Chicago, Rock Island & Pacific Railroad v. Long

51 N.W.2d 135, 243 Iowa 514, 1952 Iowa Sup. LEXIS 387

• Court: Supreme Court of Iowa
• Decided: January 8, 1952
• Docket: 47957
• Status: Published

Opinions

MaNTZ, J.

In its inception the controversy arose concerning the question of the installation of some kind of crossing protection at Central Avenue, Estherville, Iowa, where the same is crossed at grade by the Chicago, Eock Island & Pacific Eailroad Company, the complainant herein. We will refer to said railroad company as the Eock Island, or the railroad company. On the 28th day of June, 1948, the city council of Estherville passed a resolution wherein, among other things, it provided that the Eock Island be ordered and directed to place a flagman at said crossing, or to there erect and maintain suitable mechanical signal devices within a reasonable time after notice. There were some negotiations between the said city and the railroad concerning such matter, and on November 20, 1948, there was filed with the Iowa State Commerce Commission (hereinafter referred to as the commission) a petition to- require the Eock Island to provide protection for such crossing within, a reasonable time. To said petition was attached a copy of the resolution of the city council of Estherville, above referred to. A hearing on said petition was held before such commission February 24, 1949, at which time evidence was offered on behalf of the city of Estherville; also on behalf of the Eock Island. Much of the evidence was stipulated. TMs dealt largely with the character of the crossing, the location of the railroad tracks and buddings and the volume of traffic (foot and vehicle) passing, thereover. Evidence was offered by the city as to accidents and near accidents at the crossing in question. The evidence on behalf of the railroad related to the efforts of the railroad to determine the kind of crossing protection necessary. It showed that beginning on January 1, 1949, pursuant to official written orders from the railroad company, all engines, trains and cars were required to come to a stop before entering said crossing and that a flagman was to be present to warn and stop highway traffic.

On April 8, 1949, the commission issued an order requiring the railroad to install, operate and maintain at its own expense, on or before December 1, 1949, a flashing light signal with rotating discs at the crossing where the six tracks of the railroad company crossed Central Avenue in said city. It further ordered the city of Estherville to provide adequate street lighting at said crossing. On June 7, 1949, the railroad company petitioned the commission to reconsider and modify the decision and order of April 8, 1949. Therein the railroad called attention to the fact that prior to and at the time of the hearing it had installed and maintained a flagman at the crossing; that it was willing to continue such practice in the future; that such would give adequate protection to the traveling public; that the cost of the erection and maintenance of the signals ordered by the commission would amount to approximately $16,000; that the order of the commission was unjust, unreasonable and inequitable and violated the provisions of section 474.28, Code of 1946, and was in violation of its constitutional rights. On June 20, 1949, such petition to reconsider and modify was denied.

I. After such ruling the Eock Island brought the present action under chapter 474, Code" of 1950, and particularly section 474.28, which is as follows:

“Proceedings to vacate order. Any railroad aggrieved at any rule, order, or regulation made by the commission may institute proceedings in any court of proper jurisdiction to have the same vacated. If found by the court, after due trial, not to be reasonable, equitable, or just, and if upon an appeal from any rule, order, or regulation of the commission the complaining railroad is successful in having such rule, order, or regulation vacated, the aforesaid penalty shall be- set aside.”

The railroad declared itself aggrieved at the ruling of the commission of April 8, 1949, alleging that such order was unreasonable, inequitable and unjust within the meaning of the above quoted section and asked the court to set aside and vacate the same. It further alleged that the order by the commission was an arbitrary and capricious exercise of the power of the commission and violated the constitutional rights of complainant.

The answer of the commission was a substantial denial of the allegation of the railroad’s petition and prayed that the court confirm the order of the commission and that the petition be dismissed. The trial court heard the case on the stipulation of facts and the record made before the commission. Such court entered certain findings of fact and conclusions of law sustaining the order and decision of the commission and dismissed the petition of the railroad. This appeal followed.

II. Appellant in its brief states: “The questions on appeal are the same as those before the District Court: Is the order reasonable, equitable and just, and is it a valid and constitutional exercise of the power of the Commerce Commission ?”

We hold that under the record the order of the commission complained of by appellant was neither reasonable, equitable nor just. The reasons for such conclusion are hereinafter set forth. This holding makes it unnecessary for us to pass upon the constitutional questions raised by appellant. Is the finding by the commission that its order for crossing protection over Central Avenue under the record binding upon this court? We answer in the negative.

In the various briefs other questions are argued, but we think that such are so related to the foregoing that they may be considered together.

We think it is unnecessary to call attention to and review the various legislative steps dealing with the creation of what is now known as the Iowa State Commerce Commission. Such legislative history is clearly and concisely set forth by Justice Miller in the case of Lowden v. Iowa State Commerce Comm., 229 Iowa 526, 528, 294 N.W. 749, 750. In that case there was involved the construction of section 7887, Code, 1935 (now 474.28, Code, 1950). Therein this court held that the proceedings were properly in equity; that in this court it was triable de novo; that the order of the decree of the commission or the court was not necessarily final and that this court was empowered to vacate any order of the commission, “if found'by the court, after due trial, not to be reasonable, equitable, or just.” See also State v. Des Moines & Ft. Dodge Ry. Co., 84 Iowa 419, 431, 51 N.W. 38, 42; State v. Mason City & Ft. Dodge Ry. Co., 85 Iowa 516, 52 N.W. 490; Smith v. Chicago, M. & St. P. Ry. Co., 86 Iowa 202, 53 N.W. 128; State v. Des Moines & K. C. Ry. Co., 87 Iowa 644, 54 N.W. 461; 33 Iowa Law Eeview 308.

In State v. Des Moines & Ft. Dodge Ry. Co., supra, this court (Granger, J.), said: “The law in terms makes this proceeding an equitable one, and the reasonableness or justness of an order based on such a state of facts is to be determined from equitable considerations. If the order is enforced, it is, as to its legal bearings, the equivalent of a decree for specific performance of a contract or obligation, and equity does not lend its aid to enforce such a performance where the party seeking enforcement is not injured or prejudiced by the, neglect. It is under such circumstances that specific performance becomes oppressive, and is in the proper exercise of a discretionary power refused by the courts.”

The language above-quoted was set forth and approved in our holding in the case of Lowden v. Iowa State Commerce Comm., supra, and in so doing this court said at page 531 of 229 Iowa: “We held that there must be some certainty in the evidence. In State v. Des Moines & Ft. Dodge Ry. Co., supra (84 Iowa 419, 51 N.W. 38), we held that, in determining whether an order of the Commission is reasonable and just, the court will determine the question from equitable considerations and that it will not lend its aid where the party seeking enforcement is not injured or prejudiced by the alleged neglect. In Smith v. Chicago, M. & St. P. Ry. Co., supra (86 Iowa 202, 53 N.W. 128), we recognized that the duty of the railroad ordinarily must be one that is imposed by statute. In State v. Des Moines & K. C. Ry. Co., supra (87 Iowa 644, 54 N.W. 461), we held that the owners of the railroad will not be interfered with in the management of their property if there is no competent evidence of any patron being deprived of reasonable facilities.”

III. The issue as passed upon by the commerce commission and later affirmed by the trial court was one of fact.. Appellee has devoted some argument to the claim that once the commission has decided its decision cannot be questioned on appeal; also, that in a sense its action was legislative. We do not deem it necessary to go into such questions in the face of the statute which provides for hearing evidence and appeal to this court. The statute under which the action is brought provides for “appeal” and it does not limit the court to the scope of the review. It provides that any railroad aggrieved at any rule or order or regulation made by the commission may institute proceedings in any court of proper jurisdiction to have the order vacated. If found by the court after due trial not to be reasonable, equitable or just the court is empowered to set aside or vacate the order. Under the language of the statute and our decisions there can be little doubt that on appeal a trial de novo is contemplated. To hold otherwise would be to render parts of the statute meaningless.

Let us examine the situation as it existed when the controversy arose. This court, in the ease of O’Brien v. Chicago, R. I. & P. Ry. Co., 203 Iowa 1301, 214 N.W. 608, stated that under the record the crossing here involved was not peculiarly, unusually dangerous or hazardous. The record shows that the lighting furnished at the crossing was not sufficient. This was shown by the order of the commission directed .to the city to furnish adequate lighting. Estherville was a terminal point of the railroad —all trains stopped there. None went through at high speed. The movement of the trains and cars was slow. The highway traffic, local and through, was about 6000 vehicles in twenty-four hours; also there was quite a lot of foot travel. Primary No. 92 went through the city and at the crossing followed Central Avenue. There had been some accidents and near accidents. On one occasion an automobile ran into a train on the crossing but there was evidence from which it could be inferred that the drive:1 of the car was negligent. The appellant concedes that there should be some traffic control at such crossing. In the beginning the question was as to the kind of control which should be installed- — whether by flagman, gates or flashing lights. This situation is evidenced by the fact that the resolution of June 28, 1948, provided two- alternatives, first, a flagman, or second, some form of mechanical device. As before stated the resolution ordered the installation within a reasonable time. The evidence shows that in a great many instances cities and localities were demanding grade crossing protection. It also shows that in Iowa there are several thousand grade crossings. In the face of such demands it can readily be seen that it would require time to consider and act upon such claims. To comply with all would entail an enormous expense. Following the resolution it can be reasonably inferred that the matter was being considered from all angles. In December the railroad took action and official orders were received requiring all trains, engines or cars to stop at such crossing and to proceed only with a flagman present. This order became effective January 1, 1949. It was carried out thereafter and with one possible exception there have been no accidents at such crossing. Later the appellant offered to show that the railroad was willing to continue the use of a flagman and the stopping of the trains, engines and cars at such crossing. The evidence further showed that the installation of the electrical and manually operated signals would cost all the way from $9000 to $15,000, depending upon the type furnished. While the record does show some accidents and other near accidents at the crossing prior to the resolution, this could hardly mean that all or many of such were due to the lack of crossing protection. The act of crossing at a railroad grade involves the human element. Driving over a railroad crossing requires care to be exercised by the operator of the vehicle. It is always recognized that there is a hazard at every railroad crossing. Many cases could be cited where vehicles ran into trains going over or standing at crossings. Cases could likewise be cited where drivers either knowingly, carelessly or indifferently ignore warning signs, flashing lights, gates and other warnings.

The City of Estherville, by resolution, asked for a flagman or some mechanical stop signal at such crossing, the same to be installed within a reasonable time. A few months later the railroad installed a flagman and put in effect a rule requiring all railway vehicles to come to a full stop before crossing. There was evidence in the record that the flagman installation was more effective' and afforded better protection than wonld the mechanical appliances ordered by the commission.

When the complaint was filed against the railroad it can readily be inferred that the railroad was in the process of preparing to comply with the resolution of the city council. The hearing before the commission was then pending, and when it was held and at all times thereafter the railroad was stressing the fact that there was then in operation at said crossing adequate protection to the traveling public. In the face of such a showing we find little in the record to indicate that the commission gave such matter serious consideration. Their ruling seems to be based upon the theory that having ordered the mechanical signal device such finding is final and cannot be questioned on appeal. The railroad does not question the proposition that there is need of adequate protection at the crossing. The traveling public would be entitled to such protection. To require such protection and supervision of its operation would be something within the powers of the commission. The public would be entitled to this. Nothing further could be legally required. At the hearing the commission had before it the resolution of the city council of Estherville. A copy of this was attached to the complaint filed by the commission on November 20, 1948. It likewise had before it the record made, showing that at the hearing before the-commission, starting on February 24, 1949, a flagman had been installed at the crossing- and that all trains, engines and cars were required to come to a full stop before proceeding over such crossing. At all times the commission and the trial court were fully advised as to the situation at such crossing and what the railroad had done to remedy the condition complained of.

Above we have made brief reference to the case of State v. Des Moines & Ft. Dodge Ry. Co., 84 Iowa 419, 51 N.W. 38, wherein the railroad commission sought to enforce an order of said commission. At the risk of repetition we will set forth more in detail certain matters involved in that case. We think this ease is particularly applicable here on the question as to the act of the railroad in having and maintaining a flagman at each of the six crossing tracks and in requiring all railroad vehicles to stop before crossing.

In the initial proceedings in the cited case complaint was made to the commission that the defendant, along with the Chicago, Rock Island & Pacific Railway Company, had not rebuilt or restored six miles of its track from Tara, Iowa, to Fort Dodge, but that the trains from Des Moines to Fort Dodge were using six miles of the Illinois Central railroad tracks from Tara to Fort Dodge. The record shows that the six miles of track of the Illinois Central had been leased to the defendants. The defendants resisted said complaint on the ground that the six miles leased gave adequate service to the traveling public and did not deprive it of any rights and advantages. Defendants further-claimed that the cost of rebuilding such track would impose a hardship and unnecessary expense upon defendants. The commission sustained the complaint and ordered defendant (Des Moines & Ft. Dodge Ry. Co.) to rebuild and maintain at its own expense the six miles of track. On appeal the district court affirmed the order of the commission. This court reversed the order. The first sentence of the opinion on appeal is as follows: “The consideration in the case involves findings of fact as well as the determination of questions of law.” (On page 427 of 84 Towa.)

The above quoted language was affirmed in the case of Lowden v. Iowa State Commerce Comm., supra.

In the cited case the trial court in affirming the order of the railroad commission that the line be rebuilt and restored said: “ * * that the order of the board of railroad commissioners * * * is reasonable and just, and that the defendants in refusing compliance therewith are failing in and omitting the performance of public duties and obligations resting upon them.’ ” (Also on page 427 of 84 Iowa.)

On appeal to this court the.case was tried de novo and the record evidence was reviewed and the effect of the ruling and opinion of this court was that the order of the commission was neither reasonable nor just. The court among other things called attention to the fact that by using the leased track the_ public would be afforded as good a service as could be afforded on a new and rebuilt road. Also-, that to rebuild the road would cost $65,000 and to this would be added annually $7000 for maintenance, and that under the record this expenditure would be of no advantage to the citizens of Fort Dodge. This court held that under the record the finding of the railroad commission was not final and that the law in effect makes the proceeding in the district court an equitable one and the reasonableness and the justness of an order based upon such a state of facts is to be determined from equitable considerations.

In the instant case the commerce commission apparently gave little weight or consideration to the showing and claims by the appellant that at the crossing in question in the City of Estherville it then had in operation the practice of stopping every train, locomotive or car before moving across the street in question and in having an employee on hand to flag, stop or warn the traffic (either pedestrians or vehicles) and that it proposed to do so in the future. The same may be said as to the expense of the installation ordered by the commission. It seems to us that under the record there could be little question that such crossing precaution would be at least as effective as the warning lights ordered installed by the commission, and at a much smaller expense — the most that could be legally required of appellant to make the crossing safe for the traveling public. We think it should be emphasized at this point that we are primarily concerned with the public travel upon Central Avenue. This does not necessarily require the adoption of the most expensive method of warning or train operation. If there are two or more means of getting protection, each of which is adequate, other factors, such as cost, should be considered. Specifically we do not think it is equitable, reasonable or just to require, the railroad to install flashing lights or gates or both at the expense' of perhaps $15,000 when adequate protection can be gotten in another way at almost no outlay of money. The record shows and common sense tells us that there are serious difficulties in the way of making flashing light signals sufficient at this particular crossing. There are six tracks crossing Central Avenue, three of which are used for switching. Such a system as ordered by the commission is surely no more efficient than the flagging as proposed and in operation by the appellant. The original complaint called for the installation at the crossing in question of either a flagman or a mechanical appliance. That the city council of Estherville regarded as adequate the placing of a, flagman at the crossing in question is shown by its resolution on June 28, 1948. Apparently the commission bad the same feeling when it filed the complaint on November 20, 1948. The record shows that the railroad did more than the installation of a flagman at the crossings — it required all its trains, engines and ears to come to a full stop before passing over the crossing. There as in the record evidence that the handling of the crossing by the railroad company was superior toRashing lights and that such gave the traveling public adequate protection.

We hold that under the record and the authorities the ruling of the commission was unreasonable, inequitable and unjust under the provisions of section 474.28, Code of 1950, and should be vacated and set aside. No other question is passed upon.

The case is reversed and it is ordered that the order of the commission be vacated. — Reversed. ■ 1

TiiompsoN, C. J.-, and Bliss, Wennerstrum, Smith, and Hays, JJ., concur. Oliver, Garfield and Mulroney, JJ., dissent.