Summary
In Baltimore Ohio R.R. v. Pub. Util. Comm'n of Ohio, 156 Ohio St. 282, 102 N.E.2d 246, 247 (1951), it upheld the Public Utility Commission of Ohio's ("PUCO") authority under state law to issue regulations and orders "relating to the protection and safety of railroad employees" working in rail yards. Under this authority, the PUCO developed an initial minimum track clearance standard that was succeeded by Ohio Admin. Code 4901:3-4-04.
Summary of this case from Tyrrell v. Norfolk Southern Ry. Co.Opinion
No. 32595
Decided November 28, 1951.
Public Utilities Commission — Powers — Promulgation and enforcement of orders for protection of railway employees — Commission's finding that dangerous condition exists, and order to rectify — Appeal — Finding and order not disturbed, when — Conflicting evidence.
1. The Public Utilities Commission, by virtue of Section 614-3, General Code, possesses the authority and power to promulgate and enforce orders relating to the protection and safety of railroad employees while pursuing the activities of their employment in a railroad yard. (Paragraph one of the syllabus of New York Central Rd. Co. v. Public Utilities Commission, 130 Ohio St. 548, and paragraph one of the syllabus of Akron Barberton Belt Rd. Co. v. Public Utilities Commission, 148 Ohio St. 282, approved and followed.)
2. A finding by the Public Utilities Commission, upon conflicting evidence, that conditions dangerous and hazardous to employees exist in an Ohio railroad yard, and an order to the railroad company to rectify such conditions, will not be disturbed on appeal, where it appears that such order is not manifestly against the weight of the evidence and that in the light of the entire record it is neither unlawful nor unreasonable.
APPEAL from the Public Utilities Commission.
This is an appeal by the Baltimore Ohio Railroad Company from an order of the Public Utilities Commission requiring the railroad to eliminate and correct certain track clearances in its West Yard at Ivorydale, Cincinnati, which conditions were found to be unsafe and hazardous.
After the filing of a written complaint against the railroad by the Transportation Brotherhoods Legislative Committee, the commission assigned one of its inspectors to investigate the situation. He found that the track centers (the distance between the center of one track and the center of an adjoining track) were for the most part about 12 feet; that with the movement of wider cars and the tilting of other cars on the tracks the 12-foot centers did not allow sufficient clearance for railroad employees riding on the sides of cars or for employees walking between tracks during car movements on adjacent tracks; and that an unsafe and hazardous condition existed. The inspector further found that the West Yard was in operation 24 hours a day and concluded his report in the following words:
"I do, therefore, suggest to the commission that favorable consideration be given this complaint by requesting the Baltimore Ohio Railroad Company to respace the tracks in this West Yard so that minimum tracks centers of 13 ft. will prevail in this West Yard."
The matter was then referred by the commission to one of its attorney examiners who heard the testimony of a number of witnesses and found, upon conflicting evidence, "that an unsafe condition exists in the West Ivorydale Yards," and recommended "to the commission that conditions of the West Yard * * * be declared hazardous and unsafe."
Upon a hearing the commission adopted the report of its attorney examiner and found:
"1. That the track clearances in the West Yard, Ivorydale, Cincinnati Ohio Terminal of The Baltimore Ohio Railroad Company, are dangerous, hazardous and unsafe.
"2. That respondent railroad should proceed immediately to eliminate and correct the aforesaid conditions in said yard."
An order was thereupon made "that the respondent railroad, within thirty (30) days after the receipt of a certified copy of this order, cease and desist in the use of said tracks in said West Yard, Ivorydale, Cincinnati Ohio Terminal, unless said respondent railroad shall submit to this commission, for its consideration and approval, within the aforesaid thirty (30) day period, a plan and program to correct and eliminate said hazardous and dangerous track clearances."
Mr. William A. Eggers, Mr. Ralph M. Buzek and Mr. Vernon W. Wenger, for appellant.
Mr. C. William O'Neill, attorney general, and Mr. John P. Case, for appellee.
The authority of the Public Utilities Commission to entertain and determine a matter of this kind is conferred by Section 614-3, General Code, which recites in part:
"The Public Utilities Commission of Ohio is hereby vested with the power and jurisdiction * * * to promulgate and enforce all orders relating to the protection, welfare and safety of railroad employees and the traveling public."
And in the case of New York Central Rd. Co. v. Public Utilities Commission, 130 Ohio St. 548, 200 N.E. 759, it was held in the first paragraph of the syllabus:
"The Public Utilities Commission of Ohio has plenary power under and by virtue of Section 614-3, General Code, to promulgate and enforce orders relating to the protection, welfare and safety of railroad employees."
See, also, to the same effect Akron Barberton Belt Rd. Co. v. Public Utilities Commission, 148 Ohio St. 282, 74 N.E.2d 256.
A controversy of this kind is peculiarly within the province and prerogatives of the commission, and each case must be considered and determined on its own individual facts. The testimony herein was of a conflicting and contradictory nature and different deductions and conclusions could be drawn therefrom. The concurring members of this court are frank to admit that had the commission made its findings and entered its order in favor of the railroad company, that determination would, in all probability, have been allowed to stand, as in the case of Co-operative Legislative Committee of the Transportation Brotherhoods v. Public Utilities Commission, 150 Ohio St. 270, 80 N.E.2d 846.
Many cases decided by this court involving orders of the Public Utilities Commission are authority for the propositions that the court will not substitute its opinion or judgment for that of the commission on questions of fact; that an order of the commission will not be reversed unless it is manifestly against the weight of the evidence; and that if upon an examination of the record an order of the commission does not appear to be unlawful or unreasonable it will not be disturbed.
No reversible error being discoverable in the order of the commission entered herein, the same is hereby affirmed.
Order affirmed.
WEYGANDT, C.J., STEWART, MIDDLETON, MATTHIAS and HART, JJ., concur.