Citation Numbers： 297 Mo. 622
Judges： Blair, Els, Graves, Who
Filed Date： 4/2/1923
Status： Precedential
Modified Date： 10/19/2024
This cake comes here on appeal from a judgment of the Circuit Court of Cole County, approving and sustaining an order of the Public Service Commission in the case of St. Louis-San Francisco Railway Company, complainant, v. Missouri Pacific Railroad Company, defendant, No. 2823. The Public Service Commission will be referred to as “commission”; appellant (defendant in the proceeding before the commission) will be referred to as the “Missouri Pacific.” St. Louis-San Francisco Railway was complainant before the commission. It was not made a party in the certiorari proceedings before tbe circuit court. It will be referred to as the '“Frisco.” It has filed in this court a brief in support of the order made by the commission.
Approaching their respective stations at Tower Grove Avenue in St. Louis from the west, the lines of railroad of the Frisco and Missouri Pacific approximately parallel one another until a point a few hundred feet west of Tower Grove Avenue is reached, where they begin to diverge. The Missouri Pacific lies to the north of the Frisco. A few feet west of Tower Grove Avenue the Oak Hill branch of the Missouri Pacific leaves its main line and runs to the southwest, crossing the tracks of the Frisco at grade, both railroads being in cuts of about fifteen feet at the point of crossing. The Oak Hill branch
It appears that the cuts are now so deep that a train upon one line of railroad approaching the crossing cannot be seen by the operatives of the train upon the other railroad approaching the same crossing. The standard rules require that trains, approaching the crossing be brought to a stop., and that the locomotives gj.ve the crossing* signal before attempting to move over the crossing. The Missouri Pacific has adopted the additional precaution of flagging the crossing.
The Oak Hill branch of the Missouri Pacific is the junior railroad. Sometime about 1886 a contract respecting protection at the crossing was executed between 'the predecessors of the present railroads. In 1903 another. contract was executed between the immediate predecessors of the present companies, which provided for an interlocking* plant to protect the crossing. Such interlocker had never been constructed. There was put in evidence certain correspondence between the Frisco and the Missouri Pacific wherein the Frisco urged the co-operation of the Missouri Pacific in constructing such interlocker. These negotiations, carried on for several years, were fruitless, and on December 9,1920, the Frisco filed a formal complaint before the commission, asking that the commission order the installation, operation and maintenance of an interlocking plant at said crossing and apportion the expense thereof .between the two railroads. On December 18, 1920, the Missouri Pacific filed its answer with the commission denying that the crossing* is dangerous or that there exists immediate necessity for
The authority of the commission to- make the order is not challenged here and was not questioned below. ■[Sec. 1045-9, R. S. 1919.] The sole contention of appellant, the Missouri Pacific, is that the order of the commission is unjust and unreasonable, and that the circuit court erred in approving and confirming such unjust and unreasonable order. The basis for this contention is the apportionment of the cost of grade separation fixed by the commission. The apportionment of one-fourth of the cost to the Frisco- and three-fourths- thereof to the Missouri Pacific may appear to be harsh and its justification questionable, at least until all the facts are considered. The Frisco maintains two main-line tracks- and a runner track at the present point of crossing, while the Missouri Pacific maintains only one main-line track. A traffic study for fifteen days shows average train movements over the present crossing by the ’Missouri Pacific to be 34.8 and by the Frisco 87.9. But the commission based its order upon other considerations as well. In its supplemental report, it said:
“The defendant’s single track now crosses the complainant’s double tracks at the place of which complaint is made. A single track seems to- be ample to- accommodate the defendant’s train movements at that point under present conditions. The plans for a separation of the tracks of the parties hereto as proposed by the defendant contemplates the elevation and detouring of the defendant’s tracks before reaching the present crossing*629 so that the same will cross the complainant’s tracks overhead and then connect with defendant’s.main line from Kansas City. The plan, however, as presented hy defendant and adopted by the commission requires that this detour line, which is to be elevated, shall provide for a double track instead of a single track, which the defendant now uses. In other words, if the-plan for detouring defendant’s line were to provide for a single track instead of a double track, the cost of the improvement would be $208,000, and upon that basis, if the complainant were charged with $100,000, it would pay approximately 48 per cent of the expense of doing the work in a manner ample to meet present conditions. The cost of separating the track at the crossing, to the extent that it is above $208,000 in providing for two tracks, is for the purpose of caring for additional train movements that may develop during a long period of time in the future and should be borne by the defendant ” (Italics ours).
The Missouri Pacific contended that the construction of an interlocking plant at the present crossing would necessitate including in such plant the junction of the Oak Hill line with its main line. The total number of units to. be operated from such interlocking plant would require the operation of the following units:
Missouri Pacific main-line tracks to Kansas City, .........,.............. 69.
Oak Hill tracks,......................... 22.5
Frisco tracks,..........i................ 28.5
120.
Such, considerations would apportion 76.25' per cent of the cost of an interloeker to the Missouri Pacific and 23.75 per cent to the Frisco. Appellant insists that it will be compelled to put in an interlocker at the junction of its main and O'ak Hill tracks, even with a viaduct constructed at the new point of crossing. The commission found to thei contrary. In its supplemental report it said:
“Under the plan adopted, an interlocking plant will*630 not be necessary at the junction between the defendant’s Oak Hill and Kansas City lines until the number of train movements increase at that point. However, were an interlocking- plant erected as now sought by complainant at the present crossing of its tracks with the defendant’s tracks, it would be necessary to interlock the junction between the defendant’s Oak Hill and Kansas City lines as now located.”
The testimony tended to show that it would be necessary to include the junction of the main and Oak Hill lines in the interlocking plant constructed at the present crossing- because of its proximity to the crossing. The construction of an interlocker at such junction is not affected by crossing conditions where the. grades are separated, but must be determined solely by conditions of Missouri Pacific train movements at such junction. The commission found there is m> present requirement for such interlocker.
The commission further found that a single-track viaduct on the Oak Hill lines at the new point of crossing would serve the present needs of the Missouri Pacific and, at that location, would cost $208,000'. Such single track at the grade crossing- has served for eight or ten years. It is obvious that less delay will occur over the viaduct than over a crossing at grade through an inter-locker, the same number of tracks being used. There fore, if the Missouri Pacific has been able to operate its Oak Hill line by means of a single track over a grade crossing, a single track viaduct may reasonably be found to be sufficient for its present needs.
There seems to be sufficient basis for the commission’s finding that the construction of a double-track viaduct at the new location will involve the expenditure of-approximately $200,000 additional, all of which additional expenditure is for the benefit of the Missouri Pacific to take care of anticipated increases in train movements. The Frisco only asked for an interlocker, the cost of which would be approximately $127,000', if the Missouri Pacific junction was included, and consider
Considering all the foregoing facts, we are unable to say that the order of the commission is unreasonable. Section 10535, Revised Statutes 1919, places the burden upon the appellant '“to show by clear and satisfactory evidence” that such order is unreasonable. Section 10459 gives the commission the exclusive power to determine the proportions in which the expense of abolition of grade crossings shall be borne. The determination of that question is within the discretion -of the commission, but, of course, such discretion must be reasonably and lawfully exercised.
Appellant contends that the cost of grade separation should have been apportioned at least on the basis of the number of units required in the interlocking plant which apply to the respective railroads, not including the junction, or 44 per cent to the Missouri Pacific and 56 per cent to the Frisco. This is upon the theory that the Missouri Pacific will still be compelled to interlock the junction between its main and Oak Hill lines. This the
On tb,e train basis the apportionment would have been 28.5 per cent to the Missouri Pacific and 71.2 per cent to the Frisco. Appellant cites a number of inter-locker oases where the commission apportioned the cost on the train basis. We deem it unnecessary to discuss them. An examination of these cases does not show that such basis is the only basis the commission considered in those cases or that they adopted the train basis for all interlocking cases. An apportionment proper and reasonable in an interlocking case should not control the apportionment of the cost of constructing a viaduct, especially a viaduct built to meet the increased use anticipated by one of the railroads. Other considerations may, and in this case clearly did, influence the commission in determining the portion of the cost each of the interested railroads should reasonably pay.
Our conclusion is that appellant has failed to sustain the burden oast upon it by the Public Service Commission Act of showing by clear and satisfactory evidence that the order of the commission is unreasonable. It results that the judgment of the circuit court is affirmed.