Scranton & Pittston Traction Co. v. President, Managers and Company of the Delaware & Hudson Canal Co.

• Decision Date: 19 April 1897
• Docket Number: 431,430
• Parties: Scranton & Pittston Traction Company v. The President, Managers and Company of the Delaware & Hudson Canal Company, Appellants; the President, Managers and Company of the Delaware & Hudson Canal Company, Lessees, Appellants v. Lackawanna Street Railway Company and the Scranton & Pittston Traction Company, Lessees
• Court: Pennsylvania Supreme Court

37 A. 122

180 Pa. 636

Scranton & Pittston Traction Company v. The President, Managers and Company of the Delaware & Hudson Canal Company, Appellants; the President, Managers and Company of the Delaware & Hudson Canal Company, Lessees, Appellants v. Lackawanna Street Railway Company and the Scranton & Pittston Traction Company, Lessees

Nos. 430, 431

Supreme Court of Pennsylvania

April 19, 1897

Argued February 23, 1897

Appeals, Nos. 430 and 431, Jan. T., 1896, by defendants, from decrees of Superior Court, affirming decrees of C.P Lackawanna Co., Nov. T., 1894, Nos. 7 and 8, on bills in equity. Reversed.

Bill in equity for an injunction.

The facts appear by the opinion of the Supreme Court. See also Traction Co. v. Canal Co., 1 Pa. Superior Ct. 409.

The Superior Court affirmed the decree of the common pleas of Lackawanna county, dissolving a preliminary injunction which enjoined the plaintiff from constructing grade crossings over defendant's road.

Error assigned was decree dissolving injunction.

W. H Jessup and James H. Torrey, with them W. H. Jessup, Jr., for appellants. -- The traction company has not the legal right under the street railway law to lay its tracks upon a public township road: Penna. R. Co. v. Montgomery County Pass. Ry., 167 Pa. 62. The consent of the supervisors does not confer such right: Musser v. Fairmount & Arch St. Ry., 5 Clark, 466; Attorney General v. Ry. Co., 1 W.N.C. 489. There was no valid consent of the township authorities: Western Penna. R. Co.'s App., 104 Pa. 399; Penna. R. Co. v. Mont. Co. Pass. Ry., 167 Pa. 62; Tamaqua & Lansford St. Ry. v. Inter-County St. Ry., 167 Pa. 91. The railway company has a right to object to want of authority on the part of the traction company: Gtn. Pass. Ry. v. Citizens Pass. Ry., 151 Pa. 138.

There is no imperious necessity shown in the evidence that the crossing, if legal, should be at grade.

The law in reference to grade crossings applies to street railways: Perry County R.R. Extension Co. v. Newport & Sherman's Valley R.R., 150 Pa. 193; Penna. R. Co. v. Braddock Electric Ry., 152 Pa. 116; Hestonville, etc., R.R. v. Phila., 89 Pa. 210; Altoona & Philipsburg Connecting R.R. v. Tyrone & Clearfield R.R., 160 Pa. 623.

The act of 1889, permitting street railways to cross steam roads diagonally or transversely at grade is not constitutional.

H. W. Palmer, with him Lemuel Amerman, for appellees. -- Appellants have no right to object to the crossing: Penna. Schuylkill Valley R.R. v. Phila. & R.R.R., 160 Pa. 277; Penna. R. Co. v. Railway Co., 176 Pa. 560. Practically considered if a grade crossing is not allowed at the point in question the logical effect of the decision would be, if followed, to deny all such crossing in the future: Penna. R. Co. v. Electric Ry., 152 Pa. 116; Altoona, etc., R.R. v. R.R., 160 Pa. 624; Northern Cent. Ry. Co.'s App., 103 Pa. 621.

A court of equity will not, under the Act of June 19, 1871, P.L. 1361, decree the construction of an overhead crossing where the cost of such a crossing would be so great as to prevent the construction of the railroad: Penna. Schuyl. Valley R.R. v. Phila. & Reading R.R., 160 Pa. 277; Citizens Pass. Ry. v. East Harrisburg Pass. Ry., 164 Pa. 274; McCullough v. Manning, 132 Pa. 55; Kisor's App., 62 Pa. 428; Sproull's App., 71 Pa. 137.

Before WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE DEAN:

The Delaware and Hudson Canal Company, appellant, as lessee, operates a double track steam railroad between the cities of Scranton and Wilkes-Barre, on which are run about one hundred and thirty-five freight trains every twenty-four hours. Some of these trains are very long and heavy, not easily controlled or stopped when under headway. Besides the freight, many passenger trains are run daily. Switching engines, also, run frequently over these tracks. At Moosic, in Lackawanna township, the railroad has three tracks, and a fourth is being constructed. The Lackawanna Street Railway Company, incorporated under act of May 14, 1889, is authorized by its charter to build and operate an electric railway from a point on Center street at Scranton city line, along said street and the main road to Wyoming avenue in the village of Moosic, and thence along the avenue to the valley road through Marcy township to the borough of Avoca; thence, further, by Wyoming avenue, etc., accomplishing the circuit. The Scranton and Pittston Traction Company, organized under the general act of March 22, 1887, for incorporation of motor power companies, etc., contracted with the Lackawanna company to construct, complete and operate an electric railway over the route specified in the charter of the Lackawanna, and at once proceeded with the work of construction. The public highway, along which by the charter of the Lackawanna it is authorized to be constructed, crosses the steam railroad at grade, at two points, one on Wyoming avenue in Moosic, and the other at Spring street, the two points being distant from each other on the steam railroad about half a mile. The constructing company, the appellee, attempted to lay the tracks of the electric railway at grade across the appellant's steam railroad at these points. The appellant objected and threatened to prevent the crossings by force; thereupon, the traction company filed its bill, alleging that any other than grade crossings at the points named were impracticable, and praying that the steam railroad company be enjoined from interfering with the construction, The steam railroad company also filed its bill against the traction company, averring that the proposed grade crossings would be highly dangerous, and that overhead crossings were palpably practicable without any great expense, and praying that the traction company be enjoined from crossing at grade. Preliminary injunctions were issued, and then a full hearing had before Judge GUNSTER, of the common pleas, on the merits, who, in an able opinion filed, enjoined the traction company from constructing grade crossings at either point. Subsequently, on additional evidence, he modified the decree, and dissolved the injunction as to the proposed crossing at Wyoming avenue, but leaving it stand as to Spring street. His principal reasons for modifying the decree as to the Wyoming avenue point, were: 1. The track of the steam road from the crossing is visible in one direction for nine hundred feet, in the other fifteen hundred feet, thus enabling the motorman of an approaching electric car to see an approaching steam train at a long distance, and thus avoid collision. 2. Evidence was given tending to show that an automatic switch could be adopted and controlled by the steam road which would render it impossible for an electric car to cross until the train had passed over. 3. An overhead crossing is impracticable, because the traction company, having no right of eminent domain, cannot build an overhead crossing against the objections of abutting property owners on the approaches to the crossing.

From this decree the Delaware & Hudson Canal Company took two appeals to the Superior Court, -- one from the refusal of the court to enjoin the traction company from crossing Wyoming avenue at grade, and the other from that part of the decree enjoining it from interfering with the construction of such grade crossing. The decree was affirmed by the Superior Court, two of the judges, in opinion filed, dissenting. On allowance by this court, we have two appeals by the steam railroad company from that decree.

So, in reviewing the decisions of the Superior Court and court of common pleas, we have for consideration only the questions raised by the appeals of the Delaware & Hudson Canal Company from that part of the decree authorizing a grade crossing at Wyoming avenue.

This brings us at once to a consideration of the duty...