For the prosecutor, J. Emil Walscheid.
For the Erie Railroad, Charles E. Denny and John A. Haddon, trustees, and New York and Greenwood Lake Railway Company, Collins & Corbin (Edward A. Markley and Charles W. Broadhurst).
For the Board of Public Utility Commissioners, John A. Bernhard.
Before Justices Parker, Bodine and Perskie.
BODINE, J. This writ of certiorari brings up for review a decision by the Board of Public Utility Commissioners holding that a highway as diverted by the Erie Railroad Company and the New York and Greenwood Lake Railway Company, under state direction, was not such an underpass as the railroads were obligated to keep in repair within the meaning of section 26 of the Railroad act. R.S. 48:12-49.
The county of Hudson has under its control in the town of Kearny a county road designated as Passaic avenue, which road is crossed by the Erie Railroad at or near the West Arlington station by means of an overhead bridge. The right of way is owned by the New York and Greenwood Lake Railroad
Company. The bridge was constructed for the purpose of carrying the railroad over Passaic avenue, which was depressed in order to carry the avenue under the bridge. Passaic avenue was, in part, relocated to effect this change.
The petition filed by the county with the board alleged that it was the duty of the railroad to keep the highway underpass in good and sufficient repair. It further alleged that the underpass had not been constructed in the proper manner and had not been kept in repair, specifying that the fill from the embankment had been carried down into the traveled portion of the highway. The embankment is eroded and washed out. Drainage facilities are inadequate, so that the ramp leading up to the highway on the other side of the railroad known as Midland avenue is being undermined.
In 1930, proceedings were instituted under the Fielder Grade Crossing law (Pamph. L. 1930, ch. 101, p. 347), R.S. 48:12-61, whereby it was ordered that the Erie Railroad Company alter its Passaic avenue crossing by changing the lines of the street and by carrying so much of the highway so changed under the railroad, according to plan submitted, and by relocating the railroad and highway so as to conform with plans adopted. Fifty per cent. of the cost of the elimination of the grade crossing was borne by the state and the balance by the railroad company. An underpass for the highway was built in a descending curve at a depth of approximately fifteen feet and an upward curve to rejoin the highway on grade on the other side. The railroad right of way was carried over the underpass by means of a bridge. By 1937, the underpass became out of repair and unsafe for travel. Hence, the institution of the proceedings under review.
The testimony and exhibits offered before the commissioners indicated that the underpass was very much out of repair. The commissioners found that there was no duty as a matter of law imposed upon the railroad to make the required repairs. A rehearing was granted at which time the respondents noted upon their answer that Messrs. Denny and Haddon had been appointed trustees for the railroad company in proceedings in ...