103 Pa. 621 | Pa. | 1883
delivered the opinion of the court,
The cardinal question in this case is, whether, under the facts disclosed by the testimony, an overhead crossing at the point in question is reasonably practicable.
In the fourth paragraph of the bill it is averred that, in the location and construction of appellee’s railroad, it is necessary to cross appellant’s road at grade within the borough of Sun-bury. This is denied in the answer, the 9th paragraph of which avers that an overhead crossing, at the point proposed, could be made with reasonable practicability and at comparatively inconsiderable expense, either by plaintiff running over the top chord of its proposed bridge across the river, or passing over the bridge at a reasonable grade, rising eastwardly, and, after leaving the bridge, passing along Penn street upon trestles, leaving the street substantially unobstructed; thenee, descending across an open and unobstructed country at a grade of twenty-eight feet per mile, against its trade. That this elevation would furnish exceptional facilities for unloading such quantities of plaintiff’s expected trade in coal as might be consumed in the borough of Sunbury, and leave but a small disadvantage in receiving and discharging passengers and freight. The reasonable practicability of an overhead crossing is thus
The first section of the seventeenth article of the constitution, which declares that “ every railroad company shall have the right with its road to intersect, connect with or cross any other railroad, and shall receive and transport each other’s passengers, tonnage and cars, loaded or empty, without delay or discrimination,’’.does not change the policy of this state as embodied in the Act of June 19th 1871, Purd. 288, pi. 10. That Act gives courts of equity jurisdiction in relation to railroad crossings, and requires them “ to ascertain and define by their, decree the mode of such crossing which will inflict the least practicable injury upon the rights of the company owning the road which is intended to be crossed : and, if in the judgment of such court it is reasonably practicable to avoid a grade crossing, they shall by their process prevent a crossing at grade.” The vital question in every case still is, whether there shall be an intersection or grade crossing, or an overhead crossing. If the latter is found to be reasonably practicable, the former shall not be permitted. Either gives to the new road the right guaranteed to it by the constitution. It is entitled to a crossing, either at grade or overhead, but cannot claim both; and, in any event, it,has a right to connect with the older road.
In Pittsburgh and Connellsville Railroad Company v. Southwest Pennsylvania Railroad Co., 27 P. F. Smith 178, the present chief justice, commenting on the act of 1871, says: “ Two thoughts are clearly expressed in this statute. The one that, no unnecessary injury shall be perpetrated on the road sought to be crossed.; the other, that crossings at grade shall be prevented whenever they can reasonably be avoided. . . . The very language used implies that one railroad cannot be crossed by another without some injury to the company whose road is
By agreement of counsel in this case the appointment of an Examiner and Master was dispensed with, and the learned president of the Common Pleas consented to perform the duties of Master, in reporting the facts, and then passed upon the exceptions to his own report with like effect as if the ease had taken its ordinary course. It therefore comes to us as though the facts upon which the decree is based had been found by a Master, and afterwards, upon due consideration, approved by the court. As was said in Baltimore and Cumberland Valley Railroad Company’s Appeal, 10 W. N. C. 530, in which, as in this case, the facts were found by the court: “ The findings of fact by the learned judge stand upon the same footing as the findings of a Master or the verdict of a jury. We can set them aside only on the ground of palpable error.”
The elaborate report of the learned judge, acting as Master, contains sneli a full and, in the main, satisfactory discussion of the evidence upon which his findings of fact are based, that a review of the same is deemed unnecessary. Upon testimony which appears to warrant his conclusions, he has substantially found, inter alia, as follows:
1st. That an overhead crossing would cost from $300,000 to $600,000 more than a grade crossing, viz.: with embankment on level grade, without retaining wall, would cost $350,000 more; with embankment and retaining wall, on level grade $600,000
2d. That to do the work in the same permanent and substantial manner that it has been done on the other part of appellee’s railroad in the immediate vicinity of the proposed crossing, taking into consideration everything except damages for right of way, would cost about $150,000 more for an overhead than for a grade crossing ; and that the damages for right of way would be from $40,000 to $50,000.
3d. That immediately over appellant’s road an elevation of about twenty feet would be required: between that and the bridge the elevated road would be, in places, as high as the eaves of the houses, and. its passenger depot would be about thirty-two feet above the surface of the ground. If the road is carried over a deck bridge, there could be no nse made of the main line-of the road by means of sidings, within the borough, to accommodate manufactories, nor could there be a depot for freight purposes in connection with the road, except by means of a spur siding to commence east of the town and run- along the surface to such depot in the manner described by one of appellant’s witnesses.
4th. That the construction of an overhead crossing and elevated approach to the bridge, either by means of embankment or trestles would be prejudicial to the interests of the borough through which the road passes.
5th. That extending the grade of twenty-eight feet to the mile the distance.of thirty-five hundred feet would be some disadvantage, but the road could not be as easily and profitably worked as if it had the same grade for only a distance of twelve hundred and fifty feet, notwithstanding the trains would have to come to a stop.
6th. That by means of signals located at proper points for the protection of both roads, all trains on the plaintiff’s road being required to come to a full stop at least two hundred feet from the point of crossing, and not to proceed until the proper signal for the purpose shall have been given by the watchman in charge, the danger of collisions will be very slight.
The learned judge, in summing up and stating the general conclusions from the facts found, says : “ In view of the greatly increased cost of an overhead crossing, the damages to private property, the destruction, to some extent, of an entire street, t}ie increase of the distance of a twenty-eight feet to the mile grade, the difficulty of having freight and passenger depots, the impossibility of making switches or sidings for the accommodation of factories or other business within the borough limits,
From an examination of the testimony we are not satisfied there is any substantial error in the findings of fact upon which the solution of the main question depends. On the contrary, they appear to be sustained by the weight of the evidence. Applying the facts thus ascertained to the principles hereinbefore stated, there was no error in the conclusion that an overhead crossing at the point in question is not reasonably practicable. The assignments of error are not sustained.
Decree affirmed and appeal dismissed at the costs of the appellant.
