City of Durham v. Southern R. Co.

• Decision Date: 04 April 1923
• Docket Number: 331.
• Citation: 117 S.E. 17,185 N.C. 240
• Parties: CITY OF DURHAM v. SOUTHERN R. CO. ET AL.
• Court: North Carolina Supreme Court

117 S.E. 17

185 N.C. 240

CITY OF DURHAM v. SOUTHERN R. CO. ET AL.

No. 331.

Supreme Court of North Carolina

April 4, 1923

Appeal from Superior Court, Durham County; Connor, Judge.

Mandamus proceedings by the City of Durham against the Southern Railway Company and others. From an order for a mandamus defendants appeal. Affirmed.

The plaintiff made application for mandamus to compel the railroad companies to eliminate the grade crossing on Chapel Hill street over the railway tracks of the defendants and to build an underpass under said tracks. Chapel Hill street is one of the main streets for traffic in said city connecting the northern and southern portions of the city and leading from Durham to Chapel Hill. The three defendant railroads have tracks crossing that street on a grade on which are operated both passenger and freight cars. It is alleged and not denied that in a radius of approximately 800 yards of this Chapel Hill street grade crossing are located the freight depots of all three defendants, large tobacco plants and factories, ice and power plants, flour mills, hosiery mills, all of which depots and industries are served with side or spur tracks connected with the main line tracks of the defendants over which are operated constantly, during day and night, passenger trains, freight trains, and switching engines.

In paragraph 5 it is alleged that several accidents have occurred at this grade crossing in which people, animals, and vehicles have been injured.

In paragraph 6 it is alleged that the governing authorities of the city of Durham, finding that the continued maintenance of said grade crossing is a great inconvenience to the whole people, seriously interrupting and impeding street traffic and is dangerous to public travel, employed an expert consulting engineer to advise said governing authorities of the said city if it were practicable and feasible to change or alter said grade crossing in order that the same might be made safe and convenient for the traveling public, and that said engineer, after full investigation, recommended that said grade crossing could best be made safe by separating the street and railroad grades and passing the street underneath the railroad tracks by means of an underpass, and that the said city council invited the defendant to have their representatives meet with it and its representatives with the view of having said defendants remedy said grade crossing by the building of an underpass in the place thereof. And that many conferences were held by and between engineers of the city and the defendant companies which resulted in no definite or satisfactory agreement.

In paragraph 7 of the complaint it is alleged that on March 20 1922, the city council, the governing authorities of the city of Durham, adopted an ordinance which, after reciting the above facts, directed that the grade crossing should be eliminated by the construction of an underpass for the street and directing the defendant railroad companies to eliminate said grade crossing and construct the underpass with proper approaches, fixing the width and height of the underpass and its method of construction, and also directing that the said work be begun within 60 days and completed within 280 working days thereafter, and that a copy of said ordinance was duly served upon the said defendant railroad companies.

In paragraph 8 of the complaint it is alleged that the city caused to be made a record of the street traffic along and over said street and over said grade crossing, which record is attached to the exhibits to the complaint, showing an average of nearly 4,000 pedestrians and bicycles had crossed this grade crossing a day, over 500 horsedrawn vehicles and more than 2,000 passenger automobiles, more than 350 delivery wagons, over 100 heavy trucks and over 200 street cars; and that there were more than 100 times during the same hours, to wit, from 5 o'clock in the morning until 11 o'clock at night, the trains and switch engines crossing Chapel Hill street blocked the crossing between those hours--a total obstruction of 1 3/4 hours per day.

The railroad companies answered admitting the averments above recited with the qualification that they did not at all times of day and night move the trains over said crossing, and they denied that the crossing at Chapel Hill street was blocked to the extent alleged in the complaint, and also in a separate defense alleged that an overhead bridge would be more economical to construct than an underpass; that the requirement of the building of an underpass was unreasonable and oppressive and a burden upon interstate commerce and not permitted by the Transportation Act of Congress, and that the ordinance of the city of Durham was arbitrary and not due process of law, was a violation of the commerce clause of the Constitution, and that the jurisdiction to require the raising or lowering of the tracks at a highway crossing was exclusively with the Corporation Commission of the state of North Carolina.

The railroad companies also moved that the action be continued and no order be made therein until the issues of fact raised could be decided by a jury at a regular term of the superior court of Durham county. The court overruled the motion, and defendants excepted. From the judgment granting a mandamus, the defendants also excepted and appealed.

Fuller & Fuller and W. B. Guthrie, all of Durham, Manly, Hendren & Womble, of Winston-Salem, L. E. Jeffries, of Washington, D. C., Theodore W. Reath, of Philadelphia, Pa., and Jas. F. Wright, of Norfolk, Va., for appellants.

S. C. Chambers, of Durham, J. S. Manning, Atty. Gen., and W. J. Brogden, of Durham, for appellee.

CLARK C.J.

The refusal by the court of the motion to continue the hearing and transfer the case to the civil issue docket of the superior court for trial by jury was not erroneous, for no issues of fact are raised by the answer. The defendants rely upon C. S. 868, but the relief sought by the plaintiffs is not for the enforcement of a money demand, and that section authorizes the summons to be returnable before the judge at chambers not less than 10 days after service of summons in the complaint, "at which time the court, except for good cause shown, shall hear and determine the action, both as to law and fact. However, when an issue of fact is raised by the pleading, it is the duty of the court, upon the motion of either party, to continue the action until the issue of fact can be decided by a jury at the next regular term of the court." The contention of the defendants is that the answer raised issues of fact because they qualified their admission of the truth of the averment in paragraph 4 as to the volume of the traffic over this grade crossing to the extent averred in paragraphs 4 and 8 of the complaint; but neither of these denials raised an issue of fact. Neither did the assertion in the answer that the underpass would be more expensive than a bridge, and therefore that the action of the governing authorities of the city of Durham was arbitrary, unreasonable, and oppressive. These defenses raised no issues of fact to be tried by jury, and the latter was a question of fact for the court.

In Lee v. Waynesville, 184 N.C. 565, 115 S.E. 51, it was held that the courts will not interfere with the statutory discretionary powers given to the governing authorities of an incorporated town to take land from adjoining owners in widening its streets for the public welfare unless their action in doing so is so unreasonable as to amount to an oppressive and manifest abuse of the exercise of this discretion under C. S. 2791, 2792, citing numerous cases.

It is admitted in this case that this Chapel Hill street is one of the main streets and most important thoroughfares in the city of Durham, connecting as it does the northern and southern sections of the city, and is the thoroughfare leading from Durham to Chapel Hill. It is traversed by thousands of people daily, and the question whether or not the public safety demanded elimination of the grade crossing was one in the legislative power of the governing authorities of the city of Durham, and their decision is conclusive and final unless it was shown that it is clearly oppressive or amounts to abuse of their discretion. The denial as to the number of times a day the crossing was broken by passenger and freight trains or switch engines, and of the exact number of pedestrians, bicycles, automobiles, and other vehicles crossing per day, is clearly a mere evidentiary matter and does not constitute issues of fact in view of the admission that Chapel Hill street is one of the main streets or thoroughfares in said city over which so large a volume of traffic and travel passes every day. This court has repeatedly held that mere evidentiary matters do not raise issues of fact. This is clearly stated in Edgerton v. Kirby, 156 N.C. 347, 72 S.E. 365, and also in Jackson v. Telegraph Co., 139 N.C. 347, 51 S.E. 1015, 70 L. R. A. 738, in which the court said:

"We do not approve of issues which, as in this case, embody evidentiary facts instead of the ultimate facts to be found by the jury, and which are therefore the only issuable facts. Grant v. Bell, 87 N.C. 34; Patton v. Railroad, 96 N.C. 455."

The city made out a prima facie case when it showed the enactment and passage of the ordinance, which was admitted by the three railroads. The judge properly held that a presumption existed in favor of the validity of the ordinance, and the burden was upon the railroads to show otherwise, which they declined to do. The judge was ready to hear and determine the action, but the railroads failed to offer testimony or evidence of any kind whatever. It did not devolve upon the city to prove that...