Opinion
08-25-1896
In re ATLANTIC HIGHLANDS, R. B. & L. B. ELECTRIC RY. CO.
James E. Degnan, for applicant Edmund Wilson, for town of Red Bank. John S. Applegate, for New York & L. B. R. Co. R. W. De Forrest, for New Jersey Cent R. Co. Alan H. Strong, for Pennsylvania R. Co.
In re application of the Atlantic Highlands, Red Bank & Long Branch Electric Railway Company to define the mode of crossing the line of the New York & Long Branch Railway company. Granted.
James E. Degnan, for applicant Edmund Wilson, for town of Red Bank.
John S. Applegate, for New York & L. B. R. Co.
R. W. De Forrest, for New Jersey Cent R. Co.
Alan H. Strong, for Pennsylvania R. Co.
McGILL, Ch. The statute (P. L. 1895, p. 462) contemplates that where the route of a steam or electric railway shall cross an established steam railway, outside of a city, the intended crossing shall be constructed so as to inflict as little injury as possible to the rights of the existing railway, and so as to afford proper protection to the public; also, that before the crossing shall be constructed, the new railway company shall apply to the chancellor to define the mode of crossing, whereupon the chancellor shall cause notice of the application to be given to the municipality in which the crossing is to be located, and to the company whose railway is to be crossed, and then proceed, by his decree, to define the mode in which the crossing is to be made. He is expressly enjoined to avoid a grade crossing if, in his judgment, it be reasonably practicable to do so, and the publicsafety so requires. Under this statute, application has been made to me in behalf of the Atlantic Highlands, Red Bank & Long Branch Electric Railroad Company to define the mode of its crossing the railway of the New York & Long Branch Railroad Company, where, on grade, the latter railway intersects the junction of Bridge avenue and Monmouth street, in the town of Red Bank, it is proved that more than 90 trains daily pass over the New York & Long Branch Railroad at that point, several of them at high rates of speed, and without stopping, and also that immediately southeast of this crossing the railroad depot of Red Bank used by the New York & Long Branch and New Jersey Southern Railroads, to which, every day through the summer months, a large number of carriages and wagons are driven, is situated. The depot is the third in importance on the New York & Long Branch Railroad. The center is undoubtedly a busy one, and the proposed crossing, at grade, if insufficiently safeguarded and managed, will unquestionably, when subjected to additional use by an electric railway, be one of considerable danger. Regarding these conditions, I am satisfied that public safety will be best subserved by a crossing constructed either over or under the New York & Long Branch Railroad, because either of those methods of crossing will afford practically absolute security, principally for the reason that their safe use will depend only in the slight measure which timely repairs may require upon human agency.
The question which has occasioned me some perplexity, and the answer to which controls my conclusion, is whether an overhead or an undergrade crossing is "reasonably practicable," in view of the expense it will occasion, and the injurious incumbrance the first named of them, if adopted, will be to the town. The plans of engineers show that the overhead crossing will be an unsightly affair, and, unless built at a very considerable expense, will dangerously obstruct the street on which it will be erected, and, whether expensively or otherwise constructed, will almost impassably incumber that street at the termini of the required structure. An undergrade crossing will require change in grades of two streets, and involve not only an expenditure of between sixty and seventy thousand dollars in the work, but also the payment of damage to the owners of the property which borders upon these streets. Besides, a depression of the streets at this point will materially Interfere with facility of approach from the street to the steam railroad depot, and will thereby work considerable inconvenience to the public. The representatives of the steam railroad call my attention to the fact that, a short distance from the Monmouth street crossing, the steam railroad now crosses Front street, a highway which is parallel to Monmouth street, and a short distance north of it, by an overhead bridge, and that by changes of grade and the acquirement of a little property for additional right of way, at inconsiderable expense, a perfectly safe undergrade crossing for the electric railway can be had there. The steam railroad offers to make substantial contribution towards the expense of grading if crossing be had at this point, and to build a new bridge for its road, which will amply accommodate the proposed electric railway crossing. I have studied the plan proposed for this crossing, and am satisfied that it is not only entirely feasible, but also is most desirable for public safety. The objection to my adopting it is that it is not within the chosen route of the electric railway,—the route which the municipal authorities of Red Bank have deliberately sanctioned by ordinance, after having their attention called to Front street as the safest crossing. Now, I am confronted not only with the establishment of this route by the concurrent action of the town and the electric railway company, but also by the opinion and judgment of the authorities of the town, evinced by their ordinance, that the electric railway crossing over the steam railroad should be made at grade. Of course, such expression of opinion does not bind me, but its influence, as the mature judgment of the municipal authorities, who must be assumed to be familiar with the location, and to have acted in sincerity for the welfare and safety of the public, cannot be without weight in my consideration. Yet I am so strongly convinced that the crossing should have been located at Front street that I am satisfied that I would fix it there if I had the power to do so. But I have not that power. It is true, I, perhaps, might indirectly accomplish the change by deciding upon the most expensive method of crossing, as was suggested by one of the counsel of the steam road; but it is remembered that the determination which is required of me is—First, whether an undergrade or an overhead crossing, within the route selected, is "reasonably practicable," and required for public safety; and, second, what method and safeguards in crossing shall be observed. The statute does not contemplate that I shall prescribe any change in the route of an electric road. The answer to the proposition of counsel is that it would be a sacrifice of the integrity of my judgment upon the questions submitted to use it in any manner to secure, by indirection, a preferable crossing outside of the established route of the electric railway. If I were called upon to assent to the route, as were the municipal authorities, I could enforce the Front street crossing.
The question of expense, as an element in the definition of the reasonable practicability of the undergrade or overhead crossing, is dependent in some measure upon public safety; for, if no other crossing will subserve that safety, expense becomes an insignificant element in the definition. And so,on the other hand, if public safety may be secured in a crossing at grade, the reasonable practicability of the other crossings is in a considerable measure determined by a comparison of their expense with the expense of a safe-grade crossing. It is in testimony that there is an invention by which an operator in a tower, by mechanical signals, can warn the electric car of the approach of a steam train, and, at the same time, raise upon the electric railway track an impediment, called a "scotch block," which will stop the electric car, or turn a switch which will derail it, if its motorman disobeys the signals, and, at the same time also, will deprive the motor of the electric current which furnishes its motive power. The mechanism is so arranged that, when the way for the electric ear is open, danger signals, at proper distances, are exhibited on the steam railway. In the hands of a careful operator, this contrivance appears to afford abundant security. The main objection to it is the watchful care it requires of human agency. It is insisted that risk of accident may be reduced still further by the additional requirement that no electric car shall cross the steam road before it shall have first stopped some seconds, and until its conductor shall have gone upon the steam tracks, and have ascertained that the car may safely proceed. It may be doubted whether this additional precaution is not objectionable, in that it may lead to carelessness between the conductor and signal man in the tower, by encouraging the one to be dependent upon the other, or by opening the door to accident, by taking the conductor from the care of the trolley which runs upon the power wire, which, by jolting on the rails of the steam road, may be thrown from the power wire, as was lately the case in this state, and leave the electric car upon the steam railway tracks without motive power. The electric railway company offers this double precaution, and I, however, incline to adopt it provided the tower man be the employe of the steam road, subject to its control and discipline. I think that it presents a fairly safe scheme for crossing at grade, and, in view of it I am constrained to adjudge that, if it be adopted, the overhead and undergrade crossings which are available at the point in question, costing $100,000 or thereabouts, should be deemed, reasonably speaking, as impracticable.
I will order that if, before it constructs a crossing, the electric railway company shall give bond to the steam railway company, with sufficient surety or sureties, in the penal sum of $5,000, conditioned to pay at stated periods the reasonable salaries of such competent tower men, employed by the steam road, and such other expenses, as shall be necessary to the efficient maintenance and management of the signals and cut-offs mentioned, during the continuance of said crossing, and shall completely erect the "Gibb's signal system," including the power cut-off and the scotch block or derailing switch, and place it in control of the steam railway, it shall be permitted, when it shall have complied with ail other legal and lawfully required conditions precedent to give it the right to cross, to cross at grade, by proper crossings put in place at such time of the day or night, and in such manner, as the steam road may designate as least injurious to it, and thereafter to use said crossing, in the exercise of the double precautions referred to. The steam railroad now maintains gates at this crossing. Those gates will, of course, remain, and will be a third safeguard. The electric company must bear whatever expense shall be necessary to adapt those gates for continued use after their wires shall be erected.