Johnstown v. Johnstown & Stony Creek Railroad

70 Pa. Super. 608, 1918 Pa. Super. LEXIS 306

• Court: Superior Court of Pennsylvania
• Decided: December 12, 1918
• Docket: Appeal, No. 116
• Status: Published

Opinion

Opinion by

Kephart, J.,

This is an appeal from an order of the Public Service Commission directing the appellant to install safety gates and supply a watchman, the entire cost of construction and maintenance to be equally divided between it and the Baltimore & Ohio Railroad Company. The property value of the Baltimore & Ohio Railroad Company in connection with the crossing and the business done by that company was largely in excess of that of the appellant. The appellant has two tracks at this crossing, while the Baltimore & Ohio Railroad Company has eleven, and it is averred by the appellant that its use of the crossing amounts to five per cent, of the entire use by utility concerns. We can find no evidence bearing on the order for division of cost and maintenance in the proportion fixed by the commission, but any change we might suggest as to how this cost should be divided would be a substitution of our judgment for that of the commission. This we cannot do: Ben Avon Boro. v. Ohio Valley Water Co. (No. 1), 260 Pa. 289. The order is within the lawful power of the commission, it violates no statute and its reasonableness depends to a large extent on the exercise of a sound and reasonable judgment by the commission. It may be possible that inasmuch as the commission found safety gates necessary, the track-age and property value did not enter into the question.

The order is affirmed at the cost of the appellant.

Judge Henderson concurs in the order.