Cumberland Valley Railroad Company's Appeal

245 Pa. 107 | Pa. | 1914

Opinion by

Me. Justice Brown,

The settled policy of the State — no longer merely judicial — is against grade crossings over railroad tracks. By the Act of June 7,1901, P. L. 531, public authorities, except in cities of the first and second classes, are forbidden to construct a public highway at grade over the tracks of a railroad company unless permission to do so be obtained from the Court of Common Pleas of the district in which the crossing is situated; and such permission must be obtained in the manner provided by the fourth section of the act. It is not an enabling act to facilitate grade'crossings of railroads by highways; on the contrary, it is a prohibitory one, and, when public authorities petition for a grade crossing under the provisions of its fourth section, they come into court with a heavy burden of proof resting upon them: Mifflinville Bridge, 206 Pa. 420.

This appeal is from permission granted by the court below to the supervisors of Antrim Township, Franklin County, to construct a public highway at grade over the double tracks of the Cumberland Valley Railroad Company. In view of the facts found by the court and of an unchallenged averment in the sixth paragraph of the answer of the appellant to the petition of the appellees for permission to construct the crossing, the order authorizing it ought not to have been made. In 1912 a petition, signed by more than one hundred and fifty residents of Antrim Township, was presented to the court of quarter sessions of the county, asking for the appointment of viewers to view and lay out a public road to run from the Hagerstown road to the Williams-port turnpike, two public thoroughfares in the township. The viewers reported in favor of the proposed road, and, after their report had been absolutely confirmed by the court, and an order made for the opening of the road, the supervisors of the township presented their petition, under the provisions of the Act of 1901, asking permission to construct the road at grade over the tracks of the appellant. Between fifty and sixty trains pass daily at the point where the proposed public road crosses the tracks of the railroad company. Most of these are fast freight and passenger trains, the former running at a speed of from forty to forty-five miles an hour and the latter at a speed of from sixty-five to seventy miles an hour, - The traffic of the railroad company is rapidly increasing. The land on each side of its tracks where the new public road will cross them is cultivated by farmers, and a finding of the court below is that, when com grows high in the fields at the point of the proposed grade crossing, the roadbed of the company cannot be seen in approaching the tracks, though smoke from the engines can be seen above the corn. In this latter part of the finding the court below seems to have forgotten that smoke is not visible in darkness or in fog. Though the learned judge failed to find as a fact that the proposed grade crossing will be dangerous, one of his legal conclusions,, inconsistent with the facts which he found, is that the crossing will nqt be a dangerous one. We are unable to understand how such a conclusion could have been reached in view of the facts to which we have referred. Our conclusion, from a review of what has been brought up on the record, is that the proposed grade crossing will be dangerous and that the court below erred in concluding otherwise.

The Act of 1901 provides that a grade crossing may be constructed if the court having jurisdiction of the matter shall be satisfied that such a construction is reasonably required to avoid excessive expense, in view of the small amount of traffic on the highway. Among the court’s findings there is none that the amount of traffic on the highway will be small. True, there is a finding that it is likely to be used only for neighborhood travel, but how extensive that may be does not appear. It does appear, however, that more than one hundred and fifty residents of Antrim Township petitioned for the road, which connects two public highways running parallel to each other, east and west of the railroad, and it may be in view of this that the court below could not have found as a fact that the “amount of traffic” over the road would be small. One of its legal conclusions was that, as the amount of travel on the highway was likely to be small, the expense which would be incurred in constructing an overhead structure would be excessive and almost prohibitory. As just stated, there was no finding as to the probable amount of travel on the highway. It may be large, even if it be likely that the highway will be used only for the neighborhood travel, for many people may live there. More than one hundred and fifty of them set forth in-their petition for the road that it was necessary for the accommodation of the public, and the viewers so found. The cost of erecting an overhead crossing will be at least $20,000, as found by the court; but one-half of this will be borne by the railroad company. We cannot concur in the conclusion that the half ■to be paid by the county will be excessive and ought to be avoided, in view of the amount of traffic over the new road. The only expense to the township, based upon the interest it will have to pay if it should make a loan to enable it to pay for one-half of the construction of an overhead bridge, will be but five or six hundred dollars a year. The crossing authorized by the court below will, under the circumstances to which we have referred, be a death-trap to the public. New or many may be caught in it, but, without regard to the number for which the appellees would set it, it was not for the court below to compare and estimate the value of life and limb and weigh that value with a few thousand dollars additional expense to be incurred in erecting an overhead crossing, and call that expense excessive: Pennsylvania Railroad Company v. Bogert, 209 Pa. 589.

The proposed public road will occupy the bed of a private road at the point where it crosses the railroad, and this was given as an additional reason by the court below for permitting the public grade crossing. This private road was for the exclusive accommodation of two farmers, and was their only means of access to a public highway. The public had no rights in it and could not use it, but they need a road to enable them to get from ope public thoroughfare to the other, paralleling the railroad, and such road necessarily crosses the railroad tracks. The route adopted by the viewers happened to take in the private road used by the two farmers, which crossed the tracks at grade; but that crossing, which accommodated but two families, has been wiped out by the new road, which is to accommodate the traveling public. The private crossing is not in the case: Pennsylvania Railroad Co. v. Bogert, supra. The crossing in controversy is a new and public one, and not the perpetuation of an old, private one. It was, therefore, a forbidden one under the Act of 1901, unless those who asked for it were able to show that it ought to be permitted under the provisions of the fourth section of that act. This, in our judgment, the appellees failed to do, and the court below should have so concluded, in the exercise of the discretion vested in it. The order or decree appealed from is reversed, at the costs of the appellees.