Norfolk Ry Co v. Public Service Commission of West Virginia

• Decision Date: 05 May 1924
• Docket Number: No. 187,187
• Citation: 68 L.Ed. 904,265 U.S. 70,44 S.Ct. 439
• Parties: NORFOLK & W. RY. CO. v. PUBLIC SERVICE COMMISSION OF WEST VIRGINIA et al
• Court: U.S. Supreme Court

265 U.S. 70

44 S.Ct. 439

68 L.Ed. 904

NORFOLK & W. RY. CO.

v PUBLIC SERVICE COMMISSION OF WEST VIRGINIA et al.

No. 187.

Argued Jan. 21, 1924.

Decided May 5, 1924.

Messrs. John H. Holt, of Huntington, W. Va., Theodore W. Reath, of Philadelphia, Pa., and Lucian H. Cocke, of Roanoke, Va., for plaintiff in error.

Messrs. Randolph Bias, of Williamson, W. Va., and F. M. Livezey, of Huntington, W. Va., for defendants in error.

Mr. Justice BUTLER delivered the opinion of the Court.

John Followay, one of the defendants in error, a merchant at a village called Blackberry City, in Mingo county, W. Va., filed complaint with the Public Service Commission of that state, praying that the Norfolk & Western Railway Company, plaintiff in error, be required to furnish a suitable crossing and to provide reasonable facilities for the use of shippers at that place. After a hearing, at which much evidence was introduced, the commission made an order which directed the railway company to construct and maintain a roadway for vehicles across its tracks at McCarr Siding. It limited the use of the crossing to the transportation of freight consigned to the complainant and other shippers, and required that the entrance to the crossing at the north side of the track be closed by a gate to be furnished by complainant and to be by him kept locked, except when the crossing was being so used, and directed that, while the crossing was being used by complainant for the transportation of goods across the tracks in vehicles, he should provide a watchman to give notice of approaching trains.

The company instituted proceedings in the Supreme Court of Appeals to suspend and set aside the order, and there contended that it was repugnant to the due process and equal protection clauses of the Fourteenth Amendment. The contention was overruled, and the order was affirmed. Railway Co. v. Public Service Commission, 91 W. Va. 414, 113 S. E. 247. Plaintiff in error seeks to have the judgment reversed on the ground of such repugnancy.

It is provided by statute that every railroad company may be required by the commission to establish and maintain such suitable public facilities and conveniences as may be reasonable and just. Section 4, c. 15O, Barnes' Code 1918; Railway Co. v. Public Service Commission, supra, 419, 113 S. E. 247.

The facts may be briefly stated. At McCarr Siding there are four parallel tracks—an eastbound main line, a westbound main line, a track between these, and a branch line extending across the Tug river. There is also a spur track extending southeasterly from the main line tracks to the tipple of the Allburn Coal Corporation and intersecting the approach to the proposed crossing about 200 feet therefrom.

The railroad tracks are on the north bank of the Tug river which at this place is the boundary between West Virginia and Kentucky. The village adjoins the company's right of way on the north and is located on a bluff considerably higher than the railroad tracks. Its population is about 100. Complainant's store is on a hillside a short distance north of the tracks. The Allburn Coal Corporation owns a double-decked bridge across the river almost directly opposite the store. The upper level of the bridge is used for transportation of coal, and the lower level is used for pedestrian and vehicular travel. Though privately owned, it has been used by the public for a number of years as a part of the traveled way between the village and the territory south of the river. By reason of a sharp curve in the tracks and a deep cut, the view of the crossing is obstructed, so that enginemen on approaching trains can see it for only a short distance.

McCarr Siding was established for the accommodation of the Allburn Coal Company about 10 or 12 years prior to the filing of the complaint. The tariffs of the railway company and its shipping instructions state that the siding is a carload billing point. It is also a prepay station, to which freight in carload and less than carload lots may be shipped, to be delivered at the risk of consignees. The coal company and complainant receive by far the larger part of the freight. The amount received by others is small. When the mines of the Allburn Coal Corporation are fully operated, 8 or 10 carloads of coal are loaded daily. Other outgoing shipments,...