Pittsburg Junction Railroad v. Fort Pitt Street Passenger Railway

Opinion by Mb. Chief Justice Stebbett, This appeal involves the question whether it is reasonably practicable to avoid a grade crossing of the plaintiff company’s road by the defendant company’s railway at the intersection of Liberty avenue and Twenty-third street in the city of Pittsburg. The Act of June 19, 1871, P. L. 1360, conferring equitable jurisdiction on certain courts of this commonwealth, as to railroad crossings in the second section thereof declares: “ If in the judgment of such court it is reasonably practicable to avoid a grade crossing, they shall by their process prevent a crossing at grade.” In all the cases under this act that have been brought into this Court its deliverances have emphasized, not only the necessity, but especially the duty of said courts to enforce its provisions. In Pennsylvania Railroad Co. v. Braddock Electric Co., 152 Pa. 116, it was held that this duty is not affected by the Act of May 14, 1889, P. L. 211, and also that the act of 1871 applies to street railways. Nor are said duty and necessity in anywise lessened by lapse of time. On the contrary, as population, travel and traffic increase from year to year, grade crossings become more and more dangerous to both life and property, and consequently the necessity of avoiding or prohibiting them becomes more imperative. This is evidenced by the large expenditures that have been recently made, and are now in progress in some of the larger centers of population, for the purpose of correcting mistakes that have been made in past years by permitting the construction of grade crossings. The city of Philadelphia and the Reading Railroad Company are now about completing a subway for the use of said road at a joint expense of not less than $6,000,000. The time has not yet come for any retrograde movement in the work of preventing and avoiding grade crossings either in cities, towns or coun [52] try. In Altoona, etc., Railroad Co. v. Tyrone, etc., R. R. Co., 160 Pa. 648, we said: “ The necessity which nearly a quarter of a century ago moved the legislature to enjoin these duties on the courts is now greater than ever; and in several cases, among which are Perry Co. R. R. Co. v. N. & S. V. R. R. Co., 150 Pa. 193, and Penna. R. R. Co. v. Electric Ry. Co., 152 Pa. 126, we have had occasion to emphasize the importance of the ever increasing, and now almost imperative necessity of prohibiting grade crossings. That constantly growing necessity has more than kept pace with the rapid multiplication of railroads and urgent demands for high rate of speed, few stoppages, etc. But it is unnecessary to enlarge on the many considerations that are opposed to grade crossings, and the comparatively few that can be even plausibly urged in their favor.” In the case last cited it is said: “ The manifest purpose of this is not merely to discourage grade crossings because of their danger to the public, as well as injury to the company whose road is crossed, but also to prevent them whenever in the judgment of the court it is reasonably practicable. . . . As an exercise of the police power of the state, the wisdom of the provision has become more manifest from year to year as railroads multiply.” In Traction Co. v. D. & H. Canal Co., 180 Pa. 643, will be found an elaborate discussion of the act of 1871, by our Brother Dean, wherein the words “reasonably practicable” are construed, and the wisdom of rigidly enforcing the provisions of the act is clearly and forcibly presented. In that connection it is said, inter alia: “ That it is unwise, if not reckless and barbarous, to unnecessarily subject the traveling public and the employees of carrying companies to the death, maiming and horrors of collision which inevitably result from grade crossings.” These references, to which many more might be added, are quite sufficient to indicate the settled conviction of this Court as to the wisdom and necessity of liberally construing and rigidly enforcing the provisions of the act, whenever cases fairly within its letter and spirit are presented. Without referring in detail to the evidence tending to show the dangerous character of the crossing, or reciting the facts found by the court below, it is quite sufficient to say that the undisputed evidence, as to the topography of the neighbor [53] hood and surroundings of the crossing, the extent to which the latter is used by both companies, etc., establishes beyond doubt the general conclusion that it is exceptionally dangerous ; and it is equally clear that the natural growth of the city and consequent increase of travel and traffic on Liberty avenue and over the Junction railroad, will necessarily render the crossing more and more dangerous every year. These conclusions of fact are not seriously questioned and may be accepted as correct. The facts referred to by the learned judge, “ That there are a number of grade crossings in Pittsburg and Allegheny over most of which more trains pass than along the Junction road, and on streets along which more passenger cars are carried,” etc., are surely no argument in favor of sanctioning the maintenance of additional death traps. The dangerous character of the crossings referred to will, doubtless, sooner or later, necessitate their avoidance in some legitimate way. Their discontinuance is only a question of time. In considering the elements of danger necessarily involved in the crossing, the fact that plaintiff company has been using the street for the purpose of shifting its cars was properly eliminated by the learned trial judge. He was quite right in saying: “ This company has no right to use the street as a shifting ground, and without regard to the use of the street by the street railway company it should be discontinued as an unwarrantable interference with the rights, and a menace to the safety, of persons using it for ordinary travel, and the dangers from handling of heavy trains is entirely within the control of the plaintiff, who should not undertake to do that which by their own showing is dangerous.” The general conclusion on which the learned judge based his refusal to prohibit a crossing at grade, is recited in the fifth specification as follows: “ After a full consideration of all the facts and circumstances of the case, the damages and the costs and difficulties in the way, in our judgment it is not reasonably practicable to avoid a grade crossing.” This presents the cardinal question in the case, to which all others are necessarily subordinate. If that conclusion was warranted by all the facts and circumstances shown by the evidence, the court was right in refusing to use its “ process to prevent a [54] crossing at grade,” and in directing its attention to the adoption of such rulés and regulations as will best protect persons and property from injury at the point in question. If not, the decree must be reversed and the injunction prayed for should be granted. Assuming, for argument sake merely, that the above quoted conclusion of fact is correct, and that the only measure of reasonably practicable relief consists in the enforcement of such precautionary rules and regulations as are best calculated to lessen the perils of the grade crossings, etc., we are not prepared to say that the rules and regulations embodied in the decree are open to much, if any, adverse criticism; but our consideration of all the facts and circumstances bearing on the main question has convinced us that it is reasonably practicable to avoid a crossing at grade, and that the court below should have so held. We have reached this conclusion only after carefully considering and weighing all the evidence relating to the location, the surroundings and admittedly dangerous character of the crossing, etc., including the testimony relating to the practicability of avoiding the crossing at grade, etc. This inference of fact might perhaps be fortified by a detailed review and discussion of the testimony, but such elaboration of the minor questions in the case is deemed unnecessary. The learned judge of the common pleas appears to have attached undue importance to the estimated cost of constructing an overhead crossing, or otherwise avoiding the crossing at grade, including damages to adjacent property, etc. As is usual in such cases the witnesses differ widely in their estimates, etc., but neither of their estimates is so high that it should be placed in the scale against the menacing dangers of perpetuating such a crossing. The parties to this proceeding and the city of Pittsburg, representing the inhabitants thereof, are so specially interested in avoiding the dangerous grade crossing in question, that it would seem to be the part of wisdom for them to co-operate and each contribute a just and reasonable proportion of the expenses necessary to make its abolition an accomplished fact. Having determined that it is reasonably practicable, to avoid the crossing in question, it is neither necessary nor proper for us now to express any opinion as to the manner in which it should be done. That is a question for the parties litigant and [55] tbe municipal authorities of the city, who represent the public, to consider and act upon without further delay. As was said in Traction Co. v. Canal Co., 180 Pa. 641, the cost of a legal and proper construction of its road was for the company to consider in the selection of its charter route. This Court has held that “ in order to avoid discomfort or danger to the traveling public,” a street railway company has a right to “ diverge for a short distance ” from its route, etc.: Rahn Twp. v. Ry. Co., 167 Pa. 84; “ and it may also be added, to avoid grade crossings or for any other reason amounting to necessity, or what is the same thing in such matters, great public convenience : ” 176 Pa. 559. It may be that a reasonable stay of the injunction would not be improper, but in the absence of sufficient evidence on that subject, that question may be considered and acted on by the court below; but no stay should be granted except upon the condition that precautionary rules and regulations not less efficient than those embodied in the decree be faithfully and rigidly observed and enforced, in the meantime. Decree reversed and set aside at defendant’s costs, and it is now considered and adjudged that it is reasonably practicable to avoid the grade crossing in question, and it is accordingly ordered that the injunction as prayed for be granted; and it is further ordered that the record be remitted to the court below with instructions to proceed in accordance with the foregoing opinion.