East Greenwich Fire Dist. v. Penn Central Co., s. 1789-M

• Decision Date: 30 March 1973
• Docket Number: Nos. 1789-M,s. 1789-M
• Citation: 302 A.2d 304,111 R.I. 303
• Parties: The EAST GREENWICH FIRE DISTRICT v. PENN CENTRAL COMPANY et al. TOWN OF EAST GREENWICH v. PUBLIC UTILITIES COMMISSION. P., 1790-M.P.
• Court: Rhode Island Supreme Court

Page 304

302 A.2d 304

111 R.I. 303

The EAST GREENWICH FIRE DISTRICT v. PENN CENTRAL COMPANY et al.

TOWN OF EAST GREENWICH v. PUBLIC UTILITIES COMMISSION.

Nos. 1789-M.P., 1790-M.P.

Supreme Court of Rhode Island.

March 30, 1973.

George A. Bristol, for East Greenwich Fire District, East greenwich

Peter D. Nolan, Town Solicitor of East Greenwich, Coventry, Leo J. Dailey, for Town of East Greenwich.

Roberts & Willey Inc., Dennis J. Roberts II, Providence, for Penn Central Co.

OPINION

PAOLINO, Justice.

On May 17, 1972, the East Greenwich Fire District and the town of East Greenwich each filed a petition for certiorari pursuant to the provisions of G.L.1956 (1969 Reenactment) § 39-5-1, as amended, by P.L.1969, ch. 240, sec. 8, to review an order filed by the Public Utilities Commission on May 10, 1972, relating to an application filed by the Penn Central Company on September 4, 1969. The writs issued on May 23, 1973, in accordance with the mandate in § 39-5-2, and on the following day the petitioners filed a motion for a stay of the commission's order pending this court's action upon their petition for certiorari. We assigned this motion specially to the calendar of June 15, 1972, for oral argument. See East Greenwich Fire District v. Penn Central Co., R.I., 291 A.2d 435 (1972), and Town of East Greenwich v. Public Utilities Comm'n, R.I., 291 A.2d 436 (1972). On June 20, 1972, we granted the motion of each petitioner in part. ¹

The facts are not in dispute and are briefly as follows. On September 4, 1969, Penn Central Company (Penn Central) filed an application with the Public Utilities Commission requesting permission to close public crossings at Long Street and Queen Street in the town of East Greenwich and to install automatic flashing lights and gates at the London Street crossing in that town in lieu of the existing manual protection presently in existence at that crossing. All of the crossings in question are within the East Greenwich Fire District and at the time of the application they were all manned crossings. It is undisputed that the crossings involved in this action were all public crossings.

On September 25, 1969, the commission held a public hearing on this application in the council chambers at the town hall in East Greenwich. Penn Central presented three witnesses.

Mr. R. C. Heckel, a highway crossing engineer for Penn Central, testified that as a matter of experience, automatic protection is far superior to manual protection; that the automatic warning devices are sufficient for young children and that the railroad department has an education department to instruct children in schools; and that if an order permitting the substitution of automatic devices was issued, the railroad would arrange to conduct an educational program for school children in the area. He admitted under cross-examination that Penn Central's application was based upon traffic studies dealing with civilian vehicles and pedestrian crossings and that there was no special attention to the requirements of the fire department apparatus.

With respect to London Street he testified:

'At the present time we feel we can put in automatic protection at London Street and give the town far superior type of crossing protection than they now have.'

And he further testified as follows:

'But, we think in closing these two crossings, and protecting this one at London Street, we can give and know we can give the town far better protection than they have now.'

Mr. Richard J. Duggan, train master of Penn Central in Providence, who is responsible for the movements of trains through East Greenwich, testified as to train movements through that town and the speed limits involved. He also stated that the speed of the trains in the area in question was governed by track curvature rather than by the fact that crossings were there.

Mr. Frank C. Fotta, Penn Central regional engineer for communication and signals, introduced preliminary plans proposed by Penn Central and explained the reasoning behind the proposal. He testified as to studies made indicating the relative safety of manual gates and automatic protection and he spoke about safety factors involving young children and elderly persons. He then testified as follows:

'As our sight visit to the crossings disclosed, the grade at both Queen and Long Streets is very undesirable. That is, at Queen Street we have a serious drop-off on the west side of the tracks. At Long Street we have a serious grade approaching the tracks from the east side. Both of those crossings are very narrow and on the nature that major or large vehicles would have difficulty in traversing them. This led us to the natural conclusion that London Street would be the most desirable crossing to automate.'

Mr. Frederick T. Miller, chief of the East Greenwich Fire District, testified for the fire district. His testimony in substance dealt with the requirements of proper fire protection in connection with the crossings involved. He disagreed with Penn Central's claim that London Street was the most logical highway to leave open by use of automatic devices. He opposed any change from manually operated grade crossings, but he stated that if some change was approved Queen Street was the most important highway to leave open. He spoke as follows with regard to this problem:

'Long Street we do not use because it is too sharp a turn coming out of the station. Queen Street is the most important street, and they are going to block it up. They are not going to put electric gates there. That is the widest street in town.

'As far as London Street is concerned, that is adequate as far as the railroad. After you get over the railroad and go beyond Lion Street, the road is not suitable. Water Street is not suitable for fire protection. We use King Street for the simple reason we don't use Division Street on account of the crossings. If we go down King Street and the gates are down, and we go under the bridge, the manufacturer there might have a truck across the street and you can't get through there.'

The transcript shows that Chief Miller repeated this same feeling in cross examination. The record also contains the statements of other interested persons and town officials and the signatures of many objectors.

In its 'Report and Order,' which is dated May 10, 1973, the commission reviewed the evidence in some detail and discussed its authority to act in a case such as this, stating that 'The determination is to be made in accordance with the convenience of public travel and the effect of better security of human life.' It further said that it had considered all the testimony and evidence presented to it, and had inspected the crossings to determine the feasibility of erecting effective pedestrian and vehicle fencing barriers, and the maneuverability of fire fighting apparatus through the streets crossing the railroad to the area east of the tracks. The commission also investigated the suitability of automatic gates at each of the crossings and gave consideration to the areas used by the children to go to the Queen Street playground, and for the convenience of elderly citizens living east of the tracks.

The commission then made the following findings:

'The Commission finds that the proximity of the grade crossings to each other constitute a danger to East Greenwich citizens because of the high speed trains coming through that town. The Commission finds that better protection for the public would be afforded by the elimination of precarious, marginally useful mainline crossings. The Commission further finds, however, that public safety would be better served by rejecting the application of the Penn Central Company to close and barricade the streets within the limits of the tracks at Long Street and Queen Street and to install automatic flashing lights and gates in substitution of the existing manual protection at London Street, and instead to order the barricading of the streets within the limits of the tracks at London Street and Long Street and installing and maintaining at Queen Street automatic flashing lights and gates in substitution for the existing manual protection.'

On the basis of such findings it entered the following order:

'1. Penn Central Company may permanently close and barricade the streets within the limits of the tracks at Long Street (Crossing 48.92) and London Street (Crossing 48.84) provided chain link fencing or other suitable barricading is installed on both sides of the track at each of the foregoing streets for sufficient distances to avoid the tracks being crossed by young children. The Penn Central Company shall retain an attendant at said crossings during daylight hours until such barricades or fencing are approved by the Division of Public Utilities and Carriers.

'2. Penn Central Company shall install, maintain and operate at Queen Street (Crossing 48.98) automatic flashing lights and gates in substitution of the existing manual protection provided an attendant is kept on duty at said crossing during the hours of the day when children go to and from school or patronize the playground on Queen Street until such time as the Penn Central Company shall have completed a course of instruction with regard to crossing safety and until the Division of Public Utilities and Carriers approves the discontinuance of such attendant's services at said crossing.'

The briefs of petitioners are substantially alike and raise essentially the same issues. For this reason we shall treat them as one where convenient.

I

The petitioners' first assignment of error is that there was no request made by Penn Central to close London Street, that no evidence was ever submitted to warrant the closing of that street, and that in the absence of such evidence the matter should be remanded to the commission. In support of their argument petitioners refer to the testimony of the three witnesses presented by Penn Central and which...