Baltimore & Ohio Railroad v. Public Utilities Commission

Douglas, J. The issue in this case is whether the commission erred in finding that the railroad violated its April 28, 1977 and September 1, 1977 orders.2 In resolving this issue, we are mindful of the fact that this court will not disturb a commission order unless it appears from the record that the order is manifestly against the weight of the evidence and is so clearly unsupported by the record as to show misapprehension, mistake or willful disregard of duty. Cleveland Elec. Illuminating Co. v. Pub. Util. Comm. (1975), 42 Ohio St. 2d 403 [71 O.O.2d 393], paragraph eight of the syllabus. The starting point of our analysis must be the April 28, 1977 commission order. The order required the railroad to do four things: (1) to install an automatic train-activated warning system at the Stahlheber Road crossing; (2) to submit information concerning the cost of the system, and plans for its installation to the commission within thirty days; (3) to enter into an agreement, within ninety days, with Butler County as to the apportionment of the cost of the warning system; and (4) to notify the commission if the parties could not agree as to the apportionment of the cost within the time specified by the commission. Subsequently, the railroad requested that it be given an extension of time until November 6, 1977 to [278] enter into an agreement with the county as to the apportionment of costs. The commission granted the request for an extension of time by an order dated September 1, 1977. The railroad did not comply with the orders of the commission. It failed to enter into an apportionment-of-costs agreement or, in the alternative, to notify the commission, by November 6, 1977, of its failure to do so. In fact, the railroad chose to disregard its obligations until the occurrence of the August 26, 1978 double fatality at the Stahlheber Road crossing. After that tragic incident (the second double fatality at the crossing in less than eight years), the railroad immediately entered into an apportionment-of-costs agreement with the county, and the warning system became operational on October 17, 1978. Based on these facts, the commission found that the railroad violated the commission's previous orders. When the commission holds a hearing and determines that one of its prior orders has been violated, the commission’s determination of that issue will not be reversed on appeal unless it is against the manifest weight of the evidence. Southern Ry. System v. Pub. Util. Comm. (1957), 166 Ohio St. 240, 242 [2 O.O.2d 60]. We find the commission’s determination, that the railroad violated the commission’s previous orders, to be supported by competent, credible evidence and it is, therefore, affirmed in all respects. Order affirmed. Celebrezze, C.J., Sweeney, Locher and C. Brown, JJ., concur. Wright, J., concurs in judgment only. Holmes, J., dissents. Footnotes [2] Although the commission did not make an express finding that the September 1, 1977 order was violated, such a determination is implicit from the record of this case.