The Columbian. [volume] (Bloomsburg, Pa.) 1866-1910, 1908-05-14
The Supreme Court Opinion on D. & B.
and D. L. & W. Crossing at
Danvllle.

decision reversing the lower courts
decree that granted the Danville
and Bloomsbury Street Railway
Company the right to cross the d.
l.. & w. track on Mill street, Dan
vile, at grade:
The Delaware, Lackawanna &
Western Railroad Co. VS.. The Dan
vile & Bloomsbury Street Railway
Co. January Term, 1908, No. IS.
Appeal from the court of common
pleas of Montour county. Filed
May a, 1908. Fell, J.
The bill in this case was for an
injunction to restrain the defend
ant, an electric passenger railway
company, from crossing at grade
the tracks Of the defendants 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 ID regular trains cross the
street daily and a full view of the
plaintiff S tracks can not be had
in either direction at a point more
than few ieet from them. An or
der dissolving a preliminary injunc-
ton was reversed and the injunc-
ton reinstated to maintain the status
quo until final hearing. On final
hearing on the same testimony the
injunction was dissolved and a
gr;de crossing allowed subject to
regulations imposed by the court.
The conclusion reached by the
court that it is net reasonably prac-
ticable to avoid grade crossing is
not founded on finding that it is
impracticable to construct an over
head crossing at this place and to
operate the defendants cars upon
it, but upon the findings that the
preponderance Of the evidence es-
tablishes that an overhead crossing
on Mill street would be more dan
gerous to life and limb to operate
than the present grade crossing and
that "The crossing is not so dan
gerous as to warrant equitable in
reference by the court"
In reaching this conclusion the
wrong test was applied. The ques-
tion is not as to the comparative
dangers of an overhead and a grade
crossing, nor as TO the extent of the
danger of the latter, but whether
it was reasonably practicable to
avoid crossing at grade. The
clear and explicit mandate of the
act OF June Io, 1871, is that "Ii,
in the judgment of the court, it is
reasonably practicable to avoid the
grade crossing they shall by their
process avoid crossing at grade"
The policy of the state as here de
clared has been given the fullest
effect in an unbroken line of cases
extending from Railroad VS.. Rail
road, II Pa. I73, the first case that
arose under the act, to Railroad VS..
Bogert 2o9 Pa. $50. The extent
to which the risk may be reduced
by the exercise of care, and the
cost of constructing an overhead
crossing, are not elements in deter
mining the question; Traction Co.
VS.. Canal Co. 1873 Pa. 64o; Rail-
road Co. VS.. Railway Co. i8S Pa.
81. The act is IN effect mandate
to the courts to prohibit grade cross
ings unless it is impracticable to
avoid them and unless crossing is
an imperative necessity; Traction
Co. VS.. Railroad 1873 Pa. los. What
is reasonably practicable is deter.
mined largely by what is physical
ly practicable; Railroad Co. VS..
Railway Co. 1872 Pa. 500.
In Railroad Co. VS.. Lawrence
County, 1913 Pa. where the cases of |
the subject are considered it was said
by the present Chief Justice: 1T
must, therefore, be accepted as the
settled policy of the State as admin
istered by this court, that wherever |
the subject comes within its juris-
diction and control, no grade cross
ing of railroad over another rail-
road or common highway, will be
permitted except in case of mani
fest and unavoidable necessity"
In the later case of B. & O. Rail-
road Co. VS.. Butler Railway Co.
POT Pa. 1O6 Our brother Mestrezat |
said: I'm all cases of proposed
grade crossing, therefore, the only
question is whether 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 statute, to
protect life and property, is not to
be ignored or disregarded. Expe-
-.