138 A.D. 412 | N.Y. App. Div. | 1910
The order before us for review determines only that “ the said highway shall be constructed over the said railroad upon a metal viaduct with a clearance of at least twenty-one-feet above the top of the.rail of the said railroád.” The length of the viaduct by which the highway is to be carried across the railroad, and the length, character and grades of the approaches thereto, which must also, as the statute
But, assuming this intermediate and incomplete decision of the Commission is how properly before us for review, we think the order should be affirmed. The formal proceedings had by the town board in laying out the proposed highway crossing the railroad it is conceded were regularly taken. It seems also to be conceded that a crossing at grade is, as the highway lias been laid out, the only practicable crossing by which the proposed highway can be made to serve the convenience of the vehicular traffic of the public having occasion to do business at the Sweeney Cold Storage plant, as it is now located and constructed. That this traffic will be better accommodated by the proposed highway seems to'be practically the only reason why it should be built. The.argument which appellant urges as being a conclusive reason that .the order should be reversed seems to be-in substance this. The town board had the exclusive right to determine the necessity for and the location of the new highway. As now laid out it is, as is claimed, a physical impossibility to construct it either above or below the railroad and serve the only purpose which makes its construction necessary. The Public Service Commission is, therefore,- bound to allow the highway to cross the railroad at- grade,, because that is the only feasible crossing by which the only necessity for the highway can be met; If this argument is sound, then no choice is left to the Commission except to ratify
If the. proposed highway should be carried across the railroad at grade, it clearly appears that the result would be an extremely dangerous grade crossing owing to. obstructions of the view which travelers approaching it in either direction would have. It would be, • as the commissioner before whom the hearing was had not inaptly described it, a “ death-trap.” The principle that considerations serving public convenience only must always yield to those which affect public safety is well established. Under all the circumstances we conclude that the Public Service Commission properly determined that the crossing should be above the railroad grade.
The order should be affirmed, with fifty dollars costs.
All concurred.
Order affirmed, with fifty dollars costs.