Opinion
No. 31274
Decided August 4, 1948.
Public Utilities Commission — Appeal — Supreme Court accepts conclusions drawn by commission from evidence, when — Evidence that no accident or death occurred in many years — Not conclusive that condition not dangerous in railroad yard — Such evidence considered on question of safety or dangerous condition.
1. On an appeal from an order of the Public Utilities Commission, the Supreme Court will not substitute its judgment for that of the commission as to conclusions drawn from the evidence, unless the finding and order are manifestly against the weight of the evidence or there is no evidence to sustain such finding and order.
2. Evidence that over a period of many years there has been no accident or death resulting from a condition in a railroad yard, which condition is claimed to be dangerous, is not conclusive that such condition is not dangerous. However, such evidence may be considered as to the question of the safety or danger of such condition.
APPEAL from the Public Utilities Commission.
This case is in this court as of right, being an appeal from an order of the Public Utilities Commission. Hereinafter, complainant, appellant herein, will be designated complainant, the Public Utilities Commission, appellee herein, will be designated the commission, and the New York Central Railroad Company will be designated the railroad.
The case originated before the commission by the filing of a complaint by complainant on November 27, 1946, in which complainant called the commission's attention to alleged unsafe conditions existing with reference to tracks number one to number nine at the Hayes avenue yard of the railroad at Sandusky, the unsafe conditions being claimed to exist because of close clearances in violation of Section 8976-1, General Code. The complainant alleged that the tracks vary and that a man cannot stand between some of them. The complainant mentioned Section 614-3, General Code, as being the commission's authority to correct the alleged unsafe conditions.
On December 13, 1946, the railroad filed an answer to the complaint, which answer admitted that the railroad has and has had, since prior to May 11, 1927, certain tracks at such yard. The answer denied that any of the tracks were placed or are located in violation of any provision of the law and denied that any unsafe condition exists in the yard as the result of the placement and location of the tracks.
The matter came on for hearing on March 6, 1947, before an attorney examiner.
The record shows that the railroad yard involved in the present case is what is known as a classification yard and contains nine tracks, all running off a main or lead track. The work performed in this yard is that of breaking up and remaking trains and involves a shifting of cars individually and in groups, about all points in the yard. This work is done by various railroad employees, among whom are switchmen some 13 in number, and, as their work is considered dangerous, they must be on the alert for their safety.
The manual of the American Railway Engineering Association, which is obviously a voluntary organization, recommends that body tracks should be spaced not less than 13 feet center to center. It appears that the spacing between some of the tracks in the yard with which this case is concerned is less than 13 feet, the lesser spacings being at about 15 places between tracks two and three, three and four, four and five, five and six, and six and seven; and that such spacings range from 11 feet 8 inches to 12 feet 9 inches. The recommendation of the manual of the American Railway Engineering Association is not embodied in any law of this state.
The record shows that the speed of the cars in the yard is from 10 to 15 miles per hour, and that there is some swaying. There are photographs in the record showing men standing in the narrowest clearances between tracks and between cars on those tracks. According to the evidence there is an exceptionally fine safety program in this yard; new employees are taken in charge by older employees and made thoroughly familiar with the geography of the yard; and warnings are continuously given with reference to keeping off the sides of cars at the narrow clearances. As a result of this safety program and, probably, the alertness of the employees, the yard has had an extraordinary record as to safety.
All the tracks in the yard have been located as at present since before 1913 and some of them since 1892, and yet, aside from some evidence that there had been coats and jackets caught on cars and torn, there is no record of any injury due to close clearances in the yard from 1936 up to the time of the hearing. In fact the claim agent of the railroad testified that he had checked back to 1925.
There is evidence in the record that the railroad has an overall program of improvements which includes the changing of the location of the tracks in the yard, but that such program will take into consideration other conditions, material, labor and money and other locations where there is a demand for those items, but that it is in the program that work will be done at the yard involved herein.
After taking the case under consideration, the attorney examiner filed a report on September 2, 1947, which concluded as follows:
"Upon due consideration of the record and exhibits it appears that the within matter presents a challenge to the good faith of the respondent [railroad]. The record discloses that no accidents have occurred at the subject yard and that a program of correction and relocation is contemplated. The good faith of the respondent [railroad] cannot be successfully attacked in the light of testimony that conditions complained of have existed for a great many years of reasonably safe operation at these particular yards. Furthermore, the testimony as to the actual clearances is not trustworthy, assuming that exhibit A is not a photographic deception. If the measurements were accurate Mr. Reardon would have to be wedged in rather awkwardly. This was not the case, according to Mr. Parshall, who admitted certain discrepancies in his report.
"It is clearly apparent that the past safety record and the current safety program of this respondent [railroad], together with its plans for relocation of tracks, augurs for continued, relatively safe operation, within subject yards.
"Recommendation:
"It is, therefore, recommended that the complaint be dismissed."
On October 6, 1947, the commission entered an order in which it adopted, as if fully rewritten, the report of its attorney examiner and ordered that the complaint be dismissed.
An application for rehearing was filed by complainant on October 31, 1947, and was denied by the commission on November 4, 1947.
From the order of dismissal an appeal was taken to this court.
Messrs. Herbert Dombey, for appellant.
Mr. Hugh S. Jenkins, attorney general, and Mr. Harry G. Fitzgerald, Jr., for appellee.
The complainant claims that, because of close clearances of the tracks of the railroad in its Hayes avenue Sandusky yard, an unsafe condition exists, and that such tracks are located in violation of Section 8976-1, General Code, which reads as follows:
"After the effective date of this act and except in cases in which the Public Utilities Commission of Ohio finds that such placement or construction is impracticable, material of all kinds and all permanent structures such as buildings, walls, coal bins, tunnels, bridges, station shelter sheds, stand pipes, signal masts, poles, freight platforms and structures of like character, placed adjacent or contiguous to a track or a railroad by a county, municipality, township, railroad company, other corporation, or person, shall not be less than eight feet in the clear from the center of such track, measured horizontally therefrom and such lateral clearance shall be uniformly maintained vertically upward a distance of twenty-one feet from the top of rail. The foregoing does not apply to present structures. The Public Utilities Commission is hereby given full power and authority to prescribe rules and regulations governing all such placement and construction."
Complainant contends that the commission has authority, by reason of Section 614-3, General Code, to correct the claimed unsafe condition at the yard.
Section 614-3, General Code, reads:
"The Public Utilities Commission of Ohio is hereby vested with the power and jurisdiction to supervise and regulate 'public utilities' and 'railroads' as herein defined and provided and to require all public utilities to furnish their products and render all services exacted by the commission, or by law, and also to promulgate and enforce all orders relating to the protection, welfare and safety of railroad employees and the traveling public."
It is conceded by all parties to this case that there is no specific requirement law of the state which the railroad is violating by the manner in which it maintains its tracks at the yard, and that the sole question is whether the order of the commission, dismissing the complaint, is unlawful and unreasonable either for want of evidence to support it or because it is against the weight of the evidence.
In a long line of decisions, this court has held that a finding and order of the Public Utilities Commission will not be disturbed by the Supreme Court unless such finding and order are against the manifest weight of the evidence. Lorain-Amherst Transit, Inc., v. Public Utilities Commission, 147 Ohio St. 376, 379, 71 N.E.2d 705; Continental Freight Forwarding Co. v. Public Utilities Commission, 126 Ohio St. 16, 183 N.E. 790; Lykins v. Public Utilities Commission, 115 Ohio St. 376, 154 N.E. 249.
In the case last cited, on page 382, Judge Robert H. Day said:
"We are not unmindful of the rule that we may not substitute our judgment for that of the commission as to the conclusion to be drawn from the evidence, unless the same is manifestly against the weight thereof."
Counsel for complainant argue that a person need not be killed or maimed in order to demonstrate that a track condition is unsafe, and they cite the language of Chief Justice Weygandt, in the case of New York Central Rd. Co. v. Public Utilities Commission, 139 Ohio St. 373, 376, 377, 40 N.E.2d 429, as follows:
"The company argues that the evidence is silent as to any death or accident resulting from the questioned practice. This is correct but not conclusive. It hardly can be contended that someone must be killed or injured before the commission is authorized to find the practice dangerous."
With this statement we thoroughly agree.
The safety record at the yard is not conclusive as to the safety of the track clearances but surely the many continuous years in which no accident has occurred is evidence thereof. The absence of accidents, the ability of fairly good sized men to walk between regular cars in the clearance spaces at their narrowest points, the care taken to break in new employees, the constant warnings of the necessity for care when passing narrow clearances, the plans of the railroad to widen clearances and relocate tracks, and the fact that the statement in the manual of the American Railway Engineering Association is a recommendation only which has not crystallized into law furnish evidence upon which the commission was justified in making its finding and order.
The question is not whether this court would have made a different order under the evidence, but whether the commission was free from an abuse of discretion and whether the order of the commission is unlawful or unreasonable.
We are of the opinion that the commission was justified in relying upon the good faith of the railroad. It must be remembered that the jurisdiction of the commission is a continuing one, and, if the future should demonstrate that confidence in the good faith of the railroad was not justified or subsequent conditions make it appear that the track placements in the yard are unsafe or, because of close clearances, unreasonably threaten harm to the employees in such yard, complainant is not foreclosed from again bringing the matter to the commission's attention.
The order of the commission is neither illegal nor unreasonable and is affirmed.
Order affirmed.
WEYGANDT, C.J., TURNER, MATTHIAS, HART, ZIMMERMAN and SOHNGEN, JJ., concur.