4 N.E.2d 96 | Ill. | 1936
This is an appeal from an order of the circuit court of Cook county confirming an order of the Illinois Commerce Commission requiring the Chicago, Burlington and Quincy Railroad Company to construct and maintain a stairway for the use of yard employees at its Western avenue train yard, in the city of Chicago, from the street level of Eighteenth place to the yardmaster's office.
Western avenue runs north and south and crosses under appellant's tracks by means of a subway. The railroad right of way is on a fill about twenty-five feet high and crosses over Western avenue in a northeasterly and southwesterly direction. That part of Eighteenth street lying east of Western avenue abuts upon and parallels the right of way for some distance and then runs due east. Eight tracks occupy the right of way across Western avenue, numbered from north to south. Track 1 is used by west-bound passenger trains. Track 2 is used by passenger. trains in both directions, except that during rush hours in the morning it is used only by east-bound trains. Track 3 is used for east-bound passenger service. Track 4 is used by freight trains. Operations may be varied as exigencies require. The other four tracks are switch-tracks connected with the train yards east of Western avenue. Some of the switching into the yards is accomplished by gravity. Westbound passenger trains stop at a station and platform north of track 1, on the east side of Western avenue. East-bound passenger trains stop at a platform between tracks 2 and 3. There is a picket fence between tracks 1 and 2 to prevent crossing. Stairways from Western avenue lead up to the station platforms. The yardmaster's office is on the fill south of track 8, about 120 feet southeast of the station platforms. The south side of the south retaining wall of the fill coincides with the north line of Eighteenth street. The estimated cost of the stairway is about $1800. If erected it would be in the street. The city of Chicago was *216 not made a party to or notified of the proceeding. An alleged discrepancy in describing Eighteenth street as Eighteenth place will be later noticed.
Besides suburban and through passenger service there are foreign freight trains into and out of the yards and heavy switching operations during the entire twenty-four hours of the day. No complete schedule of train operations is maintained and there is nothing to give notice of approaching trains or cars. Two switch-engines work there regularly. One of them works practically all the time. About eighty-eight yardmen are employed. They are required to report to the yardmaster's office on coming to and leaving work. The only way to reach or leave the office in so doing is by crossing the tracks between it and the platforms. If the proposed stairway is installed the employees will be relieved of that necessity. At least seventy-five per cent of them use the suburban passenger service. One of them was killed on April 6, 1934, while crossing the tracks to report for duty. Appellant's records show no other accident there since 1906.
Appellant's division superintendent testified that there are a large number of children in the neighborhood, some of whom come upon the right of way to pick up fuel; that they can come up by the Western avenue stairs; that the management apprehends the proposed stairway may be used by them and by outsiders to make short cuts to the platforms, endangering their lives; that it would be impracticable to maintain a locked gate there with access to employees only; that appellant has experienced trouble from trespassers using stairways at other points; that the use of the proposed stairway by employees in seeking train service would necessitate their using the other stairs and traveling about 415 feet instead of 120 feet, and he doubted they would do so.
This cause reached the circuit court by appeal after appellant's application for a rehearing was denied by the commission. *217
Appellant urges that the order, and the provisions of the statute under which it was entered, contravene the Federal and State constitutions. By section 67 of the Public Utilities act (Cahill's Stat. 1933, chap. 111a, par. 861) as then in effect, it was provided that any party to the proceeding may apply for a rehearing by the commission in respect to any matters determined in such proceeding and specified in the application for rehearing. No appeal could be allowed until such an application was filed and acted upon by the commission. The record does not show that this constitutional question was presented to the commission at any time or to the circuit court. It therefore can not be urged here. (People v. City ofWaukegan,
Section 50 of the Public Utilities act (Ill. State Bar Stat. 1935, chap. 111a, par. 65,) provides in part: "Whenever the commission * * * shall find that additions, extensions, repairs or improvements to, or changes in, the existing plant, equipment, apparatus, facilities or other physical property of any public utility * * * ought reasonably to be made, or that a new structure or structures should be erected, to promote the security or convenience of its employees or the public, or in any other way to secure adequate service or facilities, the commission shall make and serve an order directing that such additions, extensions, repairs, improvements or changes be made, or such structure or structures be erected in the manner and within the time specified in said order."
The first paragraph of section 57 of the same act provides: "The commission shall have power * * * to require every public utility to maintain and operate its plant, equipment or other property in such manner as to promote and safeguard the health and safety of its employees, *218 passengers, customers, and the public, and to this end to prescribe, among other things, the installation, use, maintenance and operation of appropriate safety or other devices or appliances including interlocking and other protective devices at grade crossings * * * and * * * systems of signaling, to establish * * * standards of equipment, and to require the performance of any other act which the health or safety of its employees, passengers, customers or the public may demand." Section 32 imposes such duties upon public utilities.
Under the claim that the commission was without jurisdiction to enter the order, it is contended there is nothing which authorizes such an order in either of the sections mentioned. It is urged that the objective of the legislature was to enable the commission to enforce the duty of utilities to furnish adequate service to the public; that the powers granted are limited to matters in which the public has an interest; that there is neither allegation nor proof that the public has any interest in this proceeding, but the benefits of the proposed stairway would be confined merely to a group of employees. Appellant relies upon expressions in three decisions of this court and in two cases decided by the United States Supreme Court. In Public Utilities Com. v. Noble,
In Kennedy v. Public Utilities Com.
In Northern Pacific Railway Co. v. North Dakota,
Similarly, in Lake Shore and Michigan Southern Railway Co. v.Smith,
It is to the interest of the State to have strong, robust, healthy citizens capable of self-support, of bearing arms and of adding to the resources of the country. Laws to effect this purpose by protecting employees are held to have an obvious connection with the public welfare. The physical welfare of the citizen is a subject of so much importance to the State, and has such a direct relation to the general good, as to make laws tending to promote that object proper under the police power. (Holden v. Hardy,
The Public Utilities act does not vest the commission with such arbitrary powers as will result in a confiscation of the property of a public utility, and it provides that the orders of the commission are subject to review by the courts. (Superior Motor Bus Co. v. Community Motor Bus Co.
In addition to the evidence already noticed, there was testimony tending to show the employees will use the proposed stairway, and that the complaint was filed at their request. It was shown that the stairway would be subject to closer observation than the present stairways to the platforms, and that it would be a simple matter to prevent children and trespassers from incurring any hazard by its use. It is admitted that the cost of installation and maintenance are of secondary importance. The fact that only one employee has been killed is not of itself sufficient to show that a dangerous condition does not exist. Nor does the fact that the employees are engaged in a hazardous occupation tend to sustain appellant's contention. When a hazard is shown to exist and may be eliminated without unreasonable expense or imposing onerous conditions, it is not necessary to wait until casualties result before requiring the evil to be remedied, even though other hazards necessarily incident to the business still remain. (Brotherhood of L. F. and E. v. Mobile and Ohio Railroad Co.
The claim that the order fails to make sufficient findings of fact cannot be upheld. It finds and sets out all the facts essential to show the hazard to employees and that the proposed improvement will eliminate the danger. It was not necessary that a particular finding be made as to each evidentiary fact or claim. Chicago North Shore and Milwaukee Railroad Co. v.Commerce Com.
There remains to be considered the claim that the proceeding and order are void for want of a necessary party, the city of Chicago. It is urged that the"city might refuse to issue a permit to build the stairway in the street and appellant could not by mandamus compel it to do so. The same contention was raised in the petition for rehearing. The petition did not allege, and it is not claimed, that the city would refuse to issue the permit. Appellee asserts in its brief that the permit has been granted by an ordinance, but we can take no notice of matters dehors the record.
Appellant knew of the defect in parties ever since it was notified of the filing of the complaint but at no time raised the question until the rehearing. When objection to non-joinder is not made until the final stage of a proceeding it will receive little favor by the courts, and in such case, to be of avail, it must appear that a decree or order will have the effect of depriving the party omitted of its legal rights. (Chicago, Madison and Northern Railroad Co. v. National DockCo.
While the complaint and order mention Eighteenth place, the record clearly shows that Eighteenth street was *224 meant, and the misnomer was a mere inadvertence. Both parties so treated the matter in the testimony and in all other respects throughout the proceedings. No question was raised about it, and it is now too late to do so. We hold that the proceeding and the order contemplate a stairway on Eighteenth street.
The order of the circuit court upholding the order of the commission was right and is accordingly affirmed.
Order affirmed.