Baltimore & Ohio Railroad v. Butler Passenger Railway Co.
Baltimore & Ohio Railroad v. Butler Passenger Railway Co.
Opinion of the Court
Opinion by
The Pittsburg & Western Railroad Company owns and operates, through its lessee and co-plaintiff, the Baltimore & Ohio Railroad Company, a railroad from Allegheny City, Pa., to Foxburg, Pa. The road, which has been in operation about twenty years, passes north and south through the borough of Butler and crosses at grade and almost at right angles Center avenue, one of the principal and much traveled streets of the borough. Of the three tracks that cross the avenue, one is used as the main line while the other two are used for switching purposes. The passenger station of the plaintiffs is about 180 feet north of the crossing; the freight station is 67 feet west of the passenger station, and the turntable and water tank are a short distance south of the crossing. The defendant company was incorporated under the act of May 14, 1889, with authority to construct and operate a street railway in the borough of Butler. On October 5, 1899, an ordinance was duly enacted, authorizing the company to construct a railway upon Center avenue and other streets of the borough. In pur
The learned trial judge found the facts against the averments of the plaintiffs, refused their prayer for an injunction, and entered a decree permitting the defendant company, under certain prescribed regulations, to cross the plaintiffs’ tracks at grade on Center avenue. From that decree this appeal was taken.
This is a contest between corporations and their rights must be determined under the Act of June 19, 1871, P. L. 1860, entitled, “An act relating to legal proceedings by or against corporations.” The second section of the act declares: “ When such legal proceedings relate to crossings of lines of railroads by other railroads, it shall be the duty of courts of equity of this commonwealth 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 statute has been frequently construed and enforced by this court. “ The act,” says Paxson, C. J., in Perry County Railroad Extension Company v. Newport, etc., Railroad Company,
These and other decisions of this court construing the act of 1871 make it manifest that the statute will receive a literal construction and that it will be rigidly enforced. The legislature, recognizing the danger to human life and to property in the grade crossing, intended by this act to confer upon the courts the authority, not to minimize, but entirely to remove, the danger by preventing the crossing wherever it is reasonably practicable to do so. In all cases of a proposed grade crossing, therefore, the only question is whether it is reasonably practicable to avoid it, and if so, the statute is mandatory that the court shall prevent it. In determining this question, the plain purpose of the statute, to protect life and property, is not to be ignored or disregarded. Experience teaches with absolute certainty that a grade crossing is unsafe and that its existence is a standing menace to human life. This fact should be kept constantly in mind in adjudicating the rights of railway companies in proceedings under the act of 1871. No light, trivial or financial consideration, under a proper interpretation of the statute, can be invoked to sanction the imperiling of human life by permitting a grade crossing. „
We do not think the facts in this case justified the learned
We are convinced, however, by the testimony and the facts found by the court below that the crossing of the plaintiffs’ road on Center avenue by the defendant company’s tracks would be most dangerous andean, and should, be avoided. On the east side of the railroad the street descends to the tracks on a grade over eighteen feet in a distance of 356 feet, and on the west side it descends from McKean street, crossing the tracks of the Pittsburg & Bessemer Railroad, to Connoquenessing creek, which is about 150 feet west of, and parallel with,
We are wholly at a loss to understand by what process of reasoning the learned judge reached his conclusion. Universal experience unquestionably leads to a different result. It is true, he says, that at this point the passenger trains “are slowed up ready for stopping,” that the engineers can see the crossing for a long distance, and that an observer standing on the crossing can see along the railroad 1,000 feet in both directions. But these facts do not eliminate the danger at the crossing. As the plaintiffs control the management of the trains on their road they are at liberty at any time they think the traffic justifies it to make a schedule on which through trains may be run without stopping at Butler. The fact that so many extra trains are now running on the road would seem to indicate that there is at this time a necessity for a through service. The large number of shifting engines, which the court finds passes over the crossing, would not stop or be controlled in their movements by a schedule. All freight trains would not necessarily stop at the station ; some certainly would not. It is, therefore, apparent that the safety of the crossing should not be made to depend upon the stopping of some of the passenger trains at the station. Nor is the fact that an approaching train can be seen at a great distance by a person standing on the tracks at Center avenue any protection
If the crossing of Center avenue by the Pittsburg & Western Railroad is dangerous to pedestrians and others using the street, as the facts reported by the trial judge conclusively demonstrate, it is quite evident that it would be more dangerous to life and property for an electric railway to cross at grade the tracks of the steam road at this point. In fact the learned judge himself recognizes thé danger of such a crossing and in his decree attempts to avert it by prescribing certain regulations in the use of the crossing. He says that these precautions will prevent a collision “ unless the engineer and the conductor on the street car jointly contribute thereto through gross negligence.” It was to avoid the consequences of the negligence, as well as of the recklessness or the stupidity, of the servants of corporations and as a protection against such causes of danger that the act of assembly declared that where it is reasonably practicable the courts “ shall by their process prevent a crossing at grade.” The legislature in the enactment of the statute also recognized the imperfection of human appliances and the probability of the failure to perform their functions. These were the reasons that moved the lawmaking power nearly a third of a century ago to declare that grade crossings should be abolished in the commonwealth wherever it is at all practicable to do so. Experience has verified the wisdom of such legislation and demands its rigid enforcement.
The court below entered a decree “ that it is not reasonably practicable to avoid a grade crossing of plaintiffs’ tracks by defendant on Center avenue.” In arriving at this conclusion the trial judge seems to have been controlled principally by the following considerations: the demands of the public re
The proposed overhead structure to be used by the defendant’s railwaywould not only avoid the crossing at grade of the plaintiffs’ tracks but also those of the Bessemer Railroad which intersects Center avenue at or near the foot of a stee^grade. It would also give the public the use of the county bridge across Connoquenessing creek, relieved from the annoyance and inconvenience incident to the operation of the street car line upon it. We need not concern ourselves about the insufficiency of the present bridge to support the viaduct. That is a matter for the consideration of the street railway company and may be easily remedied. It in no way militates against the advisability of an overhead crossing.
We are convinced from the evidence that it is reasonably practicable for the defendant company to avoid crossing the plaintiff’s tracks at grade on Center avenue. It therefore follows that the trial court should have granted an injunction as prayed for in the plaintiff’s bill.
The decree of the court below is reversed at the costs of the appellee, the bill is reinstated, and an injunction is directed to be issued perpetually enjoining the defendant company against crossing the tracks of the Pittsburg & Western Railroad at grade on Center avenue in the borough of Butler. The cross bill is dismissed at the costs of the defendant company.
Reference
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- Baltimore & Ohio Railroad Company v. Butler Passenger Railway Company
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- Railroads—Location—Grade crossing—•Street railways—Act of June 19, 1871, P. L. 1360. It is the settled policy of the state of Pennsylvania as administered by the courts to permit of no grade crossing of a railroad over another railroad, or a common highway, except in case of manifest and unavoidable necessity. In determining whether it is practicable to avoid a grade crossing, the court will not consider the expense of an overhead structure, nor its unsightliness, nor the fact that damages may have to be paid to the owners of private property by reason of the erection of such structure; nor that an overhead structure will interfere with travel on a street, will frighten horses, and will obstruct the view of coming trains; nor that local sentiment is in favor of such grade crossing. A grade crossing of a street railway over a steam railroad company’s established track in a borough will be enjoined where it appears that the steam railroad crossed the street intended to be occupied by the street railway in a depression, the surface of the ground ascending in both directions from the tracks, that the street in question was veiy much traveled, that a thousand vehicles passed over the crossing daily, that thirty-four scheduled trains, beside extra trains, passed the crossing, and that it was practicable to build an overhead crossing 800 feet long, although the witnesses differed as to the cost of such crossing.