Pittsburgh, C., C. & St. L. Ry. Co. v. Indianapolis, C. & S. Traction Co.

• Citation: 169 Ind. 634,81 N.E. 487
• Decision Date: 28 May 1907
• Docket Number: No. 20,808.,20,808.
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. INDIANAPOLIS, C. & S. TRACTION CO.
• Court: Supreme Court of Indiana

169 Ind. 634

81 N.E. 487

PITTSBURGH, C., C. & ST. L. RY. CO.

v.INDIANAPOLIS, C. & S. TRACTION CO.

No. 20,808.¹

Supreme Court of Indiana.

May 28, 1907.

Appeal from Circuit Court, Hancock County; Ed. W. Felt, Judge.

Action by the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company against the Indianapolis, Columbus & Southern Traction Company. From a judgment for defendant, plaintiff appeals. Affirmed.

S. O. Pickens for appellant. Chas. S. Baker and Wm. Ward Cook, for appellee.

HADLEY, C. J.

Appellant and its predecessors have owned and operated a railroad between Indianapolis and Louisville for many years. Appellee, a corporation organized for the construction and operation of an interurban railroad between Indianapolis and Columbus under the general railroad law, pursuant to an agreement with appellant, constructed a grade crossing over appellant's road, outside, but near, the city limits of Indianapolis. This action is prosecuted under section 5 of an act approved March 3, 1903 (Acts 1903, p. 125, c. 59), to change the existing grade crossing to one below or above grade. The defendant answered the general denial. There was a trial by the court, and a general finding, and judgment for the defendant. The only assignment of error is the overruling of appellant's motion for a new trial, which was based upon the grounds that the finding was not sustained by sufficient evidence, and was contrary to law.

Section 5 of the act of 1903 provides that, if any street railroad, interurban or suburban railroad, and a railroad company shall fail to agree to a change of any existing grade crossing to a crossing above or below grade, either company may by petition carry the subject to a circuit or the superior court, “and if the court shall find it is practicable to abolish the grade crossing, and change the same to a crossing above or below grade, it shall decree that such crossing shall be changed to one below or above grade, as it shall find best,” and how it shall be constructed, the part each company shall bear, the amount of the cost each shall pay to the other, and apportion the cost of maintenance, etc. Under this statute the first and controlling question for the trial court to determine was whether it was or was not practicable to change the grade crossing to one below or above grade. If determined in the negative, there was nothing else to decide; if in the affirmative, then followed the dependent duties pointed out by the statute. It may be further stated that the only question presented by this appeal is whether the court's finding as to the practicability of the change was sustained by sufficient evidence. The words of the statute are: “If the court shall find that it is practicable,” etc. The legislative meaning of the word “practicable” presents a subject of earnest debate between the parties. Appellant, calling attention to the act of 1897 (Acts 1897, p. 237, c. 157), which provides that, if railroad companies cannot agree on the manner of a crossing, the circuit court shall by decree define the manner, “and if, in the judgment of such court, it is reasonable and practicable to avoid a grade crossing, it shall, by its process, prevent a crossing at grade,” contends that construing the act of 1897 with the act of 1903, which requires the court to abolish such crossing if found practicable, we must accept this legislation as indicating the fixed policy of the state to do away with railroad crossings at grade as soon as it can be reasonably accomplished. From this it is argued that the term “practicable,” as employed in the statute, should be taken in the sense of physically practicable; or in the sense of an engineering problem.

The construction insisted upon, we think, is too narrow. Conceding, without deciding, that it is the legislative purpose to discourage, and to ultimately eliminate, ordinary grade crossings, still we think that it was intended that...