Appeal of N.Y. & N. E. R. Co.

• Decision Date: 22 April 1890
• Citation: 20 A. 670,58 Conn. 532
• Court: Connecticut Supreme Court
• Parties: Appeal of NEW YORK & N. E. R. Co.

20 A. 670

58 Conn. 532

Appeal of NEW YORK & N. E. R. Co.

Supreme Court of Errors of Connecticut.

April 22, 1890.

Appeal from superior court, Windham county; PRENTICE, Judge.

E. D. Robbins, for appellant. M. A. Shum way, for appellee.

CARPENTER, J. This is an appeal from the doings of the railroad commissioners in ordering the separation of the grade of the highway from the grade of the railway where the Norwich & Worcester Railroad crosses Cottage street in the town of Killingly. The application was made by the town. In such cases the statute¹ authorizes the commissioners to require the town to pay not to exceed 25 per cent. of the cost of separating the two grades. The commissioners ordered the separation, and apportioned one-fourth of the expense to the town. The superior court, on appeal, affirmed the order. The appellants appealed to this court.

The sole question in the case is whether that portion of the act which limits the sum to be apportioned to the town to one-fourth of the whole expense is unconstitutional. This, it is claimed, is not due process, inasmuch as it may prohibit the commissioners from requiring of the town its just and fair proportion of the whole expense. If the legislature should require the division of joint property between two persons equally interested in such a manner as to give one three-fourths, and the other but one-fourth, it would be indefensible, being against natural right, and not due process of law. So, too, of a statute that should attempt to compel one of two joint obligors, jointly and equally interested, to assume the whole obligation as between themselves. But the case before us is not a case in which the legislature is attempting to apportion joint property or a joint contract obligation between the parties, but is a case of curing an evil where both parties, in some measure, but in different degrees, are re sponsible for the evil. If two jointly commit a tort, whereby another is injured, the law will compel either party to pay the whole damage; and, ordinarily, no contribution is allowable. This case is some what analogous; but we do not place our decision on that ground. Two parties are engaged in legitimate business. Both supply public wants, and both, in some sense, discharge governmental duties. Both furnish ways to facilitate public travel. The way of each crosses that of the other at grade, and more or less danger unavoidably attends their use. As the use increases, the danger increases. The policy of the state now is to abolish these grade crossings as rapidly as can be reasonably due. Legislation on this subject assumes that each party, in the discharge of its duty, is concerned in creating the danger, and that each may justly be required to contribute to the expense of its removal, or that either may be required to pay the whole; and, if each contributes, that the proportion...