ARGUMENT
OF
JOHN H. B. LATROBE,
DELIVERED MAY 1ST AND 2ND, 1855,
IN THE CASE OF
ROSS WINANS vs. THE NEW YORK AND HARLEM
RAIL ROAD COMPANY,
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK,
BE;FORE A JURY;
THE HONORABLE SAMUEL R. BETTS,
DISTRICT JUDGE, PRESIDING.
BALTIMORE:
PRINTED BY JOHN D. TOY.
1855.








THE following argument was reported with much accuracy by Messrs. Roberts and Warburton, of New York.
In revising their report for publication, the object has
been to condense, as far as practicable, the substance of
what was said, without depriving it of its character as a
speech to a jury, involving almost constant references to
drawings and models. If those who hbard it delivered,
find any omission, it will be of that, which, although suitable at the time, perhaps, it was unnecessary to preserve:
and if, here and there, an addition may be noticed, it will
be found to be of something, which the desire of the Judge
to have no argument on the law, prevented being said, or
something that is inserted for the purpose of a fuller explanation, than, owing to oversight, or the rapidity of speaking, wvas given at the time.
J. H. B. L.








AR G U MENT.
WITH THE PERMISSION OF THE COURT,
GENTLEMEN OF THE JURY.
IT seems to have been assumed that the summing up for
the Plaintiff is to be a brief one.
Two days are left to me out of the six, which the Court
has allotted to the discussion of this cause.
My promise to be brief, when the testimony closed, was
made before the Counsel for the defence had piled up the
mass of matter that now lies heaped before you as the
argument to which I am to reply.
It is difficult to say, on what ground my learned friend
supposes, that just one-half the time consumed by him will
suffice for me. But, at any rate, I shall endeavor, gentlemen, to justify his anticipations.
In the outset, however, there is one thing, that I desire
to have distinctly understood. I am here as the representative of Ross Winans, and of no one else, directly or
indirectly. The allegation, made to rouse your prejudices,
that this Patent is the property of speculators, is absolutely
untrue. In 1838, the Plaintiff, as you have heard, sued
the New Castle and Frenchtown Rail Road Company, in
the Maryland District.  He was then a person of very
humble means, struggling against adverse circumstances.
2




6                    ARGUMENT.
Hie wanted the pecuniary ability to prosecute an extensive
litigation. Years were, therefore, spent by him in fruitless
negotiations for amicable settlements. Finally he employed
Mr. Charles D. Gould as his. Attorney, Mr. Gould agreeing
to bear the expenses of the suits, and to look to collections
for recompense and remuneration. This was in 1846. At
the end of eight years, Mr. Gould, whose means had been
exhausted in the conflicts which his agency involved, cancelled his agreement with Mr. Winans: and the latter,
with the improved fortunes, which, under God's Providence, have, in the meanwhile, crowned his industry, now
wages the present contest single handed and alone. The
only interest that Mr. Gould has in the matter is a stipulated sum, to be paid to him out of the collections, as a
compensation for the unrequited toil of those years of the
prime of his manhood which he has wasted in the Courts.
And now, gentlemen, to the business more immediately
before us.
You can find, a dozen times a day, the amplest illustration of the subject matter of this controversy at the corners,
around which railway tracks are laid, in the City of New
York.
Stand, for instance, at the corner of -Centre and Grand
Streets, and take notice of'the cars that pass you.
First, there comes along the four-wheeled car of the
city roads, unsteady in its motion, laterally as well as vertically, and taxing the full powers of its pair of horses to
drag it round the curves. iThis is the type of the car used
on rail roads before the eight-wheeled car came into existence. It is still the car of England, and of the greater
part of Europe,




ARGUMENT.                       t
Presently, on the same- track, the cars of the Defendants,,
on their way from Boston, make their appearance.  They
are upon eight wheels. They move with great steadiness.
The four horses attached to them exert themselves less at
the curves than does the pair of horses of the four-wheeled
ear; and yet, it is apparent, that they are more than double
the size, much more than double the weight, and carry
thrice as many passengers. These cars are those of which
the Plaintiff claims to be the inventor. They have wholly
superseded, except for street purposes, the four-wheeled car
of Europe. They may be called, emphatically, the car of
America.
Between these two kinds of cars, the most casual observer
may institute a correct comparison, and understand almost
at a glance, why one is better than the other.
Of the difference in the number of their wheels, their
length, weight and capacity, we have already spoken. But
there are other distinguishing characteristics.
The wheels of the eight-wheeled car are' grouped, in sets
of four each, at or near the extremities of the body.
These grouped wheels form separate bearing carriages,
having a freedom of motion round a central bearing, that
may be likened to the king-bolt of a common road wagon.
Looking upon these carriages as substitutes for the axles
and their pairs of wheels in the four-wheeled car, it will be
seen, that, while the former, as already said, are at, or near
the ends of the body, the latter are considerably within
them.
A momentt's reflection furnishes the reason for this difference. Were the axles nearer the ends of the four-wheeled
car, the work of the horses to drag the cars round the
curves would be even greater than it is; indeed, it is evi



8                    ARGUMENT.
dent, that, could they be put nearer together, without
increasing the tendency of the car to see-saw, itwould be
all the better for the horses on the curves; and it is equally
apparent, that if the bearing carriages were to be' much further from the ends. of the long-bodied car, the steadiness which is the result of their present position, in passing
rapidly around short curves, would be materially affected.
Again, the closeness of the wheels of each bearing carriage, as compared with the proximity of the wheels of the
four-wheeled car, is very striking: and it is at once understood, that it is this closeness of the wheels, while the carriage itself swivels on its centre, that facilitates the passage
of the curves, as already mentioned.
Embodying, now, these details, for the purpose of a general view of the distinguishing features of the eight-wheeled:
car, as compared with its four-wheeled predecessor, and you
see,
First. That it is more than double the length;
Second. That it is more than double the weight;
Third. That it is much more than double the capacity;
Fourth. That its bearing' carriages are much further
apart than would be admissible for the axles of a
four-wheeled car, on a road having short curves, or
curves of small radius.
Fifth. That the wheels of each bearing carriage are
much nearer together, than would be admissible in
a four-wheeled car, whether upon a curved or a
straight road.
Sixth. That the bearing carriages conform themselves
to the curves and inequalities of the road, without
being controlled by the draft which is attached, not
to the bearing carriage, but to the body of the car.




ARGUMENT.                      9
That there are these most striking points of difference
between the two cars cannot be denied. That they are all
in favor of the eight-wheeled car, is evidently the opinion
of the public on this side of the Atlantic. This car is
claimed by the Plaintiff as his invention. Should he be
able to sustain his claim, he is unquestionably a benefactor
of his country. This is the question, gentlemen of the
jury, which we have been considering before you for the
last two months, and which your verdict is presently to
decide.
On the part of the Defendants it is insisted, that, if invention was involved, considering the elements at hand, common to all men, in the production of the eight-wheeied car,
the Plaintiff was but the thief of other men's thoughts;or, admitting him to have been an original inventor, he
was not the first inventor, having been antedated both in
Europe and America by those, who with the same objects
in view, produced the same results;-or, that, if such prior
inventors did not accomplish precisely the same results,
they had nevertheless done so much, that common sense,
without the exercise of the inventive faculty, sufficed for
all the rest. These alternatives, with some matters looking
to the abandonment of the invention by the patentee, cover
nearly all that has been said by my learned opponent,
during his four days argument.
I propose, gentlemen, to arrange what I have to say
under a few general heads.
I shall enquire,
First. Whether the Plaintiff was the original inventor
of the eight-wheeled car, as a whole, described in
his specification.




1-0                  ARq G'UMENT'.
Un'der this head, will fall what has been termed
the Baltimore testimony,, forming, as it does, a distinct branch of the case.
Second. Whether the Plaintiff was the first inventor of
the car in. question: for he must, to succeed, be, not
only an original inventor, but he must be the first
inventor.
Under this head will fafll the English inventions
and publications, and the Allen, Jervis,, Bryan and
Fairlamb cars, so called.
lqrrd, Whether, if the first and original inventor, the
patentee has sufficiently protected himself by his
specification; a matter in which we will require the
assistance of the Court, whose' duty it will be to inform you of the proper construction of the instrument.
And Fourth, Whether the Defendants have infringed
the rights of the Patentee, and if so, the extent of
the damage he has sustained at their hands.
And, now, —First,  Was the Plaintiff the original inventor of the car which he has described.,
It is necessary here that we should go back to the date of
the invention, and the then existing and immediately antecedent circumstances.
The rail road system for general transportation dates
with the Liverpool and Manchester Railway.
Baltimore had grown to be the third city of the Union
under the patronage of the "pack saddle" of revolutionary
times, and the influence of its successor, the Turnpike road.
She was nearer to the Western waters, geographically, than
either New York or Philadelphia.  But when these cities
compensated their deficiences in this respect, by the greater




ARGUMENT.                     11
facilities which the Erie, and the Pennsylvania Canals
afforded for cheap transportation, Baltimore was threatened,,on their completion, with a fall as rapid as had been her
rise. This was in 1826.. For her, a canal across the mountains was an impossibility,  The rail road system saved her
from despair; and acting upon the report of what was doing
in England, she planned and commenced the first continuous rail road for general transportation ever devised in
America.
Gentlemen, I never visit.New York without feeling
prouder of my country. I never enter this great city-the
great heart of my country, without feeling that the pulsations of my own heart are stronger and healthier. Nor am
I the only Southern man, believe me, who thus appreciates
New York. But, gentlemen, I must do justice to my own
City of the South, and say that the rail road system of the
United States had its origin in Baltimore, and that the
Baltimore and Ohio Rail Road was the pioneer work of the
country. The reason for this I have already stated. The
reports of the Engineers of the Baltimore and Ohio Road
were for years the vade mecums of the profession. All rail
road inventors came to Baltimore; all new projects and
experiments were tried there. The mass of testimony, in
this cause, coming from Baltimore, the constant reference,
throughout, to what took place in Baltimore is thus
explained. It would have been strange, indeed, if between
1827 and 1833 any important step in rail road economy had
been taken elsewhere than in Baltimore. New York and
Philadelphia were satisfied with their canals. Baltimore's
only hope was in the success of her rail road.
The news of what was doing "down South" travelled
through the country. It reached, among other places, the




12                  ARGUMENT.
hearth of a Sussex County farmer. It found his son, my
client, and my friend, the white-headed man now seated at
my side, young, active, enthusiastic and ingenious. He
was already the inventor of the plan of fulling by steam.
The public were besides indebted to him for the self-sharpening plough. He was not a person to hear of the new
system of rail roads developing itself in Baltimore, and pay
no attention to it. The friends of the existing and successful canals hooted at it. The loss of power by friction upon
rail roads was the great argument against them.  The
question was a question of fact, and my client addressed
himself to its solution. In the course of his experiments
he invented this most beautiful application of the friction
wheel, (here the counsel held up the model.) It is unnecessary to explain it to you in detail. This has been done by
the witnesses. For the then speed upon rail roads, worked
as they were by horse power, it was perfect. It has been
called a "gimcrack" by the learned gentleman from Massachusetts, a term which has neither euphony nor elegance to
recommend it. But it took the whole country, as it were,
by storm. Its patrons were —so far as that man would take
a patron-his patrons too. The Colts of Patterson advised
him to go to Baltimore, the Mecca of such a pilgrim. The
people of Baltimore appreciated his invention, and the Rail
Road Company at once adopted it. The Jersey farmer's son
became a man looked up to. He obtained a patent for his
wheel, and with the introductions due to his ability and
worth he went to England. He was present at the trial of
the engines on the Liverpool and Manchester road which
resulted in the triumph of the locomotive, and settled forever the question between Rail Roads and Canals. The
friction-wheel excited so much interest there, also, that Mr.




ARGUMENT.                     13
Stephenson, celebrated then above all living engineers, fitted
up a car to compete with it, and was beaten in the contest.
But the locomotive introduced a speed that was fatal to the
Winans' wheel; and that, which was perfect in reference to
the state of things at the date of the invention, was thrown
aside when new developments in the application of steam
substituted thirty and forty miles an hour in place of six
and seven.
What had taken place in England was well known
to the Baltimore and Ohio Road direction on the return of
Winans from Europe, in June, 1830. Their own engineers
had been present with him at Liverpool. The people of
Baltimore, then struggling single handed with New York
and Philadelphia for the western trade, had lost none of
their interest in rail roads during his absence. They had
not forgotten him or his experiments at the Exchange.
He at once received employment from the Rail Road Company, and was charged with the improvement and perfection of their machinery. Among those who saw the most of
him was the Treasurer, Mr. George Brown, of the great
mercantile house of Alexander Brown a'nd Sons; and nothing can better illustrate the deep interest felt in Baltimore
in every thing connected with the road, than the part,
which the testimony shows this gentleman took in its
prosecution. He labored as though he were a day laborer
engaged upon it, and acted in the outset as the' superintendent of its work shops.
Gentlemen, this narrative is believed to be most germane
to the matter in hand. We are considering the circumstances of the times, at the date of the invention. We
desire therefore, that you should understand the excitement
3




14                  AR GUMENT.
in Baltimore about rail roads-the cause of it, and the
Plaintiff's connection with it.
Mr. Brown, then, being in charge of the machinery of the
Baltimore road, and Mr. Winans employed to improve
and perfect it, we come to Mr. Brown's testimony. In a
conversation that he had with him, the date of which all
the probabilities indicate to have been soon after his return
from England, he, Mr. Brown, suggested how much safer
an eight-wheeled car would be than a four-wheeled one.
Mr. Brown's plan was two long beams with four wheels on
each side.  Winans at once made a rough sketch of what
he thought would do. Here is the first direct testimony
as to the invention-the suggestion of the idea of eight
wheels by Brown-the development of it in a feasable shape
by Winans.
In the following March, 1831, the rough sketch was
exhibited in the shape of a careful working drawing, made
to scale. The Company's car builder then was a coachmaker-you have had him on the stand —a young man he
is called by the witnesses-named Cromwell, the elderly
gentleman, now, so pertinaciously cross-examined by the
Counsel on the other side.  Cromwell swears that he
received this drawing from the Plaintiff, and that a car
was built according to it, which, when finished, was called
the Columbus. Cromwell's testimony is clear and positive. But he is not the only witness. He is supported, by
Elgar, Fairbanks, Reynolds, Davis, Ferry, Lowry, Dempsey,
Glenn, Cooper, Knight, Thomas, Brown and Latrobe.
These witnesses either heard Winans saythat he was the
inventor, or saw him giving' directions while the work on
the Columbus was going forward. About the details of
this testimony, I shall not trouble you. With the excep



ARGUMENT.                    15
tion of Mr. Thomas now too old to be brought upon the
stand, Mr. Brown too infirm, Mr. Elgar too ill, and Mr.
Knight whose engagements made it impossible for him to
be here, all these witnesses have been before you. Their
testimony is relied on to prove, that the Columbus was built
upon the plan of the Plaintiff, and after a drawing which
he furnished to the coach builder, at the instance or suggestion of the Treasurer, and acting Superintendent of
machinery, of the Company.
Gentlemen of the jury, with rare exceptions, these witnesses have been denounced, in one way or other, as
unworthy of belief. Their credibility rests with you. At
any rate we have produced them.  We have afforded to
the gentleman from Massachusetts the opportunity of cross
examining them; and we doubt not, for a single moment,
your reliance on their testimony.
Where are the witnesses for the defence, as regards the
Columbus? On paper,-where all men are six feet high.
Why are they not here? Who can tell me? Conduce
Gatch —why is he not here?  Tell me he will not come!
Why, his business is a mill-wright's, working by the day.
Double his per diem, and you can carry him to Nova Scotia.
Gentlemen, the Plaintiff would have brought them here,
had it been permitted, that the jury might have seen them,
and that my colleague might have cross-examined them.
No, gentlemen of the jury, the Defendants were afraid to
bring them here. It was better to examine them in a commissioner's office, where the mistakes of the forenoon might
be rectified in the after dinner examination; far better this,
for the Defendants, than to put the witnesses upon the
stand and oblige them to go through examination and cross



16                  ARGUMENT.
examination at a single heat.  Gentlemen, I distrust the
whole of the. testimony that has thus been gotten up.
The Counsel for the other side'has dwelt, upon the effect
of his cross-examination upon the witnesses for the Plaintiff. What did it amount to? It was a great consumer of
time, and its plan was something like this':
"You say, Mr. Witness, that you heard Ross Winans
claim to be the inventor'of the Columbus?"'
"I did."
"Will you be kind enough to repeat the words he used?"
"I cannot. The period is too remote. I cannot recollect
words used in 1831."
"Will you repeat then, the substance of what he said?"
"The substance was, that he had planned, or invented,
the car."
"Pray then, Mr. Witness, what was his language on the
occasion?"
And when the witness again declined to attempt to repeat
the Plaintiff's words, the learned Counsel placed him in the
category of those who were unworthy of belief,-and commented upon him accordingly.
I do not know whether, in the chances of life, my friend
is a bachelor, or whether he is a married man whom Providence has blessed with children. But assuming that he
has a family, I naturally suppose that the welfare of his
children is a frequent subject of conversation' between their
mother and himself. I know it is so in my own household.
And yet, I think that if he were placed upon that stand,
and questioned, thus,"Have you ever spoken with Mrs. Whiting about the
education or prosperity of William, or Mary, or James," —
he would indignantly answer, "assuredly I have."




aGUMENT.                      1 
C'Mr. Whiting, will you name the times when you spoke
to her upon the subject?"
"Well-it is a subject of common conversation between
us.)
"Will you mention the circumstances?"
"Well, really, I cannot,-we are always talking about
the children."
"What were the words used, at any time, by Mrs. Whiting?"
"Really, Mr. Latrobe, you are very inquisitive. I know
the fact to be as I state it, and I can say no more."
And, gentlemen, you can no more doubt the fact of
Winans' claim to be the inventor of the Columbus, because
of anything connected with the cross-examination of the
Baltimore witnesses, than you could, in the case put by
way of illustration, doubt;, that parents had consulted about
their children, though neither of them might be. able to
particularize the time, place or circumstances, of a single
conversation.
But the drawing itself, handed by Winans to Cromwell,
and from which the latter swears the first eight-wheeled car
was built, has been produced before you. The IDefendants
charge that this drawing has been fraudulently gotten up.
Do, you believe this, for an instant?  Why the very proof
relied upon disproves the allegation. Witnesses have been
examined to shew discrepancies between the drawing and
the car as built, and the inference was that it had been
made after the Columbus was completed.- If so-then, why
did it not correspond with the actual car. Fraud would
have produced a more perfect counterfeit.
(Mr. Whiting-The argument states that the drawing
was made in the course of the operation of making the




18                  ARGUMENT.
So much the more accurate should it have been-for there
was the greater opportunity to make it so. The very discrepancies relied on shew that it was made neither during
nor after the building of the Columbus. It was made, as
proved by Cromwell, before the car was commenced; and
the alterations in detail were, probably, the result of suggestions, while the work was going on-wholly immaterial,
as they were, in any relation to the principles involved in
the construction.
But Gatch, the mythic personage here, tells you that the
only drawing brought to him by Winans was the drawing
of a body of a car of unusual length.
How idle, this, and how shallow too! What was the
object of making the drawing at all? It resulted from the
conversation with Brown. It was to represent a car whose
distinguishing characteristic was to be the eight wheels that
were to bear it. Why, if Winans had done nothing but
direct Gatch to make two bearing carriages, of four wheels
each, to be placed under a long body, at the distance of
one-fourth of its length, about, from each end, he would
have connected himself as thoroughly with the invention,
as he could have done by the most finished drawing exhibiting no more.  What set Gatch to work on the two
carriages for one body? He does not pretend that he began
on his own suggestion. If he worked from the directions
of another, that alone'was sufficient to deprive him of all
claim as an inventor. He is in truth entitled to no more
credit than the spectator in the pit of the circus, who, when
the crowd were, applauding the equestrian performers, rose
up and shouted, "by the Lord, I made their saddles."
But Gatch's testimony, is easily explained. With him,
the invention is not of the car as a whole; but of the trucks,




ARGUMENT.                     19
or bearing carriages that form a part of it: and because he
was the workman who built these, just as Cromwell was the
workman who built the- body, he has deluded himself into
the belief that is apparent throughout his testimony. Nor
is he alone. A much wiser man,-a far abler man,-the
distinguished counsel from Massachusetts, participates in the
delusion. He has asked the Court to instruct you, gentlemen, that this patent is for a combination of wheels very
close together-united by a single spring, on either side of
a truck-bearing the body of the car exclusively upon its
centre,-three elements to be found in the trucks alone.
We, on the other hand, insist, that it is for an eight-wheeled
car, as a whole, whose distinguishing characteristics have
already been described.
Should the Court grant the instructions which the Defendants pray for, we have no case before you. You need not
leave your box to find your verdict. The Plaintiff, then,
will have no standing here. And whatever may be your
convictions about his merit in this behalf, the Court will
have settled the law against him, and until its opinion shall
be reviewed, he will be remediless in the premises.
We put the whole issue therefore, gentlemen, upon the
Court's instructing you thlat the patent is for the car as a
whole, and thus falsifying the doctrine, which, beginning with
Gatch, has ended with the gentleman from Massachusetts.
But who is Conduce Gatch?  I know him well. Rupp,
too, and Forest?  I have known them all. I find in the
volume of printed testimony so often referred to, that their
characters have been hedged around with affidavits. This
was wholly unnecessary. No purpose was entertained of
impeaching them. That they are ignorant men, speaking
under strong bias, and whose wishes blind their memories,




20                  ARGUMENT.
I believe, but nothing more. My learned friend seems to
think it his duty to gainsay the character of nearly every
one whose testimony is adverse to the defence. Such
is not my appreciation of my vocation as a lawyer. We
have great immunity, gentlemen of the jury, great power
as professional men. But our immunities should make
us merciful in the exercise of our power, as regards the
feelings and the reputation of witnesses upon the stand;
and never, no never, should we, without strong necessity,
by covert insinuation or loose remark, trample upon that
most sensitive of all God's creations, the human heart.
No such necessity has existed here, if my learned friend
will permit me to say so, upon either side.
Turning then, to the testimony of Gatch, Rupp and
others, what does it amount to? Absolutely to nothing, if
we are right in our construction of the patent; because; not
one of these witnesses seem to have looked upon the invention in the proper light; and all of them have based their
opinions of Gatch's merit as inventor, not upon any appreciation on his part, to which they can testify, of the car, as
a whole, but upon the fact of his connection with the construction of the bearing carriages that form a part of it.
If then, gentlemen, ybu put faith in the testimony of
the witnesses for the Plaintiff, whose names I have enumerated, you must believe,-that the value of a car, for
general purposes, on eight wheels, having been suggested
to Winans on his return from Europe, he made, first, a
rough sketch of the idea, and afterwards a proper working
drawing,-that this drawing is the one that has been produced before you,-that it was placed in the hands of
Cromwell in March, 1831,-that the car, called the Columbus, was built, in all important particulars, in accordance




ARGUMENT.                     21
with it,-that the Plaintiff superintended its construction,
and that it was put upon the road in the summer of that
year. The same testimony will satisfy you, that Gatch's
only connection with it grew out of his being the mechanic
in charge of the shops where it was completed, working, at
times, in person, on the trucks-and that all that he says
to the contrary is to be attributed, less to an intention to.
mislead, than to the want of a proper conception of the
nature of the invention.
Let us now look at the probabilities of our case, so far as
they relate to the question of invention.
In the first place, Baltimore, for the reasons already given,
was the city of the Union, of all others, in which it was:
most likely that such an invention would be made.
In the next place, Winans was a man of unquestioned
mechanical skill, who had already devoted himself to the
improvement, in New Jersey, of Rail Road machinery.
Again, he was in England when the question of such
machinery occupied intensely the public mind.
He participated in the experiments that were being made
on the Liverpool and Manchester road.
He returned to Baltimore to find the cars in use were
imitations of the bodies of the stage coaches of the day.
He was at once employed by the Rail Road Company,
and made the assistant of the Chief Engineer, in all matters
appertaining to machinery.
The improvement and perfection of the cars became forthwith his duty.
The importance of a car on eight wheels was suggested
to him, and he at once made a rough sketch of what it was
thought would do.
4




22                   ARGUMENT.
Presently, a car, novel in its design, following in the
order of time the employment of Winans, made its appearance on the road.
During all this while, Gatch was a workman in the
shops, —a mill-wright by profession,-without opportunities,-with no relations to the machinery of the Company,
except as manufacturer or repairer of four wheel burden cars.
And, now, what are the probabilities as to the invention
and its author-the foregoing being the facts?  Are they
not conclusive in favor of the plaintiff?
Gentlemen of the jury, there is no room for hesitation.
But, it is said, that, admitting all that is here urged,
there was no originality in the invention: that it was to be
found in what have been called the Timber car, the Wood
car, and the Tressel car, constructions existing prior to the
date of the Columbus.
Now, it must be borne in mind, that the Columbus is far
from  being the car described in the specification.  The
wheels of its trucks were too far apart, the trucks were too
far from the ends of the body, and the draft, being by the
trucks, controlled that free swivelling of the latter which
was required by the considerations set forth in the specification. Still, the Columbus was the germ of the perfected
invention.  Hence our claim for the Plaintiff, as its author.
Let us go to the Timber car, first.
This, as you know, consisted, when in use, of two common
dirt or stone cars on which bolsters were placed, swivelling
like the bolster of a road wagon, and on these bolsters
rested the ark log, or timber, that was too long for a single
car. To prevent the cars from being drawn from under the




ARGUMENT.                      23
load, they were connected by a board, with a hole or slot at
-each end, which dropped upon the draw pins. The power
was attached in the usual way to the draw pin of the forward
car. After the particular load was carried, the common
cars returned to their ordinary uses, and the Timber car, so
called, ceased to exist. Not only was the Timber car a temporary contrivance and not a permanent structure, but its
proportions depended upon the length of the timber to be
transported.
You see here (said Mr. L., taking up a stick about two
inches square and fdur feet long) a piece of heavy wood, that
I have had sawed, nearly through, from either side, in a
number of places, so that it is quite limber. Imagine it to
represent an oak log, forty feet in length. Let me place
these models of trucks under it so that it may rest nearly
level. You see, at once, how much further from the ends of
the stick the trucks are, than they would be, were this a car
body properly strengthened instead of a limber log. You
see too, that the longer the log is, the farther from the ends
would the trucks have to be, in order to preserve it nearly
level throughout its length. Let me now place the trucks in
the position proper for the trucks of an eight-wheeled car.
You perceive, at once, that the centre of the stick falls to
the ground.  (Mr. L. placed the trucks as he spoke in the
several positions referred to, with the results that he described.) You thus have the Timber car and its teachings
before you.
But what could the Timber car teach the Plaintiff? The
object ultimately obtained, steadiness of motion in passing
curves at high velocities, depends upon placing the trucks of
long cars at or near their extremities.  The teaching of the
Timber car was the reverse; for the longer the timber, the




24                  ARGUMENT.
farther was it necessary to place the trucks from the ends.
Even where the timber was comparatively short, its elasticity required that the trucks should be within the ends,
about one-fourth of its length. The variable proportions of
this temporary contrivance afforded no aid to one seeking
the fixed proportions of a permanent structure.
Again, the free motion of the trucks in the Timber car
was controlled by the draft. The coupling-board made
each truck dependent on the other;-for, even when there
was a slot, the forward car slipped under the load, so as to
tighten it. When several of these cars, if ever, were in a
train, the second controlled the hind truck of the first.
While, therefore, the Timber car may have suggested a
crude idea, it was incompetent to do more: and had it been
studied in the details of its temporary uses, it would have
retarded rather than promoted progress towards the great
ultimate result which is described in the specification.
This brings us to the Wood car.
Admitting, which we are far from doing, that the Wood
car is the same as that described in the specification, it is
antedated by the Columbus. This is a question soon settled.
Bennett and Cadwallader, among the few witnesses who
are conceded to be respectable by the defence, swear that
they hauled all the wood that was hauled over the road, when
it was first used for such a purpose, in the winter of 183031,-and that it was all hauled in four-wheeled cars. That
there were then no eight-wheeled cars of any kind on- the
road. The Columbus having been planned prior to March,
31,-and put on the road about the 4th of July, is not
affected, therefore, by the wood cars, if Bennett and Cadwallader are right.




ARGUMENT.                     25
The defence insists, that these witnesses are mistaken in
their date; that they referred to the winter, in fact, of 182930. Could this be established, room would be left for certain inferences, which, the defence alleges, fix the date of
the eight-wheeled wood cars in the winter of 1830-31.
Now which is right?
In the first place, the witnesses themselves have no
doubt about the date.
But they are amply corroborated. The report of James
P. Stabler, the very report referred to by the defence, states
that there was no rail road track laid down, that could have
been used for the purpose, until after the month of March,
1830.
(Mr. Whiting.-Pardon me a single moment. I wish to
state, that I do not intend to interrupt the counsel, in any
statements, of any kind, in the course of his argument.
But after the argument is finished, I will call the attention
of the jury to what is most important.)
Mr. Latrobe.-Whether you will have a right to do so or
not, the Court will decide when the time comes. I want,
now, however, to go on with my argument.
The Court.-Let there be no interruption. The counsel
has the floor.
Mr. Latrobe.-It is no annoyance to me, your honor,Mr. Whiting. —Two or three misstatements I will call
attention to by and by.
Mr. Latrobe.-Then let me ask the gentleman to take a
note of what I am about to say.
From Baltimore to Ellicott's Mills there was no track
completed until May 22d, 1830. In other words, there was
not a foot of track laid, on which wood could be carried, in
the winter of 1829-30. It is impossible, therefore, that




26                       ARGUMENT.
this could be the year to which Bennett and Cadwallader
referred.
Again, the ground of the inference as to the mistake of
these witnesses, is found in the testimony of Rutter, perhaps
another, who says that he saw wood on eight-wheeled cars
before the Three Tun tavern in the winter of 1830-31,
which would antedate the Columbus.
But, by referring to the Rail Road reports, you will find,
that the plan of bringing the road into Baltimore was not
prepared until the 3d of February, 1831 —so that,-the
Three Tuns tavern, being some half mile from the outer
station, and within the city-there was no rail road in front
of it, on which an eight-wheeled car could have been seen
during the period spoken of —the winter of 1831-32.
Bennett and Cadwallader, therefore, are strongly corroborated in their statements; and the Wood car may be set
down  as a structure  subsequent to  the  Columbus.   It
may be said, in passing, that drawing by the trucks, it had
all the deficiencies, in this respect, of the Timber car.
My colleague, Mr. Keller, requests me to state, gentlemen, what I had overlooked, that Mount Clare, spoken of
in the reports, is not the Mount Clare depot, also mentioned
there, but the residence, some half a mile to the westward
of the depot, of the gentleman, from whom the depot property was obtained, and after whom  the depot was named.
NoTE.-After the Plaintiff's counsel had concluded his argument, Mr. Whiting read from the reports, to shew that there had been, prior to March, 1830,
portions of track laid west of Mount Clare: one being a piece of track for flanges
on the outside, that was afterwards changed-and one or two other portions to
facilitate construction and excavation. The scope of the Plaintiff's argument
however was, that there was no track, on which wood could have been transported, prior to March, 1830, which was not denied.




AR  U M E N T.                 27
We now come to the Tressel car.
In the Baltimore Gazette, of December 17, 1830, there is
a notice of the fact, that the carriage and horses of President Adams, then on his way to Washington, were taken
as far as the Relay House, about eight miles from the city,
"placed on a tressel attached to one of the rail road cars."
Again, the same paper says, "We understand that the Rail
Road Company have prepared several of these tressels by
which wagons or pleasure carriages may be transported
along the road without being unloaded, &c. &c. &c."
In one of the pay rolls of Conduce Gatch for the same
year, there is this entry.
"Two trussels for the transportation of horses and carriage."
Neither the article in the newspapers nor the entry on
the pay rolls describe these tressels; neither of them refer
to the number of wheels in terms.  "A tressel attached to
one of the rail road cars," the language of the Gazette,
would seem to indicate that the Tressel car was a common
four-wheeled car.
It has been necessary to resort to oral testimony to supply
this deficiency. Gatch, the common vouchee, is resorted
to; and from his description it would appear that these
tressels formed a regular body, supported on two bearing
carriages, consisting of slatted sides, with ends that lowered
on hinges to admit the carriage and horses.
On the other hand, Glenn and Reynolds, who recollect
the circumstance well, speak of the whole affair as one that
was gotten up in a hurry, on the spur of the occasion. They
say that a common four-wheeled platform car was prepared
for the horses, by putting a framing round it, after the
fashion, as they describe, of a "post and rail fence," access




28                    ARGUMENT
being had by an inclined plane at one end, —while the
carriage was carried on another car, to which it was secured
by wooden cletes confining the fellies of the wheels.
Now  which of these. witnesses is. to be relied on?Gatch describes the stock car that came into use several
years afterwards-a heavy, strong and expensive construction-the present eight-wheel car., in fact, for carrying
horses, instead of' men and women, —a structure not required for the occasion, taking far more time to make than
the haste involved allowed, and applied to no other purpose
than transporting a single carriage and pair of horses, a
distance of eight miles,-for there is no; evidence: of what
became of it, or that it was ever used again;-whereas, the
contrivance, described by Glenn, was one that could be
readily prepared, would answer every purpose, would cost
but little, and the temporary character of which sufficiently
accounts for its disappearance, after it had furnished the
newspapers, with the materials for a puff. Puff, by the,
way, was, at that early date, the breath of the nostrils,
almost, of this, the first rail road, corporation in the country, dependent, as it. was,. upon public opinion for the
punctuality of subscribers, whose faith in immediate profits
was already becoming lukewarm.,
The probabilities, therefore, are, that, of the. two sets of
witnesses, those who speak of the tressel car as the temporary adaptation of a four-wheeled platform car to an
especial purpose, are the most to be relied on. It is difficult to believe, that the; eight-wheeled car of modern times,
appeared and disappeared with such necromantic celerity on
the 7th of December, 183.0.  Gatch has probably confounded the car that was, used with the modern stock car.
Tressels are the rough benches used by carpenters.  Trusses




ARGUMENT.                      29
are the framing of bridges or other structures, supporting
great weights between distant points.  Neither tressels nor
trusses, in common parlance, designate carriage or car bodies,
or parts of such;-so that, without help from the term
itself, we are obliged, in the conflict of testimony, to fall
back upon, and be governed by the probabilities; and these,
as we have already said, forbid our believing that the car,
as described by Gatch, ever had any existence, until after
the eight-wheeled car, perfected by Winans, had demonstrated its value.
Ross Winans, then, was not indebted to either the Timber,
the Wood, or the Tressel car; but, so far as they are concerned, is to be regarded as the original inventor of the
car Columbus,-which, planned after the conversation with
Brown, in 1830, appeared in the smoked drawing, as it is
called, in March, 1831, and was at length completed and
put into use on the 4th of July of that year.
Starting then with the Columbus as the first attempt, and
having shown that whatever there was in it, of good or bad,
was due to Winans, we proceed with the history of the invention.
But, while the Columbus was used occasionally on the
road, the testimony must have satisfied you, gentlemen of
the jury, that it was comparatively a failure. It certainly
did not encourage the Rail Road Company to take further
steps immediately, in the construction of eight-wheel cars.
In the language of one of the witnesses, there were those
who regarded it as one of the "humbugs" of the day. It
was altered in many respects, and, when excursion trains
were run, was made to serve a purpose. But, on the whole,
the car was unquestionably a failure.
5




30                  ARGUMENT.
A year elapsed before another opportunity was afforded
to the Plaintiff to prosecute his invention.
In 1832, the Herald, a four-wheeled English engine, one
of the first imported, was placed on the Susquehanna Rail
Road, leading northwardly from Baltimore, and then in
charge of Major George W. Whistler, afterwards eminent
as the engineer of the great Russian road from St. Petersburg to Moscow.  The Susquehanna Road was full of
sharp curves, of radii as short, in many places, as 400 feet.
The four drivers of the Herald would not pass around
them. The engine was useless. Presently, Major Whistler
sent the witness, Mr. Alexander, to consult with Mr. Winans. The difficulty was' explained; and the next day, the
latter produced a sketch, showing how a four-wheeled swivelling truck could be substituted for the forward drivers of
the Herald. A truck was built, put under the engine, and
the curves of the road ceased to be a difficulty. This was
in September, 1832. About the same time Mr. Jervis invented the same contrivance for the English engines John
Bull and Experiment.
It has been suggested that Winans pirated Jervis' invention. But this is idle. IHad it been known in Baltimore,
Major Whistler would hardly have sent Alexander to Winans, when he had Jervis to resort to, who had already mastered the difficulty.  But Winans and Jervis were doubtless, both of them, original inventors.
The Herald brought into strong relief two considerations
of great importance in the advance towards the perfect car.
The proximity of the wheels of the trucks, having regard to
the curves of the road, and the uncontrolled motion of the
truck, which was a necessity of its use in an engine. The
Herald therefore marked a step forward.




ARIGUMENT.                    31
Improvement, however, marched slowly in these days.
It was another year before Winans found another opportunity. In 1833, the Baltimore company, then engaged in
the construction of their branch to Washington, became interested in determining the best form of passenger car, and
Winans, still in their service, addressed himself to the
enquiry.
It was the improvement of the eight-wheeled car to
which he directed his attention. Cromwell was sent to the
Camden and Amboy road; and returning to Baltimore, he
built, under Winans' direction, the Winchester, so far in
imitation of the New Jersey cars, that it was composed of
three bodies placed on a single platform, supported however
on eight wheels instead of four. The experience of the
Herald told upon the construction of the Winchester. The
truck wheels were placed close together and the trucks were
left free-the draft being by the body of the car, instead of
by a perch projecting from the trucks, as was the case with
the Columbus. But the principle involved in the position
of the trucks themselves, in relation to the body of the car,
was not yet understood. Their position under the Winchester appears to have been determined by considerations of
symmetry alone. They were placed under the centres of the
outer bodies —farther apart, indeed, than the trucks of the
Columbus, which were about a fourth of the length of the
body from its ends, but still too nigh each other.
The Winchester, then, marked another step in advanceand there is no discrepancy in the testimony in regard to
the Winchester being a far better and more useful car than
the Columbus.
Then comes the Dromedary.
The idea had been suggested, of hanging the car so near




32                  ARGUMENT.
to the ground, that passengers might step in and out, without the aid of steps, or platforms. This could only be done
on an eight-wheeled car, and only, then, by placing the
trucks at the extremities of the body, which would be suspended between them; and accordingly this was the plan
adopted by the Plaintiff in the construction of the Dromedary.
The trucks were now as far apart as they could be placed;
and the advantage in ease of motion on the straight parts
of the road, as well as around curves at rapid speed, was at
once perceived. Symmetry, thenceforward, had nothing to
do with the position of the trucks. Scientific principles
determined it,-developed, if you please, accidentally, but
none the less true or available, on that account.
And thus the Dromedary was another step forward. But
this car was a clumsy one. No use was made of the spaces
over the trucks,-and so the Comet was built.
The Comet differed from the Dromedary in several particulars. It consisted of five bodies, three of which were suspended between the trucks, and there was a body placed
above each truck. Instead of a heavy framing, a bent and
iron-plated side-piece supported the bodies-and, instead of
the common bearing carriage, the wheels were united by
the spring that is described in the specification. The Dromedary had been drawn by the truck. The Comet was drawn
by the body. The Comet was a step still in advance.
But the suspended body of the Comet struck the angle of
the inclined planes then used on the Baltimore road. And,
to obviate this, the platform that sustained the bodies was
straightened-the four bodies were placed upon a line, and
the eight-wheeled car was perfected; and the Rail Road
Company, with the experience thus obtained, ordered the




ARG GMENT.                    33
cars for the Washington Road upon the plan, in principle
and mode of operation, of the Comet in its altered form.
Gentlemen of the jury, upon this scroll suspended before
you, I have had drawn the several cars I have described,
that you may, at a glance, follow the workings of genius in
the slow processes of invention. The human mind, in matters of this kind, rarely flashes forth results. When genius
will condescend to work slowly, it works the truest. What
better illustration can there be of this, than the scroll
before you, gentlemen, affords. See here, in the Columbus
the crude idea. See here, in the Herald, the construction,of the free truck with its close wheels. Here, in the Wincliester, the draft by the body-Here, in the Dromedary,
the remoteness of the bearing carriages.  Here, in the
Comet No. 1, the simplification of construction,-here, in
Comet No. 2, the whole invention developed;; and here in
the Washington cars, the true principle, and the graceful
and convenient form, united into that, which, in 1834,
established itself as the car of America-the car of the
Plaintiff in this cause.
Gentlemen of the jury, I can make no stronger argument
than this scroll exhibits. It tells its plain and simple story
in language which even little children may understand.
Truth is simple: and there on that scroll, is truth, in all its
quiet simplicity, spread out before you.
From the completion of the Columbus to the perfection of
the plan in the Washington cars, with one exception, it is
not pretended that any living man, in Baltimore or elsewhere, was doing aught to improve or mature the eightwheeled car, save Ross Winans. The exception is to be found
in the testimony of Jacob Rupp, who pretends that the
draft by the body was a suggestion of his own, made in the




34                  ARGUMENT.
presence of Gillingham and Winans, and adopted by the
latter. Fortunately, gentlemen of the jury, this witness
dates his alleged suggestion. He fixes the date, beyond
doubt, in March 1835. But the trucks of the Herald ran
free in the fall of 1832. Witness after witness proves that
the Winchester was drawn by the body in 1833; so was the:Conret, in both its forms, in 1834;, and Claridge, who identifies the time, by the death of his wife, from cholera, and his
own severe illness with the same disease, swears positively,
that one of the Washington cars, which we all know were
drawn by the body, was finished about the end of the year
1834.
Gentlemen, this point,, thus conclusively settled by the
dates referred to, was deemed an important one by the gentleman from Massachusetts. To enforce it, he told you that
it was in proof, that the draft by the truck was common, at
first, to all the cars named, except the Washington cars,the running gear of which, he alleged, was not finished
until after the suggestion of Rupp. Fortunately for us,
however,-otherwise it would have been necessary to establish the negative by wading through the whole mass of the
testimony-the Court asked for the name of the witness, and
it was given.
Turn we now to what Davis, the party referred to, has
said in this connection. I read from the Stenographic report.
Mr. Whiting.-"How did the Columbus draw?"
Davis. —'By the truck."
"How did the Winchester draw?"
"By the body."
"How did the Dromedary draw?"
"By the truck."




ARGUMENT.                     35''"How did the Comet draw?"
"By the body."
The counsel in his cross-examination then read from testimony given by the witness on another occasion, in which
he said that the Columbus was altered to draw by the body,
and asked,
"Was that the same with all the four cars?"
The scope of this question was plain. It was to lead the
witness to say, or admit, that all the cars were altered to
draw by the body, when the inference would have been
irresistible, that he intended to testify, that all drew by the
truck, as they were first constructed. But the witness, an
intelligent man, understanding the bearing of the question, instead of answering "yes," replies,
"All that had been drawn by the perch."
The counsel then goes on, stating the fact interrogatively,
"Were altered to draw by the body?"
To which the witness answers "yes."
That is to say, all that originally drew by the perch, to
wit-the Columbus and the Dromedary, were altered to
draw by the body. And the next question and answer remove all doubt as to this being the true view of the testimony; for the counsel asks,
"How was the Winchester drawn according to your recolleckion?" and the witness replies, "by the body."
I call your honor's attention to this, particularly. (Mr.
Latrobe here addressed the Court.) The enquiry is an important one, according to one view of the case, and your
honor's question, just referred to, gave additional point to
it. The testimony of Davis utterly fails to support the
allegation of the counsel. He examined it, doubtless, with
less than his usual care.




36                  ARGUMENT.
Gentlemen of the jury, there is nothing then in the testimony which conflicts with the statement, now most emphatically reiterated, that in his progress from this stage of
the invention to that, (pointing to the scroll from the Columbus to the Washington car) the Plaintiff in this cause
marched alone. Unaided, save by the company, which, at
rare intervals afforded him the opportunities, which his
own means would never have enabled him to command, he
marched alone-sometimes faster, sometimes slower, step by
Step, from the crude idea unto the perfected thought.
And even after his march was at an end, and his work
was done, and his patent was obtained on the lst October,
1834, who profited by his skill? No one save his immediate
employers, the Baltimore and Ohio Rail Road Company,
still the experimentalists of the system. His march had
carried him ahead of the times, and before he could reap
the reward of his ingenuity, he had to wait until the times
caught up with him.
This is the proper place, perhaps, gentlemen, at which
to refer to what may be called the Carncross, or Imlay car,
which has been set up as the exemplar that was imitated,
when the world at last opened its eyes to the merits of this
great invention.
On one or two occasions during this trial, evidently with
no purpose of giving offence, the learned counsel on the
other side has spoken of the adroitness of his opponents.
Now, if there is a word in the English language that I dislike
to have applied to me, it is this same word adroit, which fto
my mind conveys the idea of doing something better left
undone, or doing something, proper in itself, circuitously
or underhandedly.  The introduction of the Carncross




ARGUMENT.                      37
or Imlay car illustrates adroitness both in manner and
mnatter.
One of the Plaintiff's witnesses, Myers, having been sent
from New England to Philadelphia to measure a car there,
called the "Pennsylvania," occasion was taken by the Defendant, just as the evidence on both sides was being closed,
to offer testimony, that the Pennsylvania cars, not the car
called the "Pennsylvania," were copied from a car called the
"Victory," planned prior to the date of the Plaintiff's patent, though subsequently to the invention of the Columbus.
In all fairness, this testimony should have been introduced
in the Defendants' opening, and not left to their reply. It
was vital in one view of the case. Its introduction, at so
late an hour, found the Plaintiff's counsel, except by crossexamination, unprepared to meet it. Mark, however, the
result. The leading feature in the Victory was its suspension between the trucks, precisely after the fashion of the
Comet, an original and very peculiar form of construction.
The drawing of the Comet recalled it to the witness, with
the difference that it was straight along the top. It was
built, too, after the date of the Comet. Foltz, the pretended
author, came from Baltimore. It was built, too, by Richard
Imlay, who had been a car builder in Baltimore, in i831
and 1832, moving to Philadelphia in the latter year, and
doubtless keeping his eye on every thing connected with his
profession in the city he had left; —Richard Imlay, residing
in New York at this time, known to the Defendants, yet
not produced by them. Putting all these things together,
the result of the introduction of the Carncross car was this,
that while Myers enabled us to trace the improvement, as
used in Massachusetts, southwardly to Philadelphia, only,
the course of the Defendants enable'us to carry it to Balti6




38                  ARGUMENT.
more, where the Washington cars, the perfected invention,
were then in successful operation; thus justifying the assertion,-which, as I am a living and breathing man, I do
most conscientiously believe,-that to the Plaintiff here at
my side, relying on my feeble efforts in behalf of truth and
justice, is our country indebted for the eight-wheeled car.
Assuming, gentlemen, that I have vindicated my client's
claim as an original inventor, I propose to say a few words
in regard to his alledged abandonment of the invention,
prior to the date of his patent. The facts, here, connect
themselves with the Baltimore testimony'that we have been
considering.
Many inventions are made which are never patented.
They are abandoned to the public; and being once abandoned cannot be resumed. A patent, even if obtained
after such an abandonment, is void. The Defendants insist
that the Plaintiff's is such a patent. This is one of the
questions, in regard to which you will require the assistance
of the Court. It involves both law and fact.
The argument on the other side is this. Admitting that
Winans invented the Columbus, yet having been put upon
the road on the 4th July, 1831, it was his duty, if he intended to patent it, to do so within a reasonable time thereafter; and his allowing it to be used by the company, in
its general business, without claim or complaint on his
part, and until the 1st October, 1834, was such an abandonment of it as made the patent then obtained invalid.
The argument, as you perceive, assumes, that the car
patented and the Columbus are identical. If this is not so,
the argument of course falls to the ground.
That the fact is not as assumed, however, has, I trust,
been thoroughly demonstrated to you; otherwise I have in




ARGUMENT.                     39
vain called your attention to the slow progress of invention,
step by step, through the Herald, the Winchester, the
Dromedary, and Comet No. 1 to Comet No. 2, and the
Washington cars, or those described in the specification.
The true relations of the trucks to the body of the car, and
of the wheels to the trucks, and, the free motion of the
trucks consequent on the draft by the body, all of them
essential to the perfect car, are not to be found in the
Columbus, but were the results of successive experiments.
In the Baltimore case, presently to be referred to, in
1838, this point came up; and the Chief Justice there
directed the jury in substance, that, before there could be
an abandonment, it was necessary they should be satisfied,
that the Columbus, as well as the Winchester, the Dromedary and the Comet, were identical, in principle and mode
of operation, with the car described in the specification.
We might put this point, then, upon the fact of the
identity between the Failure of 1831, and the Success of
1834.
But the question of intention always enters into the
enquiry we are making. And if you are satisfied, that
Winans, from 1831 to 1834, was in good faith prosecuting
his experiments,That they were of such a kind, as made him dependent,
in conducting them, upon the. facilities that the Rail Road
Company might be willing to afford him, —
That he neglected no opportunity that was afforded to
him,That the use by the company of the Columbus, and other
cars named, was such an use as was necessary to test the
value of his invention and improvements, practically,That, as has been proved to you by the president of the




40                  ARGUMENT.
company, the understanding with him was, when he entered
into their service, that their shops and tools were to be at
his disposal in perfecting his inventions,That the cars made by him as opportunity offered were
not repetitions merely, but were bona fide attempts to
make a more perfect vehicle,That the result was a vehicle far better than the Columbus,-the first rude suggestion,And that, as soon as the car was perfected, the patent
was applied for,If you are satisfied on these points,-and there is no conflict of-testimony in regard to them,-you must be satisfied,
that, so far as intention went, there can have been no abandonment: but that the case is one, where an inventor,
laboring to improve his invention before patenting it, is,
unfortunately, in that position, which makes him dependent
for experiments upon others, and where the experiments,
which alone can demonstrate his merit, involve, necessarily,
a use in public, liable to be mistaken for a public use.
I ask your Honor's attention particularly (continued Mr.
Latrobe, addressing the Court,) to Judge Taney's opinion in
the case of Winans vs. The New Castle &c. Company, to be
found, as an Exhibit, in the Defendants' volume of testimony; and also to Curtis on Patents pages 47 and 344,
where the law is well analyzed as regards abandonment.
But the testimony of Mr. Peter Cooper upon this point of
abandonment, as well as upon the whole question of invention, is most important.
"Noble Englishman!" exclaims the counsel on the other
side, speaking of Chapman, in connection with his obsolete
contrivance, With how much more propriety might he not




ARGUMENT.                     41
have exclaimed, "Noble New Yorker," in reference to your
fellow citizen, gentlemen of the jury.
What was Mr. Cooper's testimony? Briefly this. Largely
interested in real estate in Baltimore, he looked with anxiety
to the completion of the rail road to the West. Presently,
there appeared a work of authority, which asserted that
steam could not be used on roads with short curves. The
Baltimore and Ohio Road was full of such curves. Planned
for horse power, it would seem as though it were unfit for
steam, which had now come to be recognized as essential to
the success of the rail road system. The friends of internal improvement in Baltimore were paralized at the intelligence. Doubts were entertained whether the stock of the
new undertaking would not be forfeited. At this time Mr.
Cooper addressed himself to tdhe Rail Road Company. He
undertook to demonstrate that the English author was in
error;-that the curves of the Baltimore road did not prohibit the locomotive. Alone, unaided, with no other guarantee of success than his profound conviction and his strenuous will, he built an engine, not large enough to be called
a plaything now, placed it upon the road, attached a car
to it, and demonstrated his conviction. The company and
the public yielded to the demonstration. Gentlemen of the
jury, among the early friends of rail roads in Baltimore,
who remember the discouragements of the times referred to,
no name is more honored than Peter Cooper's.
This testimony of Mr. Cooper, therefore, gentlemen, is
entitled to your highest consideration. He is no stranger
to you. You know well that you can rely on him. He
tells you, that from 1831 to 1835, his visits to Baltimore
were frequent. He was constantly about the rail road
establishment. He there found Winans, always busy.




42                  ARGUMENT.
He tells you, that he (Winans) was "employed as a kind
of general mechanic, to meet and overcome the various difficulties that were constantly arising in the application of cars
to the road, which they found very great,"-and that "he
seemed to be at the head, directing and controlling their
experiments;"-that his (Cooper's) acquaintance with Winans became intimate in 1830, and continued; —and that
from 1831, for some years, subsequently, his visits to Baltimore were frequent, "remaining there sometimes three
months at a time."
We thus connect Winans with experiments, looking to
the very difficulties that were overcome by the eightwheeled car, during the interval between the building of
the Columbus and the Washington cars,-for Mr. Cooper
recollected, as he told you, theintermediate structures. And
we thus connect him, too, by a witness wholly unbiassed,
and with the amplest opportunities of knowledge.
WVTe trust that we have now established two facts in connection with this question of abandonment.
First.-That there were striking and essential differences between the Columbus and the perfected
car-which make the ruling of Judge Taney
full in our favor.
Second.-That so far as intention went, there was no
intention to abandon, at any time during the
progress of the improvement, from March,
1831, to October Ist, 1834.
And we contend, that the agreement with the Rail Road
Company made them in fact the Plaintiff's agents in the use
they made of the invention; and we rely upon the omission
of all mention of the eight-wheel car, in the conveyance
made to them, although at the time it was in course of




ARGUMENT.                     43
being perfected, as proof, that there was no disposition,,on his part, to peril, by a sale, his rights as its inventor.
The abandonment, prior to the date of the patent, being,
then, out of the question, we proceed with the history of
our case.As already stated, no one used the invention at the date
of the patent, or for years afterwards but the Baltimore and
Ohio Rail Road Company.
It is in proof, that, in 1836, it was introduced, against
much opposition, partially, upon the Baltimore and Philadelphia road.
It was not until 1838, that there was an use that would
justify a suit. The suit then instituted against the New
Castle and Frenchtown Rail Road Company, came to be tried
in 1839.  It was well and thoroughly contested.  The
Columbus was urged as a prior invention, to antedate the:patent. This led to the proof, that, whatever the Columbus
was, it was the invention of Winans. Cromwell was hunt-ed up, and it was found he had preserved the drawing.
The Plaintiff and his counsel were alike surprised and gratified at its production. Its authenticity, then, was never
questioned.
This trial in 1838, which resulted in the payment to my
client of the sum originally demanded by him, although,
the jury disagreeing, there was no verdict, gave him his
first experience of law. For what purpose the fees of my
colleague, Mr. Reverdy Johnson, and myself were dragged
into this argument by the gentleman from Massachusetts, it
is difficult to perceive; but it suffices to say in regard to
them, that although moderate enough, they were a burden
upon my client, which we would have lightened had he permitted us to do so. He was then laboriously engaged in




44                  A RGUMENT.
building up the business, now the largest and best conducted in America, which has enabled him by its results to conduct a litigation' like the present.  In 1839, litigation,
which he has been taunted with not pursuing, was a terror
and a dread: and in the hope of being able to avoid it, he
resorted to those attempts at amicable settlements that have
already been referred to.
Of the temper and feeling of the Patentee, at this time,
no better evidence can be afforded than that which is furnished by his letter to the Susquehanna Rail Road Company, which has been read to you as a portion of the testimony offered on the part of the defence.
Ultimately, as you have been told, Mr. Gould was employed, and suit was brought, convenient to his residence
in Albany. This was in 1847.
Pending the suit brought by Mr. Gould, the patent expired on the 1st of October, 1848. Prior to this, application
had been made for its extension for seven years, under the
act of July 4th, 1836; and, in this connection, I propose to
notice the argument, that the delay in litigation, already
referred to, amounted to an abandonment subsequent to the
patent.
Whatever delay there was took place prior to 1848, when
the patent was extended.
Now there must be two things shewn before a patent can
be extended.  First, the Patentee must satisfy the office
that he has failed to receive adequate compensation for the
invention. Second, that this failure has not been owing to
any neglect or fault on his part. A subsequent law subjects
the patent to re-examination, as in the case of an original
application;-so that in truth, all the questions here discussed, gentlemen of the jury, came -before the Commissioner of Patents, in September, 1848.




ARGUMENT.                    45
The ordeal, thus prescribed by law, was passed through
safely by the Plaintiff, and his patent was extended. The
Commissioner was satisfied that there had been no neglect
by the Patentee in the prosecution of his claims; and it is
insisted by us, that, to this extent, his decision is final and
conclusive: and if so, it settles the question of abandonment
subsequent to the invention. The question of invention,
indeed, still remains open to you, as it did under the original patent,-but the question of subsequent abandonment is
precluded. These are matters, gentlemen, upon which the
Court will instruct you.
The patent having been extended, the suit brought by
Mr. Gould went on to trial, and resulted in a verdict for
the Plaintiff. The verdict was for a nominal amount, to
settle the question of right. But the efforts made to defeat
the claim were none the less vigorous on that account.
With the exception of the Quincy and Allen cars, all the
matters that have been introduced into this cause were before the jury at Canandaigua. Among the dead, they had
Chapman and Tredgold; among the living, Gatch, Forest
and Rupp. My learned opponent has chosen to speak most
disrespectfully of the trial at Canandaigua. It is true he
was not of counsel on that occasion; but in his place was the
late Samuel Stevens of this State. I never met Mr. Stevens
but once.  It was in the Supreme Court of the United
States.  His argument there was sound, lawyerlike and
very able.
Mr. Whiting.-Did he lose his case?
Mr. Latrobe.-If victory is to be the measure of professional ability, how few of us can be looked upon as
competent for employment. Gentlemen of the jury, I hope
and believe that a feather will be taken by your verdict out




46                  ARGUMENT.
of my friend's wing, if his flight heretofore has always been
so fortunate that failure is unknown to him.  Yes, Mr.
Stevens lost the case I allude to; but the learned gentleman
will permit me to say, that, from all I have been able to
gather, the eight-wheeled car case at Canandaigua, was
tried as well, in every particular, as though that gentleman
himself had been present on the occasion.
Mr. Whiting.-I have no doubt of that at all.
Mr. Latrobe.-I am glad of that admission, because, unquestionably, from the beginning to the end of this case,
the trial at Canandaigua has been sneered at.
The trial at Canandaigua was before Judge Conkling.
On a motion for a new trial before Judge Nelson, all Judge
Conkling's rulings were sustained, except one on a minor
point, and the verdict was pronounced to be a righteous one
according to the testimony. Our misfortune was, that the
engagements of the Court were such, that a year, nearly,
elapsed, before the decision on the motion for a new trial
could be given.
A suit in Chancery immediately followed against Eaton,
Gilbert and others. Time was necessarily lost in maturing
this for a hearing. At length it came on in the summer of
1853, at Cooperstown. New testimony, not in the Canandaigua case, having been introduced, the preliminary injunction was refused; but it was a long time again before
our turn came for the decision of our application. These
are the chances, gentlemen, of litigation. Where Courts,
like those of New York, are crowded with business, delay is
a necessity. We have no reason to complain.
In the argument at Cooperstown, the peculiar tactics of
the gentlemen now in charge of the defence, and who then
appeared before Judge Nelson, were developed. You know




ARGUMENT.                     47
them well, gentlemen of the jury. They have been made
manifest before you. They consist in piling witness on
witness to the same point, and then arranging them alphabetically in connection with the matters to which they
testify:-tactics, so far effective, gentlemen, that Judge
Nelson, in his opinion refusing the injunction, having
referred to the preponderance of testimony, and his Honor,
Judge Betts having permitted the accumulation to go on
here, the Plaintiff was obliged to summon, from all parts of
the Country, the witnesses, who, day after day, have been
seen seated before you, that, man for man, we might be
able to compete with our opponents-a sorry way ot getting
at the truth, gentlemen, but one, to which, at one time, we
fancied ourselves obliged to resort.
The opinion of Judge Nelson having been pronounced in
Eaton's case, new efforts had to be made. There was a
suit in Equity in Massachusetts; there were suits on the
docket of this Court, on the law side. It was determined
to prosecute the latter; and notice was accordingly given.
This has been called a hardship. We were asked to admit
the mass of written testimony that had been prepared in
the Boston case. We refused, peremptorily refused. For
this we have been harshly blamed. We confess to no cause
of blame. We resisted, in every way that legal ingenuity
could suggest, the introduction of these depositions.  Instead of being disposed to believe they ought to be admitted,
I honored the ability with which my colleagues endeavored
to exclude them, and tried to force the defence to produce
their witnesses upon the stand. We had produced ours.
What hardship was there in requiring them to do the same?
We wanted to see how science upon paper compared with
science in open Court. We wanted no echoes here.  I




48                  ARGUMENT.
promise you, gentlemen, before I have done, to shew how
the mass of testimony was gotten up, that we tried, unsuccessfully tried, to exclude, except from the witnesses in
person. We have had but one of the experts of the defence before you, Mr. Waterman. So far from hurting us,
Mr. Waterman supplied a link in our chain. Every man
of the Defendants' experts would have testified for us, as
Waterman testified. For cross-examination did with Waterman, what it would have done with all the others. It
brought out the truth.
The excuse for the non-production of their witnesses is
entirely'inadequate. Mr. Samuel Cooper not willing to
come here for pay? no pay can induce him?  He can write
a treatise, in exaggerated terms, that fills forty of the pages
of this volume, but cannot testify orally upon the subject!
Eddy, a patent solicitor in Boston, will not come for pay?
Shryack, a boss in the shops at Mount Clare, Smith, in the
Lowell depot, will not come, —cannot be brought here?
Idle and vain pretence!  The Baltimore and Ohio Company
runs two hundred and eight engines, and three thousand
cars. Its road is four hundred miles in length, and employs
four thousand men. Its master of transportation has been
a witness for the Plaintiff on the stand. It could permit
the absence of its master of machinery-its master of the
road, who waited here for days, that truth and justice might
be vindicated in the person of my client; and yet, to tell me
that the foreman of the shops of the Lowell Rail Road could
not be spared for a single day to come here! It is idle, all!
Why, gentlemen, had the Plaintiff relied upon depositions,
there would have been some excuse for him; but that the
rail roads here represented in this defence, should do so on
the ground of the difficulty of obtaining the attendance of




ARGUMENT.                     49
the witnesses, can be accounted for but in one way-by attributing it to their apprehension of the result of the
cross-examination, conducted' throughout by my colleague.
Gentlemen of the jury, that the Defendants have been
sufferers from the course pursued by the Plaintiff's counsel,
here, you cannot for a single moment believe. Every thing
that ingenuity could devise, or activity accomplish, has
been brought to bear by them during the trial: and looking
back'upon their efforts, our learned opponent can safely say,
that not a point has been omitted, not an opportunity has
been lost.. Their preparation commenced long before this
jury was empannelled. I hold here a volume of many pages.
It contains the arguments of Mr. Hubbell of Philadelphia,
and Mr. Whiting of Boston, in the case at Cooperstownscattered in the interval broadcast over the land-onesided statements, whose only effect could have been to give
a bias to the public mind against the Plaintiff, and indirectly operate upon the minds of juries to his prejudice.
And yet we are blamed for having forced them to trial
under such circumstances!
(Mr. Latrobe here referred to the course of the Plaintiff's
counsel, in cutting short the examination of their experts,
at the suggestion of the Court;-commented upon the'fact
that the number produced by the defence had nevertheless
been relied upon by the counsel on that side,-and then
proceeded to enumerate and characterise those, who, but for
the expressed wishes of the bench, would have been placed
on the stand to testify for the Plaintiff.)
I have thus, gentlemen, brought the history of the eightwheeled car from the beginning, down to the present hour;
and I trust that I have proved to your satisfaction, that,
from the crude idea to the perfected invention, Ross Winans




50                  ARGUMENT.
is entitled to the credit; that he stands this day before you
as one who has deserved well of his country; and that in
claiming, at your hands, the reward which is his due, he
has borne himself, directly, and through his counsel, fairly,
honorably, and liberally, as one who loves the truth and is
entitled to the justice that he seeks, in a verdict against
the Defendants.
But it is said, gentlemen, that while he may thus be an
original inventor, he is not theJirst inventor of the car that
he has patented, which was either planned and constructed
by others, or described in the various publications that
have been offered in evidence.  And this brings me to
the second division of my subject.
The publications relied on are those relating to
The Chapman Car,
The Tredgold Car,
The drawings and descriptions in Woods' Treatise,
And the Fairlamb patent.
The prior constructions are
The Quincy Car,
The Allen Locomotive,
And the Jervis Locomotive;
Each of which, by itself, publication or machine, it is contended, constitutes a sufficient defence to the present action.
We propose to take up these separately; but before doing
so, let us enquire what end it was that Winans' aimed at,
so that we may better appreciate the aid which they, or
either of them, could have afforded him in reaching it.
When the Plaintiff returned from England in 1830, it
was with the experience obtained on the Liverpool and
Manchester Road, which was, virtually, a straight one.




ARGUMENT.                     51
On this road, the speed which the recent introduction of
Stephenson's locomotive rendered certain of attainment, was
thirty miles an hour.
He was called upon to apply this experience to a road
with curves of but a few hundred feet radius, that had been
planned for horse power, and for a speed not exceeding six
or seven miles an hour.
Peter Cooper had demonstrated, that short as were the
curves of the Baltimore and Ohio Rail Road, they were not
impracticable for the locomotive.
It was the duty of Winans, employed, as you have seen,
for the especial purpose, to improve the machinery of the
road, in view of the profitable use of steam upon it.
So far as passenger transportation was concerned, it was
his business to devise cars that would pass round the short
curves, as well as traverse the strait portions, with ease,
safety and economy, at high velocities.
How this was to be done,-to what extent it could be
done,-he was not informed. His duties grew out of the
nature of his employment. The manner in which he might
perform them was to depend upon his genius, skill and
perseverance.  No one could be his instructor; for the
knowledge that was required did not, as yet, exist.
Had Winans accomplished nothing more than the building of four-wheeled cars upon the English pattern, he
would have performed his whole duty. When he produced
the eight-wheeled car, he did no more than his duty.
But, having regard to the scope and aim of our argument, the problem, in fact, before him was, how to construct
passenger and other cars, so as best to adapt them, when
moving at high velocities, to the necessities of a road with
curves of but a few hundred feet radius. This problem was




52                  ARGUMENT.
a new one; because the exigency that suggested it had now
occurred for the first time.
The four-wheeled car, whose type is to be found in the
cars in your streets, and whose disadvantages, especially in
curves at rapid speed, have been pointed out, was the car
in use in Europe and America. It furnished him with a
starting point. Setting out from this, the result accomplished by the Plaintiff, in the solution of the problem set
before him, was the eight-wheeled car, whose proportions
and qualities have already been detailed.
I have here, gentlemen of the jury, a model of a fourwheeled car, so made that I can change the position of the
axles. See now, when I place them at the ends of the
body, and put the car upon this piece of curved railway,
how great is the friction caused by the pressure of the
flanges of the wheels against the rails, though, observe
how steady the car is on the track. I move the axles, so
as to bring the wheels close together under the centre of
the body, and the friction of the flanges disappears; but
now, the overhanging weight at the ends is inconsistent
with safety, except at the slowest motion. Understanding
thoroughly the demonstration of this model, the builders
of four-wheeled cars always made a compromise between
the extremes I have exhibited, land placed the axles about
midway between the two positions, sacrificing, in so doing,
something of steadiness and something of freedom from
friction.
What the Plaintiff aimed at was to give the public the
advantage of the remoteness of the wheels, as regarded
steadiness, and of the proximity of the wheels, as regarded
friction.
To this end he substituted a four-wheeled truck for each




ARGUMENT.                     53
axle, being able to place the trucks at the ends, because he
permitted them to swivel freely round the centre, whereby
the wheels conformed themselves to the curves: and he
placed the wheels of each truck close together, being enabled to do so, because the body, no longer on four wheels,
did not depend on the remoteness of the wheels for steadiness, but upon the remoteness of the trucks.
The slow process, by which he arrived at this result, I
have already detailed to you;-it has been necessary for me
to reiterate, however, the modus operandi of the invention,
when perfected, in view of the continuity of my argument.
Briefly, then, but by this time I trust, intelligibly,-the
remoteness of the trucks, the proximity of the truck wheels,
and the free motion of the trucks around their centres, were
the ideas, which, combined, solved the problem.
These were the ideas, then, that he was in search of.
What aid was afforded him in his search by the publications and inventions I have enumerated?  This is the
question.
And first as to the aid he received from Chapman.
Here are Chapman's drawings: and this is an honest
attempt to execute them in a model. (The counsel here
referred to a drawing and model.) There is no drawing of
an eight-wheeled car, in plan or elevation.
Chapman's whole contrivance consisted in a scheme for
working an engine by means of a chain. Sometimes the
chain was fastened at both ends of the road,-a turn or two
being taken round a drum on the machine,-the rotation
of which, by steam or other power, caused the carriage
to advance; or else,, an endless chain was carried forward
on a separate carriage, connected, as you see in this model,
8




54                  ARGUMENT.
with the locomotive, and dropped into catches, that resisting the traction of the drum, produced onward motion.
You thus perceive that it was an engine, which Chapman,
who was a ropemaker by profession, had invented.
The maximum speed proposed by him was from six to
eight miles an hour.
The engine, as described both in the text and drawings,
is a four-wheeled engine. But, as the roads of that day
were very weak, the inventor found that his engine might
be too heavy for them, which would be a fatal objection to
his plan. To obviate this, he suggested six wheels,-four
of which were to be placed in a transome, as he called
it, or bearing carriage, which turned on a central pivot,
the motion being facilitated by friction rollers on the sides
of the carriage: and if the six wheels did not sufficiently
distribute the weight, then eight might be used, in which
event, there would be two transomes, or bearing carriages.
Thus, one thing is very clear. It was no part of Chapman's
plan to invent a car for general transportation,-his only
purpose being to. obviate an objection, which he found might
result from the weight of his engine.
Had Chapman's engine, therefore, ever been built, and
had it been found that four wheels sufficed for it, six or
eight wheels never would have been applied to it.
Chapman's sole object was to distribute weight. The
idea of passing curves at high velocities, and the exigencies
connected therewith, never entered his mind;-for high
velocity was unknown. The only rail road transportation
of Chapman's day was done in coal. Passenger cars were
neither wanted nor dreamed of.
A difficulty that here presents itself, and which runs
throughout the present discussion, is the difficulty of put



ARGUMENT.                     55
ing ourselves into the position of Chapman's ignorant cotemporaries. High or low, all were ignorant, in this connection, who knew less than he did at that time. Every
thing is now so simple to us, that we cannot go back to the
day when it was otherwise. We cannot, at will, forget.
The courtiers of Ferdinand and Isabella remembered always
the mode of making the egg stand upright, after Columbus
had cracked the shell. We see what Winans has done.
We cannot divest ourselves of our knowledge: and yet we
must do so, to judge without bias in the premises. At all
events, we must try to do so.
That we may deal honestly in this matter, gentlemen
of the jury, let us see the objects which Chapman and
Winans respectively had in view. This will go far in
helping us forward in our search for truth.
Let us, afterwards, observe what was the result of Chapman's teaching upon his cotemporaries, that we may infer
from thence what was its effect on Winans,-especially if
we find that the former were as intelligent, and as alive
to the subject, as the latter.
Chapman invented an engine to draw the coal cars of
that day on straight roads, limiting his speed to six or
eight miles an hour. Winans invented a passenger car,
to be drawn over roads with four hundred feet curves, by
the engines of his day, whose speed was thirty miles an
hour.
Chapman, with a weak road, multiplied his wheels, not
from choice, but from necessity.-Winans, careless of the
road, multiplied his wheels, not from necessity, but from
choice.
The result of Chapman's multiplication was the distribution of weight throughout a given piece of road. The re



56                  ARGUMENT.
suit of Winans' multiplication was the concentration of
weight at the ends of the same piece.
The distribution of weight saved Chapman's engine,
which, without, might have been an impracticability;The distribution of weight would- have defeated Winans'
car, by placing the wheels of the bearing carriages too far
apart.
Concentration of weight would have destroyed Chapman's road; so he sought to multiply points of support,
while the exigencies of his engine required compactness of
construction.-Winans, influenced by exigencies that required extension of construction, sought to make two wheels
operate, practically, as one.
The multiplication of wheels was what Chapman ended
with.-The multiplication of wheels'was what Winans
began with.
As a consequence,-when Chapman made his suggestion,
his work was done.-While Winans, beginning with the
idea of eight wheels in swivelling trucks,-the extent of
Chapman's contribution of thought to the subject,-labored
three years before he produced the perfect car.
Would it not have been wonderful then, gentlemen of
the jury, —if, with these antagonisms, —with different objects in view,-laboring to meet different exigencies,Winans and Chapman had so far thought alike as to have
produced the same result.
Men, with the same object in view, sometimes gain it by
different means. But, men with different objects rarely hit
upon the same means.
Necessity is the mother of invention.-The same necessities frequently produce the like inventions-different necessities never do: and the engine of Chapman and the car of
Winans illustrate these truths.




ARGUMENT.                     5
If there is a coincidence, then, it must be an accidental
one.
But is there even an accidental coincidence, looking to
the passenger car that was ultimately produced, in the elements that give to it its efficiency?
These elements were the closeness of the truck wheels, as
compared with four-wheeled cars-in view of curves, which
gave safety-the lengthening of the body, and placing the
trucks at the ends, in view of high velocities, which resulted
in comfort and economy.
Was the idea of these elements, or either of them, to be
found in Chapman? If not, then there was no coincidence,
accidental or otherwise, in respect of our argument.
The drawings of Chapman are rude and imperfect. They
are sketchy suggestions,-nothing more. In figure VIII,
so much relied upon, the track is of different widths before
and behind the car. The wheels are not at right angles
with the axles, nor the axles at right angles with the body.
The notion of applying scale and compasses to such drawings, with the expectation of accuracy in proportions, is idle.
Turn to the description for the elements, contiguity of
truck wheels, and remoteness of trucks, of which Winans
was in search. They are not to be inferred from any thing
that is said there. An alternative construction, to meet a
possible, and only a possible, contingency, is to be discovered in it, and nothing more.
We have thus dealt with text and drawings according to
our present knowledge.
Let us now enquire, as we proposed to do, what Chapman
taught the English, in 1812.
Our rail road system came from England. The English




58                  ARGUMENT.
were as alive to its value as we have ever been.-They
spend by millions, where we spend by thousands, in prosecuting it.  Chapman was in the midst of them.  The
Repository of Arts, containing his patent, was a work of
universal reference. The English knew, then, all that
Chapman had done or proposed to do.
The first evidence we have is afforded by Wood's Treatise,
in the edition of 1825. Here, unquestionably, Chapman's
suggestion is spoken of as a failure. How far the suggestion was availed of does not certainly appear, except from
the drawing, which exhibits a compact engine supported on
eight wheels, in two bearing carriages, the wheels being
close together and equi-distant from each other, and the
outer ones of the four, on the side of the engine that is represented, extending beyond the boiler, apparently from
necessity. The power is applied to all the wheels by spur
and pinion gearing.
This drawing, by the way, shows most conclusively, the
incorrectness of my learned opponent's suggestion, that the
length of Chapman's engine increased with the multiplication of his wheels,-for we here see the engine compacted,
and the wheels brought as close together as possible to
accommodate it, and yet extending beyond it.
I will not detain you, to read from Wood's Treatise, gentlemen: but counsel may refer to pages 144, 154 and 156,
and correct me if I am in error, in my statement, that
Wood proves that Chapman not only taught the English
nothing, but that his suggestion of eight wheels was pronounced a failure by the authority the Defendants have
themselves relied on.
But there was a second edition of Wood published in
1831, when the recent triumphs of the Liverpool and Man



ARGUMENT.                    59
chester Rail Road had excited all England to the utmost:
and would you believe it, gentlemen, that, in this edition,
the drawing of the locomotive engine, on two four-wheeled
bearing carriages, is omitted altogether! What a comment
on Chapman's teachings, as the English. appreciated them!!
And yet, gentlemen of the jury, these crude suggestions
of Chapman's, which are thus shewn to have taught the
English nothing, are relied upon as having taught the
Americans every thing.
No, gentlemen! Winans wanted a guide into the regions
of discovery. He found Chapman seated on the borders of
the terra incognita, not dreaming even, of what lay within
the mists that shrouded it; and he left him where he found
him, and with no other guide than his own genius, no
guard but his own courage and perseverance, he penetrated
the. obscurity alone.
So much then for Chapman and his teachings.
Before passing to the next in the category of foreign publications, I desire, gentlemen, to illustrate by the model before me, the meaning of the terms "concentration" and I"distribution of weight," which I have so frequently made use
of, in describing the difference between the purposes of Chapman and of Winans. It is most important that you should
properly appreciate these terms. Much of the testimony
has been addressed to their explanation. This model will
leave you, at all events, in no doubt as to the meaning
which the Plaintr?' attaches to them.
Allow me however, first, to narrate to you an anecdote.
It falls into the same category as the model, and will not:
be inapt as a preface to it.
A boy was, one day, standing on very thin ice, above




60                  ARGUMENT.
deep waters, watching his companions. A person on the
shore saw that the ice was bending under the lad, and must
yield, and in another instant, break under his weight, concentrated as it was, as he stood upright on his feet. So
calling aloud to the boy, he told him to throw himself flat
on his belly, or he would be drowned. The boy did as
he was told, and the ice ceased to bend, as his weight, no
longer concentrated on his feet, was distributed over the
length and breadth of his body. "Now, you young rascal,"
continued the stranger, "squirm yourself ashore" —which
was done, and the danger was at an end. The lad illustrated the principle of the Chapman car as he lay prostrate.
Had he raised himself on his fingers and toes, arching his
body, he would have illustrated the Winans car, with the
weight at the ends-but he would have concentrated the
weight at his extremities in doing so, and because of the
weakness of the ice, the comparative of the road, might
possibly have been drowned.
To return now to the model. This narrow trough, fifty
inches in length by an inch in width, and some eight inches
deep, is, you see, nearly half filled with water. Here beside it, is a row of blocks, less than an inch wide, each, by
about six inches long, to the ends of which is fastened a
piece of very flexible hoop iron.  The blocks are as far
apart as the sleepers, or cross ties of a rail road, on the
scale of an inch to a foot. Raising the blocks, now, I place
them vertically in the trough, the iron uppermost. Floating in the water, the blocks sustain the iron, as you see,
upon a level. For the purposes of our illustration, the iron
represents a rail road track, very sensitive and flexible-far
more so than any rail road is, but not too much so for the
truthfulness of the demonstration.




ARGUMENT.                     61
Having thus prepared the track, we must find a representative for a car fifty feet in length-on the same scale.
(The counsel here exhibited a piece of wood an inch square,
on one side of which were the equivalents of wheels, equidistant from each other,-the four wheels of one side of an
eight-wheeled car-and on the other, the same equivalents,
but placed, two at one end, and two at the other end, of the
stick, in the position occupied in the eight-wheeled car.)
You see gentlemen, that when the wheels equi-distant
from each other, are put upon the iron, it retains its level,
the weight being distributed equally along it. Turning over
the same stick, now, so that the wheels at the extremities
may rest on the iron, you see that the level is, at once, lost,
and the track arches upwards, until it touches the body of
the car. This is the effect of the concentration of the
weight, which is a characteristic of the Winans' car, as
contradistinguished from the distribution of the weight,
that Chapman suggested to obviate the probable contingency of his engine being too heavy for the rails. Which
of these two modes of arranging the wheels does the most
injury to the track, you may easily suppose, as the iron
bars of the actual road transmit, over many sleepers, the
weight that, for the instant, rests on any particular point
upon the -rail.
We come now to Tredgold, the next in the series of the
English publications relied on by the defence.
(The Court, here, stopped the counsel, saying, that the
usual hour for adjournment had arrived.)
When the Court met again, on the following day, Mr.
Latrobe resumed his argument by referring to the water
model, and further illustrating the principle, it was intended
9




62                  ARGUMENT.
to exhibit, by reference to matters of familiar knowledge.
He then went on.
And now, gentlemen of the jury, let us see what aid the
Plaintiff could have obtained from Tredgold in his search
for the elements of his eight-wheeled car-that is to say,
the proximity of the truck wheels, and the remoteness of
the swivelling trucks.
Here is the drawing of Tredgold, and here are two
models alleged to be made in conformity with it. The one
is the Plaintiff's, the other is the Defendants. Of the
difference between them, we will speak presently.
The drawing represents, as you see, the side view of a
long box car, supported on two four-wheeled trucks. The
wheels rise above the bottom of the body; or, in other words,
the body of the car, instead of being altogether above the
wheels, as in the present eight-wheeled car, is sunk down
between them, so that, admitting the trucks could swivel,
this lateral motion would be limited, as the wheels "brought
up" against the sides of the body. The centres of the
trucks are one-fourth of the length of the body from the
ends, and the points of support of each wheel, on the rail,
on the side exhibited, are equi-distant from each other.
The relations of the trucks to the body, and of the wheels
to the rail, are precisely such as secure the equal distribution of the weight over the length of rail corresponding
with the length of the car.
There is no difference between us about these details.
But we differ very materially about the fact of the swivelling
of the trucks. The Plaintiff insists, they have no other
motion than a vertical one, enabling them to pass from one
plane to another. The Defendants insist, on the other




ARGUMENT.                     63
hand, that they move laterally, as well as vertically, just as
Chapman's transome did.
Now which is right? Many experts have been examined.
But, gentlemen, this is a matter to be determined on inspection, and for this purpose all of you are experts. Look
at the drawing. What other object has the small circle,
under the four lines indicating the connection between the
body and each truck, than to represent a bolt, or pin, passing through the side pieces of the framing, and permitting
vertical motion only. How far do the wheels stand out from
the body? The drawing does not explain. For aught that
appears, there may be just room enough for the former to
clear the latter, when of course there could be no swivelling,
though there might be a free vertical motion in the trucks.
Again, were the inner two of the four lines dotted, there
might be some reason for supposing they represented a kingbolt. That the draftsman knew the conventional rule for
representing an object, between which and the eye another
object intervened, by dotted lines, is plain, for the part of
the car behind the wheels is defined in that way. Looking
then at the drawing, we find that the body is between the
wheels, which is inconsistent with free swivelling-that the
inner of the four lines are not dotted, as they ought to be,
to represent a bolt-and that the small circle referred to can
relate to nothing but vertical motion, and we come to the
conclusion, from these facts apparent on the face of the
drawing itself, that no swivelling was intended to be
represented.
But turn now to the text.
Referring to fig. 26, plate IV., being that already described, the author speaks of the connection of the body
with the wheel "frames, so as to allow the greatest possible




64                  A RG U M E N T.
change of level on the rails," which is just the sort of connection, which, we contend, is indicated by the small circles.
Mr. Latrobe proceeded here to illustrate the meaning of
the words "change of level," by referring to the levels on
the Morris canal, and the passing of canal boats from one to
the other by inclined planes-the scope of his remarks being
to show, that change of grade, rather than irregularities
on the surface of the track, was meant- by the author in the
use of the terms "change of level," and afterwards, in the
legend to fig. 26, where he referred to the axes of the wheels
not being in the same plane.
Again, the legend to figure 26, is as follows. "'A diagram to shew how a wagon may be made with eight wheels,
so that the stress of each wheel on the rails of a rail road
may be equal. The body of the wagon rests on the wheel
frames at 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 page 94. See Diagram. "
Does not this settle the question as to the meaning intended to be given to the word "axis" by the writer?  The
Plaintiff insists that it is a horizontal axle whose ends are
represented by the small circles on the drawing, on which
axle the wheel frames turn vertically. The Defendants, on
the other hand, insist, that it means a pivot, around which
the wheel frames may revolve or turn laterally. But "axis"
is the singular of "axes"-"axes" is used a few words
further on, thus, "the axes of the wheels" —"axles," therefore, or "axle-trees," in common parlance, are meant by
"axes," and axis, the singular, must therefore mean an
axle, or axle-tree, and not a pivot.
That this verbal -criticism is just, is made evident by a




ARGUMENT.                     65
passage in the same volume, and in the same connection,
where the use of six instead of eight wheels, is spoken of,
and axis, in the singular, is used for axle-tree. This passage is omitted in the Defendants' extracts from Tredgold,
doubtless accidentally.
That axis can mean pivot in one place, and axle, or axletree in another, cannot be imagined. "Axis," and "pivot,"
are common terms with different meanings, and Tredgold
could not have confounded them. The learned counsel for
the defence says indeed, that axis is a word well known to
engineers, and means pivot. I frequently thought, during
my learned friend's argument, that he assumed many
things. He assumed a good deal of fact, a little law, and
some philosophy. The meaning he assumes for pivot is to
be found however, neither in fact, law, nor philosophy.
"The axis of the earth" —who speaks of "the pivot of the
earth?" An axis is a line, a pivot is a point. The jury can
have no difficulty on this head.
I conclude, therefore, both from the drawing and from
the text, that the bearing carriages of Tredgold's car had
but one motion, and that a vertical one. And if I am right
in this particular, the defence built on Tredgold, falls to
the ground.
But, supposing for a moment, that I am wrong, and that
the Tredgold car was carried on swivelling trucks-what
can be more apparent both from drawing and from text,
that the object of Tredgold was the distribution of weight.
Nay, the author tells you so in express terms. Like Chapman, so far from looking forward to an eight-wheeled car,
he seems to have regarded the eight wheels as an incumbrance, as is proved by his suggesting, as already referred
to, their being reduced to six.




66                 ARGUMENTd
What, then, was there in Tredgold to aid Winans in his
search for the ideas that were to make his invention avail-able. Now, that you know all about the subject, gentlemen,
it is easy to take the drawing, and placing the wheels of the
trucks close together, remove the latter to the ends of the
body. But why did not Tredgold do this? What is there
in his drawing, as we find it, to suggest that such alteration could be made?
Chapman's contrivance, for meeting the objection to the
weight of his engine, is certainly not regarded by Tredgold
as any thing extraordinary-though it is more than probable, that Tredgold, pillaging Chapman without acknowledgment, applied to general purposes, in figure 26, what
the latter had intended to use with reference to a possible
exigency of his engine only; with this difference, however,
that Tredgold so little regarded the swivelling of his predecessor, that he abandoned it altogether.
Tredgold's silence in regard to Chapman is significant in
our enquiry as to what Chapman taught the English about
eight-wheeled cars; and the fact, that England has not yet
adopted the car, is equally expressive as to the value, in the
home market, of the diagram in figure 26, and its accompanying legend.
I cannot part from Tredgold, gentlemen of the jury,
without reading a few remarks in regard to him, from the
pen of Mr. George W. Smith, of Philadelphia, one of the
leading witnesses proposed to be examined by the defencea gentleman, whose testimony is not in the case, because,
after he had been examined in chief, a domestic affliction
prevented his returning to undergo a cross-examination.
Of the estimate placed upon Mr. Smith by the Defendants' counsel, gentlemen, you can have no question. It




ARGUMENT.                     67
was certainly very high-second only, probably, —here I
am in doubt-to the estimate placed upon Tredgold. Let
me now shew you Mr. Smith's opinion of Tredgold. I
read from Wood's Treatise on Rail Roads, American Edition, Edited by G. W. Smith, Esq., and from a note by the
Editor.
"The work of Tredgold was made for sale and not for
use, like Packwood's razor strops. As a practical work, it
is worse than useless, abounding in erroneous statements
of facts and foolish theories. The title is a misnomer.
Mr. T. has invested his work with an appearance of profound science, and systematic arrangement. He has borrowed largely and without any acknowledgment from the
work of Von Gerstner on Rail Roads, which was published
in 1813, in Germany. The plan of the work and many of
the details have been pirated. In the language of Mr. T.
there are some very singu/lar coincidences in this work also."
And now, gentlemen, "when doctors differ"- -though,
I will press the point no further; but, placing this volume
of Tredgold and the work of his commentator side by side,
leave the matter of the Tredgold car.
The next in the sequence of English publications is
Wood's work. This need detain us but a short time. It
has been produced, I presume, because it represents a drawing of an eight-wheeled locomotive. Here it is, gentlemen
of the jury, (the counsel held up the drawing,) and our
learned opponent has said but little about it. The truth is,
there is very little to be made out of it. I have already
referred to it in connection with the Chapman engine, for




68                  ARGUMENT.
the purpose of disproving the learned counsel's assertion,
that length of engine followed multiplication of wheels in
Chapman's mind. The drawing, if referrible to him, shews
exactly the reverse, for the engine is as compact as it can
be made, and the wheels extend beyond it at either end.
But, gentlemen, the drawing is an important one for the
Plaintiff, for it shews how little the swivelling feature of
Chapman's engine-trucks was appreciated. Why, there are
no less than eight spur and pinion wheels, "mashing" into
each other, that the adhesion of all the wheels may be made
available, in the traction of, the machine; and to say that
the friction, consequent upon this arrangement, is consistent
with that free swivelling of the trucks, which attends the
Winans' car, is simply an idle absurdity, and that is all.
Let my learned opponent believe what he pleases about
engines with cog gearing in New Jersey, they are not the
engine in Wood's Treatise, nor at all like it; and if he will
take the pains to understand their construction, he will see
that I am right.
Like Tredgold, Wood's publication affords testimony to
the inefficiency of the teachings of Chapman, and to the
utter ignorance of the English, at the date of the respective
works, of the true principles, as we appreciate them  in
America, of the eight-wheeled car.
Having thus gone through the English publications, I
desire, before passing to the American constructions, relied
on by the defence, to call your attention particularly to the
testimony of one of the Defendants' witnesses, — which has
a strong bearing upon both Chapman and Tredgold, and
to whom, unquestionably, the Plaintiff is much indebted:I mean Mr. Henry Waterman, the only witness of the other




AR GUMENT.                     69
side that went through examination and cross-examination,
as an expert upon the stand. To a remarkably fine and
prepossessing ph7ysique, Mr. Waterman adds the morale of
great intelligence in his calling as a mechanical engineer.
His bias was certainly against the Plaintiff: his testimony,
therefore, in the Plaintiff's favor is entitled to the highest
consideration, wvhen truth compels him to respond, as you
will find he has done, to questions that go to the essence
of this controversy.
I have been assuming, all along, that the Plaintiff's
invention consisted in placing the truck wheels close together, and the trucks themselves'far apart. I say, I have
been assuming this. Now hear Mr. Waterman to corroborate me.
He is asked by my brother Keller"Ques. Do I understand you to say, that you define the
invention described in the patent to be, placing the wheels
in each bearing carriage close together, and coupling the
two bearing carriages at remote distances from each other
under the body, and bringing the load central upon the
bolster, and the long side springs?
"Ans. That seems to be the substance of one of his combinations."
You will remember, gentlemen, that while the Plaintiff
prefers the construction referred to in this question, he
presents an alternative construction. Wherefore, the witness is asked,"Ques. What is the substance of the other combination?
"Ans. He says, the end he has in view may be accomplished by using the ordinary bearing carriage, provided
the wheels are close together."
I beg to call the Court's attention to the foregoing ques10




70                  ARGUMENT.
tions and answers, as they may have an important bearing
when your Honor charges the jury on the construction of
the specification.
Now, it had been a part of the Defendants' opening to
insist, that, no matter whether the wheels of a car were
placed, as in this model of Chapman's car, that is, equidistant, or in groups at the ends of the body, as in the Winans' car, —the distribution of the weight was the same;-a
point which we have denied throughout.  Now, hear Mr.
Waterman in regard to it.
"Ques. So far as regards the strength of the rails,-the
distribution of the load upon the rails, which is the best
adapted, —the distance between the wheels represented in
Chapman's model, which is equal all the way through, or
that represented upon the Plaintiff's car (Model C,) to
enable the rails to sustain a heavy load?
"Ans. The Chapman model.
"Ques. Then. was (did?) not Ross Winans' idea of the
arrangement of the wheels in the truck, and of the truck
with the body, tending (tend?) to concentrate the load at
the ends of the car, instead of distributing it at four different points of division upon the length of the car?
"Ans. That was the result of his contrivance, whether it
was his design or not."
You will doubtless recollect, gentlemen of the jury, a
drawing, with reference to which Mr. Waterman was crossexamined. It contained three car bodies drawn to scale, —
each fifty feet long. Under one, the wheels were placed
as in Tredgold, in two trucks, one-fourth of the length of
the car from the ends, and with wheels equi-distant from
each other. This was marked A. B represented the same
body, with no change in the centres of the trucks, but with




ARGUMENT.                        )71
the truck wheels brought close together. C, still the same
body, but the trucks, with wheels close together, removed
to the ends, as described in Winans' specification.
"Ques. Will not that drawing (A)* represent the distribution of the wheels under the body of the car, corresponding with the descriptions and drawings, both of the
Chapman and the Tredgold car?
"Ains. It would represent one modification.
"Ques. Would it not represent what is described and delineated?
"Ans. It would not in the Chapman-the wheels are too
far apart.
"Ques. But, so far as regards the distance between the
wheels and their proportions relatively to the length of the
car body?
"Ans. It would not change at all the distribution of the
weight.
"Ques. Answer my question, and give your explanation
afterwards.  Does not that drawing represent the relative
* This diagram, which is essential to the appreciation of the examination,
represents these three arrangements of the wheels with sufficient accuracy.
50 FEETF
A       12.6.6       I.6         Z.612. 
BL




T2                  ARGUMENT.
distance between the four wheels upon any one side of either
Chapman or Tredgold car?
"Ans. I do not consider myself confined in Chapman's.
He does not mention any thing in regard to it."
Now mark the force of this testimony. The witness has
already said, that Winans' invention was in the relation of
the wheels to the truck and the trucks to the body. The
defence has insisted that the invention was obtained from
Chapman; and yet we are now told, that Chapman is silent
on the very point, where the defence asserts he was Winans'
instructor!
"Ques. Answer my question, yes or no, and then give
your explanation?
"'Ans. It represents one modification of the Chapman car."
The witness did not see clearly where he was to be landed.
He answered loosely here-he laid himself open to my
brother Keller's next question.
"Ques. Where does Chapman describe any modification of
the eight wheel car?
"Ans. He does not describe anything with especial reference to the location of the trucks."
And yet, the location of the trucks is of the very essence
of Winans' invention. Can there be teaching, gentlemen,
without words or signs?  There were neither here. What
then could have been taught the Plaintiff?
But it was desirable that Mr. Waterman should admit
that A was a representation of Tredgold and Chapman.
Therefore, the question was repeated.
"Ques. Does this drawing represent the proper position of
the wheels, to correspond with the Tredgold and Chapman
car?
"Ans. I can only say that it gives one of the positions of
the wheels in the Chapman and Tredgold car."




ARGUMENT.                      73
Diagram A, then, being identified, as it were, Diagram
B is shewn to the witness, with close wheeled trucks far
within the ends, —and he is asked, "how it differs from
Winans;" —when he answers, "that the trucks are not near
enough to the ends." He is then asked wherein it differs
from Chapman, and he again repeats that "Chapman is not
explicit on that point. I do not know where he meant to place
his wheels."  He is then asked wherein it differs from Tredgold,-when his answer is,-''That the wzheels are too close
together for the other _proportions of the car" —And yet, the
learned counsel has occupied hours in endeavoring to satisfy
you that the position of the wheels under the Tredgold
car was, with the author of it, a matter of indifference!
The witness is then shown the Diagram C, where the
wheels are close together, in trucks, under the ends of the
body. The wheels do not touch, which, you remember, this
witness said they should almost do, to meet the requisition
of the specification. This will explain his answer to the
question.  "How  does it differ from  Winans?"  "The
wheels are too far apart in each truck."  How does it
differ from Tredgold?  The trucks are too far apart.  "How
does it differ from Chapman?" "With regard to Chapman,
I have said before, that he is not explicit upon that point."
Upon what point, gentlemen of the jury? Why, upon
the very point which is of the essence of the Plaintiff's invention,-the closeness of the wheels, and the remoteness
of the swivelling trucks.
And yet, Chapman and Tredgold are relied upon as all
sufficient defences in the present action!
Have I not fulfilled my promise, that I would make
Waterman the Plaintiff's witness?
What further did he prove that was important to us?




s7;4                ARGUMENT.
Why, gentlemen, who could have been more emphatic than
Waterman, as to the necessity of placing the trucks at or
near the ends of the car, looking to stability, and ease, and
facility of motion in passing at high speed around curves;
that feature of the invention so important to the Plaintiff?
(The counsel here read extracts from the testimony in
corroboration of what he said, and explained why it was,
that the farther the trucks were apart, the greater was the
facility in getting the car round the curve.)
With a view, still further to simplify the subject, and
make you understand how important is this proximity of
the trucks to the ends in the eight-wheeled car-a matter
to which, as we have seen, not the smallest reference is
made either by Chapman or Tredgold-I have to ask your
attention, gentlemen, for a single moment, to the model
before you. I have a rail road track, as you observe, on a
small scale, some six feet in length, which is inclined, so
that the representative of a car shall slide down it. It is
the effect of motion with differently arranged running gear
that I desire to illustrate; and motion may as well be obtained through an inclined plane, as through the agency of
steam, for my present purpose. A portion of the rail at
the foot of the plane is turned obliquely to the general
direction and is moveable, being kept in its position by a
weight, which, after the moveable part has been disturbed,
brings' it back to its oblique position, the amount of the
disturbance being measured by an index. Here are two
wooden bars of equal length, size and weight. On one,
there is a cross-piece at each end, placed in the position of
the trucks of the common eight-wheeled car, with shoulders
to keep it on the rail; on the other, there are similar crosspieces, placed to correspond with the trucks of the Tredgold




ARGUMENT.                        5
car, having regard to the length of the body. Letting the
two slide now, successively, from the same point on the
inclined rail, I beg you to watch the index, which responds
to and indicates the extent of the motion of the oblique
rail, as the cross piece strikes and slides along it,
Do you not perceive, that it traverses a much greater
space, when the rail is struck by the representative of Tredgold, than when the Winans' car slides down the plane; —
owing to the greater difficulty of getting the one round the
curve, than the other, measuring thereby the force of the
impingement of the flange against the rail on entering a
curve. (The counsel here repeated the experiment, several times, with the same result,-and then with a block
representing a short car of the same weight; showing, in
every instance, how much the ease and facility of motion
around curves depended upon the length of the car, the
proximity of the trucks to the ends of the car, and their
remoteness from each, other.)
My colleague, Mr. Keller, asks me to give you a reason
for placing the trucks at the ends, which I had forgotten
to do. When an eight-wheel car swings round a curve,
the greater the distance of the trucks from the ends, the
greater the space over which a given mass, the overhanging portion of the car, has to pass in the same time,-the
greater the power, therefore, that is required;-or, practically, the greater the friction of the truck wheels upon the
outer rail,-the greater the wear and tear of both wheel
and rail,-the greater the liability of the car to leave the
track when entering a curve, —and the greater the discomfort of the passengers in the car.
But, gentlemen of the jury, I might pursue illustrations
until I wearied you, ending, at last, with what every child,




7l                  ARGUMENT.
who goes to the pump, can tell you, that the longer the
handle, and the nearer to the end that it is seized, the
easier "comes the water."
Finally,-with regard to these English publications. I
have examined them by their texts and drawings; I have
tested them by their influence upon the English, who, even
yet, have no eight-wheeled cars; I have tried them by the
testimony of the Defendants' leading expert; I have corroborated what Waterman has said by experiments before
your eyes: and, gentlemen of the jury, may I not hope
that your conclusion, like' my own, is, that they, and each
of them, were utterly incompetent to impart to Winans
that knowledge, out of which grew the car described in
the specification-knowledge, due neither to "Noble Englishmen" nor inquisitive Americans, if you please,-but to
the talent, and painful, and laborious perseverance, against
all discouragements, of the individual at my side.
And now we come to the American contrivances contained in the notice of special matter:-and, foremost of
these, our opponents place the Quincy car, or, as it should
be called, in honor of its author, the Bryan car: and it
was an invention, gentlemen, to confer honor at the time.
Pursuing the same course of enquiry, we are now to find
out the teachings of the Quincy car: —and first, were the
ideas of the near and remote coupling,-using for brevity a
phrase which, by this time, you will understand, —to be
found in it?
Now, if the ideas referred to had existed prior to Winans'
date, any where in America, it should have been at Quincy;
because there were curves of but a hundred and fifty feet




ARGUMENT.                      77
radius on the Quincy road, and cars of unusual length seem
to have been required for quarry purposes.
The proximity of the truck wheels, as a means of facilitating the passage of curves, however, was not to be found
in the Quincy car. There was no reason, in the size of the
wheels, actually used, for not putting the axles near together; for the wheels were but eighteen inches in diameter, while the axles were five feet apart. This very beautiful model shews you the Quincy truck. For what reason,
looking to its utility to the defence, I know not, its axles
are so connected with a right and left screw, passing
lengthwise of the truck, and worked by this portable crank,
that the wheels can be brought into close contact with each
other. But, although my brother Whiting screwed away at
his model till he put the wheels into the position recommended by Winans-yet that was not Gridley Bryant's way
of mastering curves; not at all.  Instead of putting his
wheels close together, he left thtem loose zcpon their axles,
so that the outside wheels, in passing a curve, being capable of travelling faster than the inside ones, it became unnecessary to resort to a close coupling, if Bryant understood
anything about it, to obviate the difficulties of his crooked
road.
Thus you see, gentlemen, that had Winans sought information a t Quincy, in regard to passing curves, at speed, the
loose wheels, and nothing but the loose wheels, would have
been recommended to him. They were the only things he
could have seen there.
Neither would Winans have found any thing at Quincy,
to suggest to him the remoteness of the trucks, which the
Dromedary first illustrated.
True, there were long columnar blocks of granite to be
11




7'S                ARGUMENT.
carried. The cheapest and the quickest way to fit up a car
for the purpose would have been to do, what my brother
Whiting did, with such easy manipulation of his models,whip off the short body, push the, bearing carriages apart,
and put.on a long body. But it was left for my learned
opponent thus to illustrate the capabilities of the Quincy
car.  When Gridley Bryant, its inventor, wanted to
lengthen it, he went to the trouble and expense of making
another eight-wheeled car, which he placed, end to end,
with the first,-and then, putting his long body on both,
one end of it on each, he produced what might be called a
two storied car on sixteen wheels.
So that, the teaching of Quincy to Winans, as regarded
a car of double the length, was, that it must have double
the number of wheels; and had Winans taken counsel of
Bryant, sixteen wheels would have been the recommendation of the latter, in all human probability.
Gentlemen of the jury, I would not willingly impute
ignorance to Mr. Bryant:. I would rather attribute what.
was to be found at, Quincy to the necessities of his weak
road, which permitted no other modes of construction; and
the only fault, I have to find with Mr. Bryant, supposing
my brother Whiting ever did all this screwing and unscrewing in his presence,-is, that he did not say in substance, and: at once, Cmy dear sir, this is all very easy-all
very beautiful; —I only wonder, now, I never thought of
it: —but the truth is., my mind was not in the track to accomplish anything but to work my quarry, carry my
heavy blocks on my weak road, and make money for my
employers."  Had he said this, he would have probably
told the exact truth, and saved us much unnecessary
trouble.




ARGUME N T.                    79
Quincy, then, instead of teaching Winans to place his
truck wheels close together, on account of curves, and his
trucks near the ends of the body, for steadiness and capacity, would have misled him into the use of loose wheels,
and sixteen of them into the bargain!
Gentlemen of the jury, before laying aside'these beautiful
models of the Defendants, it occurs to me to use them in an
experiment on the Plaintiff's account, which could not be
tried without them, and which connects itself with that
part of the argument, that refers to the facility that the
closeness of the wheels affords in passing curves.  This
is a fact, which is denied on the other side; or if admitted,
it is done with a shrug, and we are told, that if it is so, yet,
practically, it is of no consequence. Now I beg you to mark
the use to which I am going to put the Defendants' model.
The rail track is as well gotten up as the cars, and has just
the curve in it that is wanted. I raise one end of the curved
track, sufficiently to get speed on the car,-and, screwing
the wheels close together, permit it to run down. You see,
gentlemen, it performs its journey rapidly and safely. I
now screw the wheels as far apart as the model will permit, and start the car. There it goes-eight inches, ten
inches, a foot, a little more-and now it'stops. I push
it, it starts and stops again:-another push,-the same
result. Well, but my learned opponent insists that there is
a magic in the square of the track,-that is, in placing the
axles as far apart as the width between the rails. Applying
the screw, we obtain this relation of the wheels, and start
the car again. Again it stops, when half way down; and,
as you see, no pushing will aid it, unless it is continued to
the end.
Why this model, gentlemen, after this shewing, was
brought here by the Defendants, it is hard to say.




80                   ARGUMENT.
Pass we now to the influence of the Quincy car on the
people of its day-the bystanders, as it were, around it.
Let us deal with it, in this respect, as we have dealt with
the English publications.
Who, after the people of Baltimore, were so eager about
rail roads from 1832, and thereafter, as the people of New
England.
The Quincy Road was, as Mr. Bryant tells us in his testimony, a pilgrim spot at that early time. What inspiration drew the votaries from the shrine?
Why, gentlemen of the jury, the Quincy car dates back
to 1825. All New England was alive with the rail road
spirit in 1832; and yet, there was not an eight-wheeled passenger car in all New England until 1838, after the invention had been perfected in Maryland, the patent taken out,
and the Washington cars in successful operation.
And yet, Gridley Bryant was in New England.  Curved
roads required, in New England, what the curved roads of
Maryland required.  Four-wheeled cars were the best machines extant, ill suited as they were, to the public wants.
Steam was flying in all directions. Gridley Bryant heard the
thunder of the roll of cars and engines.  But it loosened
not the tongue that now prates so glibly on the subject. It
opened not the reservoir of pent up wisdom at the time it
was most wanted; and it is only now, after the long, long,
interval of near twenty years, that Mr. Bryant tells us, that
the eight-wheeled car of our country and the Quincy Granite
car are one and the saime!
No, gentlemen of the jury,-there is a limit to credulity.
The judgment of Gridley Bryant's cotemporaries is against
his pretensions; and, as he taught them nothing on the subject, we may fairly assume the incompetency of the Quincy
car to instruct the Plaintiff in this cause.




ARGUMENT.                      81
In this argument, I have dealt with the Quincy car in a
way I have intended should be liberal. But, apart from all
other considerations, the fact, admitted on all sides, that its
trucks wanted the free swivelling, essential to the eight
wheel car —being controlled by the draft-would be fatal to
its pretensions as a valid defence to the present action.
In my opponent's manipulation of the Quincy model, he
took occasion to state certain legal propositions, that require
me to address your Honor, in view of your probable charge
to the jury.  (Mr. Latrobe here turned to the Court.)
It was stated emphatically, as the gentleman from Massachusetts shifted the bodies of the' cars, substituting a long
one for a short one, and vice versa, that a change in form
or proportion did not authorize a patent; and assuming this
to be all that had been done by the Plaintiff, he asked your
Honor to charge accordingly.
But the learned gentleman mistakes the law. "Simply
changing the form or the proportion of any machine" will
not authorize a patent;-but, that a change accompanied by
new and useful results,-when it ceases to be simply a change,
will support a patent, I hold to be unquestionable law. I do
not think my learned friend, as a sound lawyer, will venture,
seriously, to deny it. I refer your Honor to the case of
McClurg vs. Kingsland, in 1st Howard, 202. This was the
case of a patent for casting iron rolls; and all that was
done, in the way of invention was to give the gate, or sprue,
through which the melted iron flowed into the mould, a
tangential direction; whereby a rotary motion was given to
the liquid mass; and the centrifugal force carrying the
heaviest particles to the outside, the scoriae were collected in
the centre, where they did no harm, and the turning lathe




82                   ARGUMENT.
always produced the smooth surface that was essential to
the usefulness of the article.
Now, here was even less than a change of form or proportion. It was simply a change in the direction of a
gutter: but it was accompanied with a new and useful result, and that made it patentable. So in our present controversy. If the change in the length of the car body, the
relations or proportions of the trucks in regard to it, and of
the wheels to the trucks, produced a new and useful result,
and who can deny it, then our case comes precisely within
the category of McClurg vs. Kingsland. I refer your Honor
here to Curtis, pages 13, 14 and 16, for a good synopsis of
the law in this connection.
Again, my learned opponent wants you to tell the jury,
that, as this is a mere lengthening of a car body, therefore,
it is not patentable. Now, in point of fact, it is a good
deal more. But even if it were nothing more, still it would
by no means follow, that my learned friend would be right
in his law. If increasing length produces a new and useful result, surely it is patentable. The true test is overlooked-the new and useful result is disregarded on the
other side. What is the lap of the valve of a locomotive,
but a lengthening of the valve. And yet its effect is to cut
off the steam, as it is entering the cylinder; and it becomes, in so doing, a most economical agency, as the expansive power of the steam is made effective. Illustrations
might be multiplied; but enough, I am satisfied, may it
please your Honor, has been said, to relieve the case from
all difficulty growing out of the suggestions of the counsel
on the other side, on this point of proportions. He has
stated that this is a patent under the act of February 21st,
1793. So it is: and in that act the introduction of the




ARGUMENT.                     83
word "Csimply," in speaking of a change in the form or the
proportion of a machine, it is, of itself, sufficient to vindicate
the law from the construction attempted to be placed upon it.
The next American invention in order of the defence is
the Allen engine.
To this, gentlemen, I ask your particular attention. It
presents a feature in the case that should be potential
indeed, for the Plaintiff. We owe much to our opponents.
Mr. Allen was upon the stand; and he there informed you,
that the South Carolina Road, of which he was Chief Engineer, in 1831, and for some years afterwards, was a weak
road, requiring the distribution of the weight of the engine
on eight wheels; and that he therefore, planned, and had
built at the West Point Foundry, such an.engine, which may
be described as two'small four-wheeled engines placed back
to back. (The counsel here showed a model of the Allen
engine, and divided it into two.) An examination of the
Defendants' model and drawings, gentlemen, will shew
you, that in this engine, the cylinders were on the body of
the carriage, and that the connecting rods. worked crank
axles of very large driving wheels that belonged to the
trucks; and you have been told, what is apparent on inspection, that the free swivelling of the trucks was in this
way controlled. This is not denied; but it has been insisted
that this interference was immaterial; and that the trucks,
notwithstanding, accommodated themselves to the curves.
No doubt they did.  But a control, to some extent, is
admitted, and that is all that is essential to the argument.
We thus see, that the Allen engine falls at on6e into the
category of those, whoseonly object was the distribution of
the weight upon the rail with a view to the preservation of




84                  ARGUMENT.
the latter. The ideas connected with the wants of the public in regard to passenger cars, that would travel with
comfort, safety and economy, at rapid rates of speed, on
roads having curves of but a few hundred feet radius, evidently, never entered into Mr. Allen's mind.  As regards
these wants, his inventive faculty was, unquestionably,
idle.  His car wanted the nearness of the truck wheels, the
remoteness of the trucks, and the free motion of the latter.
If he thought of the purpose accomplished by this combination, the combination itself was unseen by him.
Now what is it, in connection with this whole category
of English publications and American machines, that we
desire to prove? Why this? That an engine put on eight
wheels to save the rails-a car looking to the mere distribution of weight in the best way, only,-do not, even with a
contrivance for swivelling, more or less imperfect, make the
transition from them to such a car as is described in the
specification, such a mere dictate of common sense, as to
involve no merit, and call for no exercise of inventive
power, on the part of him  who accomplishes the true
result.-And to prove this, Mr. Allen is, perhaps, our most
important witness.
In the first place, he is not only a man of common sense,
but an engineer of the highest standing, whose deserts find
their just reward in his eminent position.
In the next place, he was int charge of a road with curves
of but four hundred feet radius, and his engine on eight
wheels was in connection every day with four-wheeled passenger cars, so that a comparison between the two might
be made at'any time, whenever his eyes were opened to its
importance.
Again 3Mr. Allen tells you, gentlemen, that frequently




ARGUMENT.                     85
when he desired to write, while the train was in motion, he
went from the passenger cars to the engine, on account of
the greater steadiness of the latter.
And yet, notwithstanding all this, when more passenger
cars were wanted, he ordered four-wheeled ones!
Surely, this is demonstration. With all the elements
before him, under the most favorable circumstances, Mr.
Allen's failure to produce or suggest a steadier passenger
car-a car that he could write in-can be explained but in
one way, which is, that common sense was incompetent, of
itself, to the new exigency; and that Mr. Allen, on this
occasion, perhaps the only occasion of his life, was deficient
in the inventive power, the genius, if you please, which
was required by the necessities of the occasion, which distinguishecl the Plaintiff, and for the exercise of which he
holds his patent and its extension.
To all, therefore, that has been said by the defence, in
regard to the ability of mere common sense, operating upon
existing knowledge, to produce the eight-wheel car, we
oppose the undisputed facts of Mr. Allen's own personal
experience.
He was "burning," to borrow a term from a children's
game,-so close was he to the discovery; but unconscious
of his proximity, with all his common sense he turned his
back upon it, and, growing "colder and colder," comrnmenced a search in an opposite direction.  This we will
now proceed to shew.
On the 16th May, 1831, while Cromwell was at work on
the body, and Gatch on the running gear, of the Columbus,
Mr. Allen wrote a letter, which has been relied upon as
proving his perfect knowledge of the eight-wheeled car.
But for the grave character of my learned opponents, and
12




86                   ARGUMENT.
their thorough study of this cause, I should have looked
upon the introduction of this letter as a jest, or a mistake.
Recollect that the Defendants' argument is to shew that
Allen Runderstood and appreciated in May, 1831, the swivelling truck, as a means of facilitating the passage of curves of
but a few hundred feet radius,-the truck, which is now used
on the vast majority of American engines, and which is so
important an element of the eight-wheeled car. As a matter of course, if he understood it for the engine, he understood it for the car: at least so runs the argument of our
opponents. In other words, the argument is, that Allen had
the knowledge, as well of the present uses, as of the future
developments, of the truck in question, whether applied to
car or engine.
But, gentlemen, I propose to shew you, from this very
letter, that so far from appreciating the present structure,so far from even understanding what Winans and Jervis
did, subsequently, for the Herald, the Experiment and the
John Bull, in accommodating these "locomotive carriages
to the passage of curvatures," by providing them  with
swivelling trucks, Mr. Allen actually ignores what is now
in universal use for car and engine, and actually recommends a system, which no one but poor Fairlamb has since
dreamed of attempting, and which dispensed with the swivelling truck altogether.
Now hearken to Mr. Allen. -I read from his letter:
"No attempt has yet been made to accommodate the locomotive carriage to the passage of curvatures,- by producing
the means of changing the parallelism of the axles, and giving
them  the relative inclination that the radius of curvature
requires."  There is no reference, here, certainly, to the
truck, as the agent in all future success.




ARGUMENT.                      87
Mr. Allen then goes on,-I"I consider it a ppint well
worthy of examination, and not presenting serious difficulties.  IZfully believe that on the Baltimore and Ohio Rail
Road experience will compel them  to have recourse to it.
Yes, gentlemen, this very road, on which this very Plaintiff was, at the date of that letter, toiling to bring to perfection, not the suggestion of 5Mr. Allen, out of which nothing
ever grew but Fairlamb's patent —but the system which
this letter of the 16th of May, 1831, is relied on to appropriate to Mr. Allen himself.
But listen, gentlemen, to what follows. "If it be asked,"'
continues Mr. Allen, "'why, with the views here expressed,
I do not recommend the introduction of some such arrangement, I would reply, that no improvements, however much
they may promise, can be effected without considerable
expense and frequent disappointment."  Ecce signumn,
(said Mr. Latrobe, suspending his reading, and pointing to
the scroll of drawings from the Columbus to the Washington cars; then reading further) "all of which may, with a
little patience be incurred and borne by others." Ecce homo,
(said Mr. L. again suspending his reading, and pointing to
the Plaintiff, near to him.) "The age, especially as regards
this subject, makes its improvement by the month, and few
cannot possibly pass by without contributing some important facts connected with it. And so fortunate do I consider the situation of the present undertaking, that I fully
believe, while it prudently gathers the experience of others, it
will, nevertheless, take the lead in transportation by, the
hundred miles with the speed and economy of rail roads."
Gentlemen of the jury, is it necessary for me to prolong
the argument in regard to what Mr. Allen did, or to what
his doings or his sayings could have taught?  The failure




88                  ARGUMENT.
of such a man-so very able a man-even when under the
pressure of circumstances, to suggest any practical plan of
overcoming an apparent difficulty, is the best vindication I
can offer of the ability and merit of my client: and I have
only to regret that while Mr. Allen was willing in 1831
to recommend the South Carolina Rail Road Company,
prudently to gather the experience of others, he should
have been brought forward in 1855 to prejudice the Plaintiff's claim.
I now pass to the Jervis engine, as next in order. Here
gentlemen, I shall not say a word of my own. My sole
argument shall be an extract from Judge Conkling's charge
to the jury in the case at Canandaigua.
"One part of the evidence in the present case will serve
to illustrate this. I allude to the deposition of Mr. Jervis,
one of the Defendants' witnesses.  The effect of it is to
show that he devoted a great deal of time and thought before he succeeded in applying the four-wheel truck usefully
to the locomotive engine. Mr. Jervis is conceded to be a
man of Mhgh endowments and of great eminence as a Civil
Engineer. I will read to you his account of the introduction and improvement of the engine on the Mohawk and
Hudson Rail Road.'I have paid,' he says,'a great deal of attention since I
have been connected with rail roads, to the construction of
locomotives and cars. I have a good deal of knowledge of
the principle upon which the running part of a locomotive
and cars which are now used, and which have been in use
since I have been engaged in my profession, have been constructed and used. My attention has been particularly
directed to the subject of the arrangement of the wheels of




ARGUMENT.                       89
locomotives and cars, to facilitate the running of locomotives and cars on curves; my attention was very early directed to that subject  It was a subject on which I had
often thought a great deal, but made no experiments until
1831. In 1831 and early in 1832, Iwas very muchl engaged
in devising some mneans by which four wheels could be substituted for two, as the leading wheels of the locomotive, and
finally prepared a plan by which the forward end of the
locomotive was supported by a sort of independent carriage,
consisting of four wheels. These wheels were placed near
to each other, and worked under the main frame of the
engine, which rested mainly on the outside timbers on friction rollers, supported in its lateral position on the frame of
the independent carriage by a centre-pin, and this independent carriage being a substitute for the two wheels
formerly used.'
"Mr. Jervis, you will see, here represents himself to have
been, as he doubtless was, an original inventor or contriver
of the great improvement which he thus describes; but this
was the year after Mr. Winans made a like application of
fobur-wheeled trucks to the Columbus, and about the time of a
similar improvement made by him on the locomotive Herald,
as is testified to by Mr. Alexander.
"Now you have seen that both the carriages described in
the English books, to which I have referred, are locomotives, designed, however, for purposes very different from
the transportation of passengers over long rail roads; one
of them is exhibited in the drawing with but six wheels,
but the inventor has said that where the load was so heavy
that it would injure the road, a double pair of driving
wheels might be substituted for the single pair of driving
wheels with fixed axles, and this suggestion is relied on by




90                  ARaUMENT.
the counsel for the Defendants to disprove the novelty of
the Plaintiff's invention.
"Now these books were equally accessible to Mr. Jervis
and to 3Mr. Winans, and, considering their characters and
the nature of the pursuits of these gentlemen, it seems not
unreasonable to conclude that they were both acquainted
with them. But we see nevertheless, from the evidence of
Mr. Jervis, that it was only after long and laborious study,
that he succeeded in making an improvement in the locomotive corresponding with that which it is insisted Mr.
Winans made in the passenger car. The locomotive in use
on the English railway, had one pair of running wheels on
a fixed axle, as the passenger carriages both in England
and those in this country (then few in number) had a single
pair'of wheels on a fixed axle at each end; and Mr. Jervis,
after the earnest and persevering devotion of his faculties to
the subject, and as far as we are apprised, with all the
lights possessed by Mr. Winans, at length succeeded in devising and adopting a four-wheel truck for the support of
the forward end of a locomotive, as Mr. Winans did in devising a like improvement for the support of each end of a
passenger car. Now, with these circumstances before us, I
must say, that it seems to me to be requiring a great deal at
your zhands to ask you to say that there is no merit in what the
Plaintiff claims as his invention. But, gentlemen, it is for
you to determine whether you find in it anything, substantially different from these other things previously in use."
And lastly, gentlemen of the jury, we have the Fairlamb
patent urged by the defence.
The only result of Mr. Allen's suggestion seems to have
been to set Mr. Jonas P. Fairlamb, of Philadelphia, to




ARGUMENT.                      91
work; and we have a patent taken out by him, in which he
describes a very original mode of making the axles of a
rail road car conform to the radii of curvature.
Mr. Fairlamb's patent was one of those destroyed by fire
in the Patent Office, in 1837. When he forwarded his
patent, with a set of drawings to be re-recorded, the eightwheeled car had for some time been recognized as a valuable
invention.
The original patent makes no mention of more than four
wheels. The specification is dated on the 29th December,
1832. When the new drawings were filed however, one of
the figures on them was made to represent the application
of the contrivance to a car on eight wheels.
In his affidavit, dated September 2nd, 1837, the Patentee
does not swear that his drawings are copies of those
originally filed, but that they are, "as he verily believes, a
true delineation of the invention."
Taking into view, then, that his specification makes no
mention of an eight-wheeled car, which was certainly of
sufficient novelty to be noticed,-that the only part of his
drawing at all matured, or referred to, in the specification,
is of a four-wheeled car,-that his application of his notion
to an eight-wheeled car, is rude and immature,-that his
invention was one, that would have made an eight-wheeled
car unnecessary,-and that Mr. Fairlamb's affidavit is so
vague, as to warrant the idea that there was a purpose in
making it so,-we are driven to the conclusion, that so much
of his drawing as delineates an eight-wheeled car is an after
thought, which occurred to him as he saw the car getting
into vogue, and, naturally enough; felt disposed to show
how his improvement could be attached to it.




92                   ARGUMENT.
And therefore, gentlemen of the jury, without further
corninent, I dismiss Mr. Fairlamb —ancl here close the examination of the English publications and American contrivances set up by the defence.
Let me now, for a moment, have your attention while I
recapitulate.
Our patent was first offered. The defence was, that the
Plaintiff was neither an original, nor was he the first inventor; or that, if either, he had abandoned the invention
before, or after the date of the patent.
In rebuttal, we have, we think, established the fact of
the originality of the invention, notwithstanding the testimlony from Baltimore, by testimony at least much stronger
from, the same place, and by all the corroborating circumstances of the times.  We have shewn, we believe, the
priority of the invention by distinguishing it from  all that
had been previously done in England, or this country, in
all the features, which characterize it, as described in the
specification.  We have made manifest, we trust, that there
was no intention to abandon what was proceeding towards
perfection in a series of successive experiments-referring to
the use-in public by the Rail Road Company, as a necessity
of the occasion, looking to testing, practically, the value of
the invention,-and we have explained the subsequent
delay in litigation by giving to you the history of the proceedings, which have brought us, at last, before a jury of
New York.
In my argument, gentlemen, I have endeavored, looking
to the ground to be gone over, to avoid crowding it with
details; seeking rather to fix your attention upon the leading features of the case, and to discuss the strong points on




ARGUMENT.                     93
which it must ultimately turn, than such minor matters, as
would, in my judgment, after all, be immaterial to the result.
In this I have differed widely from my learned opponent.
But every bar has its peculiarity; and that of Massachusetts,
judging from the course pursued by its representative here,
is a careful and laborious examination into detail, which,
praiseworthy as it is, I do not feel competent even to attempt
to imitate. Perhaps too, the picking up of the pebbles on
the strand is not the best way of appreciating the glories
of the spectacle as the sun sets upon the sea. But I may
be wrong. Two days, however, as you can readily understand, were wholly insufficient to enable me to follow any
other course of argument than that I have pursued.
The simplicity of the invention has been one of the difficulties that I have felt throughout. Now that we see it,
every one of us fancies he could have invented it. Mr.
Detmold, one of the cleverest of the Defendants' witnesses,
looking at the Allen car, replied to a question, as to its
being the same as the Winans invention, "the idea is
there, if you start with the intention of finding it."  Certainly, gentlemen; but then you must know what you
want, before you can intend to look for it. So that, epigrammatic as was Mr. Detmold's answer, it amounted to
nothing more than explaining his own position, which was
that of a man, who, knowing all about the eight-wheeled
car in common use, sees how he can convert Allen's engine
into one, and cannot persuade himself that a stranger to
the present system would have any difficulty in doing so.
"The idea is there, if you will start with the intention of
finding it," says Mr. Detmold. So was the woman's form
in the block of Parian marble, before the Grecian Sculptor
extricated by his genius, from her rigid prison, and gave
13




94                  ARGUMENT.
unto the admiration of his own, and all succeeding ages,
the Medicean Venus. So existed this western world, before
the Genoese sailed from Palos with intent to find it. And
yet my opponent would place the man who did but quarry
out the stone, and the sailor who saw the sun go down into
the sea without thought of the continent beyond, in the
same rank with Praxiteles and Columbus. No, gentlemen
of the jury, it is the idea, confined to one intelligence, the
intent to find, exhibited in the action of the single individual, that constitutes invention; and it makes no difference,
whether the result be "the bending statue that enchants
mankind," a hemisphere with its continents and isles, or the
car which now conveys its millions of persons, and tens of
millions of treasure, along the iron highways of the land.
But, gentlemen, whatever may be your estimate of the
merit of the Plaintiff in this action, however well deseriing
he may be of the rewards which the law bestows on the
public benefactor, unless'he can bring himself within the
letter of that law, he is remediless in the premises; and I
proceed therefore to my third division, and propose to
enquire into the sufficiency of the specification, which lies
at the foundation of the rights of the Patentee.
The whole theory of the patent law is to reward those
who have deserved well of their country.
The universal'practice of the courts has been to construe
the law liberally.
The patent is not a contract, made by parties having
mutual rights to settle and define.
It is a grant from the sovereign to the citizen, in the shape
of a reward, and for the purpose of encouragement.




ARGUMENT.                      95
But to entitle the Patentee to the reward, which consist in
the exclusive right to his invention for a specified time, there
must be such a description of it filed in the Patent Office, as
shall give to the. public, at the expiration of the time, the
information that shall enable them to use it. This is the
office of the specification, accompanying the patent.
The Patentee must do three things to which the law
prescribes. —He must let the public know what he claims.He must teach the public how to construct it, if it is a machine;-and he must inform the public how it operates, to
produce the proposed result.
It is contended by our opponents, that the specification is
defective in all these particulars.
Whether this be so, is a question partly of law and partly
of fact, and I therefore address myself in the first instance
to the Court,-and I propose to enquire
First. What is it that the Plaintiff claims.
For the Plaintiff, it is contended that he claims — a car
with a body of double the ordinary length, of those which
run on four wheels, and capable of carrying double their
load,' supported on two four-wheeled swivelling trucks,
placed at or near the extreme ends, the wheels of the trucks
being comparatively very near together, that is to say,
nearer than would be admissible in the wheels of a fourwheeled car for the same road.-The result being an eightwheeled car, capable of pursuing a more smooth, even,
direct, and safe course, at high velocities, over roads having
curves of but a few hundred feet radius-than the fourwheeled cars constructed and in use ordinarily at the date of
the patent.
For the Defendants, on the other hand, it is contended



96                   A R.G U MEN T
that the Plaintiff's patent is for a combination of three
elements, to be found in the trucks only-that is to sayFirst. Wheels close up to each other.
Second. Long springs connecting them.
9ihird. An exclusive centre bracing.
Or, to make the antagonism more apparent-The Plaintiff contends that the patent is for the car, as a whole —and
the Defendants, that it is for a truck -a part of the car.
The Court sees, at once, that upon the construction of
the specification turns the whole case.
It is sometimes necessary to go outside of an instrument,
that the circumstances connected with it, and calling for it,
may be used to aid in its construction. There is no such
necessity in this case. The specification tells its own story
throughout, and in the language of Judge Conkling'is
remarkable for its perspicuity.
The specification may be divided into two parts: the first
of which describes the new emergency, calling for the invention, to wit: the public demand for high speed on roads
with curves of but a few hundred feet radius; ancl the
second describes the means suggested to meet it.
And, then, after a reference to the four wheel cars in use
at the time, and explaining the principles upon which the
position of their axles under the body is determined, the
Patentee goes on to say:
"'The object of my invention is, among other things, to
make such an adjustment or arrangement of the wheels and
axles, as shall cause the 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 before-mentioned
desideratum of combining -the advantages of the near and




A RG UM ENT.                    97
distant coupling of the axles and other means to be hereinafter described."
This is certainly very clear.
It is the body, that is to be made to pursue a more smooth,
even, direct, and safe course.-The effect, whatever the
means, is to be produced on the body. But, how? Why, by
a peculiar arrangement of the wheels, that shall supply
the desideratum of combining the advantages of the near
and' distant coupling of the axles and other means to be
described.
In a previous part of the specification, the Patentee refers
to comfort, safety and economy, as considerations, in this
connection, of very great importance. Now, these are, all
of them, considerations relating to the car, as a whole.
Comfort is the comfort of the passengers carried: safety
relates to this sort of transportation: and economy has
regard to the number occupying, conveniently, a single
car. But none of these considerations have anything to
do with the particular form of the trucks under the ends
of the body. These may be of the form preferred by the
Patentee, or after the fashion of the common bearing carriages. Either form  will gratify the description of the
specification. Use which you will, with the eight-wheeled
car, comfort, safety and economy will be the result.
It would seem apparent, then, from the scope and spirit
of the specification, that the Patentee intended by it to cover
the car he had invented, as a whole. The object of the law
is to reward those who have done good service to the public;-that which confers the benefit, is what should receive
the recompense. The car, then, and not the truck, is that
which the patent should protect; unless, indeed, the language used by the inventor is such as to control absolutely




98                   ARGUMENT.
the judgment of the Court.  Were this not so — were
Courts to look at patents, to find how rigidly they might
construe them,-they would be placing themselves in the
category of those, who, instead of devoting their genius
and toil to the promotion of the useful arts, employed them
in contriving how they could best appropriate to their own
use the labors of others, without either acknowledgment
or compensation.
In asking your Honor, then, to construe the specification
as covering the car as a whole, —we rely, first, upon the
clear meaning of the terms used: —again, upon the spirit
and scope of the instrument; —and, again, upon the fact,
that it is the car, as a whole, that promotes the comfort,
safety and economy aimed at; and that these are obtained,
whether the truck is of the form preferred by the Patentee,
or of the fashion which he suggests as an alternative construction.
A word, now, concerning the argument on the other side.
This rests upon verbal and grammatical criticism. To
understand it, we must read the claiming part of the specification.
"'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 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



ARGUMENT.                      99
described manner of arranging and connecting the eight
wheels, which constitute the two bearing carriages, with a
rail road 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."
The whole argument, it would seem, turns upon the
proper antecedent to the words —"the before-desoribed
manner. "
Einphasing "described," the Defendants' counsel would
read it "described in detail;"-and there being but one
description in detail in the specification, -which is the
description of the spring truck,-he arrives at the conclusion that this is the proper antecedent: and that, in asking a
patent for "the before-described manner," the Plaintiff asked
for a patent for the spring truck, with its three elements,very close wheels,-a long spring connecting them,-and a
bearing exclusively on the centre of the bolster.
Now the value of this argument depends upon the necessity of a detailed description, to constitute a proper antecedent to the words in question.
But -surely, it is too late to deny now, that id certum est
guod certum reddi potest. Even Copeland, the eminent engineer, who testified for the Plaintiff, told my learned opponent, in reply to a question touching this very point,-"' if
you refer to a chain, you as thoroughly explain your meaning, as if you described it to be bars of iron, cut into lengths
and welded into links connected together."
It so happens, that the specification contains two descriptions-one a general description of a car, the other a detailed description of a peculiar truck.
One of these descriptions, the Plaintiff, with certain
objects in view, wanted to patent.




100                 ARGUMENT.
One of them would secure the object he had in view, —
the other would not.
The general description of the car describes that which
benefits the public.
The particular description of the truck describes that
which the Plaintiff himself tells you, may be varied in
fashion without affecting the result.
Then, which of these descriptions is it probable the Plaintiff had in his- mind at the time he prepared the specification, and to which he desired that the words, "the beforedescribed manner" should relate?  May it please your
Honor, can there be a doubt upon the point? Even could
there otherwise be a doubt, is not the matter placed beyond
all controversy,-resorting, now, to verbal criticism on our
part,-by the word "'with" in the same sentence. The Patentee might have stopped at the word "carriages" —when
the sentence would have read-"what I claim 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;" and had he
stopped here, there would have been a firmer footing for
the Defendant. But no! the arranging and connecting is
not to be of the eight wheels among themselves, but the
arranging and connecting these eight wheels "with a rail
road car, so as to accomplish the end proposed."
If it were required to corroborate these views, ample corroboration is to be found in the'prefatory part of the claiming clause of the specification.
The Patentee then refers to what had been done. He
tells you it was merely with a view of distributing the
weight; —that it was for objects distinct from those he had
in view-objects, not even accidentally accomplished before




ARGUMENT.                     101
his time. Whatever it was, then, that he did, had reference to new objects-to new results in rail road transportation; and if these results depended upon the car, as a whole,
and not upon particular portions of it, as unquestionably
they did, it must be to the car, as a whole, that his claim
relates;-in other words, the antecedent to the words "the
before-described manner" is,the general description of the
eight-wheeled car, and not the particular description of
either the peculiar, or alternative, construction of the truck.
For still further corroboration of these views, I might
refer to the testimony of the Defendants' principal witness,
Mr. Waterman, who told the jury, in so many words, when
examined as a mechanical engineer, in regard to the meaning of the specification, as it impressed itself on one skilled
in its subject matter, that the essential invention was the
nearness of the wheels in the trucks, and the remoteness of
the trucks. He testified, as your Honor may recollect, that
this seemed to be the Plaintiff's idea: and this, is the
idea we ask you to protect, as the Plaintiff's property, in
your charge to the jury.
Perhaps, it was to deter me from this line of argument,
that my learned friend anticipated it; but at the same time,
took occasion to say, that he would not impute to me the
intention of using what was but a sorry subterfuge.
My learned friend might have spared himself the trouble
of my vindication. The argument, he has called a subterfuge, is what I uphold as truth: and, what is far more in
its behalf, is the argument, as I shall show, of Chief Justice Taney, of Judge Nelson, and of Judge Conkling, when
the last named Judge was on the bench, and tried this
case at Canandaigua.  Subterfuge!  May it please your
Honor, my learned friend is not happy in his terms.
14




102                         ARGUMENT.
Assuming, then, that I have laid a sufficient foundation
for doing so, I ask your Honor to charge the jury in the
following words, —which, using the language of the Courts,
with whose practice in the South I am familiar: I will call
The Plaintiff's First Prayer.
"That according to the true construction of the Plaintiff's
patent, he claims to be the first inventor of a car with eight
wheels, arranged and connected, as a whole, in the manner,
and acting upon the principles stated in his specification,the  object of which, is to' make  such  an  adjustment, or
arrangement of the  wheels and axles, as shall cause the
body of the car to pursue a more smooth, even, direct and
safe course, both over the curved and straight parts of a
rail road."
By referring to the instructions to the jury in the Maryland  case, your' Honor will find that I have pursued the
very language of the Chief Justice, with the single addition
of the words "as a whole," which  I have taken from  the
opinion which Judge Nelson pronounced, when he refused
a new trial in the Canandaigua case.*
* At this place in the argument, the counsel was interrupted by the Court, and
the following remarks were made,-ending with Mr. Latrobe's abandoning the
discussion of the law, and addressing himself to the jury. But as an argument in
a cause like this-wherein no notice is taken of the law, and no instructions are
prayed to be given to the jury,-is, to one accustomed to practice in Maryland,
very much like "Shakspeare's play of the Prince of Denmark with the part of
Hamlet Qmitted"-the argument that would have been made is here and there
suggested, as though in fact delivered-the justification being a desire that the
whole report may appear consistent; and there being a precedent in the Halls of
Legislation, if not in the Courts of Justice, for the publication of what might be
called constructive argumentation.                          J. H. B. L.
The Court.-If I hear these points discussed on your side, then I am bound
to grant the other party an opportunity to discuss the propositions of law. But
this business must be managed with some view to practicability. The argument




ARGUMENT.                              103
Judge Taney's meaning is very plainly to be seen iA his
second instruction. Had he intended to confine the patent
to the trucks, he would not have spoken of them  as being
must close to-day; but if you argue half an hour or so upon the specification,
pointing out the legal construction that you claim, and refer to your authorities,
then the other side will expect to answer. In order that they should have the
slightest benefit, the Court should take time to consider the points which would
render it necessary to defer, the charge after the close of the argument. You
must either rely upon the written propositions you have submitted or submit
others. Those you have submitted I have already gone over.
Mr. Latrobe.-I will then pass by, at the suggestion of the Court, that part
of my argument, that I had intended to make upon the specification. Your
Honor will do me the justice to say, that you have made no suggestion during the
progress of the trial, with a view to shorten the speeches, to which I have not
most cordially acceded.
The Court.-I was going to add, that, in the early stage of the case, I had
personally a preference to the mode of presenting such complicated cases to the
jury, pursued in some of the Southern Courts, over that which is practiced here.
I think if the gentlemen had argued the propositions of law at the beginning, and
given me an opportunity to decide upon them, the result might have been to
abridge this trial. But now, to ask me impromptu, to.meet all these multiplied
and intricate questions of law, would certainly, not be a pleasant matter.
Mr. Latrobe.-I will not pursue this part of the argument any further. Your
Honor has already my nine or ten propositions, and I will only refer to the decision of Chief Justice Taney upon one point. He places the Columbus, the
Winchester, the Dromedary and the Coniet, in antagonism to the car described
by the Patentee, which he would not have done if he had not looked upon the
patent as for a whole car. He then places the Timber car in antagonism to the
claim of the Patentee, which he would not have done had he not looked upon the
claim of the Patentee, as for a -whole car. Again, he speaks of the patent as a
patent for a machine, and he uses the term machineThe Court.-It should be obvious to the counsel that I could not discharge my
duty by examining the opinion of Chief Justice Taney and Judges Nelson and
Conkling, I could not give them that perusal which would be necessary with a
view to legal results. Besides, so far as myimpression goes, it is arrived at already
in my mind; and I am prepared, at any instant, to make my remarks to the jury,
after the close of the argument.
Mr. Latrobe.-Then I will go no further, but address myself again to the jury.




104                 ARG U MENT.
well known, nor would he have spoken of the invention
that was patented as a machine, which is an aggregate of
parts, not a part of an aggregate! And again, Judge Taney,
in his fourth, fifth and sixth instructions, antagonizes the
Columbus, Winchester, Dromedary and Comet,-cars, existing, as a whole, each, with the car patented, as a whole.
Judge Conkling said, "'that the patent was valid if the
Plaintiff's car was substantially on the whole, a new and
useful thing."
Judge Nelson in the opinion already referred to, on the
motion for a new trial says.
"His claim is for the car itself, constructed and arranged
as described in the specification."
"The question is, whether or not cars or carriages for
running on Rail Roads, as a whole, substantially like that
described in the patent, had been before known,-not
whether certain parts are, or are not, substantially similar."
Again, in view of the argument now made for the defence, Judge Nelson says:
"'The argument presupposes that the claim is for the discovery of a new combination and arrangement of certain
instruments and materials, by means of which a car is constructed of a given utility; and that if any one or more of
the supposed combinations turn out to be old, the patent is
invalid. This is the principle upon which much of the
defence has been placed, but no such.claim is found in the
patent; no particular combination or arrangement is pointed
out as new, or claimed as such. The novelty of the discovery is placed upon no such ground; on the contrary, the
result of:the entire arrangement and adjustment of the
several parts described, namely, the rail road car complete,
and fit for use, is the thing pointed out and claimed as new.




ARGUMENT.                     105
This is the view taken by the Chief Justice of the patent,
in the case of the present Plaintiff, against the'Newcastle
and Frenchtown Turnpike and Rail Road Company,' tried
before him in the Maryland Circuit, and which was adopted
by the Judge in the trial of this case."
Afterwards, at Cooperstown-after hearing my opponent's
argument,-the same that has been made- here, Judge Nelson says:
"'As we heard when the patent was formerly before us,
the improvement claimed is the car itself, arranged and
constructed as described in the patent, and which we have
above, in substance, set forth; and the question now before
us is the same as was before the jury in the former -case,
namely, whether or not cars or carriages for running on
rail roads, as a whole, like the one described in the patent,
had been before known or in public use?  And whether or
not, the cars manufactured by the Defendants are, in arrangement and construction substantially like it?"
Judge Taney's instruction, which the first prayer in this
case follows, speaks of the invention as "a car with eight
wheels, arranged and connected in the manner and acting
upon the principles stated in his specification."
That the jury may not be at -a loss, either as to the manner or the prnc irles referred:to, we offer the second and
third prayers; having regard too, to the act of 1793, which
requires the Patentee to explain the principles of his invention.
And, that the antagonism of the Plaintiff and the Defendant, as respects the construction of the specification,
may admit of no question, the fourth prayer is offered,
although the necessity for it is really obviated by the prayers
that precede it.




106                  ARGUMENT.
The language of the second and third prayers is carefully
copied from the specification: the fourth is taken from  the
latter portion of Judge Taney's first instruction in the
Maryland case, inserting, in place of the defences relied on
at that time, the defences set up here.*
The Plaintiff's Second Prayer.
"That the manner of the arrangement and connection
above referred to is to place upon two bearing carriages, as
described in the specification, the body of the passenger
or other car therein mentioned-the bolsters of the bearing
carriages and car body respectively being connected together
by a centre pin or bolt, allowing them to swivel upon each
other, and the bolsters being either so far within the ends
of the body, so as to bring all the wheels under it, or at or
near the ends of the body, or so far without as to allow the
latter to hang down between the bearing carriages."
The Plaintiff's Third Prayer.
"That the principle set forth in the specification, upon
which the arrangement and connection are to effect the
object aimed at, is-that by the contiguity of the fore and
hind wheels of each bearing carriage, the lateral friction of
the rubbing of the fianches against the rails, is avoided,
while at the same time, the two bearing carriages, being at
any desirable distance apart, consistent with the required
strength of the body of the. car, the advantages attendant
upon placing the axles of a four-wheeled car far apart, are
obtained."
The Plaintiff's Fourth Prayer.
"That the Plaintiff does not claim to be the inventor of a
* Copies of the Prayers had been handed to the Judge before the summing up
commenced.




ARGUMENT.                     107
combination consisting  of three elements, to wit-'the
closeness of the wheels, the connection of those wheels by
a long spring, and the bearing of the weight of the load
exclusively upon the centre,''for the purpose of carrying
the load smoothly, saving friction upon the road, and
enabling the cars to turn the curves.' But he does claim
as his invention the manner of arranging and connecting
the eight wheels as specified in his patent for the object referred to in the first of these inventions, and also the connection of a rail road carriage body with them adapted
either to the transportation of merchandize or of passengers. "
Addressing myself to you, then, gentlemen of the jury, I
shall assume that his Honor will instruct you according to,the tenor of the propositions submitted to him, and the argument of which I cheerfully forbear, at the suggestion of
the Court.
But it is not the Court alone that has to deal with the
specification. The jury has its functions in'regard to it.
The specification, to be a good one, must contain such a
description as will enable a person, skilled in the art of
car building, to make the car patented as a whole-a
matter of which the jury are to judge from the testimony.
And the jury must be satisfied, that the specification contains a correct explanation of the principles of the invention, and also of the modes of its operation.
The Defendants insist, that the specification is defective
in both these particulars.
As regards the description addressed to the car builder,
they say,
First.-That no length of body is given.




108                  ARGUMENT.
Second.-Nor any precise distance between the truck
wheels.
Third. —N or any precise distance between the trucks, nor
between the trucks and the ends of the body.
Fourth.-Nor any mode of draft.
Then, as regards the explanation of the principles of the
specification, the Defendants say, that the explanation attempted there is false, and calculated to mislead, instead of
instructing the public.
First. Because friction on curves is, in point of fact,
independent of the proximity of the truck
wheels-while the Patentee says the contrary.
Second. Because the free swivelling trucks that are
recommended are injurious.
7'hird. Because the axles, instead of being as near
together as circumstances will permit, according to the specification, should be as far apart
as the distance between the rails.
Fourth. Because the long spring of the Patentee's proposed construction is vicious and unsafe.
Fifth. Because it is false, that length of body is necessary to ease of motion.
Sixth. Because it is better to draw by the trucks, than
to permit the free swivelling that the specification, in its whole scope, recommends.
It would be easy, gentlemen, to shew you that many of
these objections are either captious, or have nothing to do
with the case. But it is easier to answer them, on the supposition that all are relevant.
Before you undertake to construe the specification, you
must lay down some general rule to go by.
There are two modes. One is the Defendants, which




ARGUMENT.                     109
consists in picking out words and phrases, without any regard to what has gone before, or comes after, or the immediate connection of the particular sentence. It is a method
of construction that would justify that edition of the Bible,
where the word "not" was omitted in the seventh commandment.
The other is to take the specification as a whole, read it
through, look at its words in their common acceptation,
and then, before you form your judgment, recall the impression it has made upon your minds. This is the course that
you pursue on all other occasions where you read that you
may be informed; and I take it for granted,; that, as it is a
course suggested by common sense, you will not depart
from it under your present responsibilities.
Taking up, now, the objections of the defence, in their
order, I proceed. —
The first is, that no length of body is given.
But is not the main idea of the specification, a car to be
supported on eight wheels: and are not the considerations
involved in this declared, in terms, to be comfort, safety
and economy: and would either comfort or economy be promoted by putting eight wheels under a car of the usual
length of a four-wheeled car? Comfort, we say, so far as it
depends on ease of motion, increases with the length of the
car; and as regards economy, unless the number of passengers can be multiplied thereby, the addition of eight wheels
is a most unnecessary expense.  Indeed, doubling the
length accompanies the idea of doubling the number of
wheels, as the shadow accompanies the substance. The testimony of Mr. Renwick, clear and conclusive throughout,
was especially so on this point. It is corroborated, too, by
the experience of the country; for, wherever eight wheels
15




110                 ARGUMENT.
are used, there the car body is invariably double the length,
or more, of the ordinary four-wheeled car.
But we are not left to inference on this point.  The
Patentee tells us in words,
"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."  Folio 23.
Again, having reference to length, he says,
"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."
Folio 26.
Again, at folio 27:
"For by the contiguity of the fore and hind wheels of
each bearing carriage, while the two bearing carriages may
be at any desirable distance apart."
Again, folio 28:
"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 seems, then, there can be no doubt that length, with
its consequential advantages, was a leading idea in the mind
of the Patentee.
The objection, however, admitting this for the sake of
the argument, insists, that this length should be defined,
by which we understand, expressed in feet and inches.
In place of feet and inches, however, a better standard,
addressed to those for whom the specification is more especially intended, is given, when they are told to make the
car of double the ordinary length, where they propose to
put it upon double the ordinary number of wheels;-'that




ARGUMENT.                      111
is to say, to make an eight-wheel passenger car, double the
ordinary length of a-four-wheeled passenger car, and an
eight-wheeled burden car, double the ordinary length of a
four-wheeled burden car.
I take it for granted, that the gentleman from Massachusetts is too good a lawyer to pretend, that, if the Patentee
had given a length, in feet and inches,-thirty feet for
instance, —a builder, who had made a car thirty-one feet
in length, would find, in the additional foot, a shield
against the consequences of infringement. Certainly not.
In such a case the Court would leave it to the jury to say,
whether the variation from the terms of the specification,
was colorable or substantial,-whether the Defendant, in
what he had done, "had taken," in the words of an eminent English Judge, "a leaf out of the Plaintiff's book."
So, here, the instruction of the Court to you, gentlemen of
the jury, will be assumed to be, that the reference to a standard that was well known, was a sufficient indication of the
length of the car; and that if the Defendants, in this respect, have availed themselves of the Plaintiff's'instructions, as contained in the specification, they are responsible
to him.
Branching, afterwards, from the main idea of their objection, the Defendants insist, that if there is any description in regard to length, it has been exceeded,-their cars
being more than double the ordinary length; such being
the case indeed with the eight-wheeled cats all over the
country.
The development of the Plaintiff's idea, however, were
there, otherwise, a foundation for this branch of the objection, would not lessen the responsibility of those who had
made use of it as the ground-work of their operations.



112                  A-RGUM E  T.
The invention was complete in this regard, when doubling
the length for the purposes indicated, was suggested.Mere increase of length, afterwards, involved no new invention-suggested no new principle.
But, the specification settles this question. The Patentee
tells you, that "the bearing carriages may be placed at any
distance from each other, consistent with the required strength
of the body of the car."  Here, then, is the clearest indication, that the car body may be as long as the strength of
the materials employed will admit,-and this is a conclusive answer to the objection.
We,-therefore, contend, that a description of the length,
in feet and inches, is unnecessary.
First. Because there is a sufficient reference in the specification to a well known standard.
ASecond. Because, although this standard varies. according to circumstances, and the taste and fashion
of builders, it still remains a certain one, in
view of the exigencies of the case.
Third. Because the specification looks to any increase
of length, consistent with the strength of the
materials.
But the following passage in the specification is. relied
on to shew, that, notwithstanding all that is here said,
length of body was an unimportant consideration in the
Plaintiff's mind:.
"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




ARGUMENT.                              113
by increasing or diminishing  the length of the body, while
the extreme  ends of it continue to  rest on tile bolsters of
the bearing cars, the.load being supposed to be equally distributed over the entire length of the body."
This, however, is the  statement of a  mechanical truth
having express reference to the car that he describes,-a car
of double the ordinary length, capable of carrying double the
ordinary load, and capable of being increased to any length
consistent with the required  strength of the materials,-a
statement not controlling, by  any  means, the  scope  and
spirit of the specification.
The object of the Patentee is to justify, so to speak,; the
location of his trucks under the extremities of the body,
and to compare the advantages of this position, with the
position between the middle and the ends of the body.  A
diagram, exaggerated purposely for illustration  sake, will
explain this, at once, while, at the same time, it illustrates
a fallacy of the argument of the learned counsel in regard
to the inferences to be drawn from  the fact, that, whatever
the jolt at the end of a car, the effect to raise the centre of
the car is the same, irrespective of the length of the body.*
(The diagram referred to, is in the note below.)
* In the diagram, the line, from  A  to B, represents the length of a car
body. G G', are the- centres of the trucks, mid-way between the middle and the
ends. Let an obstacle, now, at G', throw up the centre to H. The amount of
the disturbance of the whole mass will be representedby the area of the triangles
A F G, and G I B. But let the truck centres be at the extremities of the body
A and B. Then the same disturbing cause at B, throwing up the end of the body to
0, the whole disturbance will be represented by the triangle A O B, which mere
inspection shows to be less than the sum of the other two. Now, suppose the
same body lengthened at each end, to D and L; and the same disturbance to
take place, where the truck is between the middle and the ends, at G', and the
amount of additional disturbance is represented by the areas 1 B L K, and D A F




114                     ARGUMENT.
The same diagram  demonstrates, also, the fallacy of the
idea, that because the disturbance of the central point
always remains the same, whether the'car be a long or a
short one, therefore, the lengthening of the body cannot
affect the ease of motion, while the trucks remain at or near
the ends.
The second objection to the sufficiency of the specification is,That the precise distance between the truck wheels is not
given, because not expressed in feet and inches.
It is also objected here, that the directions are peremptory,-because the truck wheels are required to be very
near together.
The parts of the specification, where the position of the
truck wheels is mentioned, are, folio 21, where it is said,
"the two wheels on either side of these carriages are to
be placed very near to each other. The spaces between
these flanches need be no greater than is necessary to prevent their contact with each other:"  again, in folio 26,
where the common bearing carriage is mentioned, as an
alternative construction, "provided the fore and hind wheels
E. But, suppose the trucks in this case, to be at the extremities L and D,-and
the end L be thrown up to M, then the additional disturbance is measured by the
areas D A C' and P B L M, deducting the triangle C O P, which is far less
than the foregoing, as is apparent at a glance.
H ~J~~j ~    K
D                 j"~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ —---
A   ~'   




ARGUMENT.                      115
of each of them  be placed very nealr 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 hereinbefore set forth,
is considered by me as a most important feature of my invention: for by the contiguity of the fore and hind wheels of
each bearing carriage, which the two bearing carriages may
be at any desirable distance apart, the lateral friction from
the rubbing of the flanches against the rail is most effectually avoided, whilst at the same time, all the advantages
attendant upon placing the axles of a four-wheeled carriage far apart, are thus obtained," and again, at folio 28,
"the.two wheels on either side of one of the four-wheeled
bearing carriages may, from their proximity be considered
as acting as a single wheel."
There are certainly no dimensions, in feet and inches,
given in these extracts, which it is believed are all that the
specification contains on this point. But were such dimensions necessary?  This is the question.
Admitting the specification to be, in all other respects
sufficient, does the omission complained of invalidate it.
This depends, in turn, upon the question, whether the
public are deprived of the benefit of the invention without
it. Is it of the essence of the invention, that the distance
between the fianches of the wheels should be defined by
exact measurements?  Let us see.
It is very evident, that the Patentee has one leading
thought in this connection, —a mathematical, and controlling truth. It is, that upon the curvatures of short
radius to which he refers, the closer the wheels are together,




116                  ARGUMENT.
and the nearer their axles conform  to the radii of curvations, the less is the friction between the fianches of the
wheels and the rails: and it is equally clear, that, inasmuch as it was this friction in a four-wheeled car, which
suggested the invention to him, he desires to have as little
of it as possible in the new construction;-in other words,,he desires to have the wheels so close together, that they
may be considered as acting as a single wheel: and when he
tells the car builder this, as he has done in the specification,
has he not given him the information necessary to enable
him to construct the car in the best manner, for the particular road on which it is to run?
He says to him in effect, "the distance between the axles
of four-wheeled cars, heretofore, has varied, from three and
a half to five feet, according'to the nature of the road' on
which they have been running. By using two bearing carriages under an eight-wheeled car, you will be able to place
the wheels much nearer than this, and so diminish the friction between the flanches of the wheels and rails.  This
proximity will make them act as a single wheel. They'need.be' no farther apart than to prevent their flanches
from coming in contact. To meet the exigency that is before me, (the Patentee,) consequent upon a road with curves
of but a few hundred feet radius-(for the Patentee's reference to roads with such curves runs through his specification, and is never to be lost sight of,) to meet this exigency,
I place the wheels very near together. This, with me,
makes them act as a single wheel."
In truth, this was the only instruction that could be
given. The Patentee explained the principle and described
a mode by which he had carried it out on roads with curvatures of but a few hundred feet radius.  His specification




ARGUMENT.                    117
then, is not merely the enunciation of a principle, but a
principle with an accompanying and practical illustration.
Suppose that an exact measurement had been giventhirty-two inches between the centres of the axles, for instance. This would have done where thirty inch wheels
were used; but it would not have answered for thirty-three
inch wheels; and had the road been one of extremely
"sharp" curves, such as the Quincy Road, using eighteen
inch wheels, it would have been more than was consistent
with the principle of the invention.
Again, the exact measurement, which would have made
the two wheels act as one, on a curve of four hundred feet
radius, would be shorter than might be required to produce
the same effect on a curve of fifteen hundred feet radius, did
that happen to be the smallest radius of curvature on the
particular road.
Again, while on a road of large radii of curvature, wheels
close together, according to the exact measurement, might
do well, yet circumstances, such for instance as the introduction of the swinging bolster, might require the distance
between the centres of the axles to be increased, when,
although the two wheels, owing to the large curvatures,
might still act as one wheel, and all the benefit of the
invention accrue to the owner of the car, yet the patent
might be evaded, because the exact dimensions were not
adopted,-which cannot be law.
So that we are brought back to the point from which we
started, which was the enquiry whether this invention
belonged to that class, whose essence was to be found in a
peculiar form-illustrated by the case in 2nd Brockenbrough, 298, of Davis vs. Palmer-or exact dimensions. We
trust that we have shewn the contrary; and that the clear
16




118                  ARGUMENT.
explanation of the principle which the specification contains,
along with the description of a car illustrating it in practice
on a given road, will be looked upon as gratifying all the
requisitions of the law under which the Plaintiff claims.
But, as already said, while on the one hand, the defence
is, that the specification is not sufficiently exact, on the
other hand, it is said, that it is so exact as to permit no departure from its directions; and that because the wheels of
the Defendants' cars are not "Cvery near" together, but have
a swinging bolster between them, there can be no recovery
on the plea of the general issue. This is Mr. Waterman's
view of the specification. But Mr. Copeland, when he
referred, in his cross-examination, on this very point, to
the words "need be," in the sentence, "the spaces between
their fianches need be no greater than is necessary to prevent
their contact with each other," answered and removed this
objection altogether. These two words qualify all that is
said upon the subject of the proximity of the wheels, and
shew, conclusively, that the direction is not imperative; but
that the distance is referred to the discretion of the car
builder, to be settled by him according to the exigency of
circumstances, always keeping in view the result aimed
at,-to wit, the saving of the friction in the truck of the
eight-wheeled car, that is inevitable in a car on four
wheels, "the distance" between whose wheels, is'governed
by the nature of the road on which it runs, and other considerations."
The experience of the rail road world, in this country,
corroborates these views. There is'not an eight-wheeled
passenger car to be found anywhere, whose truck wheels
would not, at a glance, be described as "very near" together




ARGUMENT.                     119
by any one who had ever seen a passenger car on four
wheels. "Very near" is comparative. As already said,
in another connection, the four and eight wheel cars, that
pass the curves of Grand and Centre Streets, in this city,
illustrate its meaning.
The jury have the specification before them, and they
see daily the Defendants' cars in actual use. The question will be whether, constructed as they are, they violate
the Plaintiff's patent.
Then comes the third objection to the description of the
specification,-that it does not define exactly the distance
between the trucks and the ends of the body of the car.
Gentlemen, I shall not dwell on this point.-The specification gives three positions for the trucks-at the end of
the body-near the end of the body-outside the end of the
body, with the car suspended between the trucks.
There seems to have been a very clear intelligence at
work in prescribing these alternatives. The two first meet,
most aptly, all subsequent developments in regard to the
lengthening of the body. Many measurements have been
made and offered in evidence. I have them before me. I
see, here, that where a car is forty-two feet in length, the
truck centres are five feet one inch from the end. Where a
car is thirty-five feet five inches long, the truck centre is
four feet from the end. It is evident, that the framing of
the bodies has influenced this difference. But thtse cars shew
the propriety of the direction given to the car builder by the
words "at or near;" and it is presumed, that no one will
deny, that both of them are strictly within that principle
of the specification, which is the soul of the patent,-the
closeness of the wheels of the trucks and the remoteness of
the trucks from each other.




120                  AR GUMENT.
Gentlemen, there can be no better place than this, to
notice the peculiar cross-examination to which the Plaintiff's witnesses were subjected, in regard to these matters of
length of body, and closeness of wheels, and position of
trucks. I do not intend to repeat any of the questions of
the learned counsel from Massachusetts: but his plan was
to bring the witness down, foot by foot, and inch by inch,
accompanying each fresh dimension with a question as to
the similarity of the hypothetical construction with the car
described in the specification.  Gentlemen, there was not a
witness that did not readily admit that there was a point,
at which such small advantage would be taken of the Patentee's suggestion, that it would be difficult to say, whether
there was an infringement or not. And nothing more than
this, which no reasonable man could be found to deny,
resulted from a cross-examination, which, to say the least
of it, was not a brief one. Gentlemen, who can doubt that
there must be this difficulty in every case that appears before
you. To come as close as possible without infringing is
often the study of skill and intelligence when a patent is to
be evaded. I might illustrate for a week by references to
cases. But, gentlemen of the jury, it is this very thing
which you, and nearly all juries in patent cases, are empannelled to try,-with this advantage, on our side, however, on this occasion,- that no hypotheses present themselves here to trouble you, but a plain matter of fact,
whether the cars actually used by the Defendants, varying
in length from thirty-five to forty-five feet, with trucks
whose distance apart varies from twenty-seven to thirty-five
feet, and the axles of whose wheels are from two feet ten to
four feet two asunder, are in violation of a specification,
whose essence is the closeness of the wheels of trucks,




ARGUMENT.                        121
coupled remotely from each other, at or near the ends of the
body. About this as a fact, and not an hypothesis, we
trust, gentlemen of the jury, you will have no difficulty.
In connection with the argument here made, we offer the
following prayers-the fifth and sixth presented by usfor the instruction of.the Court:The fifth prayer is taken mainly from the opinion of
Judge Nelson, and leaves it to the jury to say, whether
the instructions of the specification are sufficient to enable
a person skilled in the art to build the car. The sixth follows the language of Chief Justice Taney, in regard to the
necessity of describing what was before known.*
The Plaintiff's Fifth Prayer.
"That the improvement does not consist in placing the
two bearing carriages at any precise distance apart, or
from each end of the body in the construction of the car,this distance depending necessarily, somewhat, upon the
length of the car, and the strength of the materials of
which it is constructed;-provided, said bearing carriages
be at or near the end of a body of the length described in
the specification; and that, therefore, the patent is not invalid, because the Patentee does not specify such precise
distances;-provided, the jury shall believe that a person
skilled in the art of constructing rail road cars, would be
enabled, by the description given, to construct an eightwheeled car, with such an adjustment or arrangement of
the wheels and axles as shall cause the body to pursue a
more smooth, even, direct and safe course, both over the
curved and straight parts of a rail road, upon the principles
stated in the specification."
* These prayers were not argued, after the intimation from the Court already
referred to. A portion of the argument that would have been urged in their
support, is incorporated in the address to the jury here given.




122                 ARGUMENT.
The Plaintiff's Sixth prayer.
"That the two bearing carriages mentioned in this
specification, and the other elements which form portions
of the machine, which the Patentee claims to have invented, being well known and in common use, it was unnecessary to describe particularly the mode of their construction: and as he specifies what he claims as new,
every other mechanical principle or combination which he
mentions in his specification, and which form component
parts of the machine of which he claims to be the inventor,
must, by necessary implication, be considered as admitted
to be old, or in use before;-and the patent, therefore, is
not invalid, because he has not, in express words, stated
them to be old, nor described the manner of their construction. "
And now, gentlemen of the jury, that I may illustrate
to you the sufficiency of the instructions contained in the
specification addressed to car builders, I propose to become
one myself for the occasion; and from this pile of wheels
and axles, springs, bolsters and bodies, to put together,
piece by piece, as I read sentence by sentence of the instrument, an eight-wheeled car,-first with spring trucks,
afterwards, with the alternative construction,-building
first the bearing carriages, and afterwards placing the
body upon them. And I invite your criticism, and that
of my learned friend on the other side, that I may be corrected, if I use a word that is not found in the specification,
or do a thing that is not directed to be done there.
(And, accordingly, Mr. Latrobe constructed the model of
an eight-wheeled car from the materials.)
There, gentlemen of the jury, you see the car. And now,
I pray you, tell me how is it to be drawn?  Where, in the




ARGUMENT.                     123
name of common sense, is the draft to be applied?  Where
would a car builder, who had done, in full size, what I
have done with these' toys, place the draw pin?  On the
body, or on the truck? Where could he place it, gentlemen, but on the body? Look for yourselves, and see.
Can I reply more thoroughly and conclusively than I
here do to the fourth objection, that the specification describes no place to draw from?  But the specification is not
silent. The preferred construction, with long springs, does
not permit a draft by the truck. The spirit of the specification is, that the trucks shall traverse the curves with the
least friction,-and this is inconsistent with a draft by the
truck, which would restrict free motion. Couple, then,
these particulars with the directions for construction, and
how it can be doubted, that the draft is intended to be by
the body, I cannot see.
But, gentlemen, we have the drawing filed in 1838, and
that is conclusive. It corresponds with the testimony, as
to what, in fact, was the mode of draft in the perfected car.
It meets all the requisitions of construction, and it illustrates the only mode by which the principles of the specification could be made available.
And in connection with this part of my argument, I offer
to the Court the following prayer:The Plaintiff's Seventh prayer.
"That the Plaintiff does not claim any particular mode
in the specification, of drawing the eight-wheeled car
described therein: but the specification contains nothing
that is inconsistent with the draft being by the body, and
not by the bearing carriages, —and the drawings filed by
the Patentee on the 19th November, 1838, shewing the
draft to be by the body, are prima facie evidence of the




124                 ARGUMENT.
particulars of the invention, and the patent granted therefor in 1834."
And thus, gentlemen, I conclude my argument as it
relates to the Defendants' objections to the sufficiency of the
specification, in view of its instructions to those skilled in
the art of car building.
The act of 1793, which governs the specification in this
case, declares, -that "in the case of any machine, the Patentee
shall fully explain the principles and the several modes in
which he has contemplated the application of that principle
by which it may be distinguished from other inventions."
The Defendants' deny that we have done this. Let us
now examine their objections.
First. The theory of the specification is, that the proximity of the wheels of the trucks is important in facilitating
the passage of curves of small radius.' Our opponents
deny this; or if they. admit it to any extent, they deny that
any practical benefit results from the proximity of the truck
wheels. On the contrary, they insist that the construction
that we recommend is dangerous to human life; that the
truck wheels when placed close together are more liable to
leave the track; that the truck wabbles more, and that a
decent precaution against accidents and a proper regard
for human life require the distance between the axles to be
as great as the distance between the rails.
With regard to the theory involved in this matter, gentlemen, the experiments made before you with the model of
the Quincy car, relieve me from the necessity of extended
argument. It is very true, as remarked, while they were
going on, by the gentleman, whose weapons were being
turned against him, that there is a great deal of differ



ARGUMENT.                   125
ence between the speed at which the mimic car rolled down
the mimic rail, and sixty miles an hour. But how did this
alter the fact that the model exhibited, or make it less a
truth. The law of nature that was illustrated remains the
same at all speeds to which man can drive machinery; and
the question here is as regards the truth of a principle set
forth in the specification.
So much for the theory. A word now about the practice
among engine builders through the country. For some
purpose, that I have forgotten, my learned opponent produced a drawing of an engine built by the Messrs. Norris
of Philadelphia. Perhaps it was touching this very point,
about the proximity of the truck wheels, for the drawing
represented the axles some five feet apart. But why did
not my learned friend, bring with him  drawings from
Boston, instead of going to Philadelphia.  Look gentlemen, (said Mr. L. holding up a large lithograph,) here is
the engine built by the Amoskeag Manufacturing Company-and here is another built at the Boston Locomotive
Works. Could the gentlemen on the other side, with their
thorough investigation of all matters bearing on this cause,
have been ignorant of the facts here exhibited? Impossible.
Then why not exhibit drawings like those just shewn to
you, where the truck wheels are almost in contact, instead
of shewing a drawing of what would seem to represent
an exception to a general rul6? Why leave it to us to offer
in evidence the fact, that engine after engine on this very
Defendants' road, has its truck wheels as close as they can
be put,-and its tender. wheels the same?  The measurements of Mr. Slade were uncontradicted, and they put this
matter beyond question.
And as to danger to life or limb! Why, if my learned
17




126                 ARGUMENT.
friend is right, the best counsel he can give to his neighbors in Massachusetts, is to abandon a construction which,
if he can persuade them to believe the argument he has
made here, will, in the event of accident resulting in death
from the running off of an engine, subject them to a prosecution for murder in any Court of criminal jurisdiction-for
the greater number of their engines are doubtless furnished
with trucks after the fashion of the drawings I have shewn
you.
Gentlemen of the jury, there can be no better comment
upon the frivolousness of the argument than the practice
of the country: no better commendation of the Patentee,
than the almost universal adoption of the principle enunciated by him, by the best builders in the country, in the
construction of the truck of the engine, the most important
and responsible of the trucks that are in a train.
The second objection under this head is, that the free
swivelling of the trucks, permitted by the Patentee's construction, is a construction false in principle, and we are
told that side bearings are indispensable to control it.
Then why so mainy engine trucks, so many leading tender
trucks, without side bearings? Why the practice, shown by
Mr. Slade's measurements, on the road of these Defendants'
in this regard?
Side bearings are necessary to the steadiness of the car,
to prevent uncomfortable rocking. They are not wanted in
the trucks of locomotives, because the engine is steadied on
the driving wheels; nor on the leading truck of the tender,
because there are side bearings on the hind truck: facts
which shew to demonstration the unsoundness of the argument that they are essential to safety. There is not a particle of proof of an accident owing to the free swivelling




ARGUMENT.                      127
of engine trucks having no side bearings, and it is to the
engine the accident would occur, could such want be a
cause of it.
The specification says nothing of side bearings, in the
sense referred to by the defence, as means of controlling
the free motion of the trucks.  But the reference to the
bolsters of a comnion road wagon, suggests necessarily such
bearing as steadiness requires. The fifth wheel of every
carriage is a side bearing. The king bolt itself, if reasonably tight, answers the purpose of one. The drawing of
the Columbus proved by Cromwell shews a side bearing in
the shape of a fifth wheel. The drawing attached to the
specification shews it. When the patent was issued, the
speed'of engines being less than it now is, a side bearing
less extended than is now used, was found sufficient. The
extension of it to meet the new state of things was a matter
of course.
The Comet, the Washington cars, the ten Cumberland
cars spoken of by Murray, the freight cars, all ran well
without such as is now commonly used.
Here again, then, there is nothing in theory or practice to
support this particular objection.
We now come to the "theory of the square," as distinguished from the proximity of the trucks recommended in
the specification.
This is an ingenious fancy, having neither theory nor
practice to recommend it. In upwards of forty measurements on rail roads diverging from this city, on four feet
eight inches, five feet, and six feet guages, not a single
instance has been found where it has been observed. The
practice of the country is against it, and even the Defen



128                  ARGUMENT.
dants' counsel abandons it, when he gives up its infiexibility, and begins to talk of a few inches more or less. Of
the trucks for tenders on the Defendants' road, no less
than thirteen, measured at random  by Mr. Slade, had
axles not exceeding two feet eleven inches apart; and of
the engines, seventeen of them had trucks with axles not
exceeding three feet six inches apart; and of passenger
cars twenty-six out of thirty had trucks, with swinging
bolsters, where the truck axles did not exceed four feet
apart. So much then for the theory of the square.
This brings us to the objection to the long spring. —A
great deal has been urged on this point. It is one on which
the Defendants' paper experts have loved to expatiate. We
will; have to notice, in another place, what they swear
in regard to it. At present, it suffices to. say, gentlemen,
that the trucks which have been brought to New York, and
which have been proved by, the witness, Reanie, to have
been in use for years, contradict all the fine spun theories
that you have heard uttered on the stand, and read from
the depositions, and shew, that for simplicity of construction and durability, they fully justify the preference given
to them in the specification.
Again, it is said as a distinct objection, that the Plaintiff's principle of making the'four-wheeled car body double
the length and upwards, when put on eight wheels, is
unsound. The sufficient general answer is the universal
practice of the country. The sufficient special answer is
the fact, that these Defendants' cars unquestionably infringe
the Plaintiff's- patent: in.this. respect.  The reason for this
practice is to be: found in the demonstrations of the model
to which I have already called your attention.




A-RGUMENT.                    129
With regard to the last point of objection made by the
defence, the superiority of the draft by the truck, instead of
the draft by the body, it will be time enough to dwell upon
it, gentlemen, when the draft by the body, conforming as it
does to the principle of the Plaintiff's specification, ceases
to, be, what it now is, universal, —the few exceptions shewn
to exist confirming rather than weakening the general rule
upon the subject. Had the Defendants so drawn their cars,
the introduction of this objection might have been more
appropriate.
I have thus shewn, that the Defendants' objections to the
specification, both as regards the vagueness of its descriptions, and the falsity of its theories, are unfounded: and in
doing so, I have shewn that the- Patentee has sufficiently
protected himself in those rights which his invention and
his patent conferred upon him.
The rights of the Plaintiff as inventor, and the sufficiency of his specification, being established, this would be
the proper place, gentlemen, at which to address the Court
upon the question of abandonment.  But his Honor has:
intimated his wishes in this regard, and I shall therefore,
rely on his instructing you in the language of
The Plaintiff's Eighth7prayer:"That if the jury believe that the Plaintiff was the true
inventor of the car Columbus, and that the same was.p.ut
on the Baltimore and Ohio Rail Road, in the summer of
1831, and. that it was, used. on the said road, from time to
time, and without objection on the part of the Plaintiff up,
and subsequent, to the date of his patent, yet such as does
not amount to an abandonment of the invention by the




130                 A R GUME N T.
Plaintiff, if the jury shall believe that the intermediate
time between putting the Columbus into use, and the taking
out of the patent, was devoted by the Plaintiff in good faith
to the perfecting of his invention, according to his opportunities for so doing; or provided the jury shall believe,
that the car Columbus was not substantially the same in
the manner of arranging and connecting the eight wheels,
and the principle of their action, described in the Plaintiff's specification."
This prayer puts the question of abandonment on two
grounds. —First, that there could have been no abandonment, no matter what time elapsed, provided the Plaintiff
was engaged, in the interval, in good faith and according to
his opportunities, in prosecuting the experiments that
finally resulted in the patented machine.-And again, that
unless the jury shall believe, that not only the Winchester,
the Dromedary, the Comet, and the Washington cars, were
the same in principle and mode of operation with the car
described in the specification, but that the Columbus also,
was identical therewith, there was no abandonment. This
was the opinion of Chief Justice Taney in the Maryland
case.
Next in the order of my argument follows the question
of infringement and the amount of damages.
But, before approaching this, I desire, gentlemen of the
jury, to say a word or two about the written testimony with
which this cause has been overloaded. Twenty experts, so
to call them, from different quarters of the compass, have
been examined under commissions; and although not in
this cause, yet by agreement of counsel, and under the
ruling of the Court, you have heard what they have had to
say in regard to the many matters involved in this investi



ARGUMENT.                    131
gation. They are the parties that the Plaintiff's counsel
struggled, unsuccessfully, to have brought upon the stand.
Dealing with them in the aggregate, it may be said that
they dilate with more or less diffuseness upon several topics.
They tell us, in the first place, what cannot be done;
when they attack the Plaintiff's construction of his car.
Then they tell us what ought to be done; when they
indulge in theories of their own.
Again, we are informed of what might be done; under
which head we generally have an eulogy of Chapman.
And closing their dissertations with an account of what
has been done, they attribute it all to this "noble Englishman," as he is called by the gentleman from Massachusetts.
I cannot consume the brief space that remains to me, for
the Court has announced that the argument must close
to-day, with the unprofitable labor of examining seriatim,
the testimony of these gentlemen. Dealing with them in
the general, I may remark, however,
In the first place, that what they say cannot be done,I instance spring trucks,-has been done:
To what they say ought to be done,-I instance the square
of the track,-has rarely ever been done, even by the Defendants:
That what they say might have been done, on Chapman's
teaching, has never yet been done where Chapman taught:
And that what they say has been done in America because of Chapman's work, was not done here in fact until
several years after Winans had demonstrated the value of
it, and after more' than a quarter of a century had elapsed
from Chapman's publication.
But they deserve, perhaps, more particular attention.
Let me, therefore, take onb' of them, Mr. Samuel Cooper.
I select him for several reasons.




132                 ARGUMENT.
First, because his testimony is a clever book by itself, of
forty pages of large octavo.
Again, because his testimony is certainly the most confidently given.
Again, because he is the townsman of the gentleman
from Massachusetts.
And again, because enough has transpired in this cause
to shew, that either Mr. Whiting learned what he knows
from Mr. Cooper, or that he suggested to Mr. Cooper the
current of the thought'that took the direction pursued in
the testimony.
Mr. Cooper is not only very voluminous both in the
number of points touched upon, but he is very diffuse in
his details. So much so, that, finding the examination-inchief did not afford him opportunities to tell all he knew,
he availed himself of the cross-examination to let out the
balance: a fact, gentlemen, that accounts, perhaps, for the
great readiness of our friends on the other side to admit the
cross-examination of their witnesses generally, after the
Court had ruled in the examination-in-chief.
I will refer to Mr. Cooper, however, but on a single
point. The long side springs connecting the truck wheels,
and their appurtenances. My object is to test Mr. Cooper's
reliability, as a witness. I cannot do this better in the case
of an expert, than to test his opinions by facts. If I can
prove a fact beyond all controversy-if I can make it visible
and tangible to the jury, —and shew to you that, in the
opinion of the individual, it is an impossibility —why, gentlemen, while he may be a very honest citizen and good
man, he must expect to be looked upon as a very sorry expert. I propose to deal thus with Mr. Samuel Cooper: and
to do so, go to the long side springs.




ARGUMENT.                      133
The side springs are very clearly described in the specification.  It is in proof that the Comlet was built with them,
and was a successful car. It is in proof that ten passenger
cars, used for many years between Baltimore and Cumberland, were built with them. It is proved that an hundred
burthen cars, and more, were built with them on the Baltimore Road, and ran unaltered for years. It is proved
that on that road, after trying other trucks, the Master of
Machinery is going back to the spring truck for his loconmotives, as the best sort of truck. It is proved that twentysix hundred cars, passenger and burden, have been built
with them in Russia, where they are in constant use. It
has been shewn that engine on engine, in the neighborhood
of Boston, even, have spring trucks; and above all, spring
trucks, in exact accordance with the specification, with
brakes and without brakes, have been taken from under
cars and engines, and have been brought by the Plaintiff
to New York and placed in the Park, where they have been
identified by proof; where the jury have seen them for themselves, have tried the brakes, counted the leaves of the
springs, and marked the effect upon them of wear and
tear. So much for the fact.
Now for the opinion of Mr. Samuel Cooper.
At one page (1052) of his testimony, he swears that the
construction with spring trucks, is unsafe and "impracticable."  Again, that it is vicious and unsafe. Again; that
"it is not possible for springs to be springs and trucks
both."  Again, that "it is impossible to apply a brake to
springs."  Again, that "these are all fatal objections to
springs;"-and again, that, in his opinion, spring trucks
are "'entirely unsafe and imprnracticable.'
There is but one way of extricating Mr. Cooper from his
18




134                  ARGUMENT.
antagonism with facts, which is to suppose him to be very
badly informed, or very ignorant of the force of the language that he is pleased to use.  Did dogmatism  need
illustration, Mr. Cooper's deposition would furnish it.
Now, what is such testimony worth?  What the value of
opinions thus pronounced? Mr. Cooper says that he has
never been on the stand as a witness. In some degree, this
accounts for his uncommon faculty of emphasis. A day
passed by him between my brother Keller and my learned
opponent, under oral examination, would perhaps somewhat
qualify this peculiar faculty. So much for Mr. Cooper.
But there is a word or two to be said about the getting
up of all this testimony, irrespective of its quality.
There was a good deal of this sort of work to be done:
and labor-saving contrivances are it seems, above all others,
appreciated by parties familiar with patent cases.
I have not had time to go over the printed testimony in
detail; but my brother Sickles, whose untiring industry is
an example to us all, has done so faithfully; and from his
very full brief, I have ascertained that a portion of the testimony is but a succession of echoes.
I select a few instances to illustrate this from Mr. Sickles'
brief.
Warden, of Troy, a car builder, copies Farley, of Boston,
an engineer, in his answer to the sixth interrogatory for
twenty-two lines, word for word.
Young, an engineer, of New York,  opies Farley in his
answer to the thirteenth interrogatory for forty-two lines,
word for word.
Pettit, of Philadelphia, and Smith and Shryack, of Baltimore, are identical in their-answers to the sixteenth interrogatory for seven lines, word for word.




ARGUMTENT.                    135
Farley is copied by Wilkinson, of Syracuse, formerly
President of the New York Central Rail Road, for twentysix lines, word for word.
Farley, Worden and Wilkinson are identical in the answer to the twenty-seventh interrogatory, for forty-two lines,
word for word.
My learned opponent, who was aware, before he made~his
argument, of this discovery, and desired to anticipate the
effect of its disclosure, made some attempts to do so,
which I confess I was not able entirely to appreciate. He
seemed to look upon what had been done as quite justifiable.
I hardly thought, however, that his explanations were as
happy as usual.
But, gentlemen of the jury, what is the language of the
commission from the Court in Boston, under which this
testimony was taken.
"N. B. You shall not, except by the consent of the parties in writing, permit either party to attend at the taking
of the depositions, either himself, or by any attorney or
agent, nor to communicate by interrogatories or suggestions with the deponents, whilst giving their depositions or
answers to the interrogatories annexed to this commission.
And you shall take such depositions in a place separate and
apart from all other persons, and permit no person to be
present during such examination except the deponents and
yourself, and such disinterested person (if any) as you may
think fit to appoint as a clerk to assist you in reducing the
depositions to writing: and you shall put the several interrogatories and cross-interrogatories to the deponents in their
order, and take the answer of the deponents to each fully
and fairly."
The scope and spirit of these instructions are, that the




136                  ARGUMENT.
witness shall hear the question from the commissioner, and
give his answer in his own words, at that time, without aid
or prompting from any quarter. Had this been done, it
would have been nothing short of a miracle had the coincidence of language referred to taken place. But, no, gentlemen of the jury, the whole thing is perfectly intelligible.
There have been one or more agents at work in the preparation of this case. He or they have not been present before
the commissioner; but the inference is irresistible that in
many instances they have furnished the witnesses copies'of
the interrogatories,-have shown them what other witnesses
have sworn,-have written out their testimony for them, or
gotten the witnesses to do so themselves, on their prompting; and finally, when fully prepared, have sent them before
the commissioner-some of them, like Mr. Cooper, with a
treatise and references to authorities, all cut and dried-to
swear loosely and inconsiderately, or wisely and well, as the
case might be.
Somle of these witnesses seem to have been fastidious,unwilling to appear to parrot a lesson; and they have
inverted answers and transposed sentences, that the copying
might be concealed; at all events, they have done that
which justifies this being said of them.
I illustrate this, gentlemen, by referring to the answers
of Messrs. Wilkinson and Farley, to the twenty-seventh
interrogatory.
A singular piece of patch-work, you will find this to be.
(Mr. Latrobe here handed to the Court, and to one of the
jury, copies of the printed testimony, that his quotations
might be verified.)
The first sentence of Wilkinson's answer is the seventh
of Farley's-the second is Farley's sixth-the third -his




ARGUMENT.                     137
fourth-the fourth of Wilkinson is the fifth of Farley-the
sixth is Farley's third-the seventh is Farley's first. The
eighth corresponds with Farley's ninth, and the ninth of
Wilkinson is identical with the eighth of Farley. With
the exception of about half. a dozen words, if so many, the
transposition here noticed has been effected without the loss
of a syllable even. Not an idea is modified, either, by the
change in the position of the sentences.
Now how can this be explained? I leave it to others better versed than I am fortunate enough to be in the getting
up of the testimony of experts. To me it is wholly unintelligible. If a copy was to be made, why was it not done
frankly and avowedly, and put upon the ground of want of
time, or any other bold, outspoken reason?
Gentlemen of the jury, what think you of all this. Is it
in accordance with your notions of right. Is it fair. Is it
honest?
But, gentlemen of the jury, this is not all. Look at this
model B. (here the counsel held up the Defendants' model
of the Plaintiff's car, referred to in the depositions of the
Defendants' witnesses.) This is the Marching Lie that has
been travelling over the country to aid in the production of
this mass of testimony. See these springs, curved like a
new moon, almost. Are these fair representations of the
springs of the Defendants' truck?  Under whose direction
was this model made?  Was it made for the purposes of
truth, or of deception? If the party who ordered it had
looked at the first locomotive that passed him, he would
have seen the flat horizontal' springs of its truck. Had
he taken the drawing of the' Comet, sworn to by the
witnesses, he would have seen springs of the same shape.




138                 ARGUMENT,
What warrant, what excuse, was there, for this most wilful
exaggeration? Gentlemen, I enquired for this model, while
my learned opponent was speaking. He observed my doing
so. Soon afterwards, he volunteered an explanation about
the spring, saying, that, without curving it, as you see,
there was no room for the lower bolster between the flanches.
But look for yourselves, gentlemen. My learned friend is
mistaken. There is ample room-ample room-as there
always is, for Truth, had not the party ordering this model
designed an exaggeration to prejudice the Plaintiff's case.
Why dwell I upon this?  Because of the stress laid
by the Defendants, as you have heard, upon the peculiar
truck, of which this spring forms part.  Because it is
insisted, that to this spring truck alone has the Plaintiff
any claim.-Because this spring is one of the three elements, which, it is said, when combined, make up the invention. Because, in the shape in which it is used, and
which this model should have given to it, the elasticity of
the spring causes no deviation from parallelism in the
axles that is appreciable; whereas, in this new moon form,
the spring truck would indeed be an absurdity; and because,
finally, I desired to shew you, that this palpable falsehood
was palmed on witness after witness, not inconsiderately and
accidentally, but because of the influence it was supposed
it might exercise upon the case.
Gentlemen of the jury-the testimony in favor of the
Defendants, has indeed been "gotten up." And were not
the counsel for the Plaintiff therefore fully justified in every
effort that they made to have such testimony excluded?
Gentlemen, in regard to the witnesses for the defence,
with few and unimportant exceptions, you' had them all
upon the stand. Their testimony must stand or fall by the




ARGUMENT.                     139
impression that it made upon you. You saw and heard for
yourselves.
Let me now say a few words in regard to the question of
infringement, and the amount of damages. Here is the
Defendants' own model of the car they use. The cars themselves pass you daily in the streets of your city. After the
Court shall have instructed you upon the construction of
the specification, you will have no difficulty, I am sure, on
this point, about your verdict.
Then comes the damages. What are they to be? They
are laid in the declaration at tenll thousand dollars. The
smallest patent fee you could allow would far exceed this
sum, when multiplied by the number of eight-wheeled cars
in use, prior to the commencement of this action, and that
again by the number of years-admitting even, which I am
by no means prepared to do, that the statute of limitations
can be made available under the plea of the general issue.
About the amount of your verdict then, should you be able
to agree upon one for the Plaintiff, there can be no doubt.
The whole of it will be insufficient to cover the expenses of
this single suit. That my client is entitled to a verdict at
your hands, I do, from my inmost heart, believe. That the
country is indebted to him for this great invention has, I
respectfully submit, been most conclusively established.
That the various improvements in connection with the
eight-wheeled car, which the last few years have developed,
are but illustrations of its capabilities, we have had occasion,
again and again, to prove to you in the course of the
present trial; and in submitting the case to your decision,
we feel that it is in the hands of those, upon whose ears all




140                 ARGUMENT.
that has been suggested about injury to the great city of
New York should there be a verdict for the Plaintiff, —all
the attempts that have been made to cause Self to war with
Truth, within your breasts during the last two months,
have fallen as idle wind.
Gentlemen, I do not stop to thank you. I have only to
say that your bearing throughout this protracted controversy has satisfied, me, that I was indeed before a jury of my
country, worthy of the name: and whatever may be your
verdict, I shall think so still,




APPENDIX.
SCHEDULE  "A."'
The Schedule referred to in these LetterslO
Patent, and making part of the same,
containing a description, in the words of
the said Ross WINANS hinself, of his nmprovement in the construction of Cars or
Carriages, intended  to run  upon Rail
Roads.
To all whom  it may concern:-Be  it 11
known, that I, Ross WINANS, Civil Engineer of the City of Baltimore, in the State
of Maryland, have invented a new  and
Improvement in the
useful improvement in the construction of  construction of cars
or carriages.
cars or carriages, intended to travel upon
rail roads; which improvement is particularly adapted to passenger cars, as will  Passengercare,
more fully appear by an exposition of the
difficulties heretofore experienced in the
running of such cars at high velocities,   High velocities, cause
runnig                                 of difficulties.
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.
19




142                      APPENDIX,
Rail roads in this  12   In the construction of all rail roads in
country in view.
this country, which extend to any considerable distance, it has been found necessary
to admit of lateral curvatures, the radius
Curves of but a few   of which is sometimes but a few hundred
hundred feet radius
feet; and& it becomes important, therefore,
so to construct the cars, as to enable them
to overcome the difficulties presented  by
constitute the diffi-  such  curvatures, and  to adapt them  for
culties to be overcome,            running with the least friction practicable,
l pasfrct o  n   upon all parts of the road.  The friction to
which  I now  allude is that which arises
from  the contact between the flanches of
Fnetion meant is between flanch and rail.  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.
Modern high veloci-13   The high velocities attained by the imties
provements made in  locomotive engines,
and  which  are not only sanctioned, but
make points formerly   demanded by public opinion, render it neuanimportant matter
for special attention.   cessary that certain points of construction
and arrangement, both in the roads and
wheels, which were not viewed as important at former rates of travelling, should
Momentum of load,   now receive special attention.  The greater
intensity of shocks,
to be neglected, as   momentum  of the load and the intensity
they render
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




APPENDIX.                          143
accident is thereby  not only greatly in-   accident more probable-consequences
creased, but the consequences to be appre-   more serious.
hended much more serious.
The passenger and other cars in general 14
use upon rail roads have four wheels, —the    Common four-wheel
car axles, 3:t to five
feet apart, according
axles of which are placed from  three and   to nature of road.
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 15
the axles retain their parallelism, and are   Parallel axles-far
apart-bring flanchebat a considerable distance apart, there is a   and rails inrcontact,
necessary tendency in the flanches of the
wheels 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 considera-   Therefore, axles near
together,tion, 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   approching radiiof
the radii of the curves, and the planes of
the wheels, to conform to the line of the
rails.
There are, however, other circumstances 16
which must not be overlooked in their con-   Other circumstances
to be looked at.
structions.  I have already alluded to the
increased force of the shocks from obstruc-   Shocks at high velo.
cities.
tions at high velocities; and, whatever care
may be taken, there will be inequalities in   Perpetual operation
of small inequalities
the rails and.wheels, which, though small,  inwheels and rails.
are numerous, and the perpetual operation




144                     APP ENTDI X.
Of which produces effects which cannot be
disregarded. The greater the distance between the axles, while the length of the
Greater distance apart
of axles, the less the   body remains the same, the less is the inshocks, &c.
fluence of these shocks or concussions; and
this has led, in many instances, to the
Therefore, axles  placing them  in passenger cars, at or near
placed at or near the  their extreme ends. Now, however, a comcompromise the re-  promise is most commonly made between
suilt           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.
17   But it is not to the lateral curvatures
Incessant vertical v.iered.ions to     and inequalities of the road alone, that the
foregoing remarks apply. The incessant
vibration felt in travelling over a rail road
is mainly dependant upon the vertical moThe nearer the axles,  tion of the cars, in surmounting those nuthe greater the effect
of the vertical motion   merous, though minute, obstructions which
on passengers.
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 to find a    important, therefore, both as regards commode of combining
advantages of near  fort, safety and economy, to devise a mode
and remote coupling,
safs regards comfort,    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.




APPENDIX.                        145
It has been attempted, and with some 18
success, to correct the tendency of the
flanches to come into  contact with  the
Use of cone atrails on curved and other parts of the   flanh rotm rail
road, by making the tread of the wheel
conical;-and if the travelling upon rail
roads was not required to be very rapid,
this would so far prove an effectual cor-   Would do at slow
speed.
rective, 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 counteracted by this construction; but at high velocities, the momentum    But not at high veloof the body in motion tends so powerfully 
to carry it in a right line, as to cause the 19
wheel on the longer rail to ascend considerably above that part of the cone which
corresponds therewith.  The consequence
of this is a continued serpentine motion,   Serpentine motion
with cars at high
principally, but not entirely, in a lateral   speed on curved and
straight parts.
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   And why.
course of the wheels, whils~t there is no
general curvature of the rails to counteract
it.  To avoid this effect, and the unpleas-   To avoid this, a motive for remote axles.
ant motion and tendency to derangement
consequent upon it, an additional motive is




146                      APPENDIX.
furnished for placing the axles at a considerable distance apart.
Object of invention. 20   The object of my invention is, among
other things, to make such an adjustment
or arrangement of the wheels and axles as
shall cause the body of the car or carriage
To produce a more  to pursue a more smooth, even, direct and
smooth, easy, direct
and safe course,  safe course, than it does as cars are ordinarily constructed, both over the curved
On curved and
straight p arts y  and traight parts of the road, by the before-mentioned  desideratum  of combining
the advantages of the near and distant
Near and distant
coupling.        coupling of the axles and other means to
be hereinafter described.
Construction, —two 21   For this purpose, I construct two bearing
bearing carriages.  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
Wheels "very near,"   near to each other: the spaces between their
"need be" no further
than to keep flanches  flanches need be no greater than is necessary to prevent their contact with each
other.  These wheels I connect together
Spring connection,-   by means of a very strong spring,-say
double usual strength.
double the usual strength employed for
ordinary cars,-the ends of which springs
Ends secured to  are bolted, or otherwise secured, to the
boxes.
upper sides of the boxes, which rest on
Longleaves down. 22 the journals of the axles; the longer leaves
of the springs being placed downwards,




APPE NDIX.                         147
and surmounted by the shorter leaves.Having thus connected two pairs of wheels
Two pair of wheels
together, I unite them  into a four-wheel   united,make bearing
carriage,
bearing carriage, by means of their axles,
and a bolster of the proper length, extending across between the two pairs of wheels,
from the centre of one spring to that of the   Bolster.
other, and securely fastened to the tops of
-them.  This bolster must be of sufficient
strength to bear a load upon its centre of   Strength of bolster.
four or five tons. Upon this first bolster I
place another of equal strength, and con-   Second bolster.
nect the two together by a centre pin or   Centre pin.
bolt passing down through -them, and thus
allowing them to swivel or turn upon each   Swivelling as in common road wagon.
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   Both bearing carriages prepared in
each of the bearing carriages in precisely   same way.
the same way.
The body of the passenger or other car 23
Body double the ordiI make of double the ordinary length of   nary lengthand capacity.
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   Rest on upper boltwo before-mentioned bearing carriages or
running gear.  I sometimes place these   Sometimes all the
wheels under the
bolsters so far within the ends of the body   body.
of the car as to bring all the wheels under
it; and, in this case, lesss trength is neces



148                     APPENDIX.
Less strength ofbody  sary in the car-body, than when the bolnecessary then.
sters is situated at its extreme ends.  In
some cases, however, I place the bolster so
far without the body of the car, at either
Sometimes body be-  end, as to allow the latter to hang down
tween the two sets of
wheels.         between the two sets of wheels, or bearing
carriages, and to run, if desired, within a
foot of the rails.
24 When this is done, a strong frame-work
projects out from either end of the car or
carriage body, and rests upon the upper
Advantages of sus-   bolsters of the two bearing carriages. This
pending body.
last arrangement, by which the body of the
car is hung so low down, manifestly affords
a great security to the passengers, exempting them in a great degree from those accidents to which they are liable when the
Several bodies may   load is raised.  Several bodies may be conrest on a common
frame.          nected, or rest on a common frame, and be
supported on the bearing carriage, in a
manner similar to that of a single body.
25 When the bolsters of the bearing carBolsters at extreme   riages are placed under the extreme ends
ends, greater relief
from shocks.    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
This not materially  the body; and this relief is not materially
varied by increasing
the length of body
while bolsters at Yex   varied by increasing or diminishing the
treme ends.     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




APPENDIX.                          149
equally distributed over the entire length
of the body.
Although I prefer the use of a single 26 Single spring preferspring  to a pair of wheels as above described, instead of the ordinarr spring to
each wheel, and consider it as more simple,
cheap, and convenient, than any other arrangement: the end which I have in view    Yet end obtained by
common bearing car.
may, nevertheless, be obtained  by  con-   riage.
structing the bearing carriages in any of
the modes usually practised, provided that   Piovided fore and
hind wheels very near
the fore and hind wheels of each of them    together.
be placed very near together; because the
closeness of the fore and hind wheels of   Closeness of wheels.
each bearing carriage, taken in connection with the use of two bearing carriages   Carriages couple recoupled remotely from  each other as can    motely.
conveniently be done, for the support of
one body, with a view  to the objects and    nviewof objects
on the principles herein set forth, is con- 27
Most important feasideredc by me as a most, important feature   ture.
of my invention; for by the contiguity of   Contiguity of fore
and hind wheels.
the fore and hinds wheels of each bearing
carriage, while the two bearing carriages   While bearing carriages any desirable
may be at any desirable distance apart,   distance apart.
the lateral friction  from  the rubbing  of
the  flanches against the  rails is  most   Lateral friction
avoided.
effectually avoided, whilst, at the same
time, all the advantages attendant upon
Advantages of far
placing  the axles of a four-wheeled  car   apart axles otained
far apart are thus obtained.
20




150                    APPENDIX.
Bearing on centre of 28  The bearing of the load on the centre
bolster.
of the bolster, which also is the centre
of each bearing carriage, likewise affords
great relief from the shocks occasioned by
Affords relief from    the percussions of the wheels on protuberant parts of the rails, or other objects,
and from 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
Two wheels froins    diminished.  The two wheels on either
as acting like a single
wheel.          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
Bearing carriages    any distance from  each other, consistent
apart,
Onsistentlywithf   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.
29   Another advantage of this car compared
Advantage       with those in common use, and which is.
viewed by me as very important, is the
Safety of passengers.  increased safety afforded by it to passengers; not only from the diminished liabilLess liabiltyto  ity to breakage, or derangement in the
breakage.       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




A P PENDIX.                    151
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 30
running of cars or carriages upon eight
wheels, this having been previously done;  Disclaimer.
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 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, there-   Claim.
fore, 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 rail road car, so as to  Connection with a
accomplish the end proposed by the means
set forth, or by any others which are
analogous and dependent upon the same
principles.
ROSS WINANS.
WTVitnesses-G. BROWN,
J. H. B. LATRoBE.




152                    APPENDIX.
References to the annexed Drawing of Ross Winans' improvement
in the construction of Cars or Carriages intended to run on Railroads, for which Letters Patent were issued, dated October 1st,
1834.
Fig. 1. —Side view of an eight-wheel car.
Fig. 2.-End view of the same.
Fig. 3.-Upper and lower bolster detached from the body and
bearing-carriage.
A A-Represents the body of the car resting on the bearingcarriage B and C, as exhibited at D  D, on pivots equidistant
from the wheels of edach bearing-carriage.
H-Represents an upper bolster of cast-iron, separate from the
body of the car with its pivot X corresponding with the socket Y
in the lower bolster E, also shown as separate from the bearingcarriage.
STATE OF MARYLAND,?
BALTIMORE CITY, ss.  S
On this nineteenth day of November, in the year eighteen hundred and thirty-eight, before me, the subscriber, a Justice of the
Peace of the said State in and for the said city, personally
appeared Ross. Vinans, and made solemn oath that he is the
inventor of an improvement in the construction of cars or carriages intended to run on rail roads, for which Letters Patent
of the United States were granted to him, dated the first day
of October, 1834; and that the annexed drawing is, as he verily
believes, a true delineation of the invention, as described in the
said Letters Patent.
Sworn before
JAMES BLAIR,
Justice of Peace.




INDE X.
A.
Adams, President, Carriage of, 27.
Alexander, J. H. Testimony about the Herald, 30.
Abandonment, Prior to Invention, 38. Subsequent to, 44.
Allen Engine, 83, 84, 85, 86, 87.
Argument on Prayers prevented, 102, 103.
Act of 1793, 124.
Amoskeag Manufacturing Co. Engine, 125.
Abandonment-Prayer as to, 130.
B.
Baltimore, Western Relations of, 10, 11.
t"   Rail Road System in America, originated in, 11.
"    \Vitnesses from, 48.
Brown, George, 13.
it in charge of Machinery, 14.;'  his suggestion of Eight WTheels, 14.
Bennett, as to Wood Car, 24.
Baltimore Gazette, Article in, 27.
Baltimore and Ohio Rail Road Company, Agents of Plaintiff, for
Experiments, 42.
Boy on Ice, 59.
Bryan, G. 76.
Body, length of, where referred to, 110.
Boston Locomotive Works, Engine, 125.
Body, draft by, 129.
B. model, Falsity of, 137.




154                       INDEX.
C.
Canals, Erie and Pensylvania, 11.
Colts of Patterson, 12, 14.
Cromwell, 14, 43.
Columbus, first Drawing of, 14.
Cross-Examination of Defendants' counsel, as to Plaintiff's declarations, illustrated, 16, 17.
Cadwallader, as to Wood car, 24.
Columbus, 29.
Cromwell went to see Camden and Amboy Cars, 31.
Comet, 32.
Claridge, date of Washington Car, 34.
Carncross Car, 36.
Columbus, not the same as perfected Car, 38, 39.
Cooper, Peter, 40, 41, 57.
Canandaigua trial, 45, 46.
Conkling, Trial before, 46.
Cooperstown, Trial at, 46.
Cooper, Samuel, 48, 131.
Chapman Car, 50, 53, 4,; 5, 6, 7, 8, 9.
"Comfort, Safety, and Economy," 97.
Car, as a whole, to be covered, 97.
Construction of Specification, 94, 95.
Copeland, 99.
Court's refusal to hear Argument on Prayers, 102, 103.
Car trucks before the Jury, 122.
Commission to take Testimony, form of, 135.
D.
Defence, General, 9.
Drawing, First Working Drawing of Columbus, 14.
Drawing of Columbus, given by Plaintiff to Cromwell, 17.
"               t "   Alleged discrepancies in, 17' C..  Mr. Whiting's interruption about, 17.




INDEX.                          155
Drawing of Columbus, Gatch's statement in regard to, 18.
Draft in Timber car controlling the free swivelling, 24.
Dromedary, 31.
Davis' testimony as to draft, 34, 35.
Drawing first appeared in the Baltimore case, 43.
Detmold, &c. 93.
Diagram to shew the effect of the position of Truck, 71, 114.
Davis vs. Palmer, 117.
Drawing, prayer in regard to, 123.
Draft by body, direction, 129.
Damages, 139.
E.
Eight Wheel car, in Streets, 6, 7.
Compared with four wheeled, 6, 7, 8.
Eight Wheels, George Brown's suggestion of, 14.
Eight Wheel car, Winans' first rough sketch of, 14.
first working drawing of, 14.
Elgar, 14, 15.
Extension, 44.
Eaton & Gilbert, suit against, 46.
Ends of body, relation of trucks to, objection, 119.
Experts of Defendants, 131
F.
Four Wheeled car, compared with Eight Wheeled, 6, 7, S.
Friction wheel, Winans, 12.
Fairbanks, 14.
Ferry, 14.
Forest, who is he, 19.
Foltz, 37.
Fairlamb, 50, 90, 91, 92.
Four Wheeled car, Model of, 52.
Farley's Testimony, 135, 136, 137.




156                       INDEX.
G.
Gould, C. D. Agreement with, 6.
Grouped Wheels, 7.
Gim Crack, Friction Wheel, called so by Whiting, 12.
Gatch, Conduce, his business, 15.
t"          absence, 15.
statementabout drawing given him by Plaintiff, 18.
t"          his understanding as to the invention, 18, 19.
"4          belief that it is for a Truck, 19.
t"           who is he, 19.,,          as to Trussels, 27.
Glenn, 27.
H.
Herald, 30.
Hubbell, William, his argument, 49.
I.
Invention, circumstances at date of, 10.
Imlay, 37.
Intention as affecting abandonment, 39.
J.
Jervis, J. B. 30.
Jervis Engine, 88, 89, 90.
Ice, Boy on, 59, 60.
K.
Knight, 14,.15.
L.
Liverpool and Manchester Rail Road, 10, 12.
Length of Car, places where referred to, 110.
Long Spring, objection, 128.




INDEX.                          157
A.
Mount Clare and Mount Clare Depot, 26.
Myers sent to Philadelphia, 37.
Massachusetts, suits in, 47.
Model, water, 60.
Model, to show advantage of long car, 74, 75.
McClurg vs. Kingsland, 82.
Model B. falsity of, 137.
N.
New Castle and Frenchtown Turnpike and Rail Road Co. ats.
rTinans, 40.
New Trial, motion for, 46.
"Need be" Copeland as to effect of, 118.
Nearness of truck wheels, where referred to, 114, 1.15.
Norris engine, 125.
0.
Original Inventor, was Plaintiff the, 10.
Originality, alleged want of, 22.
P.
Plaintiff's general heads, 9, 10.
Probabilities in favor of Winans as inventor, 21.
Pay Rolls, Trussels mentioned, 27.
Pennsylvania car, 37.
Prayers, lst. —102.
2nd.- 106.
3rd. -106.
4th.-106.
5th.-121.
6th.-122.
7th.-122.
Sth.-129.
21




158                     INDEX.
Proximity of truck wheels, places where referred to, 114, 115
"    "    r   "    "     objections to, 124.
Pettit's testimony, 134.
Q.
Quincy car, 76, 78, 79, 80, 81.
R.
Rupp, who is he, 19.
Reynolds, 27.
Rupp, as to draft by body, 33.
Recapitulation, 92.
Rail Roads in America originated in Baltimore for general purposes, 11.
Speculation —charge of, 5.
Street Car, 6, 7.
See-saw of Four-wheeled car, 8.
Stephenson, in competition with Winans, 13.
Superintendent of Machinery-G. Brown, 15.
Scroll shewing sequence of Cars, 33.
Suits brought by Gould, 44.
Susquehanna Rail Road Company, letter to, 44, 65.
Stevens, Samuel, 45.
Smith, G. W., criticism on Tredgold, 67.
Simplicity of invention, 93.
Specification, sufficiency of, 94, 95.
"Subterfuge," 101.
Specifications, objections to, 107.
Swivelling, free, objection, 126.
Square, theory of, objection, 127.
Spring, long, objection, 128.
1"     "   use of, 132, 133.




INDEX.                         159
T.
Timber Car, so called, 22.
Tressel Car, 27.
Taney, Judge, Opinion, 40.
Tredgold Car, 50, 61, 62, 63, 64, 65, 67...."0 G. W. Smith, upon, 67.
Trucks, Patent, insisted to be for, 96.
4"   Trucks, relation of to end of body, 119.
Theory of square, objection, 127.
Testimony, how "gotten up," 134.
V.
Victory, Car, 37.
"Very near," term of comparison, 119.
W.
Winans' personal history of; 11, 12.
Probabilities of his being inventor, 21
Wood Car, 24.
Whistler, G. W. 30.
Winchester, 31.
Washington Cars, 33.
Waterman, 48.
Whiting, William, argument of, 49.
Wood's Treatise, 50, 67, 68.
Water Model, 61, 62.
Waterman's examination, 68, 69, 70, 71, 72, 73, 74.
Wheels of trucks, proximity of where referred to, 114, 115.
Witnesses of Defendants, 130.
Worden's testimony, 134.
Wilkinson, 135, 136, 137.
Wood first hauled on Baltimore and Ohio Rail Road, 24.
Y.
Young's Testimony, 134.