Baltimore & Ohio R. Co. v. Public Utilities Com'n of Ohio, 85-476

• Decision Date: 19 March 1986
• Docket Number: No. 85-476,85-476
• Citation: 22 Ohio St.3d 275,490 N.E.2d 888
• Parties: , 22 O.B.R. 447 BALTIMORE & OHIO RAILROAD COMPANY, Appellant, v. PUBLIC UTILITIES COMMISSION OF OHIO, Appellee.
• Court: Ohio Supreme Court

Page 275

22 Ohio St.3d 275

490 N.E.2d 888, 22 O.B.R. 447

BALTIMORE & OHIO RAILROAD COMPANY, Appellant, v. PUBLIC UTILITIES COMMISSION OF OHIO, Appellee.

No. 85-476.

Supreme Court of Ohio.

March 19, 1986.

Syllabus by the Court

When the Public Utilities 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.

On January 20, 1971, a mother and her minor child were killed in an accident at the Baltimore & Ohio railroad crossing on Stahlheber Road in Butler County's Hanover Township. The crossing had been a public safety concern for years and in 1976, State Representative Michael A. Fox, acting on behalf of the Citizens for Safety Committee of Hanover Township, filed a complaint with the Public Utilities Commission of Ohio ("commission") seeking the installation of train-activated warning devices at the crossing.

On January 5, 1977, a public hearing on the complaint was held in Butler County. Although it was served with notice, appellant, the Baltimore & Ohio Railroad Company ("railroad"), elected not to appear at the hearing. On April 28, 1977, the commission issued an opinion and order, which stated in part:

"It is the opinion of this Commission, after review of the testimony and exhibits submitted by the complainants and the staff of the Commission in this proceeding the Baltimore & Ohio Railroad Company crossing on Stahlheber Road, near Hamilton, Ohio, must be considered dangerous within the meaning of Section 4907.47 Revised Code. The presently existing conditions at the subject crossing, in particular the physical characteristics of the crossing, the existing crossing protection or lack thereof, the restricted sight views of motorists, and the authorized train speed, create a sufficiently hazardous condition to the traveling public to warrant affirmative action by this Commission.

"It is further the opinion of the Commission * * * based upon conditions as they exist at the subject crossing, the appropriate Commission action is to direct automatic train activated flashers and gates be installed at the Stahlheber Road crossing.

" * * *

"ORDERED, The respondent, Baltimore & Ohio Railroad Company install, operate, and maintain automatic train activated flasher lights and gates at its single track crossing on Stahlheber Road, near Hamilton, Butler County, Ohio. It is, further,

"ORDERED, Respondent, Baltimore & Ohio Railroad Company, submit installation plans for approval by the Commission's Railroad Department and data indicative of the actual cost of installation of the automatic train activated flasher light signals and gates and the annual maintenance thereof within thirty (30) days from the date of this Opinion and Order. It is, further,

"ORDERED, With respect to the apportionment of cost, a period of ninety (90) days from the date of this Commission Order be afforded wherein the County Commissioners of Butler County, Ohio and the Baltimore & Ohio Railroad Company should determine sources and availability of funds, prepare an agreement as to the apportionment of costs herein and submit said agreement to this Commission for approval. It is, further,

"ORDERED, If the parties fail to reach agreement on the apportionment of costs within ninety (90) days, the County Commissioners of Butler County and the Baltimore & Ohio Railroad Company should so notify the Commission and the costs should then be apportioned by this Commission in accord with Section 4907.47 Revised Code. * * * "

On August 10, 1977, the railroad responded to the commission's order by letter, requesting " * * * an extension of time in which to submit installation plans for approval by the Commission and data indicative of the actual cost of installation until September 7, 1977; and an extension of time until November 6, 1977 in which to come to an agreement with the Butler County Commissioners as to the apportionment of costs." On September 1, 1977, the commission granted the request.

The railroad advised the county that the estimated cost of the automatic train-activated warning system was $44,880. On November 17, 1977, the Butler County Board of Commissioners adopted a resolution authorizing the county engineer to enter into an agreement with the railroad for the installation of the warning system, and to assume ninety percent of the cost. ¹ On November 22, 1977, the county engineer wrote to the railroad, informed it of the resolution, asked the railroad to draft an agreement in accordance with the resolution, and to forward the agreement to him. The railroad did not send an agreement, install the warning system, or inform the commission that a decision concerning the apportionment of costs had not been reached.

On August 26, 1978, two more people were killed at the Stahlheber Road crossing. Representative Fox then telephoned the railroad's attorney to find out why the warning system had not been installed. He was told that the commission had never ordered the installation of any warning devices. The warning system was installed shortly thereafter and became operative on October 17, 1978.

On November 17, 1980, Larry R. Miller, the father of one of those killed in the August 26, 1978 accident, filed a complaint with the commission seeking a determination that the railroad violated the commission's orders of April 28, 1977 and September 1, 1977. Pursuant to R.C. 4905.61, any railroad that fails to do anything required by a commission order will be liable to the party injured thereby in treble the amount of damages sustained in consequence of that failure. After a public hearing on Miller's complaint, the commission issued an order and opinion stating:

"The Railroad violated the April 28, 1977 Order by failing to either execute and forward to the Commission an agreement as to apportionment of costs, or in the alternative, to notify the Commission that it had failed to reach an agreement, within the time specified by the Commission."

The cause is now before this court upon an appeal as of right.

Squire, Sanders & Dempsey, James M. Tobin and David J. Hirsch, Columbus, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., Robert S. Tongren and Steven H. Feldman, Columbus, for appellee.

Ruppert, Bronson & Chicarelli Co., L.P.A., James D. Ruppert and John D. Smith, Franklin, for intervening appellee Larry R. Miller.

DOUGLAS, Justice.

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, 330 N.E.2d 1 , 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 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....