Yowell v. Cleveland, C., C. & St. L. Ry. Co.

• Decision Date: 18 April 1935
• Docket Number: No. 22719.,22719.
• Citation: 195 N.E. 667,360 Ill. 272
• Court: Illinois Supreme Court
• Parties: YOWELL et al. v. CLEVELAND, C., C. & ST. L. RY. CO.

360 Ill. 272

195 N.E. 667

YOWELL et al.

v.CLEVELAND, C., C. & ST. L. RY. CO.

No. 22719.

Supreme Court of Illinois.

April 18, 1935.

Proceeding by William Yowell and another against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company before the Illinois Commerce Commission. From a judgment confirming order of the Commerce Commission that respondent construct and maintain a grade crossing at its sole expense, respondent appeals.

Reversed and remanded, with directions.

Appeal from Circuit Court, Macoupin County; Victor Hemphill, judge.

George B. Gillespie, of Springfield (H. N. Quigley and S. W. Baxter, both of Cincinnati, Ohio, and Edmund Burke and Louis F. Gillespie, both of Springfield, of counsel), for appellant.

Otto Kerner, Atty. Gen., Irvin Rooks, of Chicago, and Howard C. Knotts, of Springfield, for appellees.

SHAW, Justice.

William Yowell, county superintendent of highways of Macoupin county, and Otto Feyen, highway commissioner of Gillespie township, in that county, filed with the Illinois Commerce Commission a petition against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. By this petition they sought the entry of an order authorizing the construction of a grade crossing over the tracks of the respondent in the town of Gillespie. The Commerce Commission found that public convenience and necessity required the proposed grade crossing, authorized its construction, and directed the respondent to construct and maintain the crossing at its sole expense. The respondent filed a petition for a rehearing, and the petition was denied. Upon appeal, the circuit court of Macoupin county confirmed the order of the Commerce Commission, and the respondent railway company prosecutes this appeal from that order of the circuit court.

It is charged in the petition that the petitioners propose to construct a grade crossing over the tracks of the railway company from the northerly line of the state-aid road from Gillespie to Dorchester, connecting the road with the south end of Oregon street, in Gillespie, and that it will be necessary to cross over the right of way and tracks of the respondent at the particular intersection.

From the evidence it appears that the main and passing tracks of the respondent extend in a northeasterly and southwesterlydirection through the territory in question; that four passenger and two freight trains are operated over these tracks each day; that the city of Gillespie is so platted that its north and south streets intersect these tracks at an angle of approximately 60 degrees; that state bond issue route 4 is routed over Macoupin street, extending in a north and south direction, and that it is the principal thoroughfare of the city; that the proposed extension is of an existing highway (an ordinary dirt road) at grade across the tracks and right of way of the railway company about 2,700 feet west of the intersection of Macoupin street and the company's tracks; and that the purpose of extending this highway is to shorten the route for high school students and other persons residing to the south and west of the tracks in the township that have occasion to use either the school or a commercial swimming pool located about 2,400 feet north of the tracks. It further appears from the evidence adduced that the opening of the street in question would cut into the middle of a siding used by the railway company, upon which it does all of its switching on the particular division of its road; that the opening of a crossing at this point would compel the company to cut its freight trains of from fifty to sixty cars that meet at Gillespie each day and switch them onto this siding and to protect the crossing while the switching operations are being handled; that in cases of trouble or of wrecks on the St. Louis division all of the trains operated on that division are diverted over the line running through Gillespie, and that on such occasions between fifty-five or sixty through trains pass in twenty-four hours; and that the contemplated crossing would constitute an additional potential hazard. The respondent's evidence discloses that another grade crossing at Jersey street, approximately 600 feet west of Macoupin street and about 2,100 feet from the proposed crossing, would not be closed, and that the opening of this contemplated crossing would create two grade crossings within this distance.

The order of the commission is based upon findings (1) that the petitioners have complied with the statutory requirements for the opening of a certain highway proposed to be extended across the respondent's tracks at a point near the southwest corner of the northwest quarter of section 24, township 8 north, range 7 west, near the city of Gillespie; (2) that the proposed highway, when opened to traffic over the tracks, will more conveniently serve the west side residents of Gillespie and the community high school district; (3) that, owing to the lack of crossings in the west part of Gillespie, the persons residing there are considerably inconvenienced by being required to travel a circuitous route to reach points on either side of the tracks; (4) that public convenience and necessity require the proposed highway to be extended at grade at the point in question; and (5)...