433 A.2d 303 | Vt. | 1981
Central Vermont Railway petitioned the Transportation Board requesting authority to close a public railroad grade crossing in the Town of Swanton, pursuant to 30 V.S.A.
During the hearings, the Board entertained evidence attesting both to the hazardous nature of the present crossing and the safety problems with relocating. Specifically, the Board heard testimony by a railroad employee that four accidents had occurred at the crossing between 1948-1969; evidence was also presented regarding the visibility problems presented by the crossing’s location. On the other hand, evidence was introduced indicating that any alternative to retaining the crossing would compromise and delay fire protection and other emergency rescue services for the Town because of circumvented access.
The Board clearly is granted power pursuant to 30 V.S.A. § 1901 to order any alterations required for the public safety. 30 V.S.A. § 1906 accords the Board authority to direct by whom necessary, alterations should be made. The Town, however, claims that the Board was without sufficient evidence to support its order. The Railroad, citing Central Vermont Railway v. Hanley, 111 Vt. 425, 433,17 A.2d 249 (1941), claims that once the Board determined the crossing presented a public hazard, it should have been ordered closed immediately, notwithstanding the resultant public inconvenience.
In Hanley, this Court recognized a policy favoring the closing of grade crossings. However, that decision must not be read to restrict the Board from exercising its discretion in formulating resolutions sufficiently flexible to handle .particular situations. In a case such as this, with equities both on the side of closing the crossing and retaining a ready access
The Town, as part of its challenge to the Board’s order, questions for the first time on appeal the admissibility of testimony by a railroad employee concerning accidents at the crossing. As we indicated in Vermont Terminal Corp. v. State Highway Board,, 132 Vt. 1, 7, 313 A.2d 12 (1973), failure to object to the admission of testimony at the proper tribunal precludes our consideration. The Town’s further contention that there is insufficient evidence to support the Board’s conclusions thus also fails.
The Board ordered that the crossing be closed if relocation were not completed by December 1, 1980. In light of our stay of that order and the Town’s admission at oral argument that relocation could be completed by September 1, 1981, we affirm the order of the Board except as to the applicable deadline, which shall be September 1,1981.
Judgment of the Board affirmed except as to the applicable deadline for relocation, which shall be September 1,1981.