Camden v. United States Cast Iron Pipe & Foundry Co.

68 N.J. Eq. 279 | New York Court of Chancery | 1904

Grey, V. C.

The complainant is a trolley company, which owns and operates an electric railway for the carriage of passengers from Camden to Trenton.

A portion of its route runs on a single track, longitudinally, through Pearl street, in the city of Burlington. The defendant, the United States Cast Iron Pipe and Foundry Company, owns both sides and the bed of that street, and maintains a’large pipe-making plant there, and has for some years connected the business carried on upon one side of that street with that done on the other by a steam railroad, which also connects with the tracks operated by the Pennsylvania Railroad Company running through Broad street, in Burlington.

The defendant company has obtained leave from the city of Burlington to build three additional tracks across Pearl street, for the conduct of its business, to be used solely for the passage of freight cars moved by steam engines. Two of these crossings, at the points marked B and G on the diagram, it proposes to build at once, and the other, crossing Pearl street at a point located three hundred feet east from the east side of Hulme street, the defendant company does not intend to build at this time.

In the ordinance of the city of Burlington authorizing the defendant’s crossings there are provisions that the speed of the defendant’s freight cars moving across Pearl street shall not exceed five miles an hour, and that its flagman'shall give notice of its approaching trains.

The complainant does not challenge the defendant’s proposed crossings because of their location or construction. What it objects to is the use which the defendant company proposes to make of these crossings by passing its freight cars over them. This proposed use at .the points B and 0, the complainant insists, will be an intrusion by the defendant upon the complainant’s right to run its railway tracks in Pearl street at any speed which it may choose. The complainant further contends that the provisions of the city ordinance that the defendant company shall limit the speed of its freight cars in crossing the complainant’s tracks to five miles an hour, and give notice by flagmen, &c., is insufficient as a protection against the possibility of collisions between the complainant’s railway cars, moving at the speed at which they are entitled to travel, and the defendant’s freight cars crossing the electric railway tracks. The complainant therefore insists that tire right asserted by the defendant company to cross the electric railway tracks at grade, in the mode proposed, conflicts with the complainant company’s right to drive its cars along Pearl street at unlimited speed, and entitles the complainant to the intervention of this court to compel the defendant company to put in some sufficient derailing device at the proposed crossings, to protect against this alleged danger.

The proofs show that the complainant company runs over fifty cars a day along Pearl street, and that it intends to increase probably to double that number. That the defendant company now uses its present one-track crossing, at the point A, eight to twelve times a day for the passage of cars drawn by a locomotive, and less frequently for the passage of hand cars pushed by the men. When the proposed new sidings are put in, most of the drilling of cars will be done inside the defendant company’s gates, without crossing the street, which will decrease the number of movements across the complainant company’s tracks very materially, so that at the outside they will not probably exceed four or five in the course of a day. Other changes in the defendant company’s work, attendant upon the construction of the new crossings, will also tend to lessen the number of movements across the complainant’s railway tracks on Pearl street and to clear the view of the points of proposed intersection.

The evidence shows that there is very little public highway travel along that part of Pearl street in which these proposed crossings by the defendant company will be located. So little, indeed, that the passage of ordinary vehicles across the points B and G, where the defendant company’s proposed crossings will intersect the complainant company’s railway, does not enter into consideration in ascertaining whether special protective devices should be there used.

The trend of the railway company’s complaint is that the construction of the defendant’s two crossings at the points B and G, unless some derailing device be there adopted, will compel the railway company, for safety’s sake, to check the speed of its cars in order to prevent collisions with the defendant company’s freight ears crossing its tracks.

The complainant’s argument is that under the law it is entitled to drive its cars along Pearl street, in the city of Burlington, at unlimited speed; that the intersections of its railway by the crossing tracks of any other railroad at grade must, per se, constitute a danger and be an interference with its chartered rights; that these circumstances entitle it to the intervention of this court to compel the defendant company to put in some protective device at the proposed crossings which will minimize the danger from collision of moving cars at those points.

The proofs in this case show that the proposed crossings B and G are so located that the employes of either company can readily see the movements of the cars of the ether as the proposed crossings are approached.

The crossing at the point A on the diagram has been used by the defendant company for years before the complainant built its electric railway. The complainant company makes no proposition to arrange for the installment of any protective device for that crossing. It may therefore be assumed that it expects to avoid possible dangers at the present crossing A, by instructions to its own employes to drive their cars at a slower rate of speed when approaching that point.

The crossing B, where the complainant insists a protective device should be installed, is distant only three hundred feet from the present crossing at the 'point A. The two crossings A and B lie so near each other, and are in their surrounding conditions so nearly identical, that any checking of speed by the complainant’s motormen at the crossing A may easily be continued until the crossing B is passed.

It may be true, as stated by the complainant’s counsel, that no limitation of the speed at which its electric cars may travel in the streets of a city, is imposed by the statute under which the complainant company is incorporated, or by the ordinances of the city of Burlington, but, in my view, that does not justify the continuous running of electric ears in public highways at a rate of speed which endangers every other use of such thoroughfares.

All the cases which have dealt with the status of street horse railroads and their successors, the electric railways, using public highways longitudinally, have been based on the theory that these uses of the highway are within those for which the land was originally taken by the public for a highway (Hinchman v. Paterson Railroad Co., 17 N. J. Eq. (2 C. E. Gr.) 75; Halsey v. Rapid Transit Co., N. J. Eq. (2 Dick.) 380); that the movement of street railway cars on their tracks in the highway, “is only a modification of the public use to which the highway was originally devoted.” Citizens’ Coach Co. v. Camden Horse Railroad Co., 33 N. J. Eq. (6 Stew.) 267. In that case it was expressly held, by the court of errors and appeals, that the legislative grant to a street railway company of the right to lay rails in a public street at the level of the highway, carried with it, in the nature of a condition imposed on the company, a permission to other vehicles to use the railway tracks as a place of passage to and fro, but not for the purpose of competing with the street railway company in carrying passengers for hire.

The effect of these and similar decisions is to declare that the movement of street railway cars along the public -highways is a use which the street railway companies enjoy in common with other vehicles traveling on these highways. Everyone enjoying such a common easement is bound so to regulate his own use of the common right that he does not unreasonably interfere with other persons in their enjoyment of it.

Express statutory limitation of the -speed at Avhich street railway cars may be driven along the public highways is therefore not necessary' in order to cast upon street railway companies the obligation so to restrain the speed of their cars that other vehicles may reasonably enjoy the use of the public way.

The rules regulating the speed at which steam railroad companies may drive their trains have no application to street railways. Each steam railway has the sole and exclusive enjoyment of its way, and its crossings of public ways are controlled by express legislative enactments. Pennsylvania Railroad Co. v. Matthews, 36 N. J. Law (7 Vr.) 531; New York, &c., Railroad Co. v. Leaman, 54 N. J. Law (25 Vr.) 202 (Court of Errors and Appeals).

It cannot, in my view, be maintained that every other user of the public highways must provide the electric railways with a clear passage to run their ears therein at unlimited speed. Where an electric railway company using a public street can by a reasonable slowing of the speed of its cars remove the probability of collision, it has no equity to require other users of the way to provide expensive and special devices to insure it the opportunity to drive its cars in the public streets at unlimited speed.

Each of these cases of claimed conflicting easements of way at grade at the same place must, of course, be decided upon the conditions existing at the locus in quo the dispute arises.

In the present case nothing appears which indicates that it is an unreasonable interference with the complainant’s right, to deal with these two crossings at the points A and B as subject to the same dangers, and capable oí being protected by the same precautions, which it is entirely within the complainant’s power to provide, namely, a checking of the speed of its cars as they approach- those crossings. As the remedy for the apprehended danger plainly lies within the complainant’s own control, there is no occasion for the intervention of this court respecting the crossing B.

The same principles apply to the objections made by the complainant to the proposed crossing at the point G, although the conditions there are somewhat variant.

Both tírese proposed crossings by the defendant company of the complainant company’s tracks lie within the limits of the public street of the city of Burlington which the complainant company is using longitudinally for its railway.

The crossing at the point marked G on the diagram, is about twelve hundred feet eastwardly from the crossing at the point marked B. All the disputed crossings lie- within a distance of a little more than a quarter of a mile.

A proper checking by the complainant company of tire speed of its cars while they are passing over this quarter of a mile- will afford all the protection needed to prevent collisions at the proposed crossings.

All the defendant company’s movements of its freight cars over both the proposed crossings, will be at points previously known to tire complainant’s employes. The defendant’s crossing cars may be readily seen by the complainant’s mo tormén as they approach the intersecting points.

The proof is that the present single crossing at the point marked' A, is now used by the defendant company about twelve times per day, a little more than once every working hour. The uncontradicted evidence also shows that by tire improved and additional facilities for the arrangement and conduct of the defendant company’s business, which will be afforded by the proposed crossings at the points B and O, the number of movements of the defendant’s cars across the complainant company’s tracks will be reduced to four or five in the course of a day— an average of about one cross -movement every two hours of a working day.

The circumstances show conditions which, indicate that the construction and use of the new crossings B and 0, instead of increasing the dangers to the complainant’s cars in passage along Pearl street, will actually lessen the present interference with their travel in that highway.

In order to justify the interposition of this court the complainant must show that the proposed acts of the defendant company will in their final result impose upon the complainant company an additional and unreasonable burden of care at the crossing points. The evidence goes to show the contrary of this proposition.

' A decree will be advised that the complainant’s bill be dismissed, with costs.