Opinion
No. 34370
Decided November 30, 1955.
Railroads — Grade crossings within municipal corporations — Jurisdiction of Public Utilities Commission — Sections 4907.47 and 4907.49, Revised Code — Flasher lights and short-arm gates — Commission's order requiring installation not unlawful — Written opinion to be filed by commission — Section 4903.09, Revised Code — Compliance with statute.
APPEAL from the Public Utilities Commission.
This proceeding was instituted by the city manager of the city of Fairborn by his filing with the Public Utilities Commission of a petition alleging that the grade crossing of appellants' tracks and Erie Street within the city is a dangerous one and should be protected by automatic flashing signal lights and automatic railroad gates or by a watchman, and requesting that the commission order and compel appellants, The New York Central Railroad Company and The Erie Railroad Company, to install such protective devices.
It appears from the record that Erie Street is a direct connecting thoroughfare between the southeastern residential section of the city east of the tracks and the larger residential and business sections west of the tracks. Two main tracks and one switch track cross Erie Street at the location in question. Approaching the crossing from the west, the street has an ascending grade of about 3.6 per cent, and approaching from the east it has a descending grade of about 2 per cent. Crossbuck signs and approach warning signs now protect the crossing. Authorized speeds for passenger trains over these tracks are from 60 to 79 miles per hour, and from 40 to 50 miles per hour for freight trains. A survey check for a 24-hour period in March 1954 showed that 5,800 highway vehicles, 17 passenger trains and 17 freight trains used the crossing. Switching movements over the crossing averaged from 23 to 38 per day. Evidence as to motorists' unobstructed view of the tracks when approaching the crossing is conflicting. Fifteen accidents have occurred at the crossing in the past sixteen years.
The Public Utilities Commission's inspector, after investigation, reported that the crossing was not sufficiently dangerous to warrant installation of additional protection and recommended that the request for additional protection be denied.
A hearing was thereafter had before the commission's attorney-examiner who submitted a report setting forth a summary of the testimony of the witnesses, findings of fact, and ultimate conclusions and reasons therefor. He found that conditions were such as to place motorist and pedestrian travel in unreasonable danger, that the employment of a watchman or installation of short-arm gates and flashing light signals would substantially reduce the danger, and that the commission is within its jurisdictional limitations in hearing and deciding the issues in the case. He recommended that the appellant railroads be ordered to submit a plan for further protection.
The commission rendered an opinion in which it overruled exceptions filed by appellants to the attorney-examiner's report, adopted as its own, as if fully rewritten therein, the examiner's summary of testimony and exhibits, his discussion, ultimate findings and recommendation, as the same are contained in such report, and ordered that appellants submit their plan for further protection to be installed at the crossing and indicate when the planned protection will be installed.
An appeal from the order of the commission brings the cause to this court for review.
Mr. W.A. Wilkinson, Mr. A.C. Russell, Mr. Richard S. Weygandt, Mr. W.T. Pierson, Mr. P.H. Donovan and Mr. J.P. Canny, for appellants.
Mr. C. William O'Neill, attorney general, Mr. Ralph N. Mahaffey, and Mr. Everett H. Krueger, Jr., for appellee.
Appellants contend that the order of the Public Utilities Commission is against the weight of the evidence and is unlawful, arbitrary, and an abuse of discretion. It does not appear from an examination of the record that the order of the commission is unlawful, arbitrary, or an abuse of discretion. This court will not substitute its judgment on questions of fact for that of the commission. Baltimore Ohio Rd. Co. v. Public Utilities Commission, 156 Ohio St. 282, 102 N.E.2d 246.
Appellants contend further that under authority of Section 4907.49, Revised Code, railroad crossings located within municipal corporations are excluded from the jurisdiction of the Public Utilities Commission.
Section 4907.49, Revised Code, provides in part:
"If a crossing within a municipal corporation is considered dangerous * * * the proper authorities of the municipal corporation * * * may construct, purchase, and operate an available safety device * * *. The cost of the construction, maintenance, and repair shall be borne by the municipal corporation * * *."
The above-quoted amendment to the statute, added in 1937 (117 Ohio Laws, 656), did not repeal or amend by implication, and is not inconsistent or incompatible with, the provisions of Section 4907.47, Revised Code, authorizing the Public Utilities Commission to order a railroad company to install mechanixal devices at a street crossing the commission finds dangerous, which latter provisions were in effect when the above-quoted amendment was passed. That amendment did not take from the commission jurisdiction over railroad crossings within municipal corporations or give to municipal corporations power to order railroads to install safety devices at crossings within the corporate limits. Such statute authorizes municipalities to purchase, install and maintain safety devices at railroad crossings within their corporate limits, if crossings are considered dangerous, and to pay for the same from the general revenue fund or any fund made available for that purpose.
Appellants contend further that the commission erred in failing to comply with Section 4903.09, Revised Code, which requires the commission to file "findings of fact and written opinions setting forth the reasons prompting the decisions arrived at, based upon said findings of fact." This court is of the opinion that the section has been sufficiently complied with by the commission in its opinion reciting that "the commission hereby adopts as its own, as if fully rewritten herein, * * * the `examiner's discussion' as the same is contained in the examiner's report * * *; the `findings' as the same are contained in the examiner's written report and hereby reiterates the following findings * * *." See Mt. Vernon Telephone Corp. v. Public Utilities Commission, 163 Ohio St. 381, 127 N.E.2d 14.
The order of the commission is affirmed.
Order affirmed.
MATTHIAS, HART, ZIMMERMAN, STEWART, BELL and TAFT, JJ., concur.
WEYGANDT, C.J., not participating.