Montour American. (Danville, Pa.) 1866-1920, 1908-05-14
THE SUPREME
COURT OPINION


Bloomsbury Street Railway Co., the
right to cross the D. L. 6 w. track on
Mill street at grade:
The Delaware, Lackawanna g. West
ern Railroad Go. VS.. The Danville g.
Bloomsbury Street Railway Co. Jan
uary Term, 1908. No. 30. Appsal.from
the court Of common pleas of Mon
tour county. Filed May 4, 1903.
Fell, J.
The bill in this case was for an in
junction to restrain the defendant, an
electric passenger railway company,
from crossing at grade the tracks of
the defendant 8 road in the borough of
Danville.
The proposed crossing was upon the
main street Of the borough, which was
thirty-six feet in width between the
curb lines and closely built up ON both
sides. At this place IA regular trains
cross the street daily and a full view
of the plaintiffs s tracks can not be had
in either direction sat point more
than few feet from them. An order
dissolving preliminary injunction
was reversed and the injunction rein
stated to maintain the status quo until
final hearing. On final hearing on the
same testimony the injunction was
dissolved and a grade crossing allow
ed subject to regulations imposed by
the court.
The conclusion reached by the court
that it is not reasonably practicable
to avoid grade crossing is not found
ed on finding that it is impractic-
able to construct an overhead crossing
at this place and to operate the de-
fendant's cars upon it but upon the
findings that the preponderanoe of the
evidence establishes that an overhead
crossing on Mill street would be more
dangerous to life and limb to operate
than the present grade crossing and
that 1.-THE crossing is not so dangerous
as to warrant equitable interference by
the court. ="
In reaching this conclusion the
wrong test was applied. The question
is not as to the comparative dangers
of an overhead and grade crossing,
nor as to the extent of the danger of
the latter, but whether it was reason
ably practicable to avoid crossing at
grade The clear and explicit mandate
of the act Of June 10, 1871, is that "If.
in the Judgment Of the court, it is rea-
sonably practicable to avoid the grade
crossing they shall by their process
avoid a crossing at grade. The policy
of the state as here declared has been
given the fullest effect in an u"broken
line of cases extending from Railroad
VS.. Railroad, n Pa. 173, the first case
that arose under the act, to Railroad
VS.. Bogert 209. Pa. $50. The extent to
which the risk may be reduced by the
exercise of care, and the cost of con-
structing an overhead crossing, are not
Traction Co. vs. Canal Co. 1880 Pa.
$40; Railroad Co. VS.. Railway Co. 1888
Pa. 81 The act is in effect a mandate
to the courts to prohibit grade cross
ings unless it is impracticable to avoid
them and unless crossing is an unpera-
tive necessity Traction Co. vs.. Rail
road 1888 Pa. 1O5. What is reasonably
practicable is determined largely by
what is ysically practicable; Rail
road Co. VS.. Railway Co. 1872 Pa. $50
In railroad Co. VS., Lawranoe county,
1913 Pa. where the cases of the subject
are consid red it was said by the pres
ent Chief Justice: lit muss, there
fore, be accepted as the settled policy
of the State as administered by this
court, that wherever the subject comes
within its jurisdiction and coutrol, no
grade crossing of railroad over an
other railroad or common highway,
will be permitted except in case of
manifest and unavoidable necessity. +"
In the latter case of B. & o. Railroad
Co VS.. Butler Railway 90. 207 Pa.
406, our brother Mestrezat said I'm
all cases OF proposed grade crossing,
therefore, the only question is wheth-
er it is reasonably practicable to avoid
it and. if so. the statute is mandatory
to prevent it. In determining this
question the main purpose of the stat
ute, to protect life and property, is not
to be ignored or disregarded. Expert
ence teaches with absolute certainty
that grade crossing is unsafe and
that its existence is a standing menace
to human life This fact should be
kept constantly in mind in adjudicat
ing the rights of railway companies
in proceedings under the act of 1877
The decree is reversed at the cost of
the appellee and it is directed that an
/ injunction issue restraining the de-
fendant. it's officers, agents and en-
ployes from constructing a crossing at
grade Of the plaintiffs tracks on Mill
street in the borough of Danville.
/
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| does not constipate, but on the other
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| Sold by Paules 81 Co.