Erie-Lackawanna Rd. v. Public Utilities Commission , 18 Ohio St. 2d 112 ( 1969 )

Per Curiam.

The dispositive contention of the appellant is that the “finding” in the order of the commission that the project is “reasonably necessary and expedient” is not supported by the evidence. The findings of fact upon which the commission based its order can be found only in the examiner’s report, which is incorporated by reference in the commission’s order.

The Director of Highways has the burden of proof and must establish, by a preponderance of the evidence, that the proposed grade separation is necessary and expedient.

The only findings of fact which the examiner makes in his report are that:

1. Eight thousand to nine thousand vehicles use the crossing daily.

2. On the average there are 24 train movements trans-versing the crossing daily. Some train operations near the crossing cause the flasher to operate when no trains are transversing or intend to transverse the crossing and, thus, impede the smooth flow of traffic.

3. The crossing is used for emergency vehicles by the fire and police departments.

4. The proposed improvement would eliminate an existing traffic safety problem at the intersection of Pine Street and St. John Avenue.

5. The railroad’s contention that a proposed merger with another railroad will affect the crossing is speculative.

6. The record establishes that it is not impossible for the improvement to be built due to the financial condition of the appellant.

An examination of the record discloses that there is no evidence that the grade crossing must be eliminated in order to correct the existing traffic problem at the Pine Street and St. John Avenue intersection, although this is argued by the appellee in its brief.

It is not disputed that prior to the time this cause was decided by the commission the merger of the Erie-Lackawanna Railroad Company with the Norfolk and Western Railway Company had been approved by the Interstate Commerce Commission and the Public Utilities Commission had been notified of that decision.

There is no evidence in the record that any emergency vehicle was ever blocked at this crossing and the evidence of the appellant indicates that the appellant offered to install a control device at this crossing which would assure that no emergency vehicle would ever be blocked at this crossing.

There is no evidence in the record that the proposed grade separation would contribute to the future development of the area south of the crossing, although this is argued by the appellee in its brief.

No school buses or commercial buses use this crossing, and, with one minor exception which was not caused by a failure of the warning signals, no accident has occurred at this crossing. There is no evidence that this is a dangerous crossing. The evidence is that there are automatic flasher signals with back lights, which means four flashing lights are visible when a train is approaching the crossing. At a distance of 15 to 20 feet from the crossing the track is visible in both directions to the horizon.

The evidence shows that the railroad officials offered to improve the warning system by eliminating the flashing signals initiated by train movements where the train initiating the signal was not going to transverse the crossing.

The record discloses that, following the merger, the number of train movements transversing the crossing each day will be reduced from 24 to 6, and will be reduced even further when the passenger train movements are eliminated.

The finding of the commission, that “it is not impossible for the improvement to be built due to the financial condition of the appellant,” places a burden upon the appellant which it is not required by law to assume. The appellant does not have to bear the burden of proving that it is impossible for the improvement to be built due to its financial condition.

The only findings of fact in the examiner’s report, incorporated by reference in the commission’s order, which are supported by the record, are the findings that there were eight thousand to nine thousand vehicles using the crossing daily and that, at the time of the hearing before the examiner, there were an average of 24 train movements transversing the crossing daily. There is no credible evidence which compares this volume of traffic with the volume of traffic using the 26 other similarly protected grade crossings in the city of Lima and the 45 others in Allen County or with other grade crossings in the state.

There is no substantial evidence concerning delays suffered by drivers of vehicles using the crossing.

It may be that the Director of Highways has determined that every railroad grade crossing which a city asks to be eliminated should be eliminated on the basis that it is potentially dangerous. Some members of this court may personally share that view. However, the General Assembly has not as yet enacted into law such a policy for this state.

Perhaps the Director of Highways could have produced evidence that this crossing is dangerous; that the volume of traffic at this crossing, and the number of trains transversing it, are such that costly time-consuming delays occur which require that it be eliminated; that the economic development of a portion of the city is, in fact, being jeopardized by this crossing; that fire insurance rates are being adversely affected for residents of the city by reason of this crossing; or that adequate police protection is being denied a portion of the city by reason of this crossing.

Although arguments along these lines are made by the appellee in its brief, no substantial credible evidence appears in the record to support any of these positions.

The findings of fact in the examiner’s report, which are supported by the evidence in the record that there are eight thousand to nine thousand vehicles using this crossing daily, and that, at the time of the hearing, there were 24 train movements over this crossing daily, are not sufficient to support the order that the elimination of this grade crossing is necessary and expedient.

The order of the commission is, therefore, reversed.

Order reversed.

ZimmermAN, O’Neill, Doyle and Schneider, JJ., concur. Doyle, J., of the Ninth Appellate District, sitting for Herbert (Paul M.), J.