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June 14, 1962


Appeal, No. 17, Feb. T., 1962, from order of Pennsylvania Public Utility Commission, Application Docket No. A86553, in case of The Delaware & Hudson Railroad Corporation v. Pennsylvania Public Utility Commission. Order reversed.


Robert M. Landis, with him Paul Bedford, S. K. Mitchell, and Bedford, Waller, Griffith, Darling & Mitchell, and Dechert, Price & Rhoads, and Donald D. Dart and John F. Reilly, of the New York Bar, for appellant.

S. Maxwell Flitter, Assistant Counsel, with him Joseph I. Lewis, Chief Counsel, for Pennsylvania Public Utility Commission, appellee.

John R. Lenahan, with him William J. Dempsey, for intervenors, appellees.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Watkins

[ 198 Pa. Super. Page 466]


This is an appeal by the Delaware & Hudson Railroad Corporation from an order of the The Pennsylvania Public Utility Commission, rescinding its own order made November 14, 1960, in which the Commission had authorized the railroad to install automatic warning signals and gates at three grade crossings in the Borough of Olyphant, Lackawanna County, Pennsylvania, theretofore protected manually by a watchman in elevated towers on twenty-four hour duty, after rehearing, and directing the railroad to continue the manually operated gates at all the crossings.

On June 10, 1959, the railroad filed its application requesting authorization to install automatic flashing

[ 198 Pa. Super. Page 467]

    light signals, short-arm gates, pedestrian sidewalk gates and bells at the South Valley Avenue, North Grant Street and North Valley Avenue grade crossings, on its right-of-way in Olyphant, Pennsylvania. Each of these crossings was then protected twenty-four hours a day by a watchman stationed in elevated towers who operated long-arm crossing gates from controls located in the towers. At the same time the railroad sought and was granted authorization to eliminate two of the three operating tracks at each of these crossings. The Borough of Olyphant and the School District of Olyphant, intervening appellees, appeared as protestants of this application.

On November 14, 1960, the Commission granted the prayer of the petition, holding that the automatic protection system was "necessary or proper to effectuate the prevention of accidents and promote the safety of the public" at the three crossings; and that the elimination of all but one track had removed many of the hazards that existed in 1953. It further found that the addition of sidewalk barriers, audible bells and flashing light signals "would increase the protection at all the crossings" and that a watchman confined to an elevated tower could "not offer the kind of protection the public deserves". A crossing watchman was to be provided by the railroad at South Valley Avenue crossing between the hours of 8 a.m. and 4 p.m., Mondays through Fridays.

The intervening appellees filed a petition for a rehearing and review on December 20, 1960, which was granted. On June 5, 1961, the Commission rescinded its order of November 14, 1960, and denied the railroad's application, stating that the record "appears to contain sufficient additional basic data" to warrant changing the findings and that it was "not convinced that the affirmance of our previous order will result in better protection to the public."

[ 198 Pa. Super. Page 468]

The railroad had been previously denied authority to make the suggested changes in 1953 and the record of that proceeding was incorporated by reference into the record of this case. At that time, all the tracks over the three crossings were operational, with freight train movements, including extensive switching operations and service to the facilities of the Hudson Coal Company located in the area. Since then the switching movements have been greatly reduced and a narrow gauge track which ran parallel with the railroad's tracks crossing East Grant Street and South Valley Avenue has been removed. This removal eliminated fifty train movements a day across South Valley Avenue and East Grant Street.

With passenger service discontinued traffic counts taken by the railroad in April, 1959, showed an average of 17 freight trains and one or two light engine movements in a twenty-four hour period over each of the crossings. This is a reduction of more than fifty per cent. of the train movements over the crossings at the time of the 1953 hearings. The same traffic counts show a twenty-four hour average of 8,719 motor vehicles and 1,015 pedestrians on South Valley Avenue; 1,034 ...

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