Appeal, No. 266, April T., 1960, from order of Pennsylvania Public Utility Commission, No. 86756, in case of The New York Central Railroad Company v. Pennsylvania Public Utility Commission. Order affirmed.
Irving Murphy, with him Gifford, Graham, MacDonald & Illig, for appellant.
Anthony L. Marino, Assistant Counsel, with him Joseph I. Lewis, Chief Counsel, for Pennsylvania Public Utility Commission, appellee. 299
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 195 Pa. Super. Page 299]
OPINION BY MONTGOMERY, J.
On September 7, 1959 the appellant and The New York, Chicago and St. Louis Railroad Company filed their joint application with the commission "for approval of the installation of automatic flashing light signals and short-arm gates in lieu of the protection presently afforded by a crossing watchman on duty twenty-four hours daily at the crossing at grade where the tracks of said Companies cross Smedley Street, in the Borough of North East, Erie County." The application alleged greater safety and financial savings as reason therefor. A protest was lodged with the commission by the Borough of North East which alleged that the present manually operated gates were ample and that the automatic installation would create a dangerous hazard to the traveling public.
After hearing, the commission concluded that "... because of the large number of movements on the tracks of the railroad companies daily, the fast rate of speed of the trains over the crossing, and the length of the crossing consisting of 152.15 feet, together with the accident-free record now existing at the crossing, the continued maintenance of the existing crossing protection at the crossing is necessary," and it made the further finding "... that the installation ... is not necessary or proper for the service, accommodation, convenience, or safety of the public." It thereupon denied the application. Separate appeals were taken by the applicants but only that of The New York Central Railroad Company is before us at this time. By stipulation filed, the other appellant will abide by the decision in this appeal.
There are two questions before us. The first is whether the commission acted arbitrarily and capriciously in denying the application without sufficient evidence to support its findings, conclusions, and order. The second is whether appellant was denied due
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process because of the fact that the commission went beyond the record in making its decision.
In matters of this nature brought under the "railroad crossing" sections (sections 409, 410, 411) of the Public Utility Law 66 P.S. 1179 et seq., the power of the commission is broad and exclusive. New York Central Railroad Company v. Pennsylvania Public Utility Commission, 184 Pa. Superior Ct. 610, 135 A.2d 786; and courts are reluctant to substitute their judgment for that of the commission. It is only in cases involving a manifest and flagrant abuse of discretion that courts are warranted in reversing the commission. Posten Taxi Company v. Pennsylvania Public Utility Commission, 164 Pa. Superior Ct. 13, 63 A.2d 424; Aizen v. Pennsylvania Public Utility Commission, 163 Pa. Superior Ct. 305, 60 A.2d 443; Harmony Electric Co. v. Public Service Commission, 71 Pa. Superior Ct. 355.
In the New York Central case, supra, this Court approved the determination by the commission that automatically operated flashing light signals were superior in safety to automatically operated warning bells. In Erie v. Public Service Commission, 116 Pa. Superior Ct. 244, 176 A. 530, in affirming the order of the commission in approving the installation of automatic signals of the latest design to be operated 24 hours a day in lieu of safety gates and watchmen on duty a portion of the day, this Court said at page 249: "There was evidence showing the relative merits of the different systems of protection, the extent and nature of the traffic over the crossings in question, and the ...