New Britain herald., 1928-07-19
DENY FUMES CAUSE
 DAMAGE ID GRAPES
Witnesses for Brick Company Call FraCass0 Yard Normal

him and his witnesses to produce sufficient proof of unreasonable con- duct on the part of the defendant, were made by the defense counsel during the trial of the Fracasso versus Stiles < Reynolds Brick Go. action, heard yesterday in the city court before Judge Henry P. Roche and continued today. The action is for $3,o00 damages claimed by the plaintiff, John Fracasso. whose all legations are that smoke issuing from the brick kilns of the de- fendant company, containing a cer- tain amount fsulphuric gas, ruined his crop of grapes last year.
 In making a motion for mo case" the defense attorney J. w. Carpenter stated that no clear proof was brought in the evidence whereby the claim of public nuisance could be justified as the claimed injury to the fruit and leaves of the grape vines was not a continued occur renee. The defendant company was in the vicinity where the plaintiff s vineyard is located long before the plaintiff made his residence there, he claimed, and Fracasso knowing this, could have sought some other | locality for the purpose of raising grapes. knowing well that the To- calty is filled with numerous con- cerns where the process of brick making is conducted"
 "No Case" Motion Denied
 xl,S
 dered a short recess to look up the law on nuisance and then resumed the bench, denying the defense counsel his motion for mo case"
 The first witness for the defendant called was R. F. Mitchell, superin- tcndent of the Hartford branch of the N. ", N. H. S H. R. R.. who testified as to the number of trains passing through the territory where both the plaintiffs and the defend- ants properties are located. From the testimony it appeared that there are 60 steam propelled trains run ming daily through this section and thai the company had been running trains on this line since 1S41. It appeared that this testimony was to bring out the fact that injury may have been caused by the smoke Issuing from the locomotives.
 The next witness was Norman Tewksbury of Fall River, Mass, chemist of the New England Oil company from which the brick concern purchases it's oil for the purpose of burning of the brick. He testified as to the sulphuric acid contents in the two grades of oil furnished to the concern, stating that one contains IS of one per cent and the other about go of one per cent. Questioned by counsel for the plaintiff as to the clause in the contracts relating to what sulphuric contents the oil should contain, he stated that it was of no vital inn pcrtanco to the purchaser how large quantity Of suiplfuric acid Is con- taincd in the oils. but that it was merely a matter of form. He stated that at least six companies in this locality use the same oils from his company.
 IIApSftS AppIdI>e tlItyNTu
 Glen P. sherman and Eugene K. Judd, fruit growers of North Haven, whose properties are also in the vii cinity of brick lsilns, testified that they never had any trouble. Both studied the grapes and vines in the Fracasso vineyard and their testi- mony appeared to bear out the fact that his bushes were in good condi- ton, that they had normal growth and that Fracasso had a fair crop of fruit. They could not see any sign of injury to the fruit except that they saw some discoloration in the leaves which after all, according to their testimony, did not effect the vitality of the vine bush. The new wood showed normal growth they said. and considering the care that was taken of the vineyard, every thing seemed to be in perfect condi- ton.
 Others who testified during yes- terday's session were brick manu- facturers. who stated that they never had any trouble with anyone regard Ing destruction of crops through smoke issuing from the llilns, and outlined the process of making brick. each testifying that they use oil of practically the same grade that the defendant uses. Those who testified were David Andrew of North Haven. Frank H. Holmes of this city, whose brick kilns are in the vicinity Of the Fracasso prop erty, Walter S. Futile of Middletown and samuel Bunnell of North Haven.
 It appeared from the testimony of the plaintiff and his witnesses. that on August 29 of last year when the alleged injury was caused. atlno- spherlc conditions were unusual. The combined damp air, a drizzling rain and wind blowing towards the property of the plaintiff caused the smoke issuing from the kilns of the brlck concern to hang low and set on the grape bushes. It was on this basis therefore, and the fact that the brick company was conducting a le- gal business for a long period prior to the coming of the plaintiff to that lcality, that defense counsel based his claim of no prima facia case, as no evidence was produced that a public nuisance was committed by the brick concern.
 Fracasso Once Yard EmpIoye
 During this mornings session of the continued trial. the first witness called was John F. Reynolds. presi- dent of the defendant company, who outlined the process of brick making and gave data as to the company's activity. In further testimony it was brought out by him that he employ ed the plaintiff for some time and that just prior to the alleged injury caused to the fruit, trouble had arisen between the two and Fracasso was told to leave. The witness testi-