Willis v. Erie City Passenger Railway Co.

Opinion by Mr. Chief Justice Stebbett, This case was tried by the learned president of the court be low with such painstaking care and ability that little if anything can be profitably added to the opinion embodying his findings of fact, conclusions of law, etc. A careful considera [70] tion of the record, has satisfied us that there is no error in the decree or in proceedings leading up thereto of which the defendants have any just reason to complain. The first- specification alleges error in the following extract from the seventh finding of fact: “At the time the above bill was filed, in 1893, the defendants were proceeding to extend the said five switches to the length of at least 1,000 feet each. In my opinion no such length of switches was or is necessary for defendant’s use upon said line as a single track railway, or was in contemplation of any of the parties at the time leave was given to the defendants to construct their railway in said public road; and I believe from all the evidence, and so find, that five switches each of the length, including the leaders (that is from point to point from the place where the tracks first diverge), of 360 feet would be all that is necessary for defendant’s use upon said road between the city limits and Trinity cemetery, and would be as much switching facilities as was within the meaning of the parties as ‘necessary turn-outs,’ when leave was granted defendants to occupy this street.” This excerpt is about one third of the seventh finding; and while it would be fairer to the court below to consider, as a whole, the entire finding, we have no doubt that the part complained of, as thus severed from the context, is entirely free from error. The court’s finding as to the necessary number and length of the switches is a fair and legitimate inference from the testimony of the defendants’ witnesses. It is true that these witnesses gave it as their opinion that five switches of 1,000 feet each in length would be necessary, but they also gave the data, — length and number of cars required and that could be placed upon a switch of - given length, etc. — upon which they based their opinions; and, according to these facts and figures, five switches of 360 feet in length each will contain more cars than have ever been used at any one time since the construction and operation of the road. The facts and figures given by defendants’ witnesses did not warrant the conclusion that switches of more than 360 feet in length were necessary. The learned judge’s conclusion was drawn from all the evidence, and not merely from the erroneously expressed opinions of the defendants’ witnesses. His finding as to the num [71] ber and length of the switches is not only in accordance with the weight of the evidence on the subject, but it may be said that it is substantially in accordance with the uneontradicted testimony in the case. The eighth finding of fact recited in the second specification was fully warranted. Its correctness is unassailable by anything that appears in the record. The third to fifth specifications, inclusive, are to the conclusions of law therein recited respectively. We have no doubt as to the correctness of each of these conclusions. There is nothing in any of them that requires discussion. The sixth and last specification is to the decree itself. It follows from what has already been said that this specification cannot be sustained. There appears to be nothing in the case that calls for further comment. If any of the parties in interest have been aggrieved by the action of the court below, it is certainly neither of these appellants. Decree affirmed and appeal' dismissed at appellants’ costs.