Altoona & Philipsburg Connecting R. R. v. Tyrone & Clearfield R. R. , 160 Pa. 623 ( 1894 )

Opinion by

Mr. Chief Justice Stebbett,

This bill, brought against the Tyrone & Clearfield Railroad Co. and others, lessees, etc., avers, inter alia, that plaintiff company was organized July 12, 1892, and proceeded to locate a railroad from Phillipsburg to Janesburg in Clearfield county; that the route of said road crosses the following five branches of said Tyrone & Clearfield Railroad Co., viz.: (1) Mapleton, (2) Big Run, (3) Coal Run, (4) Goss Run, and (5) Amesville, all of which branches plaintiff proposes to cross at grade ; that it is not reasonably practicable to avoid grade crossings; and praying the court to declare plaintiff company’s right to such crossings, and the mode thereof, etc.

The answer demands proof of the several averments, as to organization, location, rights of way, work on the line, etc., and denies the averment that it is not reasonably practicable to avoid said grade crossings, etc.

Without the aid of either examiner or master, the learned judge of the common pleas heard the testimony and filed an opinion, finding, inter alia, that, as to each of the first four named crossings, it is not reasonably practicable to avoid crossing at grade, and he accordingly entered a decree that, after three days’ notice to defendants, said crossings be placed, etc., granted an injunction restraining interference with said work, etc., and provided in detail for the maintenance and use of said crossings, as will fully, appear by reference to said decree. As to the Amesville branch, he decreed “that the plaintiff company shall have the right to construct and operate its railroad underneath the defendant’s roadway and tracks,” as is fully set forth in the 3d paragraph of his decree. This under-grade crossing does not appear to be the subject of complaint in any of the specifications, and may therefore be dismissed without further notice except in sustaining that part of the decree. A considerable portion of the learned judge’s opinion is devoted to a consideration of the topographical features of the territory, traversed by the projected and constructed roads in question, together with the position and importance of said territory in its geological aspects as a freight-producing field, etc. As to some of these matters, he appears to enjoy the advantage of a personal knowledge of the locality which we do not possess. His consideration of the subjects referred to is followed by a statement or findings of fact, bearing on the merits of the controversy, in relation to each of said proposed grade crossings, and from all these are drawn the general conclusions on which the decree is based.

It does not appear that an opportunity of excepting to the opinion was afforded, and hence many of the matters above referred to are for the first time subjects of complaint in several of the specifications of error.

It is not our purpose, nor do we deem it necessary to consider said specifications in detail. In our opinion, the contention hinges on the soundness of the general conclusions on which the decree appears to be based. A careful consideration of all the testimony has led us to the conclusion that the learned judge underestimated the present and prospective importance, to the defendants as well.as the public, of the four branch roads over which grade crossings are sanctioned by the decree, as well as the danger, inconvenience and ultimate loss that are likely to result from such crossings, if the decree is permitted to stand. On the other hand, we think he has attached undue importance to the increased costs of constructing, increased expense and difficulty of operating plaintiff company’s road, and other injurious consequences likely to result to it as well as the public from prohibiting said grade crossing.

It may be conceded, that the increased cost of construction, with over or undergrade crossings, will be very considerable ; but, on the other hand, the compensation for that increased outlay can scarcely be overestimated. Four dangerous, expensively constructed and maintained grade crossings, within a distance of about eight miles, with the expense, inconvenience, delay, loss of life and property necessarily incident thereto, are avoided, not for a few years but for all time, and in lieu thereof a clear and unobstructed roadway and tracks are permanently secured.

While the learned judge refers to estimates of increased cost of over-grade as compared with grade crossings, he has not given us any distinct and definite finding on that subject. As is usual in such cases, the witnesses of the respective parties differ widely in their estimates. Those of the defendants range from about $86,000 to $46,000, for all four crossings, or an average of from $9,000 to less than $10,000 each, depending somewhat on the mode of construction, materials, etc. They profess to give the data upon which their calculations are based. The plaintiffs’ estimates, on the other hand, are about one hundred per cent higher. Making proper allowance for these discrepancies and giving due weight to the respective witnesses on the subject, we think an estimate of $12,000 to $15,000 for each crossing would not be much out of the way. To what extent the witnesses took into consideration the cost of constructing grade crossings and signals, keeping a watchman at each, etc., as required by the decree, does not clearly appear; but the necessary outlay would certainly be very considerable. The annual expense of maintaining the crossings, including watchmen’s salaries, etc., if capitalized, would be no insignificant sum.

The alleged increased expense and difficulty of operating plaintiff’s road with over-grade crossings as compared with crossings at grade is not so serious as some of their witnesses appear to think. The maximum grade of their road, as shown by the evidence, is about one and a half feet to one hundred feet, or about seventy-ninefeet to the mile. The weight of the testimony is that the grade of overhead crossings need not exceed sixty or eighty feet to the mile.

As was said in Northern Central Railway Co.’s Appeal, 108 Pa. 629, the practicability of overhead crossings depends almost entirely on the circumstances of each particular case. It is always a question of fact, or rather a conclusion drawn from a variety of independent facts and circumstances. The location and surroundings of the proposed crossing, the character of the railroads and the uses made and intended to be made of them, the increased cost of construction and expenses of operation, the public safety and convenience, the interests and convenience of the road intended to be crossed, are some of the many factors that enter into the solution of the question of the reasonableness of an overhead crossing in almost every case; and the same may be generally said of undergrade crossings.

The act of 1871 requires courts of equity “ to ascertain and define by their decree the mode of crossing which will inflict the least practicable injury upon the rights of the company owning the road .... intended to be crossed; ” and “ by their process prevent a grade crossing ” whenever in their judgment “it is reasonably practicable to avoid such crossings.” The necessity, which, nearly a quarter of a century ago, moved the legislature to enjoin these duties on the courts, is now greater than ever; and in several cases, among which are Perry County R. R. Co. v. N. & S. V. R. Co., 150 Pa. 193, and Penna. R. R. Co. v. Electric Railway Co., 152 Pa. 126, we have had occasion to emphasize the importance of the ever increasing and now almost imperative necessity of prohibiting grade crossings. That constantly growing necessity has more than kept pace with the rapid multiplication of railroads and urgent demands for high rate of speed, few stoppages, etc. But it is unnecessary to enlarge on the many considerations that are opposed to grade crossings, and the comparatively few that can be even plausibly urged in their favor. After fully considering and carefully weighing all the facts and circumstances which make for as well as against the reasonable practicability of avoiding the proposed grade crossings, we have reached the conclusion that the learned court below erred in not adjudging and decreeing that it is reasonably practicable to avoid each and all of said grade crossings.

It is therefore adjudged and decreed as follows:

1st. That so much of the decree of the court below as authorizes the undergrade crossing of the Amesville Branch specified in the third paragraph of said decree, and also so much of said decree as in any manner relates to the construction, maintenance and operation of said undergrade crossing, be affirmed with costs, including the costs of this appeal, to be paid by the plaintiff.

2d. That so much of the decree of the court below as authorizes grade crossings at either of the four points named therein, and also so much and such parts of said decree as in any manner relate to the construction, maintenance and operation of said crossing, and any of the appliances intended to be connected therewith, be and the same are hereby reversed and set aside; and, in lieu thereof, it is now adjudged and decreed that it is reasonably practicable to avoid each and all of. said four grade crossings.

Bd. That so much of the decree of the court below, as is not hereinbefore mentioned, referred to and disposed of, be and the same is hereby reversed; and it is further ordered that the record be remitted to the court below for such further action as may be necessary to carry into effect the provisions of this decree.