In re the Elimination Under Chapter 233, Laws of 1926, of the Highway Grade Crossings of Railroad

Hasbrouck, J. The State highway between Gouverneur and Canton in the town of Canton, St. Lawrence county, runs in a direction northeast by southwest. The New York Central railroad runs in an approximately similar direction but more northerly east. The railroad crosses that highway known as the Eddy road at Pyrites and some half a mile further north the Sullivan highway crosses the railroad. On the southerly side of the Eddy road and north of the Eddy crossing is situated the DeGrasse Paper Company’s plant and it is connected with the railroad by a spur track which crosses the Eddy road northerly of the main railroad crossing; on the northerly side of the Eddy road and north of the Eddy crossing is the plant of the Dairymen’s League which is connected'with the railroad by a spur starting south of the Eddy crossing. The State Highway Department has had since 1925 elimination of these crossings under consideration and several independent engineering studies have been made resulting in overhead and underpass projects at Pyrites, the elimination of the Sullivan crossing and building a stretch of new road on the northerly side of the railroad to cross the railroad at the proposed new Eddy crossing. Proceedings were instituted for such elimination in April, 1927. The alignment of interests showed the New York Central Eailroad Company, the DeGrasse Paper Company and the Dairymen’s League supporting the overhead crossing; the State Highway Department, later Public Works Department, the county of St. Lawrence and the town and village of Canton for an underpass crossing. In November, 1927, the Public Service Commission ordered an underpass crossing. After the lapse of five months, and on its own motion, the Public Service Commission opened the proceeding and directed a further hearing. Such hearings were concluded on September 12, 1928, and an amendatory order was made providing for an overhead crossing. Later, and on March 14, 1929, the [609] county of St. Lawrence petitioned for a rehearing on the amendatory order. Hearings were had on April eleventh and on May thirty-first. The Commission affirmed the order for an overhead crossing. The appeal herein is from that order. With the determination of November, 1927, all of the parties, so far as the record shows, were satisfied. However, as before pointed out, a rehearing was ordered. The reason assigned is that by chapter 678 of the Laws of 1928, known as the Grade Crossing Elimination Act, effective March 27, 1928, the cost of the elimination to be borne was fixed at ten (now one) per cent for the county, forty (now forty-nine) per cent for the State and fifty per cent for the railroad company. (See § 3; since amd. by Laws of 1929, chap. 461; Const, art. 7, § 14, as amd. in 1927.) The prior ratio as fixed by the Constitution (Art. 7, § 14, as added in 1925; Concurrent Resolution, March 27, 1925) and the former Grade Crossing Elimination Act (Laws of 1926, chap. 233, § 3) was twenty-five per cent for the municipality, twenty-five per cent for the State and fifty per cent for the railroad company. It is apparent that there was no difference in the amount required to be paid by the railroad company under whatever spur the Public Service Commission moved. The principal objection, as stated by counsel for the railroad company in his brief before this court, to the subway or underpass plan, was that it could not be.properly drained. The proposition that the proposed underpass, if it were feasible to construct, was much less dangerous than the overhead crossing cannot be gainsaid.' The question of the feasibility of draining an underpass located " 240 feet south of Eddy’s existing crossing was gone into by the Public Service Commission thoroughly before making the order of November, 1927. When the hearing was reopened, after the order of November, 1927, the railroad company called as a witness Walter M. Bittner, its designer and detailer of grade crossing structures. ' The point of attack on the order of the Commission was based entirely upon the proposition that an underpass crossing could not be drained. The plans of the Public Works Department provided for the raising of the railroad tracks four feet above the surface of the road. Bittner’s testimony was to the effect that Cooke stream, into which it was proposed to drain the subway some 1,400 feet distant from it, showed in December, 1927, the height of the flow in that stream to be one and .three-tenths feet .below the crown of the roadway of the proposed subway at its lowest elevation. [610] Such calculation was based by the engineer on what is called “ drift.” There is no dispute but that the water in the Cooke stream when Bittner was there in December was higher than it had been in twelve years prior to that time. The stream is a flashy stream and the run off is precipitate — an over-night process. Calculating on “ drift ” as a base is not impressive from the standpoint of exactitude. Obstructions in the stream, a narrowing channel or the character of debris carried by the tide would affect the mark of the “ drift.” Furthermore, it is a matter of general observation that all roads in certain places from one cause or another have times of impassability. The prospect of impassability in the proposed underpass is quite negligible, for it has been demonstrated by surveys based upon exactitudes that it is practical to drain it. From the mouth of the proposed drain to its exit in Cooke stream there is a fall of sixty-six one-hundredths of a foot in each hundred feet. These considerations lead to the conclusion that there is nothing to fear from an underpass which may be only affected by high water on an average of once in twelve years. As-to the question of cost. The estimate of the Public Works Department is that the underpass will cost $136,000, plus $7,000 for the road to ehminate the Sullivan crossing; the estimate of Engineer Chase, as stated in the brief of the Attorney-General, is $155,000, exclusive, of the cost of the elimination of the Sullivan crossing. His estimate for the overhead crossing is $138,200 for the elimination and $32,500 for the elimination of the Sullivan crossing, exclusive of land and property damage. These figures do not indicate that as between the proposed types of construction cost constitutes a consideration of particular moment. The testimony reveals indubitably that the establishment of an underpass crossing will be fraught with less danger than an overhead crossing. This becomes apparent when we consider that the traveling public using the overhead crossing will be required to negotiate a five per cent grade along high embankments at each side on three curves, on one or more of which visibility is limited to 400 feet, where snow and ice collect through long severe winters and where the pavement by ice and melting snows or rain becomes slippery. Considering further that the Commission had already determined an underpass and that no persuasive additional evidence was given on the last rehearing against the feasibility of the underpass; that the Public Works Department of the State, the county, the town [611] and village authorities favor an underpass, it would appear that reason requires the elimination of the Eddy crossing in such manner. We are aware that we are not to substitute our judgment as to what is reasonable for what the Commission determines reasonable. (People ex rel. New York & Queens Gas Co. v. McCall, 219 N. Y. 84; affd., 245 U. S. 345.) But we have, nevertheless, a duty to perform, that of examining into the degree of unreason, if any, of the determination of the Commission. If the determination be so unreasonable as to appear arbitrary or capricious then it is our duty to set aside such determination. It does not seem to me that the convenience of the railroad in rearranging its sidings made necessary by an underpass construction for the accommodation of the DeGrasse Paper Company or the Dairymen’s League, should constitute a reason for rejecting the underpass. (Danner v. N. Y. & Harlem R. R. Co., 213 N. Y. 117, 123; Matter of N. Y. C. & H. R. R. R. Co., 200 id. 121.) To obviate human suffering, to preserve human life is the great purpose of the elimination of railroad crossings in the State. The ends in view cannot be accomplished by the erection of a crossing carrying more dangers than necessary to the public. The transfer of dangers from a grade crossing to one overhead cannot suffice. It appears to me that the order of the Commission contemplates rather the convenience of the railroad than the safety of the public. In such aspect it is capricious rather than reasonable. The order should be reversed and the matter remitted. Whitmyer and Hill, JJ., concur; Davis, J., concurs, with a separate opinion, in which Whitmyer, Hill and Hasbrouck, JJ., concur; Hinman, Acting P. J., dissents and votes to affirm, with an opinion.