced the identical drawings and plan.
The invention was pressed forward to a successful issue. The
first machine was finished and put to use in the beginning of the
year 1832, and so well was it liked that three others were also
built and placed upon the road before the close of the year 1833.
Allen's first machine would have been built before the Columbus, had it not taken so much longer to build a locomtive than an
ordinaly car. We do not find here any series of failed experiments for three or four years; for the invention was complete so
far as relates to the running gear.
To Horatio Allen belongs the honor of having made the first
double truck running gear for locomotives in this country, which
was not only perfect in respect to the arrangement and connection
of the wheels, but also in the application of pedestals to the
springs, the same as are now used on all cars and railroads; a
fact that may well cause his name to be remembered with honor in
connection with the history of railroads in this country.
If Winans failed in the Columbus, as the Plaintiff says, then
Allen's invention was completed, while Winans was only making
unsatisfactory experiments.




108                      NOVELTY.
Mr. Keller argues that an invention is nothing in the eye of
the law until it is embodied in some form of machinery-it is
nothing while it is the subject of mere experiment. And so
Allen's invention was nothing until his invention was completed;
that did not occur until after July 4, 1831, and therefore Allen
cannot be considered prior in time to the Columbus, which is
-claimed as Winans's invention!
This is his argument to show the alleged priority of Winans.
But in the next breath, it became necessary (in order'to avoid
the stress of our argument that the invention was abandoned from
July 3, 1831 to October 1, 1834,) to take a new ground. He
then says that Winans had made no complete invention in 1831,
but was only' trving unsuccessful experiments! and that he did
not complete and embody his invention until 1834! In thb latter
supposition, he was three years subsequent to Allen! How unfair
to assume such inconsistent grounds of argument!
Not only did Allen put his invention into successful operation,
while it is said that Winans was experimenting, but he also made
a report on the subject of running gear-the first on the subjectin 1832; which was printed, published, and circulated, explaining
fully the whole philosophy of its structure, and which Winans
some years afterward plagiarized.
I will now give your Honor a description of the model and
drawings of the Allen Steam Carriage. It is borne by two
trucks; each truck has four wheels in a rectangular rigid
wheel franie, which preserves the parallelism of the axes; the
points at which the wheels bear upon the rails are separated about
equally to the width or gauge of the track, which distance is the
most beneficial in actual use.  The truck frame is united to the
axes of the wheels by means of springs and pedestals similar to
those now in general use, which, while it gave ease of motion to
the burthen carried, effectually prevented the axes from, at any
time, losing their parallelism, by confining the motion allowed by
these springs at all times to planes perpendicular to the track and
equi-distant from each other; thus the wheels were always kept
square on the track. The four and hind wheels of the truck were
-of different diameters, but this fact is wholly immaterial.  Each
truck had a bolster running across the centre of the same, from




ALLEN CAR.                       109
side to side, and this bolster was connected with an upper bolster,
on which the steam carriage rested, by means of a large swivelling
pivot or king-bolt, operating also as a transom plate, and the trucks
swivelling readily and freely to the curves and other inequalities
of the road. There were also anti-friction side bearings upon
each truck to keep the body of. the steam carriage from rocking,
and assist in supporting the same.  The two trucks were placed
so near the ends of the steam carriage, that the ends of the truck
frames projected beyond the body; and this position was best calculated to sustain the weight of the body. A part of the body
hung down between the two trucks.  The body of the steam carriage was long, so that it readily rested on two four-wheel trucks,
allowing them to swivel to the curves without interfering with each
other; and the distance of the bearing bolsters was nearer to the
ends of the body than the position now usually adopted in passenlger cars, is from the end of the body platform. The said steam apparatus may be taken off, leaving the bolsters and all other parts
as they were, and a platform or body for passengers substituted,
without invention, and this carriage will then, as it did before,
combine all the mechanical elements of the eight-wheel railroad
passenger car, as ordinarily used, embodied in a manner exceedingly well adapted to pass smoothly, steadily and safely over the
straight track as well as the curves and irregularities of railroads.
Indeed, it contains all the most essential features of the running
gear now in general use, and is far better calculated to attain the
objects described in said Winans's specification, than the mode of
arrangment which is recommended in the patent itself. The
whole of the objects or beneficial results set out in said Winans's
patent, and much more, are attained in said Allen's St6am Carriage.
The witnesses who prove the Allen engine areHoratio Allen, Defendants' No. 3, pp. 60-62, 63, 64, fol. 240
to 254.
Christian E. Detmold, Defendants' No. 3, pp. 56 to 60, fol.
225, 227, 228, p. 58, fol. 232 to 239.
To show that the running gear is identically the same in principle and mode of operation, as that of the cars built by the Defendants, we refer to the testimony of
10




110                      NOVELTY.
Charles B. Stuart,        pages 91-2, fol. 364, 5, 6.
Wm. J. McAlpine,            "  95       "  378, 9, 380.
Vincent Blaclkburn,          "  98      "  391, 2.
Walter McQueqn;             "  102    "  407, 8, 9.
Albert S.- 7_a.ms,           "  116    "  463, 4, 5.
James H.'Aii derson,         "  119    "  476, 7.
John B. Winslow,             "  122    "  487, 8.
John Crombie,                "  127, 8 "  508, 9, 10.
H. W. Farley,                "  131    "  521, 22, 23.
Godfrey B. King,            "8          "  306, 7.
William C. Young,           "151    "  604 5, 6.
What are the Plaintiff's criticisms on the running geIar of the
Allen carriage?
ist.  That the running gear was applied to a locomotive, and
not to a passenger car. My answers are,
1st. Take off the boiler, and you can substitute a platform for
freight or passengers.
2d. This change removes all'machinery for locomotion, which
is the only alleged impediment.
3d. Such a change requires no invention.
4th. Winans's running gear is as applicable to locomotives, as
to freight and passenger cars.
5th. Changing the use is no change of principle.
6th.  Cars are now made, called steam cars, having the locomotive in the forward end of the car.
The second criticism is-That the carriage is shorter than the
length of 20 to 24 feet, recommended by Winans.
Answer. This is a mere change of proportion, and the length
of the body is stated-in the specification (fol. 20) to be immaterial.
8d. That the wheels are of different sizes.
Answer. As I have already shown, this is immaterial.
4th. The flues of the engine clogged, and the engine was given up.
Answer. That the running gear was perfect, and was repeat-,
ed on three other engines. There has been a great improvement
made on engines, but not in the running gear; and the running
gear was on the same principle as that now in use in all parts of
the country.
5th.  That the Defendants have failed to state in what manner




THE BALTIMORE CARS.                  111
it was connected to a train of'cars.  They then infer that such
connection was fatal to the free swivelling of the hind truck.
Answer. Allen's Report shows that he was fully aware of the
importance of sufficient freedom of swivelling. This is therefore
an unjust inference.
The same objection may be made to the Plaintiff's patent, for
it does not describe or show how it was to be connected with the
train; though we have shown by reference to facts dehors the
patent, that it was to be drawn by the perch.
6th.- That the eight wheels were equi-distant, and the two
tracks not separated far apart.
Answer.  They are the same distance apart from  centre to
centre in each, truck, as those made by the Defendants; and
that the distance of the trucks depends wholly on the length of the
body, which is a mere change of proportion.
7th. That two of the wheels on each truck were used as driving wheels.
This is not material, unless this fact prevented the truck front
swivelling sufficiently freely to enable it to conform to the curves.
And the evidence is that the trucks did so swivel; and experiment is better than theory.
Moreover. Absolute freedom of swivelling is not requisite,
otherwise the truck might turn crosswise on the track.
The use of the wheels as driving wheels, could make no difference in the swivelling, because the whole truck was free to yield
to the guidance of the rails, and it would make no practical difference whether the tractive power was communicated through
the king-bolt, or directly communicated to the axles.
8th.'That the connection of the steam  machinery with the
running gear, is not shown on the model.
Answer 1st. It was not necessary.
2d.  It is shown in the drawing.
3d. It is stated in Allen's affidavit, and explained to have
been such as to allow of perfect freedom of trucks to swivel.
This is an unfair objection.
Thus we find in Allen all that is essential in the Plaintiff's cars,
and all he claims, except the spring trucks and the wagon bolsters.
1st. The two four-wheel trucks.




112                      NOVELTY.
2d. Their arrangement at or near the ends of the body.
3d. The wheels and flanges very close.
4th. The trucks as far apart as conveniently may be.
5th.  The trucks free to swivel.
6th.  The purpose, viz., the distribution of weight, and ease
and safety of motion.
The Plaintiff's Counsel has said, that if these cars would suggest
the idea of the eight-wheel car, Allen was just the man to make
one; and, so we say he would have done, if such cars had been
wanted, for it required no invention to do so.
Merely taking off the boiler, and putting on a long body, would
remove every objection of the Plaintiff.
This would merely be applying Allen's invention to a new use,
making only an obvious change.
But the railroad companies were not in favor of eight-wheel
cars at that time, nor for many years after Winans's patent' was
dated; and therefore Allen had no occasion to apply his invention to that use.
This carriage, then, (as well as the Quincy car,) is conclusive,
taken in connection with the drawings and the reports, which
states:
1st. The objects to be attained.
2d.  The mode of attaining them.
3d. Their success.
Who denies that the Allen carriage embodies all the principles
of Winans's claim? if he claims any thing beyond the above mentioned peculiar devices. And if any-on what ground?
Not one expert has denied it; and no one but the Counsel
asserts it. Can the Court hesitate in their decision?
THE BALTIMORE CARS.
I now pass, with great brevity, to say a few words on the Baltimore Timber, Trussell, Wood and Platform  cars.  They were
constructed as follows:
Two ordinary bearing carriages, or trucks, (such as were in
common use at that time on the Baltimore and other roads,) hav



BALTIMORE CARS.                     113
ing rigid rectangular wheel-frames, bearing four wheels each,
and having the flanges distant from six inches to two feet, were
connected together by a long platform composed of string-pieces
of timber; these string-pieces were bolted on top of an upper
bolster, so as to constitute a frame-work platform; the bolsters of
this platform rested at each end upon, two corresponding tender
bolsters, which last mentioned bolsters were fastened upon the
bearing carriage. A king-bolt 4r centre pin connected the upper
and lower bolsters, so that the trucks were free to swivel to the
curves of the road. The bolsters were under the ends of the platform, and the trucks were drawn by the perch. The wheels in
each truck were close together, in some of the trucks, and farther
apart in others; but in -all cases the two trucks were placed as
far apart from each other as the length of the long string-pieces
would -allow.  So that this rude structure combined all the essential elements of the common double truck eight-wheel swivelling
car. When used for carrying cord-wood, upright standards were
added to the platform, in order to keep the wood in place.
When horses and carriages were to be transported, cars were
built with long trussells instead of a mere platform.
It is proved beyond a doubt,
1st.  That the " Timber cars" were running on the Baltimore
and Ohio Railroad in May, 1830.
2d.  That the "Wood cars" were running in November, 1830.
3d.  That the" Trussell cars" were running in December, 1830,
being at least six months before the Columbus was finished, and
four months' before she was begun, and before the plan was produced by Winans.  We have shown, conclusively, that Mr. Elgar
was mistaken in HIS dates, and that ~his evidence has been overthrown by all the other testimony in the case, on the part of the
Plaintiff as well as the Defendants.
And.I take pleasure in saying, that I do not believe that any
one of the witnesses, whose testimony is used on either side, intended to make false statements; but that any witness may have
innocently made mistakes of facts and dates, is most obvious.
The witnesses for the Plaintiff, who in any wise conflict with
our testimony on these cars, are the following, viz.:10*




114                      NOVELTY.
1. John Elgar.
2. William Woodville.
3. Michael M. Glenn.
4.  Oliver Cromy-ell.
5.  Thomas Walzusley.
6. Henry R. Reynolds.
7. John P. Mittan.
8.  B. H. Latrobe.
Those who must know, and who do not dispute the facts as we
state them, as to the " Trussell car," are:1. Philip E. Thomas, President of Baltimore and Ohio Railroad Company.
2.  George Brown, Treasurer.
3. Lloyd Claridclge Carriage painter.
4. John Ferry, in the Transportation Department.
5. Thomas Davis, Conductor.
6. John P. Mittan, Carpenter.
Your Honor will see that pretty nearly half the witnesses connected with the Baltimore and Ohio Railroad do not deny the
fact which we assert, viz.: that these Wood and Trussell cars existed at the time when we state they were on the road. And
if you will notice the extraordinary enterprise in procuring,
and the adroitness in framing the affidavits ofn the part of the
Plaintiff, such a fact would not have been overlooked; it would
have been positively denied unless it were true.
This argument is strong. Four only out of the eight witnesses
produced by the Plaintiff, swear positively that these cars did not
exist.
John Elgar states his belief;-William Woodville is positive;Michael M. Glenn rather dodges the question as to the " Wood
cars,",and contradicts himself as to the " Trussell cars;"-Oliver
Cromwell " verily believes;"-Henry R. Reynolds is positive;Thomas WaVlmsley has an impression, but is not positive whether
the Wood cars were used before 1830 or not.
But all the witnesses throughout the case, and the counsel on
the other side, have admitted the preexistence of the Timber cars.




THE BALTIMORE CARS.                   115
Now it will be one of the pleasantest duties of your Honor to
reconcile the testimony on both sides. This can easily be done.
The counsel on the other side admit that double truck Timber
cars existed before the Columbus, though they say that they
were not fastened together, so as to constitute,an organized machine.  Out witnesses say that the machines were organized at
that time.  Nothing further was necessary than to drive four
spikes into the string pieces, and that would be all that was
to be done, in order to complete their organization. And the
only question on which the dispute arises, is, that whether those
spikes were driven so that the Timber cars had their string pieces
fastened to the bolsters, so as to make a platform; or whether
they were left to slip about upon the bolsters, as chance or accident might require.
Now as the load of timber upon these stringers and bolsters,
would, by its own weight, keep the mass from slipping or swaying on. the bolsters, no one, except his attention were particularly called to it, would notice whether the two string pieces
were bolted to the bolsters or not. And when a change was made
from the first rude manner of laying the timber across the two bolsters of the two trucks, to the more convenient mode of fastening the
outside stringers to the bolster, is it not possible that some of the
witnesses might not have noticed so slight a change, and especially as it is certain that their attention was not drawn to it?
It is another fact, which all admit, that the double truck'Wood and Trussell cars" existed at some time.  The difference between the witnesses is only a question of date. And I will
call your Honor's attention to the fact, that one of the Plaintiff's
witnesses, upon whom they rely, states that he thinks he saw them
in 1832. If some of Plaintiff's witnesses did not see them until
1835, and others saw them in 1832, then it follows that the cars
were in existence in 1832; and if they were in existence three
years before they were seen by these persons, it is quite likely
that they may have- been there five years without their knowing
it. This, we say, was the fact.
The Plaintiff's witnesses were not the persons who made the cars,
while the Defendants' witnesses originally made and subsequently
repaired them.  A  number of the witnesses for the Defendantr




116                      NOVELTY.
actually left the road and left that part of the country; these cars
being at the time in daily use, long before the dlate at which the
Plaintiff's witnesses say that they made their first appearance on
the road, so that there is no possibility of a mistake about the fact.
Those who say that they did not see them, we presume, did not
notice them; nevertheless the cars were there, else they could not
have been seen by so many others.
Some of the Plaintiff's witnesses admit what we say, in part.May, the Plaintiff's witness, p. 124, fol. 542, says that he
thinks he saw them in 1832.
If so, all the Plaintiff's other witnesses are wrong. If one of
them did see them in 1832, then they were there, and all the
evidence of those who did not see them goes for nothing.
The witnesses on the part of the'Defendants, who fix the time
when these cars were built and put in use, are:1. Jacob Rupp.
2.  Leonard Forest.
3. John Rupp.
4.  Conduce Gatch.
5. J  Edward Gillingham.
6. William E. Riutter.
7. John H. McClain.
8. Edward May.
9. Henry Shultz.
10. John MJ. Eichelbergher.
11. Jaimes B. Dorsey.
When eleven men swear that they actually saw these cars in
existence, at a certain time, will the Court say that the testimony
of six negative witnesses shall outweigh them on a point of date?
The existence of the " Trussell cars," as early as 1830, is
proved by documentary evidence, in the pay-roll of December,
1830, made by Conduce' Gatch, which also mentions that they
were made in that month, for the transportation of horses and
carriages.
Additional proof is found by reference to the Baltimore Gazette of Dec. 17th, 1830, and the Baltimore American of Dec.
18th, 1830, which -mention the fact that the wife of Ex-President




THE BALTIMORE CARS.                117
Adams was at that time transported on the railroad, and that her
horses and carriage were placed in a Trussell car, attached to
the train; and the Baltimore Gazette of Jan. 19th, 1831, Defendants' No. 3, p. 46, mentions the Wood cars.
It is, therefore, indisputably proved that these double truck
eight-wheel cars existed and were in public use on the Baltimore
and Ohio Road prior to the Columbus.
Next in order came the " Columbus," and we hold that it is
indisputably proved that the person who planned the running
gear of the Columbus, and its connection with the body,=-being
in fact nothing new, — was (Conduce Gatch, and not Ross Winans.
Who arranged the " RUNNING GEAR" of the Columbus?
We admit, that the size and shape of the body, although merely
copied from Smith's model, which was placed in the office of
the Baltimore and Ohio Railroad Company as early as 1830,
was then first introduced on to the Baltimore and Ohio road; and
that this car body, by its unusual length, being twice as long as
the four-wheel cars for passengers, would attract attention, even
though the new body was in fact placed on a platform constructed
in the old way, with the old running gear.
The testimony on the subject, as to who made the Columbus, is
conflicting, if you do not discriminate between the making of the
car as a whole and the mere arrangement of the running gear;
but it will not be difficult to settle the question, who arranged the
latter.
The Plaintiff attempts to show that Winans, was the person who
first planned the running parts of the Columbus, and to show this,
he relies on a certain working drawing, from which he says the car
was actually built.
He finds a number of witnesses who say, that he "produced"
this drawing.
No man swears that Winans made it, and what is a little singular, Winans himself does not state in any part of his own affidavit
that he made it or directed it to be made.
The next question is, whether that drawing thus produced, contained, at any time before the car was actually built, the running
gear?
On this, the weight of the testimony is decidedly with the Defendants.




11  8                    NOVELTY..
Suspicion is thrown upon the drawing itself, which has been
produced.
ist. It is smoked to' give it the appearance of age.
2d.  It does not look like a drawing that had been worked from
in a shop. And if your Honor- will compare it with the Allen
drawing, which is in reality a working drawing, the difference will
be striking.
3d.  It has been altered in many important particulars, from its
original state.
Any tampering with a drawing destroys its force as evidence,
except as against the party producing it.
4th.  The car Columbus as actually built, did not correspond
with the drawing in about seventeen particulars; but I shall not
occupy the time of the Court by dwelling on one of them, they
have already been pointed out by my colleague.
5th.  The positive testimony of those who MADE the running
gear is, that there was no running gear on the plan.
6th. The uselessness of making a drawing of the running
gear when there was no alteration to be made' from the ordinary
running gear, that had' been previously used on the Timber, Wood
and Trussell cars.
7th. As to the dimensions alleged to have been taken by Conduce Gatch from the plan, it was necessary to measure the body,
in order to ascertain the position of the king-bolt, and thereby, ascertain the length of the perch suitable to the car.  No one says,
that he took the slightest admeasurmnent of the running gear, or
any part of it.
Therefore if Winans made. the drawing, it did' not show the
running gear, but only the body.
As to the directions to workmen said to have been given by Winans, the Plaintiff's witnesses state, that he gave some directions,
but they do not mention one word that he said.
On the other hand, the Defendants' witnesses swearithat all the
directions he gave related to other subjects, and were subsequent to the building of the Columbus.
The Columbus was built at the Mount Clare shop, and the directions were given at the Charles Street shop, and at George
Gillingham's shop, where Winans's patent friction wheels:we're
made.




THE BALTIMORE CARS.                 119
The mere vague reputation relied on by the Plaintiff's counsel,
that Winans was the inventor, and was talked of by some individuals as the inventor, is the most flimsy species of testimony.
The reputation among the makers of the trucks, and many
\others, was wholly in faxvor of Gatch, as the inventor of the arrangement of the running parts.
Winans might have styled himself the inventor of the car, and
he might have been called so by others, but though he only put a different body, on the common running gear, yet it might-have been
called," Winans's car," in that sense of the word.
Many no doubt thought that the car, as a whole, was new, although there was nothing new in it in reality, except the body; and
although the connection of the wheels vith each other on trucks,
and the connection of the trucks with the body, was the same as
in the preceding Wood and Timber cars; yet, applying the old
arrangement to a new and large body, and to the new use of
transporting passengers, nothing would be more natural than to
call it the Winans's car; and to name Winans as the inventor of
it, and that reputation is in no degree inconsistent with the testimony of the Defendants' witnesses, which' is, that so far as relates
to the arrangement of the )Funning parts, Conduce Gatch first
invented that arrangement and applied it to the cars which preceded the Columbus; and- afterwards, when the Columbus was
built, applied the same arrangement to it.
If that suggestion shall enable the Court to reconcile a mass of
testimony which would otherwise be conflicting, I shall feel myself
rewarded for the time I have spent in explaining it.
Now, has your Honor, in the course of your judicial experience,
tried a single case in which the Plaintiff has laid claim to an invention, of any description, without proving a solitary fact connected with its early history beyond this; that he had in his possession at a cartain period a certain drawing; and such an one as
I have demonstrated this to have, been?
As it is therefore not proved that Winans actually made any
drawing from which the Columbus was built, upon what evidence
does the Plaintiff rely to show that allegation?
Certain witnesses are produced, who attribute the invention, as
a matter of'rumor, to the Plaintiff, and who also say, that they
never heard of any one else claiming it.




120                      NOVELTY.
Not one witness proves a fact, except from mere hearsay, to
show that Winans invented or devised any thing.
Not one swears to a single specific direction given by Winans
to any person about the running gear.
Not a man who worked on the running gear ever heard any
direction given by Winans on the subject.
The Counsel rely on mere hearsay of gentlemen in office, and
not on the hearsay of the men who worked on the trucks.
It would have been easy for Winans to have manufactured this
hearsay, by conversation with his friends.
These gentlemen might have been easily deceived about the
eight-wheel cars, owing to the fact that Winans had gotten up
numerous four-wheel cars, known as Winans's cars.
By comparing the position and opportunity for knowledge of
these two classes, the Court cannot hesitate to "say, that the presumption would be, that those actually engaged in the manufacture of the Columbus, would best know who devised the plan of
the different parts, and who gave them directions about the work.
The preponderance of evidence, therefore, is decidedly with the
Defendants.
Among other corroborating circumstances, I may mention that
all new improvements were specially noticed, and credit given to
the supposed inventor, in the " American Railroad Journal."
The Columbus is not noticed as a new invention.  The eightwheel car was occasionally mentioned, though not in connection
with Ross Winans as the inventor.
The Engineer's reports to Mr. Thomas, the President of the
Baltimore and Ohio Railroad, never mentions Winans as the inventor.
The President's report, in October 6th, is the first publication
that mentions the thing in connection with Winans's name.
The peculiar circumstances under which that report was made,
show the mention of his name to have been a matter of arrangement between Mr. Thomas and Mr. Winans; Mr.- Thomas professing to recapitulate facts stated in the reports made by the
Engineer and others to him, and referring to those reports as the
foundation on which his statements rest, is not justified in any
such statement by the reports of Knight and Gillingham, to which
he specially referred.




JERVIS'S ENGINE.                  121
Knight was the superintendent of the road, and Gillingham was
the master of machinery, and therefore it is strange that they
should not have noticed, in their reports, so important a fact as
the invention of a large passenger car, upon a new principle, if
such an invention had been supposed by them to have, been made
by Winans.
Ross Winans himself has not stated inr his affidavit, that he did
devise or have any thing to do with the running gear of the Columbus.
And it seems to me most extraordinary, if he did invent it, that
he should rely'upon mere hearsay to prove the fact, and upon a
drawing which has been tampered with; and that he should not
even have asserted the fact upon his own oath, -while he has stated
many other things in his affidavit, which are of far less importance
than this would be, if true.
Now the burden of proof is upon the Plaintiff, to show that he
did invent the CUoluzbus, the alleged invention being so long anterior to his patent.  And this is true, notwithstanding the patent
is itself prima facie evidence of the originality of the invention
there claimed.
Has the Plaintiff sustained this burden of proof? So far from
it, we assert that the weight of the Defendants' testimony, which
is positive, far exceeds that of the Plaintiff, which rests upon mere
hearsay.
And it follows, that Winans, not being proved to have been the
inventor of the running gear of the Columbus, his invention will
take date, not in 1831, but in 1834; thus giving priority to many
cars which were of a date subsequent to 1831.
JERVI S'S  ENGINE.
I just allucle, in passing, to the fact, that in 1833, Jervis produced his engine, a printed description of which is in the " American Railroad Journal."
I mention this in its chronological order, and refer to the following witnesses':
1st. John Edgar Thompson.
11




122                       NOVELTY.
2d. Asa Whitney.
3d.  David Mathews.
[Mr. Whiting here described the running gear' of the Jervis
locomotive, which had ONE four-wheel swivelling truck under the
forward end of the engine, and then:proceeded:]
And, Sir, there is nothing left to be clone but a duplication of
trucks under the same engine, to make the running gear like that
of the Defendants.  With that remark, I dismiss this machine.
FAIRLAMB'S CAR.
I now pass to the patent granted to Fairlamb, and refer to the
testimony of
1st.  Jonas P. Fairlamb.
2d.  Isaac Knight.
3d.  George Beach.
And, if the Plaintiff did not invent the Columbus, and embody
his perfected invention therein, Fairlamb will rrecede Winans.
In the drawings of Fairlamb are clearly shown the peculiarities
claimed in said. Winans's patent, excepting that the axles of the
wheels are borne by a rigid rectangular wheel-frame, and not connected together by yielding springs.  The close proximity of the
flanges of the wheels, in each truck, is there shown, the flanges
being, represented as but a very few inches apart.  The trucks
are constructed in two ways; one allows the axes of the wheels a
certain limited motion in the truck frame itself, with a view of
allowing it to conform to sharp curves, as represented in Figure 1
and 2, while the other truck in Figure' 2 is constructed in the ordinary manner, allowing no play to the axes.; each of these trucks
swivel under the body by means of large transom plates, and are
placed near the ends of the body of the car. Fairlamb's drawings
embrace all of Winans's arrangement.  One of the trucks in
Figure 2 allows the axles to: play, and: the other truck is the rigid
wheel-frame holding the axles parallel' as is the: case in the cars
in general use.  So far, therefore, as regards the near coupling
of the wheels in each truck, and the remoteness of the trucks from
each other, it is identically the same as Mr. Winans's.




THE VICTORY CAR.                  123
A mechanic of ordinary skill in car building, having laid Fairlamb's drawings before him, and adopting the truck in Figure 2,
which holds the axes parallel, or in other words omitting the apparatus which permits the axes to vibrate, and conistructing both
trucks alike with parallel axles, would have nothing to do but copy
the drawings in order to construct an eight-wheel car, such as is
in coimon use, excepting that the wheels in each truck would be
closer together than those in general use, thereby more resembling
the arrangement claimed by said Winans.
Thus the drawings show completely and distinctly a double
truck railroad car, (unfortunately) so like that described by Winans in his patent, as to be of little use at the present time.
The drawing is substantially a copy of the same that was attached to the original patent, although both had been restored.  See
Fairlamb's affidavit.
if Fairlamb had arrived in 1832, as he states, to this arrangement of the wheels and trucks which Winans particularly describes
and recommends in 1834, he had only arrived at an erroneous
conclusion, and one useless in practice.
We do not say that this patent was prior to the Columbus, but
that, if Winans has failed to sustain the burden of proof, to show
that he invented the Columbus, then Fairlanmb is prior to Winans,
the date of the patent being January 19, 1833.
Next came the "' Winchester," which was put on the road in
March, 1834.
THE VICTORY CAR.
Then came the " Victory," of Philadelphia.  The plans of this
car were completed in June, 1834, and she was commenced in
August, 1834; so that long before his patent, Winans had an
opportunity to see every thing that was contained in the car.
The Victory was completed on the 3d of July, 1835; she was
thirty-five feet long, and was then put in' use, and she was the
predecessor of the Washington cars.
But the builders fell into the mistake of putting the wheels too
close together, perhaps copyingf the mistaken philosophy of Fair



124                      NOVELTY.
lamb or somebody else. They had to alter the trucks by spreading the wheels farther apart. See French's affidavit, p. 5, No. 4.
The witnesses as to the " Victory," are,
1st.  Laban B. Proctor,  Defendants' No. 3, p. 7.
2d.  John Murphy,                             9.
3d. William Pettit,                    "    12.
4th. Joseph L. Kite,                   "    32.
5th. Harmon Yerkes,           35.
6th. Jacob C. Carncross,                 36.
Next to the Victory, (which drew by the body,) came
THE WASHINGTON CARS.
These cars were not begun till -November, 1834, more than a
month after the patent was issued, and they were not, at first,
planned to draw by the body, but were intended to be drawn by
the perch, like the others which had preceded them; and this
alteration was suggested by Rupp, after building the freight cars.
See testimony of Rupp and others.
I will now mention the order in which these cars succeeded
each other.
1812.  The Chapman car.
1825. The Tredgold car.
1825. The   "    eight-wheel steam carriage.
1829. The Quincy car.
1830.  The Baltimore timber cars.
1830. The Baltimore wood cars,
1830. The Baltimore trussell cars.
1830.  The Allen car'or carriage.
1831.  The Killeyney-Kill and Dalkey car.
1831.  The Columbus, and great numbers of wood, and horse
and carriage cars.
1833. The' John B. Jervis truck enoine.
1834.  The Fairlamb Patent.
1833-4.  The Dromedary, the Winchester, and the Comet.




STATE OF THE ART.                  125
June 18834. Drawings made of the Victory in Philadelphia.
Aug. 1834. The model of the Victory was made, and'the car
commenced.'Oct. 1st, 1834. Winans's Patent.
July 3d, 1835.  The car Victory completed, and in use, being
the predecessor of the Washington cars.
1835. Rupp's 110 Freight cars.
1835.  The Washington cars.
1835.  The Alleghany, and numbers of cars at Philadelphia.
Such is a description of the various inventions which preceded
the Columbus, and also of those which preceded the Plaintiff's
patent, and such are our answers to the criticisms made upon
their structure.
STATE OF THE ART.
It will now be my purpose to give a brief summary of the state
of the art of building eight-wheel cars up to March, 1831; and
before the Columbus was begun, the following parts:and combinations were known and in public use.
1st.  The car body, at least twice as long as the common fourwheel car, as were the Trussell and Wood cars, &c., and the
freight cars on the Killeyney-Kill and Dalkey Railroad.  Indeed,
using two trucks required the body to be about twice as long as a
single truck.
2d. The apparatus for allowing the trucks to swivel under the
body, consisting of the king-bolt and transom plate, &c.
3d.  The two trucks, one under each end of the body or platform.
4th. The wheels in each truck, put within six inches of each
other, while others had the bearing points equi-distant with the
gauge of the rails, and at all intermediate distances.  See Mc
Mechen, p. 41, Defendants' No. 3.
5th.  The trucks placed at the ends of the body, as in the
Quincy car, and near it as in the Trussell and other cars.
6th.  Wheels of different sizes, large or small; —some revolving on the axes and some with the axes.
11*




126                      NOVELTY.
7th.  Springs applied, in various ways, to eight and four-wheel
carriages; not, liowever, like Winans's; but like those now in
use, as the Allen carriage, and in the common four-wheel trucks
mentioned in the patent.
India rubber was applied by Conduce Gatch under the bolster in
the summer of 1831, which was suggested when the Columbus
first went out. Tredclgold also mentions them, and other works
shown to the Court.
8th.  The rigid rectangular wheel frame was also in common
use, though not adopted by Winans.
9th.  Side bearings were also used, though not adopted by
Winans, also the trucks and the draft by the middle of the ends
of the body.
10Oth.  Thus, so far as relates to the arrangement of the wheels,
as to distance from each other, and as to the remoteness of
trucks from each other, no change had to be made from what was
well known, even in building the Columbus.
The only change, as before stated, was in 1st. The springs;
2d. The wagon bolster.
11th.  _othing was left to be added, even to the philosophy of
the subject, and no new principle to be illustrated after Allen's
Report in 1831 and Jervis's Report in 1833.
Winans's specification was a mere re-hash of Jervis and Allen.
12th. Even the long body had been extended farlonger than
Winans describes.  The Victory, begun in September, 1834, was
thirty-five feet long, which was three times as long as the fourwheel cars.
Here we have all the principles of the eight-wheel car, with
a great variety of modifications, embracing all that the Plaintiff
claims, except THE SPRING TRUCKS and WAGON BOLSTERS.
The Plaintiff attempts to show that at the time the Columbus
was introduced, a new era had arisen in the history of railroads;
that greatly increased rates of speed were required, and that,
therefore, some new arrangement of the wheels became necessary,'to meet the emergency.
This is not true; but the fact is, that the new era consisted in
the improvement of the locomotive.
1st. In traction by friction.




PROGRESS OF INVENTION.                127
2d.: By turning the waste steam up the funnel.
The running gear, then already made, was as well adapted to
running fast as slow.
The great step from the four-wheel car to the double swivelling
trucks, had already been taken before Winans's appeared, by
Chapman, Tredgold, Allen, by Bryant, at Quincy, and by the
Wood and Trussell cars, at Baltimore.
There was nothing left to do, except to make such a change in
the proportions of parts, as experience should determine.
The eight-wheel car, as known and described and used before
1830, was adapted to any size;, any length, any distance of wheels,
any curves and any inequalities.
The demands caused by increased business and speed required
greater and increasing departure from what Winans describes as
essential.
PROGRESS  OF  INVENTION.
Every invention may be said to have its own history.  I had
intended to attempt to develop the progress of improvement in
the eight-wheel car; but time will not allow me to go into details.
The Wood, Trussell, Quincy, Allen and other cars had been
the legitimate product of the necessities of railroads (having sharp
curvatures) in the earliest periods of their existence.
It is most probable that inventions resulting from the actual
and practical necessities of the case, should be made by those
who are earliest concerned in building the roads and in constructing the machinery necessary to operate them. As my able colleague has well said, in 1828, or thereabouts, Ross Winans was a
common mechanic, having nothing to do whatever with the
subject of railroads. Conduce Gatch was a regular practical
millwright and machinist, devoted to that branch of business
which has educated such men as Oliver Evans, and others of the
most distinguished machinists and mechanics and inventors of the
day. Mr. Gatch was a shrewd and close observer, a fine mechanic,
a practical man, greatly relied upon and respected. He is attacked because HE CLAIMS some inventions! The evidence shows
how his mind was at work.




128                       NOVELTY.
Any man would observe, in shoving a railway truck around a
curve, or in seeing a horse draw it, that coupling the axles of the
wheels within a few feet of each other would make the truck run
easier.  This was a common, well-known fact.  For that reason
the wheels were placed near together on the four-wheel cars,
and the four-wheel car was in fact so constructed as readily to
pass all the curvatures and inequalities of the road. Then it became necessary, in the construction of the roads, to transport long
timbers, and as they could not be placed, without danger, upon a
single truck, they were borne by two bearing carriages; and as it
was perceived that in turning curves the bearing carriages
would swivel under the timbers, therefore, it was necessary to
put on a swivelling bolster, which was a common device, to enable
the trulcks to swivel without displacing the load.
Then it became necessary to carry long loads of cord wood and
other long freight, like carriages and horses, which could not be
contained in the lengtlh of a four-wheel car.
In order to do this, they constructed a bearing carriage, fastening the timbers to the bolsters, so as to make an organized rigid
bearing platform.  They also made a Trussell body, resting at its
ends upon the two trucks, to carry carriages and horses all harnessed together, like that of the wife of Ex-President Adams, on
December 17th, 1830.
This running gear embodied a nearness of the wheels in each
truck, and a remote coupling of the two trucks, fully equal to that
which is used at the present day; and moreover, if the ordinary
trucks in use at that time were the ones put under the Trussell
cars and the Wood cars, those cars would come under the precise
terms of Winans's patent, where he states that the ordinary bearing carriage may be used, unless indeed a variation of some six or
seven inches between the axes in each bearing carriage is supposed to introduce an entirely new mechanical organization and
mode of operation in the truck.
In fact, the centres of the axes in the fictitious drawing annexed
to his patent, show the distance between the axes to be about
three feet, while the patent itself admits that the ordinary bearing
carriages, or some of them, had their axes only three and a half
feet apart. In reality however, the evidence shows that the dis



PROGRESS OF INVENTION.                129
tance between the axes of the bearing carriages had been much
nearer than three and a half feet.
Indeed, no single advancement in the development of the railroad machinery is attributable to Winans, though eager to grasp
at every patent of every trifling, supposed improvement.
Not a single one of the pretended improvements of Ross Winans before the date of his patent of October 1, 1834, which were
ushered into the world with such pomp and parade, is in use, at
the present time.
The pretence that Winans made the first suggestion, as to the application of SPRINGS to trucks, is ABSURD as well as untrue.  Such
springs were in common use.  They were described in all the
books-; and the pedestal springs now used were actually IN USE on
Allen's locomotive before Winans ever spoke of them to ANY ONE.
Even the present form of the CAR BODY (change from the old
coach body to the SQUARE now used) was first made and modelled by JOSEPH SMITH of Philadelphia in 1828 or 1830:
(See affid. of JACOB SHRYACH, p. 39, No. 3, etc.)
which pattern Plaintiff BORROWED in 1837 or 8, to MAKE a DRAWING of.
The MODEL of Smith's CAR was made in Baltimore, Plaintiff's
residence, and it was left by Smith at the OFFICE of the Baltimore
and Ohio Railroad Company the SAME YEAR, and undoubtedly
was seen by Winans before he began to think about the Columbus.
Even his pretended improvement in the construction of the
Washington cars, which have been alleged to be a sort of pattern for those which have followed, was already invented; and
the cars were under way and first put in use at Philadelphia before the Washington cars were built. And the plan of the Philadelphia car is undoubtedly the progenitor' of the plan of the
Washington cars.
Therefore we cannot trace the hand of Ross Winans, in truth, to
any one of these improvements.  The fact that Winans was an
assistant to a civil engineer, even if it were inferred from that fact
that it was his duty to invent or suggest improvements, has no tendency to show that he did make any substantial and valuable invention. And while he made certain supposed improvements like




130                      NOVELTY.
the friction-wheel, which though extravagantly praised, turned out
worthless.  The country is under no obligation to this gentleman.
The only way that Winans is known to the country is, that he
and Gillingham  purchased the patent of Phineas Davis, for the
chilled wheels, with a wrought iron ring in them, after Phineas
Davis, in 1834, was accidentally killed by a locomotive on the Baltimore and Ohio Railroad; and by the notorious failure of his
Crab engines in Massachusetts.
The only instance in which the Winans car has been TRIED, was
with SADDLES to the springs, and even then it was CONDEMNED as
WORTHLESS.
See affid. JACOB SHRYACH, P. 40, NO. 3, and others.
Indeed so far from the present eight-wheel cars being indebted
to Winans, they have tnany improvemients not thought of in Winans's time; and a different construction and arrangement, and
numerous improvements or inventions, not described in Mr. Winans's specification.
They have rigid square-sided wheel frames, pendulum or swingino bolsters; they have male and female transom plates for the
trucks to swivel upon; have pedestals and springs to allow the
axles to move vertically and still keep them parallel with each
other, and the wheels square on the track.
Some of the cars have India rubber springs,
Patent lubricating boxes,
Patent soft metal bearings,
Safety beams in the truck frame, to hold it up if an axle breaks.
Improved brakes,
Changing backs to the seats,
Ventilators,
Draw spring couplings,
Patent car wheels,
And car bodies more than double or threefold the length of
the body mentioned in Winans's patent, and about five times the
length of the ordinary four-wheel car.
And no single improvement used at the present day owes its
origin to the invention of Mr. Winans.




NO NEW PRINCIPLE.                   131
NO NEW PRINCIPLE.
The validity of Winans's patent depends upon his having
discovered and embodied, -and clearly claimed, some new law or
principle of mechanics, as applied to the running gear, or else to
some peculiarity of construction or arrangement not known before,
and'Which is clearly distinguishable from what was known.
1st.  Has he discovered any new principle or law of mnechanics and embodied it in some form?
He has not; and this is evident from various considerations.
1st. The patent itself, which displays the philosophy of his invention, does not set forth any new principle, such as would have
been claimed by the first inventor of a double truck swivelling car.
For doubtless such a car does embrace and embody mechanical
principles of action and construction and operation, taking the car
as a whole, which are not embodied in a four-wheel car.
On the contrary, the patent admits the pre-existence of all the
parts of the car, and of the same general. arrangement of parts;
but claims a peculiar arrangement of the wheels with each other,
and a particular connection of the truck with the body.
2d.  Many double truck swivelling eight-wheel cars having
previously existed, which would answer, although perhaps less perfectly, the same purposes claimed to be answered by Winans's;
every office that the said Winans's truck can be claimed by his
counsel to perform, may be shown to have been performed by the
trucks that preceded him.
To wit-the swivelling of the two trucks to the curves under
one body, and the near and distant coupling of the wheels
necessary to sustain the body, and to develop the swivelling principle with steadiness and ease of motion, to allow of a high speed.
These were in the Timber cars, the Wood cars, the Trussell
cars, the Quincy cars, the Allen Steam Carriage and in the Columbus, in use in the United States, and are in the descriptions
of Champman and of Tredgold.
So far as anly peculiar mechanical principle can be alleged to
have been developed or embodied in Winans's car, those principles were not only already in use, but the rationale was already




132                      NOVELTY.
also made known to the world in the publications of Allen and
Jervis, Chapman and Tredgold; so that for this reason, also, it
cannot be pretended that Winans had discovered or made to the
world in his specification any new principle or theory of mechanical philosophy, or had shown the application of any old or wellknown principles in a new way. The fact that he is not able to
make any clear and definitive distinction between what he claims
as his, and what he admits was old, is itself evidence that there
is nothing new in principle.
There is no language in his patent calculated to indicate the
discovery or application of any thing new in principle; it all relates to mere alteration of proportions and arrangement, for the
purpose of bettering a result already, to a considerable extent, allowed to have been attained in prior structures.
And although Winans's THEORY of making the axes of the
wheels coincide as nearly as possible with the radii of the curves,
was merely stating on paper what had been before reduced to
practice, yet he may well have the credit of producing that
theory, which is not itself the discovery of any mechanical principle, but is only an erroneous idea and mistaken application of
the old and established principle of the swivelling trucks.
Suppose, for ARGUMENT'S SAKE, that Plaintiff had been the
first to DISCOVER AND EMBODY the " SWIVELLING PRINCIPLE,"
PERHAPS he might have covered all similar PRACTICAL MODES of
embodying the same principle.
But there is NO PRETENCE that Plaintiff first discovered this
VITAL AND ESSENTIAL principle of the LONG-BODIED CAR.
The IDEA or principle that Plaintiff's counsel ALLEGE he discovered is, that in EIGHT-WHEEL -CARS the trucks should be allowed
to swivel ABSOLUTELY FREELY, by drawing by the body.
Notr this is not a PRINCIPLE that Plaintiff DISCOVERS; it is not
a new ideal; but is a MERE mode of USING an old invention of thie
swivelling trtuck in ONE Way instead of another, for the SAME
PURPOSE.
It is no mnore the subject of a PATENT than it would be to draw
a WAGON by the body instead of the shafts.
As Jtcdye Nelson said in Wilbur vs. Beeehzer, p. 14, —" A person operating a combination already discovered, may, by expe



NO NEW PRINCIPLE.                   133
rience in its practical use, see where it can be altered, and may
call in a mechanic and have an alteration made which. may improve the machine.  This is a necessary consequence of the practical use of a machine by a man of ordinary skill and judgment,
but there is no novelty or invention in such alterations."
As to the alleged NEW IDEA that the true/cs would swivel more
freely when the draft was through THIE BODY, this is no new idea,
as I have shown it had long before been embodied in various
FOUR AND EIGHT-WHEEL CARRIAGES, and the whole philosophy of
the subject explained, published and printed long before 1834.
AND THAT such claim ean form no part of Plaintiff's patent.
Suppose that Plaintiff had been the first to discover a theoretical idea that the trucks must be allowed to swivel with absolute
freedom, and suppose that he had built a car accordingly and had
put it into successful operation and then taken out the patent in
the TERMS of Winans's patent, he could not, even then, PREVAIL
IN THIS CASE.
ist.  Because he has not described or set forth in any part of
his specification any such IDEA OR PRINCIPLE.
2d.  He HAS NOT claimed such an idea or principle in any
form or shape, but has ONLY claimed a peculiar mode of arranging the wheels and the swivelling connection.
HE HAS NOT stated or claimed as any part of his invention, or
as any part of his principle, the vzode of traction.
3d.  HE HAS stated one mode of traction, (substitution of ordinary perch bearing carriages,) which is absolutely inconsistent
with any such alleged idea or principle.
4th.  If Plaintiff were the real inventor of such new idea, HIS
PATENT should be for a COMBINATION of the parts essential to the
embodiment and practical development and use of that idea.
PATENTS for IMPROVEMENTS on MACHINERY must describe the
parts or COMBINATIONS.
5th.  Plaintiff must SURRENDER and get a RE-ISSUE, if such is
the case.
12




134                      NOVELTY.
TRUE PRINCIPLES OF THE EIGHT-WHEEL CAR.
What are the true mechanical principles of the construction and
operation of the eight-wheel car?
All that is matter of elemental princil2e, as distinguishing the
eight from the four wheel car, is the SWIVELLING PRINCIPLE.
The essential characteristics of construction and arrangement
of the eight-wheel car are:1st.  Two trucks under one body, the body to be of sufficient
length to allow the trucks to swivel without collision against each
other.
2d.  The trucks should be placed far enough apart advantageously to support the body upon the trucks, it being generally
found in practice expedient to place the bolsters about seven or
eight feet from the end of the platform or bottom framing of the
car body.
3d.  The trucks themselves should have four wheels each.
4th. Held in rigid wheel frames that are well braced to keep
them square.
5th. The wheels in each truck should be distant apart from
centre to centre or between the bearing points about the same as
the gauge or distance between the rails of the track,' and form a
square on the track from one bearing point to the other.
6th. The middle or centre of each truck must have a king, or
SWIVELLING bolt connection with the body.
7th. And the body must have side bearings in the truck
frame, to steady itself and prevent rocking when in motion.
The distance between the bearing points of the wheels on the
rails is the essential and elemental feature.  The distance between the flanges is not essential or material; but results from
the diameter of the wheels and the distance between the bearing
points on the rails.
It is the action of the bearing points of the wheels upon the
track, and the reaction of the track upon those bearing points,
which govern and control the motion of the car upon the rails.
As to the distance of the bearing points of the wheels upon the
rails in each truck, it should be about as far apart as the gauge
of the track.




THE TRUE PRINCIPLES OF THE EIGHT-WHEEL CAR.   135
1st. BECAUSE bringing the wheels nearer together can never
be NECESSARY or useful, since no railroad is now built with curves
so sharp as 1 inch or 1 inches in. 4  to 5 feet; i. e., so as to use
up all the play between flanges and rails.
2d.  Bringing the wheels NEARER is followed by many unnecessary evils.
I (a.)  Both wheels are thrown up in too rapid succession by
any inequality in track.
(b.)  UNNECESSARY wrenching the rails by the re-action necessary to keep the truck in position on the rails, by LOSS OF
LEVERAGE.
(c.)  Consequent increase of tendency to fly off.
(d.)  Extra wear and tear of flanges and rails.
(e.)  Loss of motive power by INCREASE of friction, resulting
from greater re-active force and obliquity of truck, or twisting of
truck against the side of the rail.
(f.)  Twisting of truck, increasing its tendency to catch at
the junction of the rails, or at brakes, and consequent tendency
to hop off.
The bearing points should NOT BE NEARER together than the
width of the gauge of track,-i. e., the distance of centre of axes
should equal the width of the track.
REASONS.
1st.  The bearing points being not only equi-distant from each
other, but being the four corners of an equi-lateral parallelogram,
or square, of which the king-bolt is the centre, the action and reaction of the truck in any and every direction is equalized and
balanced at the king-bolt, and thus the truck remains balanced
and steady upon the track.
In other words, the mesne line of the action and re-action, (the
resultant,) passes through the centre of the king-bolt.
If the bearing points were nearer together, this mnesne line,
or resultant, would pass one side of the king-bolt, CAUSING
(1.)  An excessive friction of one flange against its rail.
(2.) Tendency to hop off, in consequence of the anyle of pressure of flange against the rail being more direct.
2d REASON. ~ (Illustrated.)
If a force of one pound tends to twist the truck round, then




136                       NOVELTY.
the RAIL must re-act and resist to the extent of one pound.  If
these forces are applied at EQUAL LEVERAGE,-equal advantage,they will be equal.  If not applied at EQUAL LEVERAGE, the want
of leverage must be supplied by an increase of force.
The action of the flanges upon the rails, and tho re-action of
the rails upon the flanges, may philosophically be considered as
FORCES applied upon levers whose fulcrum is the king-bolt.  The
length of the levers (at which those forces act, that tend to twist
the truck off the track), is equal to half the width of the GAUGE.
If the bearing points are not equi-distant, the leverage (of
those forces which twist the truck back into its proper position,
viz., the re-action of the rail,) is LESS, and is equal to half the
distance of the bearing points on ofie side of the truck from each
other.
[Mr. Whiting then explained these ideas to the Court by aid of
Models; and then proceeded:-]
The FORCES may be considered as delivering themselves; one
part on the line of the track, and the other part on a line across
the track.
Some of the CONSEQUENCES of too close proximity of the BEARINGa points and loss of leverage, are,1st. Unnecessary stress on the flange of the front wheel while
passing curves.
2d.  Twist of truck and danger of hopping off track.
3d. Unnecessary friction and loss of power and wear and tear
of rails, &c.
4th.  Throwing up both wheels nearly simultaneously.
The bearing points of the wheels should be as far apart as thze
natlre of the cetrves will possibly allow, because the farther they
are apart the less the tracle can swivel between the rails before it
shall have exhausted all the play room or lee way between the
flanges and the rails; hence the wheels will always be kept more
exactly in the line of their forward motion, more even and steady,
and require less STRESS on the RAILS and FLANGES, less FRICTION, less LOSS OF POWER.  THESE ARE THE TRUE PRINCIPLES.
For a list of all our experts to this point, see " INFRINGEMENT."




OBJECTIONS TO OUR MODEL.                187
OBJECTIONS TO OUR MODEL.
There were none made to it before Judge Conkling, on the
former trial, and my colleague states that it was admitted to be
correct in the Troy case.
The objections now made are:1st. That the springs are not straight, but that they are eliptical.
This is true, but they were like the springs in common use at
the time, as is shown by all drawings.
There is no difference pointed out in the patent, between the
straight and the curved springs.
There is no difference in the principle, and the only direction
in the specification, is to have them  twice as strong as those- in
common use, and short leaves on the top of the long ones.
All our experts say that this is what the patent describes, and
the Plaintiff's witnesses do not deny it.
No model is produced by the Plaintiff, to illustrate his invention.  It cannot be compared with any drawings of the original
patent, if any existed, as he does not favor us with any here.
The difference of motion is extremely slight between the two
forms of spring.
The Court will recollect Mr:. Keller's argument to show that
the centrifugal force of the cars, in passing curves, would throw
the weight over upon the outward spring, and thus tend to cause
the axes of the whels more to conform to the radii of the curves,
and so pass smoother along the track.
To accomplish this, the springs must be eliptic or curved; for,
if the springs were straight and the ends fastenedcl, the depression
of them would bring the ends nearer together, and thus aggravate the difficulty, by bringing the axes ACROSS the radii..
The Court will perceive the morale with which the Plaintiff's
case is prosecuted.  He claims the advantage peculiar to' that
kind of spring, in one breath, to serve one purpose; and then, to
serve another purpose, turns round and says that the model is
erroneous, because it has that kind of springs 
12*




138                       NOVELTY.
The 2d objection is, —That the body is too narrow, and that it
shows the bottom of the carriage below the tops of the wheels.
Answer. This is not material, as the trucks swivel all that is
necessary.
It is only iade to show the connection with the trucks.  It
allows of perfect swivelling, and that is all that is important.
It illustrates the peculiarities as to the arrangement of the
wheels on the bearing carriages, and their connection by the kingbolt to the body.
No witness or expert objects to it, and, in fact, all our experts
testify to the perniciousness of the invention from examining the
PATENT itself and not the model; and if a structure is not an
available one, it is no fault of ours.
3d.  Then it is objected that the outside bearings are not
shown in the model.
Answer.  This makes no difference as to the arrangement of
the wheels and their connection with the body, and it was unnecessary to show in the model that which is embodied in another
patent, and which is no part of his claim in this. No person
would have had a right to use them, if he had bought this patent
right of Winans.  Why, then, should our model incorporate that
which is no part of his patent? It might as well embrace the
brakes, and all the other apparatus connected with it, and with
which he has no concern. The descriptions in the patent ai'e inconsistent with allowing the side bearings on the outside of the
wheels. He says, "'Upon this first bolster I place another of
equal strength, and connect the two together by a centre pin or
bolt passing down through them, and allowing: them to swivel, or
turn upon each other, in the manner of the front bolster of a common road wagon."  The bolsters of a common road wagon always
swivel inside, of the wheels, and the body is narrower than the
distance of the wheels; and if straight springs were used, and
these springs were bolted to outside bearings, the lower bolster
would come between the flanges of the wheels, and thus prevent
the wheels from being very close together.
We have not done the Plaintiff injustice, for both sorts of
bearings are in use at this moment on the New York and Erie
Railroad. See affidavits of Charles Minot, Defendants' No. 3,




WINANS'S THEORY.                    139
p. 161, fol. 642; and John Murphy, No. 3, p. 11, fol. 43, where
he says, " Eight-wheel cars with inside bearings and fixed boxes
to the wheel frames and circular bearing and axis, are now in use
on the Philadelphia and Norristown and Germantown. Road;" so
that both inside and outside bearings being in use at this time,
the criticism is unfounded.
This very model was before the Court on the first and second
hearings of this cause, and no objection has been raised to it
heretofore.
No expert has objected to it —the objection is merely on the
part of Counsel.
To the suggestion of Counsel, that the body is too narrow, and
does not project over the wheels, I answer,
1st. It is not material, if the trucks swivel sufficiently to turn
all curves.
2d.  It is not the object to show any structure of body.
3d. If you use straight springs, as the Plaintiff demands, how
are you to prevent the body from being below the wheels, unless
you use enormous bolsters, and risk the structure breaking, in actual use, by straining the king-bolt.
It is a false charge, to assert that our model was made for the
purpose of distorting the proportions of the Plaintiff's invention.
WINANS'S THEORY.
The next topic to which we intend to call the attention of the
Court, is the PATENTEE'S THEORY of construction of the car, displayed in the specification; and we shall show it to be erroneous
in mnechanical principle, and pernicious in practice.
The idea, that bringing the flanges of the wheels very near together, would cause the axles to coincide more nearly with the
radii of the curves of the track-as a mere abstraction-is correct.
It would be practically correct, if there were no play room between
the flanges, and if the truck were never to be put in motion.
But such is not the condition of the flanges and rails upon any
railroad for public travel.
The peculiar construction of the elastic, or spring connection of




140                        NOVELTY.
the axis, allows them, while passing curves, to be twzisted in a direction transverse to the radii of the curve, and so tends to cause
the trucks to hop off the track.
The same dgicalty, though to a less extent, attends the use of
any description of truck frame, provided the axles are near together; so that these remarks are as applicable to the common
bearing carriages used in 1834, and mentioned in Winans's patent,
as a substitute for his spring trucks, as to the spring trucks themselves, since the spring trucks merely aggravate a difficulty which
is inherent in the too close proximity of the wheels.
Inasmuch as lateral play is allowed between the flange and the
rail, the nearer the axles are brought together the farther they
may swivel in a direction across the radii; while, on the contrary,
the farther apart the axles are placed on the truck, the less is the
space on a Gerve, in which they can swivel between the rails;
therefore the nearer do the axes at all times coincide with a perpendicular to the tangent of the curve at the bearing points.
Therefore the more nearly parallel with the rails will be the line
of forwarld motion of the wheels, anCl the more coincident with the
radii of the curve will the axes be compelled to remain while in
motion.
So true is Winans's theory on paper, and so untrue in practice,
when the trucks are moving round a curve; and if he has any
advantage in theory over the old-fashioned trucks of Chapman,
Tredgold, or Quincy cars, or those of the Defendants, the mechanical defects of the structure he recommends, are such as to embrace all that is erroneous in the theory, without securing a single
practical advantage.
The Plaintiff contends that it is best to bring the wheels as near
as possible together, in each truck, because he imagines that friction
is most avoided when you bring the wheels closest together, and
that then the least resistance is offered by the flanges to the guidance of the rails.  In other words, the nearer the truck can be
made to act li/ce a single pair of wheels, swivelling like a bolster
of a road wagon, the better, as Winans thought.
This is all a FALLACY, founded in the mistake of carrying out a
theory, that is well enough on paper, to a foolish extreme, so as to
lead to error in practice.




WINANS'S THEORY.                    141
1st.  IN FACT, there is No saving of friction in passing curves,
such as now are allowed on railroads, by bringing the bearing
points of the wheels nearer together than the width of the track.
This has been demonstrated theoretically, and shown to be true in
practice.
2d.  If there is quite sufficient room for the wheels at this clistance cc)art to pass along the caurve without USING UP the play
room between the rail and the flanges, there is no more friction of
the flanges on the rail than if there were three or even five times
the play room left.
If the flange is not compelled to touch the rail at all, (by reason of not occupying the play room,) that is the same in its effect,
whether great or little SPARE room is left,
3d.  If there be ANY PLAY room  left, so as to allow the truck
to pass AT ALL, then is LESS resistance made by the flange (to the
guidance of the rail, in twisting the truck round,) the FARTHER
APART the wheels are in the truck —because the action of the rail
upon the flange is at a GREATER LEVERAGE, as above demonstrated.
4th.  On the STRAIGHT track the friction is LESS, the steadier.the forward MOTION of the TRUCK; and it is conceded, that the
farther apart the wheels are, the steadier the motion, therefore the
less the FRICTION on the STRAIGHT TRACK, which is 9-1Oths of all
railroads.
5th.  But even on curves, the steadier the motion the less the
friction, because the EXCESSIVE plag of the trauck brings the wheelsat too great angles with the track, not only making extra friction,
but danger of hopping off.
6th.  The distance of the wheels is not to be adjusted SOLELY
with regard to FRICTION, but other elements must be taken into view.
1st. SAFETY; that is, liability to run off the track.
2d. The action of the wheels on the rails, in wrenching them
out of place.
3d.  The speed must be considered-and the greater the speed
the more DISTANT must the bearing points of the wheels be placed
-(within the limits hereinbefore stated.)
4th.  The friction.
5th.  The span of rail or width of sleepers, and the distribution of WEIGHT on the road.




142                       NOVELTY.
6th.  The length of radii of curves, and various other elements
not necessary now to be enumerated.
And it will be found, that No road now exists, used for running
at high speed, having curves 1- inches in five feet of length.
And therefore it CAN NEVER be.necessary to bring the axles of
the wheels nearer together than the width of the track.
All the four-wheel cars and all locomotives have the large
wheels much more distant (in reference to these bearing points)
than the gauge of the track, and as THEY can pass all the curves
and switches of our roads, of course other trucks with wheels still
nearer than these, can, " a fortiori," do the same.
The fact that the outer front wheel in all cases MAY touch the
inner side of the upper rail in passing curves, makes no difference,
as this will happen, however near oil distant you place the wheels,
owing to the tendency of moving bodies to go in RIGHT LINES.
The only question is, which is the easiest way to turn the moving body out of a right line and into a curve,-by prying it round
with a LONG LEVER, or a SHORT one?
It is another fallacy to suppose that the trucks will run BEST,
that is, with least friction and most safety, when they have the
greatest freedom. of swivelling motion.
ist.  The nearer the axes, the more they resemble a single
pair of wheels, swivelling on a bolster.
Now such a pair of wheels have too great freedom of motion,
wabble about too much; in passing curves, one wheel is pressed
back too IUCHI, so that the axis cannot coincide with the radius of
the curve it is passing, but crosses it the wrong way.
All that makes it conform to the curve is the leverage of the
rail applied to the UPPER wheel.  The length of that leverage is
equal to one half of the distance between the bearing points of the
wheels on the rails, and the length of leverage of the lower wheel
equals the same distance, the fulcrum being at the king-bolt.
One could Do NOTHING with such a pair of WHEELS, without a
PERCH, or FILLS, as in common wagons.
It needs the action of the rail upon the REAR wheels to GUIDE
the forward wheels of the truck; and the farther off you put the
controlling influence of the rear wheels the better, because the
greater the leverage.




WINANS' S THEORY.                     143
Winans sets up NO SUCH THEORY as his Counsel set up, as to
the GREAT IDEA of the patent depending on the car being drawn
by the body.
THIS COURT entertained no SUCH idea in delivering the opinion
we have heard read.
Winans's idea was not to add to the FREE SWIVELLING OF THE
TRUCKS, as they always SWIVELLED freely enough BEFORE, but to
DIMINISH FRICTION and make the AXES of the wheels coincide with
the RADII of the curves they were passing, by BRINGING the
WHEELS in each trucec close together, and spreading the trucks far
apart.  AND  HIS purpose would be accomplished as well when
the draft was by trucks as by body; NAY, even BETTER, in case
a SINGLE car is used ALONE.
It is only when drawn by the TRUCKS that the forward truck
is prevented from the very DIFFICULTY of TOO much wabbling!
* A good illustration of the danger of placing the wheels too near together may be found in the trucks of locomotives. In order to preserve
the wheels from collision, they are placed under the forward end of the frame,
or engine. The wheels are made of small size, and placed near together,
in order to accommodate them to other parts of the machinery; and to
avoid too great LENGTH Of the main springs which bear the weight of the
engine. The size and position of the wheels result from a variety of compromises necessary in order to adjust the different parts to each other. If'
safety alone were considered, and if this truck had nothing different from
the duties of a common car-truck to perform, and if the space were ample,
the wheels would be placed as they are in the common car-trucks; that is
to say, with axles as far apart as the gauge of the track. But as this has
not been found practicable heretofore, without throwing too much weight
on the forward truck, and encountering other difficulties well known to
locomotive builders, they have made trucks to answer the purpose, retaining the wheels near together, but avoiding the danger of such a proximity
of wheels, by an arrangement of the parts entirely different from what is
claimed in Winans's patent. In WVinans's, the whole weight is borne upon
the centre of THE BOLSTER, (as has already been shown,) and not upon
ANY side bearings.  The locomotives have NO BOLSTERS, and bear No
WEIGHT upon the centre of the frame, at or near the king-bolt.
All the weight of the front end of the locomotive is borne upon SIDE
BEARINGS.
WINANS'S truck is made by uniting the axles by means of long springs,
bolted to boxes which rest on the journals; preventing the springs from
acting except by opening or closing the wheels on one side or the other of




144                         NOVELTY.
Such were Wtinans's theories, and so were they founded  in.ERROR.
Leaving the REAR TRUCI  IN DANGER, unless coupled with the
forward truck, and at a great DISADVANTAGE, and the forward
truck safe only when guided and drawn by the PERCH.
And as SOON as speed of railway travelling INCREASED, the
very first change necessary to be made was to DEPART still farther
from Winans's theory, and SPREAD THE WHEELSfart her apgart, otherwise they could not be trusted SOLELY to the guidance of the rails:
So different was Winans's notion from what his Counsel have
stated!
Now if the arrangement of wheels, and their connection with
the truck. The locomotive spring is not connected in any way with the
axles of' the wheels; but is allowed to expand or contract freely in cast iron
pockets; and is confined by a saddle, so that the motion of the springs is
entirely independent of the axles; and the axles are held firmly, and the
wheels square upon the track by a rigid wrought iron frame.  To avoid
accidents, and to prevent the trucks from swivelling too far, and from too
great zig-zag motion, they have four strong chains fastened from the four
corners of the truck to the body of the locomotive. These chains are made
of such a length that the truck cannot swivel round so far as to allow the
flanges to cross the rail; and also so as to hold up the locomotive in case of
breaking one of the wheels.
The action of this truck is also modified, and in some degree controlled,
by the driving wheels, which are intended to bear the larger part of the
weight of the locomotive. Sometimes only one of the drivers has a flange;
sometimes both. In either case the drivers, being not in any swivelling
truck, (as Allen's were,) but being permanently connected with the body
of the engine, modify, and to some extent control the action of the truck,
and require it to act very differently from what would be the case were
two swivelling truccks to be placed under the locomotive. The motion of the
forward truck is thus made more steady than it would be if left to itself,so that the truck bf a locomotive is far from being, in any respect, like that
recommended by Winans for a freight or passenger car, either in its structure, uses, controlling influences, checks and safeguards, or modes of olperation.
The locomotive builders are now beginning to remedy this defect, by arranging the machinery so as to allow them to place the wheels farther apart,
and thus approximating the true principle of the truck, as established by
Chapman, Tredgold, Allen, Bryant and others. In some of the most recent
engines the bearing points of the wheels are more distant from each other
than the gauge of the track. And it is found that the change causes the
engine to run more steadily and smoothly upon the track.




WINANS'S THEORY.                     145
the body is made in the manner particularly recommended by Winans, the car is DANGEROUS, and UNFIT rOR USE, as stated by
Mr. WATERMAN.
See his affidavit, Defendants' No. 3, p. 65, and there the Court
will find five specific objections to the use of the railroad truck as
described by Winans, whether you use it with or without the
spring.
And your Honor will see that he, in common with many other
scientific experts, condemns the use of the truck, not only by
reason of the peculiar structure of the springs and bolsters described in' the patent; but because the trucks (which, as the Patentee says might be substituted for these,) also had the fatal
defect oflplacing the wheels too close together.
The other experts show that there is an inherent difficulty in
the theory of making the axes of the wheels coincide as nearly as
possible with the radii of the curves.
Henry Waterman, p. 65, No. 3, says:
"AA  car constructed as described by- Ross  Winans cannot be'
used with safety for general running on a railroad at an ordinary velocity, such as- aimed at by: his specification, say at fifteen
or twenty miles an hour.  His car, as described by his specification, is too dangerous to use on- a- railroad, both to life and
property, for the following reasons:
1st.  The metal composing the springs that connect the wheels
is liable to constant depreciation of strenyth by its vibration,-and'
is so liable to break that it could not be relied upon, and such a'
break in that trucks would certainly do great injury, and proba —
bly destroy the life of some of the passengers.
2d.  Tle next reason is, that these spring trucks will not keep,
square, but lose their rectangular form by the transverse pressure,
which will cause the truck' to run off the track.
3d.  Another reason is, that this construction and nature of
the truck, when attempting to run on a curve of the road, where
necessarily the outer wheels have the longest distance to traverse,
and bear hardest against the side of the outer rail, allows the axles
of the wheels to get out of parallelism with the- radii of the curve,
by the inner wheels forcing themselves forward of the outer wheels,
twisting the truck out'of: rectangular shape, and necessarily run
13




146                   WINANTS'S THIEORY.
off the track.  It is the wvorst form of truck that I have ever seen
devised.
4th.  Another reason why it is dangerous also, is that the vibration of the sp)rings will allow the axles to get out of parallelism with each other, which adds to its dangerous character before
explained.
5th.  The very close proximity of the wheels required by the
Winans specification, is also erroneous in principle and practice,
as it allows a serpentine, unsteady and unsafe motion, both horizontally and vertically; and the wheels follow each other in shocks
on the same inequality on the rail, so quickly as to blend the
shocks so much together as to become like the action of a single
wheel, with a single shock, without giving.the front wheels a chance
to recover before the next one strikes, and causes the wheels by
the concussion and the action of the springs, to hop from the rail,
and thus run off from the track from this cause, or become dangerous; these inequalities are frequent at the joints of the rails.
It is the worst plan for a truck, and all of these causes combined,
constitute the very great danger and destructive character. I
have, in practice, proved these principles and actions as stated, to
be correct. The proper mode of constructing the trucks of eightwheeled passenger cars, and that in general use, is to have a rigid
rectangular wooden or iron wheel frame with pedestals securely
attached to it, to insure a normal action of the wheels on the
track, and hold the axles exactly parallel to each other, and parallel to the radii of the curves, and the wheels in each truck should
be about 55 inches apart from centre to centre or between the
bearing points of the wheels on the rails, that is, between 54 and
57 inches, with wheels varying from 30 to 33 and 36 inches diameter, which are the sizes in common use.  This construction of
truck runs with ease on both the straight and curved, lines of the
road, and with perfect safety, in the principles and action of the
wheels, on the rails, at all rates of speed."
We produce the united testimony of thirty-three men of science,
consisting of practical car builders, civil and mechanical engin'eers, railroad machinists and superintendents, and persons whose
profession has led them to the most intimate acquaintance with




WINANS'S THEORY.                  147
this subject.  With ONE VOICE they say that the railroad car, as
arranged and described by Winans, is not practical or useful, but
erroneous in the principles of its construction; and dangerous in
practice. I will give their ihames:
The Plaintiff produces only Elgar and IHibbard on this POINT,
neither having any PRACTICAL KNOWLEDGE on this subject.
Thirty-three witnesses against two!
If it be said that some of these witnesses have formerly stated, as
Mr. LEE has, that many cars, built according to Winans's patent,
were in use in all parts of the country, and that this shows that
they are in error, we reply that they were led into that error by
the shrewd manner in which the Plaintiff states his claim, which
was supposed by them to cover the SWIVELLING PRINCIPLE.
The witnesses on the part of the Defendants, to whom I have
referred, are:
1. Henry Waterman,        Defendants' No. 3, p.   65.
2. William T. Ragland,                  "         67.
3.  George Stark,                                 70.
4.  George W.'Smith,                             82.
5.  Charles B. Stuart,                            90.
6. William J. McAlpine,                           93.
7. Vincent Blackbur,                           96 — 7.
3. Walter McQueen,                               103.
9.  George S. Griggs,                            110.
10. William Raymond Lee,                          111.
11. Albert S. Adams,                              114.
12. James H. Anderson,                            118.
13. Jno. B. Winslow,                              121.
14. Asahel Durgan,                                124.
15. Jno. Crombie,                                 126.
16. H. W. Farley,               "                 129.
17.  Robert Higham,'  133.
18. Albert Bridges,                               135.
19. Jeremiah Van Rensselaer,   "         L:        137.
20. Isaac Adams,                                  139.
21. W. C. Young,                                  150.
22. W. P. Parrott,'   153 —4.




148                  WINANS' s THEORY.
23. M. W. Baldwin,         Defendants' No. 4, p.    4.
24. Richard French,             "                    5.
25. Henry Shultz,               "        a         44.
W26. Wm. B. Aitken,             "' 3,     31.
27. Jacob Shryack,              "        " "       40.
-28.  Godfrey B. King,          "        "4,        81.
29.  Stephen Ustick,
30.  Oliver Byrne,
31.  Edward Martin,
32.  Stephen W. Worden,         "        "6 2,      39.
33. Henry Shultz.               "           3,     44.
Now there are the names of thirty-three men of science, and of
practical knowledge of railroads, who inform this Court; that the
invention as described in Winans's patent is of no practical utility, but dangerous and pernicious.
I ask the gentlemen on the opposite side to find a single
car, built in actual conformity to Winans's plan, in existence. I
know tlhey tell us that his cars are scattered all over the country,
but this assertion assumes the point in controversy.  There is undoubedly a vague presumption and hollow pretence by the Plaintiff,
that many and most of the cars in the United States are on his
plan; but where is one to be found in use, actually embodying his
peculiar devices?  Not one car has been proved to have been
built, whose dimensions, proportions and parts really correspond
with the patent.
In fact, the car of Winans's was actually tried on the Baltimore and Ohio Railroad and CONDEINED.  See
Jacob Shryack,                Defendants' No. 3, p. 40.
Stephen W. Worden,                "       "  2,    39.
Henry Shultz,                     "                 4 3,    44.
No railroad has now in use trucks under the cars, with wheels
having their flanges "as near as may be without touching."
No such principle is allowed; we produce an overwhelming weight
of testimony to the contrary, viz.:1st.  See Walter McQueen; Defendants' No. 3, p. 100, for the
fact that the Defendants have the axes of the wheels at a distance
apart about equal to the breadth of the iracc.




WINANS'S THEORY.                  149
2d.  Septinmus Norris, one of the most emninent car-builders in
any part of the country, Defendants' No 3, p. 4.
3d. Richard French, Defendants' No. 3, p. 5, and who altered the car "Victory."
4th.  Henry Shultz, Defendants' No. 3, p. 44, who places
them as far apart as he can get them  in a truck which is from
seven and a half to eight feet long, on the Philadelphia, Wilmington and Baltimore Railroad.
5th. Waldo.Higginson, Defendants' No. 3, p. 83, an engineer
on the Boston and Lowell Road, an educated gentleman whom I
know personally to be a man of high character and of accurate
and practical mind.
6th.  W. T. Ragland, Defendants' No. 3, p. 68, who states
that the distances at which he places the axes apart is 54, 55, and
56 inches, in bearing trucks, and which distances, he says, are
generally adoopted.
7th.  George Stark, Defendants' No. 3, p. 70.
8th.  Vincent Blackburn, Defendants' No. 3, p. 96.
9th.  George S. Griggs, Defendants' No. 3, p. 104, who places
the distance between the flanges at twenty-seven inches.
10th.  Wm. R. Lee, Defendants' No. 3, p. 110.
11th. Albert S. Adams, Defendants' No. 3, p. 114, who
states that the best arrangement is, to place them as far distant as
the square of the track.
12th. J. H. Anderson, Defendants' No. 3, p. 117, who says
that on the Providence and Stonington Road, they are placed
apart a little more than the breadth of the track.
13th. J. B. Winslow, Defendants' No. 3, p. 20, who states
that the axes are as far apart as the gauge of the track.
14th & 15th. Asahal Durgan and Henry W. Farley, Defendants' No. 3, pp. 123 and 129, state that the bearing points of the
wheels should be as far apart as the gauge of the track.
16th. John Cronmbie, Defendants' No. 3, p. 125.
17th.  Davenport and Bridges, Defendants' No. 3, p. 135.
18th. George Beach, Defendants' No. 2, p. 56.
19th.  L. R. Sargent, who says that the flanges are generally
from twenty to twenty-seven inches apart, Defendants' No. 2, p. 41.
Now who can say, (after we have brought the most eminent en13*




150                    INFRINGEMENT.
gineers in the country here, unless they are, as Mr. Keller has
boldly charged, a set of perjured men,) that there is any pretence
that the modern railroad cars incorporate the principle of bringing
the axes of the wheels as close together as may be, to make them
coincide with the radii of the curves?
From the foregoing it clearly appears:ist.  That the Plaintiff was not the first and original inventor of
the arrangement of the running gear of the eight-wheel cars as
built by the Defendacnts, nor of any part or combination thereof,
and this results from our examination of prior inventions.
2d.  That the eight-wheel car grew gradually out of the necessities of railroads in their earliest periods of construction, and
was suggested to, and built by those, who were earlier on the
ground than Winans, to whom  the  railroads owe absolutely
nothing.
3d. That Winans was not the inventor of the Columbus; but
that whether he was, or was not, if the car itself ever existed,
Winans's patent is void.
4th.  That Winans was not the first inventor, nor an inventor
of any new principle, applied in any way, but borrowed the philosophy of his specification from Tredgold, Allen, Jervis and others.
5th.  We have shown what in reality are the true principles of
the eight-wheel car; and,
6th.  The erroneous principles adopted by Winans in his theory, and their utter failure in practice.
7th.  I will merely add, that Winans seems to have drawn his
specification so skilfully as to have entirely misled the public as
to the real nature and extent of his claims.
INFRINGEMENT.
Having now shown what Winans's claim really is, so far as the
patent can be considered valid and the extension legal, (See Construction, p. 40,) I now proceed to show that the Defendants
have not infringed upon the Plainttif's rights, whatever construction shall be given to the Letters Patent.
There is, it is true, one construction upon which all the world




INFRINGEMENT.                     151
would be infringers; that is, if Winans has the exclusive right to
build and use every sort of eight-wheel cars, with two swivelling
trucks: —and this construction, which is now admitted to be, erroneous, was at one time supposed to be the true one by some of the
Defendants' experts, who, upon THAT mistaken hypothesis, stated
that the cars in general use were substantially the same as described by Winans's patent.
But as this construction would include the Chapman, Tredgold,
Quincy, Baltimore Timber cars, Wood cars, Trussell cars, Allen's
steam  carria ge, Columbus, Fairlamb, Jervis, the Dromedary,
Winchester, Comet and Victory, &c., &c., the patent would
be void, as embracing claims far broader than the invention; and
the Plaintiff having filed no disclaimer, could not recover at law,
nor have any injunction. (See Chief Justice Taney's opinion,
Plaintiff's proofs, p. 21, Art. 3.)
Under any other reasonable construction the Defendants do not
infringe.
What proof of infringement has the Plaintiff offered? On
whom  does it rest?  What disinterested party had, sworn it?
Who has averred that the cars manufactured by the Defendants
are substantially the same thing as the-patent describes?
No man has said it, except CHARLES D. GOULD.
Is Mr. Gould a disinterested party?
Is he an expert, or is his opinion to weigh against that of a
large number of the most scientific and practical men in the
country?
How do the Plaintiff's witnesses discriminate between the Winans arrangement and the older cars? What do they rely upon,
as showing a substantial difference, so as to maintain Winans
on the question of novelty?
The Plaintiff's counsel say that the difference consists in the
drawing by the body. If this be all that distinguishes the Plaintiff's from prior inventions, then the Plaintiff's case fails, because
the patent makes no such claim.  But, if his patent cover the
things described in his claim, and no more, the evidence is conclusive that we do not infringe; and the evidence is also conclusive, that whatever the Plaintiff claims, the Defendants use only
thicit which was known and usedprior to Winans.




152                   INFRINGEMENT.
The testimony of the following witnesses clearly proves that
WINANzs's " mode of arranging the wheels, and connecting them
with the body," is impracticable and dangerous; and is entirely
and essentially different from that whic]h is used by -Defendants,
and which is in general use in the country.
In other -words, there is no infringement of the Plaintiff's claim.
1.  Charles B. Stuart,     Defendants' No. 3, p.  90.
2.  George W. Smith,             "       "   "   82.
3.  W, T. Ragland,                        "   "   68.
4.  Henry Waterman,               4       "   "   65.
5. Jacob Shryack,                 4       "   "   40.
6. William J. McAlpine,          "        "   "   93.
7. Vincent Blackburn,            "       "   " 96-7.
8.  Walter McQueen,              "        "   "  103.
9.  George S. Griggs,'       "       "  110.
10. Albert S. Adams,               "       "   "  114.
11. James H. Anderson,             "       "   "  118.
12. John B. Winslow,               "       "   "  121.
13. Asahel Durgan,                 "       "   "  124.
14. John Crombie,                  "       "   "  126.
15.  Henry W. Farley,             "'       "   "  129.
16.  Robert Higham, (2d affidavit,) "      "   "  133.
17. Albert Bridges, (2d affidavit,)  "     "   "  135.
18. Jeremiah Van Rensselaer,       "       "    136-7.
19. Isaac Adams, (2d affidavit,)   "       "   "  139.
20.  William C. Young,             "       "   "  150.
21.  William P. Parrott,           "       "    153-4.
22. Richard French,                      No. 4, "    6.
I pause for a moment in this argument; as I recall to mind an
attack made by the able counsel who opened the cause, upon five
gentlemen, of whom some are known personally to me.
It has been asserted that " they held their oaths so loosely, that
they can one day come into Court and swear one thing, and on
the next day another."
In explanation of the testimony of these witnesses, it is only
necessary to say to your Honor, that in their first affidavits they
have shown that they supposed Winans's claim covered all swiv



INFRINGEMENT.                     153
elling cars, and that the Defendants' cars (being swivelling cars,)
were substantially like those claimed by the Plaintiff, merely
because they were SWIVELLING cars, and for no other reason.
Afterwards, in a further examination of the patent, and, perhaps, learning from the opinion of the Judges of the Supreme
Court of the United States, that Winans's claim  did not cover
every description of swivelling car, they stated that they were mistaken in their first affidavits in supposing that Winans's claim covered ALL SWIVELLING TRUCKS; and perceiving this error, they at
once saw that the Defendants were not infringers upon the Plaintiff,"because they did not USE THAT which was claimed by Winans, as distinguishing his improvement from  what was known
and in use before his day.
And it is a painful thing to one who entertains the sentiments
which I cherfish towards some of those gentlemen, to listen in silence,
at this distance from their home and from mine, to so extraordinary
and so bitter an attack upon their character, made only because
they have seen fit to do justice to your Honor, to themselves and
to the Defendants, by correcting an error into which they were
inadvertently led by the loose and artful terms in which the patent of the Plaintiff was couched. But I should be no less forgetful of their dignity than of that respect which is due to this Court
and to myself, if I condescend to defend them from such a
charge.
Mr. Keller says, " that the affidavits all state that the Tredgold, Chapman, and other cars were the same as Winans's; and yet
that the Defendants do not infringe."
This, Sir, is a most erroneous conception of the testimony.
The Defendants' experts swear that Tredgold, Chapman, Allen,:Quincy and other cars contain the GENERAL construction and
mode of operation, (that is, the principle) of the eight-wheel ears
now in common use; that so far as Winans embodies the same
principles, they are all alike, and substantially the same as
Winans's.
That that whiich distinguishes Winans's from these preceding
inventions, is not found in the cars in common use, nor in those
built by the Defendants, but they have availed themselves only of
what was well known prior to the patent, with such changes of




154                   INFRINGEMENT.
proportion and improvements as they had a right to adopt, not one
of which was invented or claimed by the patentee.
Mr. Keller, by his observation, shows that he had wholly misapprehended the true nature of our defence.
Proceeding with the argument, I ask, what expert in the United States has come forward, and stated that the cars, made and
used by the Defendants, are in fact upon the same principle, and
substantially the same car as is described in the Plaintiff's
patent?
I answer-that excepting Gould, not one! and, what is more
singular, even Winans himself has not said so. He does not dare
to come into this court and make. that allegation upon the record.
He has made his bill of complaint, and sworn to it.
He has made his affidavit, which is a long one and embraces
many topics, and has sworn to it.  He has had the aid of Counsel
not surpassed in ability by any that the country affords; and, Sir,
-with their advice, perhaps, or without it-he has not ventured
to come before your Honor, on his solemn oath, and state that the
Defendants, in their cars, embody one particle of the invention of
which he was the author.
And it is one of the most remarkable circumstances that I have
ever known in a patent case, that a party should come into a
Court of Equity, and attempt to prove an infringement by such testimony as has here been presented; the Plaintiff himself daring not
to allege it, and finding but one gentleman-(proved to be interested in this suit and in the patent, and who ought therefore to be a
party to the record)-who states that cars, sutbstantically like the
Plaintiff's, have been built by the Defendants.  And Mr. Gould,
after all, only' asserts what is his opinion; and Mr. Winans only
swears that he has been informzed by Mr. Gould that Defendants' cars are substantially like what are described in his patent!
Has not Winans seen Defendants' cars? Then why does he not
swear of his own knowledge, instead of swearing upon the information of Gould, who is no mechanical expert, and not legally qualified to pronounce an opinion on any such question in a court of
justice?
These two gentlemen's opinions are to be put into the balance
against those of many disinterested practical engineers.




INFRINGEMENT.                     155
Now, Sir, if you choose to examine for yourself, trusting no
person, either on one side or the other; if you take the model of
the car built by the Defendants, and set it by the side of a
true and just model of the car built by Winans, I ask your Honor
to tell me whether they are substantially the same, or not, in
those parts in which Winans differs from  those who went before
him?  Examine the car made by the Defendants, as to its proportions, arrangement and details of construction, and make the
comparison.
The length of the body is generally now about fifty to sixty
feet, five times to six times. as long as the old four-wheel car, and
twice or thrice as long as Winans recommends.
The distance of the wheels in each truck, or of the flanges,,apart, is from twenty to twenty-five inches.' (See George Beach's
affidavit, p. 38, Defendants' No. 2.)
On the Hudson River Railroad, the average speed is from
thirty-five to forty miles per hour, and in the cars that run
on that road, the flanges are far from being "' as near as may
be" without touching.  They are farther' apart than they were in
the trucks mentioned as in, common use in the patent itself, viz.,
three and a half feet from centre to centre, and this was a greater
distance than had frequently been used on the Baltimore and
Ohio Railroad before 1830.  Now three and a half feet from
centre to centre of the axles, is forty-two inches; and the size of
the wheel being at least eighteen inches in diameter, would bring
the flanges within six inches of each other on that class of trucks
which were built with wheels of these dimensions; yet Winans
proposes to bring them still nearer.  The Defendants never brought
the flanges so near as they were in these old-fashioned bearing carriages, but they place them  about two feet apart, and always far
enough apart to admit of a brake being placed between them.
As to the springs; the Plaintiff admits, that they were in ilse
before his invention, and he does not claim them.  He states that
he prefers-his long spring, twice as strong as the common spring
on the four-wheel car, to the old way of giving one spring to each
wheel. The Defendants prefer the old-fashioned way of applying
one spring to each wheel in both trucks, as Mr. Allen did in 1830,




156                    INFRINGEMENT.
as shown in his: drawings and model; and as was done by many
others.
The Plaintiff prefers: to have the bolster swivel on a centre pin,
or king-bolt, like the common road-wagon, without side-bearings;
but the Defendants: prefer side-bearings, as in the Quincy car
and' Allen engine, &c., and a transom-plate, being Imlay's patent,
or what is commonly called so.
The Plaintiff prefers to fasten his body on to a bolster, and
abandons the swinging4thorough-braces df the old Columbus, and
trusts for his ease of motion solely to the elasticity of those springs,
which, by their action, will throw  the truck off the track.  The
Defendants prefer the swinging bolster, which is an admirable
way to provide for easy lateral as.well as perpendicular motion.
The Plaintiff, as before stated, gives no direction or description
as to how the car is to be drawn, whether by the perch or by the
body.  His drawing, annexed to the patent in 1837 or 1838, is
out of the question.  He makes:no claim to any mode of traction,
and' he has no reason for making any.  The Defendants draw by
the body, but they also have an apparatus called a spring-coupling,
which does not draw by the ENDS OF THE BODY, but from a fixed
point. some feet distant therefrom, in order that the line of traction
may more nearly coincide with the line of the track. This answers
Mr. Keller's objections to coupling the ENDS together.
The Plaintiff prefers connecting the axles of his wheels by a
spring twice as strong as usual in the four-wheel car, because the
body is twice as long, and:is to carry twice the load.  The Defendants prefer the old-fashioned rigid rectangular wheel-frame,
as the mode of connecting their wheels together on trucks.
The Plaintiff prefers to have the bearing points of the wheels
in-each truck as near: as possible, and far less distant than the
gauge of the track, The Defendants prefer them usually of thewidth of the track; while on the swiftest trains and on roads with
the smallest' curves, they make them  as wide as the curves will
allow:, which is. sometimes six feet apart, after the old fashioned:
cars'of Chapman, Tredgold, Allen, Quincy car, &c.
The Plaintiff: prefers: that' the action of each truck shall, as
nearly as possible, resemble the action of a single pair of wheels,
by means of the approximate coincidence of the axles with the




INFRINGEMENT.                     157
radii of the curves of the track. The Defendants try to get as
far as possible from that, and to separate the axles as far apart
as may be consistently with preserving sufficient play room between the flanges and the rails when passing curves.
The Plaintiff prefers placing his truck at the ends of the body,
-as in the Quincy car,-(or beyond it, as nobody ever did but
himself,) or near the end, and never farther under the end than is
necessary to protect the wheels from collision, (as in the Columbus, in which the centres of the trucks were five feet from -the
ends of the body.)  But the Defendants prefer putting their
trucks at least seven feet front the ends of the platform.
If the Plaintiff's claim is for a combination of old parts, which
he says is to produce an old or new effect, what are the parts he
claims to combine?
Are they the body, the trucks, the wheels, the springs, &c.?
All these have been combined in every eight-wheel double
truck swivelling car before.
If the Plaintiff claims that combination of these parts which
distinguishes his arrangement from all others, then what are the
-parts or elements of his combination, considered as a combination? They are
1st. The body.
2d. A swivelling truck of peculiar structure, with long
springs.
3d.  A  wagon bolster, bearing the load on its CENTRE, and
with no side bearings.
The Defendants use no such combination.  What is peculicar to
Winans they never use; but they fall back upon.the old and superior combination, which Winans in vain endeavored to improve
upon.
If the Plaintiff says that his claim is for connecting the body
with the trucks, by a swivellincg pin or kcin-bolt, then his patent
is void, because he did not invent it and does not claim it.
If he claim a patent for putting the flanges nearer together
than before, and making the body about twice as long as the fourwheel cars, whereby the trucks go farther apart, the Defendants
reply,
14




158                    INFRINGEMENT.
1st. That the Plaintiff has brought his wheels no nearer than
they were in the OLD PRECEDING cars.
2d. That he made his body no longer than the Trussell cars,
the Wood cars, &c.
3d. That if he did this, it is a mere change of proportion, as
the flanges approach nearer by merely increasing the size of
the wheels.
4th. That the Defendants do not employ either of the Plaintiff's proportions, but place their flanges as far apart, and even
farther, than in the old cars, and their body is five or six times as
long as the old four-wheel cars; and that if such change of proportions gives any right to a patent, the Defendants have as good
a right to a patent for cars sixty feet 16ng, as Winans has for a
car twenty feet long.
That if Winans's claim is construed as we have already shown
it should be, (see p. 40,) there is no pretence that we have infringed
either the wagon bolster, or the spring truck, or that we have stolen
or applied the philosophy,-shown to be false,-of making any truck
that will act like a single pair of wheels, or that the Defendants
have fallen into the error of adopting Winans's theory of attempting to make the axes of the wheels coincide as nearly as possible
with the radii of the curves of the road, by the near proximity of
the wheels.
The Defendants have not abandoned the safe and well-tried
mode of connecting the trucks with the body by means of the oldfashioned king-bolt, or transom, with side bearings, and have not
approved of or adopted the Plaintiff's wagon bolster, with the
weight of the car borne upon the CENTRE thereof.
The Defendants have not adopted the rickety, twisting, dangerous spring truck of Winans, but have continued the use of the
old solid square wheel frames; and instead of trusting the safety
of their truck to the strength of a long single spring, and using
that as one side of the wheel-frame, which, in case of breaking,
will inevitably let the car body on to the wheels, and thus cause
destruction, the Defendants have used a solid wheel frame, independent of and in addition to the springs; and so that in case
these springs break, no damage to the body need follow, and so
that the wheels may be kept square on the track.




INFRINGEMENT.                     159
The Defendants have not adopted the near proximity of the
wheels in each truck; but have kept the axes equi-distant with
the width of the track, as did Tredgold,, Chapman, Quincy cars
and others. They have indeed put their trucks under the body a
few feet from the end, as there was no other place where they
could be put in order to support the body of the car; but they
have not placed the trucks so near the ends of the body as the
Quincy car.
If, then, (as we have shown before,) Winans has discovered
nothing new in mechanical principle, nor any thing new in mechanical philosophy, but has only arranged the same parts before
known, in a manner very similar, if not exactly the same as had
been before done, his patent can only be for that arrangement
which is substantially different from that which had been before
made and that which is peculiar to him, in contra-distinction from
what was used before. In considering what is peculiar to him,
we must take the whole machine together as an organization.
The connection of the wheels by springs, the near approach of the
axles, so as to make them approximate the action of one wheel,
the suspension of the load in the centre of the bolster without side
bearings, are all elements essential in themselves and peculiar to
him, introducing a great difference into the action of the truck
frame from what had before been found practically useful, and
from what is now used by the Defendants or by any one else.
And the near juxta-position of the wheels in one truck, and the
remote coupling of the trucks, are not alone considered the embodiment of what is peculiar to Winans.  These features, alone considered, are mere changes of pro2ortion, and, therefore, not
patentable. No one violates his patent who does not combine all
that is substantial in the organization which is peculiar to Winans, even if Winans be the first inventor of it.  Therefore, if the
Defendants did place or arrange their wheels as the Plaintiff
placed or arranged them, (which they do not do,) this would be
no infringement, because this would not be taking all the essential
parts, devices or elements of Winans's arrangement or combination as he claims them; since he does not claim the arrangement
of the eight-wheels with respect merely to their position relatively
to each other, but with reference i to the means by which that ar



1_60                   INFRINGE MENT.
rcanyement is carried into effect; he'does not claim the connection
of the truck with the body by a swivelling king-bolt, abstractly,
but with reference to the pecaliar devices by which that connection is 2?roclicecl.
If Winans has attempted to secure, a patent for all modes of
carrying freight or passengers smoothly and evenly over the
curves and inequalities of the road, by means of the eightwheel swivelling car, he has attempted to patent a result,-not a
machine, —and such a patent could not be sustained for the following reasons:1st.  It is against settled principles of the patent law to patent a RESULT.
2d.  The result is not new, even if he could accomplish that
result better than others.
3d.  The Defendants accomplish it infinitely better than Winans,-if Winans ever accomplished any,-so that the Defendants are as far beyond Winans, as Winans was beyond the fourwheel car.
4. Mere difference in degrees, consequent upon change of
proportions, is not the subject of a patent.
If Winans claim that he discovered a new principle in mechanics, and embodied it in some form in his eight-wheel car, and
therefore claims a patent for his car, and all others involving the
same principles-we reply,
Ist.  That he has discovered no principle that was not already known, printed, and practically embodied in all the swivelling cars.
2d.  That he has not explained, or claimed in his patent, to be
the discoverer of any new principle, and there are no words to
that effect therein.
3d.  That mere abstract principle could not be claimed and
secured.
4th.  That if machines are within his principle only when they
can be clearly distinguished from the Quincy and Allen, wood
and trussell cars, Chapman, Tredgold, &c., then the Defendants
have not infringed, because Winans is on one side of all of them,
and the Defendants are on the other; and the Plaintiff cannot
claim  novelty, without admitting that the Defendants do not
infringe.




INFRINGEMENT.                     161
In fact, the Defendants may be said to use the Allen steam
carriage, with a box for pjassengers; or the Chapman or the
Tredgold, with large wheels and a longer body, while the bearing points of the wheels remain the same, or the Wood and
Trussell cars, with a box for passengers, if passengers are
required to be carried; but the'wheels in each truck are not
so near together, and the two trucks not so near the ends: of
the body,Or the Defendants may also be said to use the Quincy car,
with a box for passengers, if they require to be carried, and
with the wheels larger, and the body longer.
I have before mentioned that Winans's car was for freight as
well as for passengers, as the specification and drawing show.
And as the only real principle which distinguishes the eighttheel from  the four-wheel car, is the swzivelling principle, that
being attained, all other arrangements are mere alterations of peculiar devices, or parts or proportions.  And as the Defendants
do not use Winans's peculiar devices, parts or proportions, it is
self-evident that they do not infringe.
Mr. Keller admits, that the Defendants do not infringe, if they
combine in their car every thing else described by the Patentee,
except drawing by the body; and that if they were to draw by
the perch, there would be no infringement.  Id est: we imay use
every thing described and claimed in the patent and drawing,
without infringing,  and we become infringers only when we use
that which is neither described nor claimed in the patent!
The Plaintiff wants an injunction to stop all the railroads in the
country from  using something which is not thus described or
claimed; and which, we have shown, was no more the invention of
Winans than the old Chapman, Tredgold and Quincy cars, whose
principles of construction and operation have been so closely followed by the Defendants.
Is not this ridiculous in the extreme; and is it not trifling  with
courts of justice?
It is the settled rule of this Court to refuse to interfere by
injunction, where the right of the complainant is in any degree
doubtfulf or disputable; on which point I refer to the following
cases:
14*




162                   INFRINGEMENT.
Hart vs. Albany, 3 Paige, 213.
Steamboat vs. Livingston, 3 Cow. 713.
Collard vs. Allison, 4 -- & Cresswell, 487.
Same case in Hindmarch, 315.
Boothe vs. Garely, 6 vol. Leg. Obs. 99.
Isaacs vs. Cooper, 4 Wash. C. C. R. 259.
Molly vs. Dowman, do. p. 1-14.
Barnwell vs. Malcomb, 3 Mylne & Cr. 738.
Now can the Court hesitate for a moment to decide that the
rights of the Plaintiff are extremely doubtful, to say the least?
Sir, I consider this trial to be a desperate effort to compromit the
judgment of this Court, in order to pave the way for an Injunction against the Railroad Companies of New York.  The unusual
number of the Counsel on the other side and their extraordinary
zeal, show that such is the fact.  Will this Court take upon itself the task of finally settling upon ex-parte affidavits, such questions as these-Whether or not Ross Winans allowed what.he
claims as his invention to go into public use before his patent?
Whether he has not led the Defendants to appropriate what he
claims as his invention to their use, IF THEY HAVE DONE SO, by
his own conduct?
Whether the Wood and Trussell and the other cars, that I have
mentioned so frequently, existed before the Columbus; and whether the Plaintiff or Gatch was the inventor of the Columbus?
Whether the thirty-three gentlemen, connected by their profession with the actual operation of railroads, who swear that,
according to their experience, the invention claimed by Winans
is IMPRACTICABLE and DANGEROUS, and thus worse than useless,
are mistaken?
Whether the Quincy car, the Chapman. or the Tredgold cars,. do
or do not embody all that the Defandants use?
Whether the thirty-three men of scientific and practical knowledge, (standing at the head of their profession,) who deny that
there is any infringement, are right; or is Hibbard (the only witness against them) mistaken?
Whether the prior inventions, now for the first time proved in
Court, do or do not embody all that is essential in the organization of the eight-wheel car, as made by the Defendants, excepting




INFRINGEMENT.                     163
those devices which are peculiar to Winans, and which are not
used by the D)efendants?
We feel confident that your Honor will not, upon mere " ex
parte" testimony, and without the aid of a thorough trial, feel
disposed to decide such questions of fact against us; that you will
not feel willing, upon questions of mechanical science, to pronounce
the opinions of the ablest engineers and practical mechanics of the
country erroneous; that you will not deny us the privilege of
having the merits of. the defence, now for the first time brought
before the Court, —once at least passed upon by a Jury, if
the Gentlemen on. the opposite side still insist upon going further with this case.  We think that your Honor, in the exercise of that sound judgment and discretion which are the
peculiar attributes of a Court of Equity, will not allow  an
Injunction to go forth, to ruin the business and blast the prospects of the Defendants under such circumstances of injustice,(an injunction,) which cannot be really beneficial to the Plaintiff, since the true merits of the case have never yet, been
heard by a Jury of the country, or investigated by any Judicial
tribunal.  It is true that this case has, in part, been heard and
adjudged; and upon that which has been heard, the decision
has been in our favor.  But when our opponents appear before your
Honor and undertake to overcome the judgment of this Court by
new efforts, we have shown that those efforts are worse than useless, since they have caused us to-make further investigation, to
develop new evidence, and to produce new testimony, which we
think is destined to settle the fate of this controversy forever.
Sir, it is now the third time that the Plaintiff's have come before this tribunal, and we cannot but indulge the hope that the
decision in this hearing will be such, that it will be the last time
they will attempt to harass the Respondents.
And, in conclusion, I have only to thank your HIonor most sincerely for the unfailing patience and constant attention with which
you have listened to the evidence and the arguments we have
offered~




TABLE OF CONTENTS.
INJUNCTION....................1....            Claim not for bringing wheels near toPublic interests affected by this case,..   1   gether in each truck, nor placing the
Grounds for asking for.............   4        trucks far apart,..............    36, 159
Principles of Equity Law as to,.......   5    Claim  not for connecting body and
Alleged licenses, and their effect,.....    8    truck by swivelling bolts, &c.,...   38
Former verdicts and judgments, and            Theory of Winaans as to the proximity
their effect,........................   10   of wheels, as shown in the language
Defence founded on new evidence,....  13        of the Patent,..............  37
Twice denied in this case by this Court,  18    Theo?ry of Winans as to the connection
Acquiescence of Plaintiff estops him            of the two trucks with the body,....  38
from relief,...................2.....  20    The true construction of the claims,...  40
Alleged notice by Plaintiff to Defend-        Arguments and conclusions thereon,..40-47
ants denied........................  22
Laches of Plaintiff after issue of Pa-      DISCRIMINATION,..................   47
tent.........................G.....      Questions here are different from what
Exclusive possession not had by Plain-          have been heretofore decided......  48
tiff,...............................    Drawing annexed to the Patent was not
Reasons why not important to Plaintiff,         restored according to statute,        49
and yet disastrous to Defendants..26    Drawing is nmany respects at variance
with the specification...............  50
EXTENSION OF THE PATENT,....  27
sJotvalid, 1. Because the Commission-       ABANDONMENT............... 52
er did not order legal notice........  27    General rule,............2..........  52
2. The notice ordered was not pub-            Many eight-wheel, cars in public use
lished,...............,.........   8     before the Patent, with Plaintiff's
3. The Patent was extended, not by              knowledge and consent.............  53
the Commissioner, but by the            Experimntess alleged to have been tried
Chief Clerk,...................  29      on said cars; their history and reCONSTRUCTION  OF  CLAIMS  IN                      sults)..............................  54
THE PATENT.30    Whether Plaintiff was or was not exT H E PATEN~,......... 30
Admissions of Patentee...............   30     perimenting on said cars, notmaterial,  60
Witnesses to abandonment                61
What he states his peculiarities are,....  32. 
What experts suppose his invention          LACHES after issue of Patent........   62
was~..............................  33
What counsel allege it was,.......       NOVELTY of the invention,..........  64
Objects of the improvements as stated         Subdivisions of the subject:.........  64
in the Patent,......................  34    Conduct of Winans...................   65
Claim of the Patentee, (what it is norT     1. CHAPMAN'S PATENT..........    66
for,)...............................  35  2. TREDGOLD CAR................    68
Claim not for a RESULT (of travelling         WVitnesses.68............   {8
smoothly, &c.,)....................  36    Object to be accomplished, and means
If the roesllt aimed at by Plaintiff were       of doing it........................   69
attained by prior inventions, conse-        Extracts from Tredgold..............  76
quences of this.....................  35    Equi-distance of wheels along the track
Claim not for chanlgre of proportions,... 36, 96  no part of Tredgold's plan.......... 72-81




TABLE OF CONTENTS.                                         165
MODE OF DRAWING THE CAR,.... 81 HISTORY OF THE PROGRESS OF
Not invented by the Plaintiff.........           THE INVENTION,.................  127
No part of the Plaintiff's claim.......   88
The car described by Patent drew  by           NO NEW  PRINCIPLE was discovered
the perch and not by the body,......   85    by Winans,.........................  131
WASHINGTON  CARS,...............   89  TRUE PRINCIPLES of the eight-wheel
Not devised prior to Plaintiff's Patent,            car,...............................  134
and not a result to which Plaintiff
had arrived before his specification          MODEL-objections to,...............  137
was drawn........................   89
WINANS'S THEORY —its errors shown, 139
Old machine put to new  nlse not patentable,..............................   94  Locomotive trucks-(Note upon,).......  143
Illustrations,.........................   95  Reasons why Winans's theory is dangerous when put in practice,...........  145
Change ofproportiosns not patentable...36 & 96 W           itnesses to prove the Winans  truck
Application to this case.............   96
impracticable and dangerous,....... 147, 152
3. THE QUINCY CAR,..............   98  Winans's -car was conldemned as worthIts constructios.n..............  98
Its construction,........ I............   98    less,.................................  148
Witnesses............A...........   99  Winans's cars not in use on the railExperts,....................  100  roads,............148
Experts..........................    1.........            148
Objections to it...................   102  Witnesses.........................    149
Conclusions,..........................   150
4. THE ALLEN  CARRIAGE,.......  107
Its priority to Winans,........... 107  INFRINGEMENT,.............  150
Description of it,..................  108    Witnesses to show  that Winans's car
Witnesses,......................  109          is impracticable and dangerous,...147, 152
Criticisms,...............  110    Error of Defendants' experts and exElements of its structure,...........    111    planation of the same,............ 153
Only one witness swears to infringe5. THE BALTIMORE CARS,.......   112                   ment,............................  154
Construction of,................  112    Plaintiff does not swear to it,.........  154
Plaintiff's witnesses,...........  114    Difference between Plaintiff's car and
Defendants' witnesses,..,.......  116           Defendants', as to proportions, &c., 155
The Columbus, (who made it?)... 117    Various suppositions as to Plaintiff's
Burden of proof on Plaintiff.......  121       claims, and argument as to infringe6. JERVIS ENGINE,.................           121      ment upon these hypotheses,.......  157
Admission of Plaintiff's counsel...... 161
7. FAIRLAMB'S PATENT,..........  122    Court will not interfere when rights of
8. THE CAR, VICTORY.............  123                Plaintiff are doubtful,...........     161
Authorities..........................   162
Chronological order of these inventions,  124    Court will not decide a variety of new
STATE  OF  THE  ART  of building                       questionsewithout aid of jury,......  162
eight-wheel cars in 1830,..............  125




ERRATA.
In the hurry of passing through the press, several errors have crept in.  We indicate
the most important.
On the title page, instead of patent for " THE" eight-wheel car, read " AN " eightwheel car.
In a part of the edition, p. 27, 9th line from the bottom, for " invalid," read' valid;"
also, p. 28, 10th line from the bottom, for " patent," read " extension."
p. 31, line 3d from the bottom, after " other," insert " are."
p. 33, line 20, for " inventor," read " patentee."
p. 42, line 25, after 8 wheel, insert" cars;" line 29, transpose " the" before "' wood."
p. 43, line 6, dele': alone."
p. 44, line 2, after bearings, insert "in n" line 21, for Plaintiff, read " Plaintiff's inventilln."
p. 71, line 17, for " whether the body be short; so that the eight wheels need not be
long or equi-distant," read " whether the body be short or long," &c.
p. 72, line 17, dele "it."
p. 87, line 24, dele "he."
p. 89, line 18, for " Plaintiff," read " Defenldants' rely."
p. 111, line 1, for "Baltimore cars," read "' Allen cars."
p. 130, line 2, dele period and capital T.