192 Pa. 552 | Pa. | 1899
Opinion by
In this case, a trolley road sought to cross at grade a steam railroad in Dauphin county. The steam railroad filed this bill for an injunction to restrain such crossing. The learned judge of the court below, under carefully defined conditions, by final decree, permitted the grade crossing, and we have this appeal from that decree.
While there are six assignments of error, the merits of the appeal involve but two inquiries:
1. Has the appellee the right to cross the appellant’s road by any method at the point of crossing?
As to the first question, the court below was clearly right in holding that the ownership of the land in fee by appellant, under the peculiar facts’ shown, whereon rested its superstructure, gave it no right to exclude subsequent grantees of the commonwealth from the use of the highway or public road which crossed it. But, as to the second question, appellant, manifestly, was entitled to an answer in its favor.
Our utterances on the question of grade crossing have been so frequent and emphatic that it ought not to be necessary to repeat them. In Railroad Co. v. Railroad Co., 150 Pa. 193, Penna. R. Co. v. Railway Co., 152 Pa. 116, and quite a number of cases following these, we have held, in substance, that the manifest purpose of the act of 1871 was to discourage grade crossings, and to absolutely prohibit them where it was reasonably practicable to avoid them; that what is reasonably practicable under such circumstances is determined largely by what is physically practicable, and not by what is practicable to the treasury of the road seeking to muss; that the cost of avoiding a grade crossing is a matter to be considered in projecting the new road, and that then sufficient capital ’should be provided to avoid that which the law in effect condemned. And further, we have held in all these cases, that neither the street railway act of 1889, nor any subsequent legislation, repealed the crossing provision in the act of 1871. As said by our Brother Green in Railroad Co. v. Street Railway Co., 188 Pa. 74: “ The one test imposed by the statute is the reasonable practicability of the overhead crossing. If that is established other considerations become unimportant. We desire to announce again that we firmly adhere to the policy, and to the rules and principles expressed in the decisions to winch we have referred.”
The court below held that, prima facie, under the act of 1889, appellee had the right to cross at grade, and the burden was upon the objecting steam railroad to establish that other than agrade crossing was reasonably practicable; that, not having established this fact, the court must allow the crossing, .and then follow, among others, these remarks in the opinion: “We believe much of the opposition to grade crossings that is expressed in judicial opinions, when the question is raised by controversies be
We do not think the case should turn on a rule of evidence applicable to a common-law action. The 1st and 2d sections of the act of 1871 make it the duty of the court to inquire and ascertain the facts with reference to the authority of the corporation, and especially, as a basis of information for a proper decree for a crossing, to ascertain whether one at grade can be avoided. The commonwealth intended by the act to protect the lives and limbs of citizens as well as the propertyrights of litigating corporations; therefore, there is a duty upon the court to inquire in the interest of the public, which is not directly a party to the issue, whether it is reasonably practicable to avoid a grade crossing. The court cannot lightly assume, as here, because the steam railroad, in the main, rested its case on the ownership of the fee of its right of way, that there was no duty of further inquiry.
And the learned judge is wholly mistaken in assuming, that judicial opinion as to the danger of grade crossings is largely prompted by that incident to the ordinary public road crossing of a railroad. Although greatly demanded, that matter as yet' has received but little legislative attention. Crossings, however, by one railroad or railway over another have been the subject of express legislation to the extent of almost absolute prohibition of the dangerous grade crossing. This legislative recognition of the duty of preventing them, concurring with judicial knowledge derived from damage suits, has moved this court to expressions of opposition and to rigid enforcement of the law; and no local sentiment favorable to increased facilities for local travel and communication should swerve a court from its duty to carry out strictly the intent of the statute.
But the evidence before us shows that it is reasonably practicable to avoid a grade crossing at this point. An inspection of the photographs, 1, 2 and 8, shows that the public road, for between 300 and 400 feet on each side of the railroad, is almost
We think the learned judge of the court below was clearly mistaken in finding that it was not reasonably practicable to avoid this grade crossing. The decree is therefore reversed and set aside at costs of appellee, and it is ordered that appellee do not construct, maintain and operate its railway at grade on appellant’s steam railroad tracks where the public highway crosses said steam railroad, or at any other point adjacent thereto.
