Pittsburgh, Bessemer & Lake Erie Railroad v. Public Service Commission , 1919 Pa. Super. LEXIS 20 ( 1919 )

Opinion by

Kephart, J.,

The State Highway Department petitioned the Public Service Commission to issue a certificate of public convenience approving the construction of a bridge in Butler which, would span the Connoquenessing creek, Pittsburgh, Bessemer & Lake Erie Railroad, and the Pittsburgh & Western Railroad, and apportion the cost thereof among the railroad companies, the municipal corporation and the Commonwealth. This bridge would abolish the grade crossings in the borough over the railroads. The advisability of making this improvement is not questioned. The commission made an order apportioning the cost, thirty-four per cent, to be paid by the borough, thirty-two per cent, by the county and State, and, the part here in controversy, twenty-six per cent, by the Pittsburgh, Bessemer & Lake Erie Railroad, and eight per cent, by the Pittsburgh & Western Railroad. The Pittsburgh, Bessemer & Lake Erie Railroad, controlled by the Bessemer & Lake Erie Railroad, objected to this apportionment and alleged that it is unreasonable, without evidence or against the manifest weight of the evidence. They do not object to the part to be paid by the borough, county and State, but they do say that the disparity in the respective assessments between the railroads is unfair. The appellant’s right-of-way is eighty-two feet at this point, and the Pittsburgh & Western Railroad’s, controlled by the Baltimore & Ohio Railroad, hereinafter termed the appellee, is forty feet. The appellant is a double track railroad, conducting a through business and passes on an average of forty-four trains in twenty-four hours over the crossing to be abolished. The appellee is a single track railroad, passing thirty-seven trains in the same length of time over the crossing, not including switching movements. Between Connoquenessing creek and the appellee’s right-of-way there is a tract of land, approximately two acres, on which is located some factories. The bridge will entirely abolish all grade travel over the appellant’s road and will abolish grade travel over the appellee’s road with the exception of that incident to these factories, which may be considerable. A better opportunity is at present afforded pedestrians and drivers of vehicular traffic to observe the approach of trains along the appellant’s system by reason of its width of right-of-way than at the appellee’s grade crossing where buildings obstruct the view. The commission had the benefit of the testimony of witnesses, engineers and the commission’s chief engineer, officials of the Commonwealth, plans, photographs, and the conferences between the respective parties. It also appeared that the appellant, in order to elevate its tracks and reduce its grade had the bridge raised seven feet, necessitating an additional expense. The commission, in the apportionment of the cost, cannot be limited to any fixed rule; all the factors which enter into a division of costs should be taken into consideration ,and carefully examined. It would be almost impossible for this court, exercising an appellate jurisdiction, to go into the minute details of all the questions presented in such issues and sit as an administrative body to determine what would be just. From the evidence submitted, the commission arrived at what they believed to be a fair ratio and after the reargument, wherein the various positions of the railroad were fully discussed, the commission made the final order, part of which is now complained of. Any other division that we might suggest would be merely an expression of our opinion as to what would be proper and it is entitled to no greater weight than that of the commission’s, appointed to hear and determine these matters. “It would be a substitution of our judgment for that of the commission’s”: Ohio Valley Water Co. v. Public Service Commission, 260 Pa. 310, and of course this we cannot do.

The number of trains operated over a given road is not always the determining factor. A company may be in almost constant use of a grade crossing by shifting, and while it may be an annoyance to the traveling public, it is not dangerous in that the movement of the cars is usually very slow and may be stopped within a few feet. A single track railroad is not as dangerous at a grade crossing as a double track railroad. The pedestrian or driver knows when a train passes on a single track road he may immediately cross, but on a double track system there is always danger of trains coming in the opposite direction, or, as frequently happens, trains moving the same direction on both tracks of the double track system. The' commission, no doubt, considered the dangers, inconveniences and liability for damages existing at grade crossings as being factors weighing in the ratio of cost. The amount of right-of-way does not necessarily determine the question, although it has a strong bearing on the situation. It may be possible that a railroad having a very small amount of business and with but one track would own a considerable width of right-of-way at one or more points. If the policy of the company is to adopt over any portion of its line a width of right-of-way which could be called extensive, that is, beyond that ordinarily used, that is a factor which should be taken into consideration in assessing the cost, but if the right-of-way happens to be wide only at this particular point, and for np special purpose, it must be seen that such additional width adds no material value to the company’s property as such. When located at á grade crossing it is of benefit only as it tends to reduce damages for grade crossing accidents because pedestrians and drivers may see a greater distance as they approach the crossing. But all of these questions and many others pertinent to the inquiry were before the commission by the maps, plans, photographs and testimony. There is no good reason for this court to declare such an order unreasonable or not in conformity to law.

The order of the commission is affirmed at the cost of the appellant.