106 N.Y.S. 655 | N.Y. App. Div. | 1907
Two questions are presented by this appeal:
First. Did the Board of Railroad Commissioners have jurisdiction and authority to make the determination appealed from ? and,
Second. If it had such jurisdiction, did it properly exercise its discretion in the premises ?
The question of jurisdiction must depend upon the meaning and interpretation which should be given to sections 60 and 62 of the Railroad' Law. So far as it is important to note, section 60
In the case at bar we think the Board of Bailroad Commissioners had ample power and authority to make the determination which it did; that it had the authority upon the facts alleged in.the petition to say that a certain highway should be discontinued, and that the traffic upon it should be diverted to another highway which such Commission determined should be carried over all the tracks of the petitioner by means of a viaduct. It would seem absurd to hold that if two, three or four streets parallel to each other, extended across a number of railroad tracks, any and all of which were dangerous to public safety, that under the law the Board of Bailroad Commissioners must decide that in order to avoid such dangerous situation a viaduct must be constructed over the tracks of such railroad in line with each of such highways. We think the reasonable construction'is that the Board of Bailroad Commissioners has jurisdiction to determine how many of such viaducts should be constructed and that the traffic upon the other streets should be diverted into such viaducts or means of crossing the railroad tracks,
The manner of crossing petitioner’s railroad tracks by the highways involved, the width of the viaduct and the closing of other streets, were all matters properly within the discretion of the Board of Railroad Commissioners upon all the evidence discloseid by the record, and .no situation or circumstance has been pointed out by .the able argument of the appellant which leads us to the conclusion that the discretion exercised by the Board of Railroad Commissioners, as evidenced by its determination, is contrary to .or against the weight of the evidence, and for that reason should be reversed by this court. The situation was a complicated one. Clearly it was a situation which was dangerous to the public and to public travel. So far as we can discover, the solution arrived at by the Board of Railroad Commissioners was, all things considered, the best which could have been devised ; that at least it cannot be said that there was any abuse of discretion in the premises.
We conclude that the determination and order appealed from should in all things be affirmed, but without costs to either party.
All concurred, except Reuse, J., who dissented.
Determination of the Board of Railroad Commissioners affirmed, without costs.
See Laws of 1890, chap. 565, § 60, added by Laws of 1897, chap. 754.— [Rep.
See Laws of 1890, chap. 565, § 62, added by Laws of 1897, chap. 754, and, amd. by Laws of 1899, chap. 359.— [Rep.