Delaware & H. R. Corp. v. Pennsylvania Public Utility Commission

• Decision Date: 14 June 1962
• Citation: Delaware & H. R. Corp. v. Pennsylvania Public Utility Commission, 182 A.2d 254, 198 Pa.Super. 464 (Pa. Super. Ct. 1962)
• Court: Pennsylvania Superior Court
• Parties: The DELAWARE & HUDSON RAILROAD CORPORATION, Appellant, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Appellee.

Page 254

182 A.2d 254

198 Pa.Super. 464

The DELAWARE & HUDSON RAILROAD CORPORATION, Appellant, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Appellee.

Superior Court of Pennsylvania.

June 14, 1962.

Application for Allocatur Denied Aug. 15, 1962.

Paul Bedford and S. K. Mitchell, Jr., of Bedford, Waller, Griffith, Darling & Mitchell, Wilkes-Barre, Robert M. Landis, of Dechert, Price & Rhoads, Philadelphia, Donald D. Dart, John F. Reilly, New York City, for appellant.

S. Maxwell Flitter, Asst. Counsel, Joseph I. Lewis, Chief Counsel, Harrisburg, for appellee.

Before RHODES, P. J., and ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY and FLOOD, JJ.

WATKINS, Judge.

This is an appeal by The Delaware & Hudson Railroad Corporation from an order of the Pennsylvania Public Utility Commission, rescinding its own order made November 14, 1960, in which the Commission had authorized the railroad to install automatic worning signals and gates at three grade crossings in the Borough of Olyphant, Lackawanna County, Pennsylvania, theretofore protected manually by a watchman in elevated towers on twenty-four hour duty, after rehearing, and directing the railroad to continue the manually operated gates at all the crossings.

On June 10, 1959, the railroad filed its application requesting authorization to install automatic flashing light signals, shortarm gates, pedestrian sidewalk gates and bells at the South Valley Avenue, North Grant Street and North Valley Avenue grade crossings, on its right-of-way in Olyphant, Pennsylvania. Each of these crossings was then protected twenty-four hours a day by a watchman stationed in elevated towers who operated long-arm crossing gates from controls located in the towers. At the same time the railroad sought and was granted authorization to eliminate two of the three operating tracks at each of these crossings. The Borough of Olyphant and the School District of Olyphant, intervening appellees, appeared as protestants of this application.

On November 14, 1960, the Commission granted the prayer of the petition, holding that the automatic protection system was 'necessary or proper to effectuate the prevention of accidents and promote the general safety of the public' at the three crossings; and that the elimination of all but one track had recovered many of the hazards that existed in 1953. It further found that the addition of sidewalk barriers, audible bells and flashing light signals 'would increase the protection at all the crossings' and that a watchman confined to an elevated tower could 'not offer the kind of protection the public deserves.' A crossing watchman was to be provided by the railroad at South Valley Avenue crossing between the hours of 8 a. m. and 4 p. m., Mondays through Fridays.

The intervening appellees filed a petition for a rehearing and review on December 20, 1960, which was granted. On June 5, 1961, the Commission rescinded its order of November 14, 1960, and denied the railroad's application, stating that the record 'appears to contain sufficient additional basic data' to warrant changing the findings and that it was 'not convinced that affirmance of that order would result in better protection to the public.'

The railroad had been previously denied authority to make the suggested changes in 1953 and the record of that proceeding was incorporated by reference into the record of this case. At that time, all the tracks over the three crossings were operational, with freight train movements, including extensive switching operations and service to the facilities of the Hudson Coal Company located in the area. Since then the switching movements have been greatly reduced and a narrow gauge track which ran parallel with the railroad's tracks crossing East Grant Street and South Valley Avenue has been removed. This removal eliminated fifty train movements a day across South Valley Avenue and East Grant Street.

With passenger service discontinued traffic counts taken by the railroad in April, 1959, showed an average of 17 freight trains and one or two light engine movements in a twenty-four hour period over each of the crossings. This is a reduction of more than fifty per cent. of the train movements over the crossings at the time of the 1953 hearings. The same traffic counts show a twenty-four hour average of 8,719 motor vehicles and 1,015 pedestrains on South Valley Avenue; 1,034 motor vehicles and 347 pedestrians on East Grant Street; and 4,913 motor vehicles and 54 pedestrians at North Valley Avenue.

The railroad's evidence disclosed that it cost the railroad $64,000 to protect the three crossings with towermen on twenty-four hour duty, with $62,800 for salaries, and $1,200 for maintenance and operation. The cost of maintaining all the crossings with automatic protection would be $1,500 per year after an installation cost of $56,676.

The accident record with manually operated gates at the three crossings was, as follows, from 1915 to 1959: In 18 accidents at South Valley Avenue, 11 persons had been killed and 1 injured; in six accidents at East Grant Street, 3 persons had been injured and none killed; and in six accidents at North Valley Avenue, 3 persons had been killed and 1 injured.

The railroad's own experience with automatic protection devices, similar to those proposed for use at these crossings, is that at 107 crossings in Pennsylvania and New York, where they have been installed, in the equivalent of 614 crossing years experience, total accidents had been reduced 81.6 per cent. Fatal accidents had been reduced 91.4 per cent., personal injury accidents had been reduced 86.5 per cent., and property damage accidents had been reduced 82.4 per cent.

The railroad's expert witnesses testified that the proposed automatic protection for these crossings was 'unquestionably' safer than the manually operated gates, and that among their primary safety advantages were: increased visibility of the flashing signals; increased audibility of the bells; elimination of accidents caused by human failure; substitution of a short-arm gate which leaves the departure lane open, so that a vehicle cannot be trapped on the tracks between lowered gates; and increased awareness by the public of the warning devices because of their familiarity with highway traffic signals.

Protestants' evidence was largely confined to showing where most of the pedestrian traffic in the borough came from in relation to the crossings; and the location of schools, churches, playgrounds and business places in relation to the crossings. The Mayor, the President of Council, and the Chief of Police testified to the usefulness of the towermen in assisting the borough police in directing traffic, cindering the crossings and roadways and performing other functions for the borough. There was testimony that the watchmen sometimes gave aid to children and elderly people crossing the tracks. The witnesses for the protestants expressed their personal preference for manually guarded crossings and their belief that watchmen are safer. They admitted, and it is apparent, that they knew little or nothing about the operation of automatic crossing signals and gates or were qualified to express an opinion as to the relative safety merits of either system.

It was on this record that the order of November 14, 1960 was made by the Commission, and there is no question that the order was amply supported by competent evidence. It is, therefore, necessary to carefully examine the testimony taken at the rehearing and find the 'sufficient basic data' that caused the reversal of the Commission's order. The Commission recites it as follows:

'An examination of the testimony submitted at the rehearing reveals that traffic at the crossings, both motor vehicle and pedestrian, has increased sharply. Present employment conditions in the vicinity of the crossings have brought about this increase in travel. No testimony was offered...