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B & O Chicago Terminal R.r. v. Commerce Com.

OPINION FILED DECEMBER 15, 1977.

THE BALTIMORE AND OHIO CHICAGO TERMINAL RAILROAD COMPANY, RESPONDENT-APPELLANT,

v.

ILLINOIS COMMERCE COMMISSION ET AL., PETITIONERS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding.

MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

The respondent, the Baltimore and Ohio Terminal Railroad Company (Railroad), appeals from an order of the trial court affirming an order of the Illinois Commerce Commission establishing a grade crossing. We find that the Commission failed to consider what effect the interference with the railroad operation will have on the public convenience in general and remand for additional testimony as needed and further consideration.

On March 12, 1973, the villages of Chicago Ridge and Oak Lawn filed a petition with the Illinois Commerce Commission requesting the establishment of a grade crossing over the two main tracks and the three side tracks of the railroad at Austin Avenue at approximately 105th Street. This point is about halfway between Ridgeland Avenue (6400 West) and Central Avenue (5600 West), the two main north-south arterial roadways bordering the area. The railroad's tracks also cross both of those arterial roads and, of course, there are grade crossings at each of these locations, but there is none between the two except for a private crossing at 103rd Street and Oxford, near Ridgeland Avenue. This crossing can be used by emergency vehicles.

The Baltimore and Ohio Chicago Terminal Railroad tracks extend in a northwest-southeast direction through the two villages. A main line of the Norfolk and Western Railway Company extends in a northeast-southwest direction through the two villages. These tracks intersect with the respondent's tracks a short distance east of Ridgeland Avenue. There are no grade crossings of the Norfolk and Western tracks between the Baltimore and Ohio Chicago Terminal tracks and Central Avenue to the east, a distance of approximately one mile.

The Commission found that:

(1) the triangular area of land formed by Central Avenue on the east, the Norfolk and Western tracks on the northwest and the Baltimore and Ohio Chicago Terminal's tracks on the southwest has no means of access for the general public to the west, to the north or to the south except via Central Avenue.

(2) that this area is being rapidly and substantially developed by both single-family and multifamily dwellings.

(3) that in order to drive out of this area in a north, south or west direction traffic must use Central Avenue, a heavily used arterial street, and then travel north or south to the existing grade crossings of Central Avenue with either the respondent's tracks or those of the Norfolk and Western Railroad.

(4) that the extension of Austin Avenue and its use by vehicular traffic would permit the police and fire department vehicles of the two villages to reach the triangular area in an expeditious manner (there was, however, no finding that they do not reach it in an expeditious manner now); it would permit school vehicles to transport children more efficiently; it would alleviate the necessity of the residents of the triangular area to use Central Avenue, and that, accordingly, the extension of Austin Avenue would promote the safety, health and welfare of the citizens of the area.

(5) the Commission found that the railroad's contentions that the Austin Avenue Crossing would interfere with its operations; that the tracks in this area are used for interchange with the Norfolk and Western Railway Company, as well as for setouts and pickups, for one train to pass another, and for switching the bulk of a train when industrial switching is performed in the area; that the crossing could be blocked by westbound trains waiting for the Norfolk and Western interlock and by eastbound trains waiting for a favorable signal indication so that they may proceed without blocking crossings to the east; that while the trains could be cut, this would take additional time; and that if the crossing were to be installed there would be approximately 80 additional train cuts requested per month are all supported by the evidence. It also found that 60 train movements per day are anticipated over the crossing. It, however, while finding that the crossing at Austin would be injurious to the railroad operations to some extent, dismissed this fact with the observation that the railroad is a public utility deriving its franchise from the State and by accepting the same, agrees to submit to all burdens, conditions, and regulations imposed by the State with reference to its tracks and intersections by highways.

The railroad filed a petition for rehearing contending both that no crossing was needed and that if one should be built, it would be better to open the one at 103rd and Oxford Avenue, a location which would not interfere with railroad operations. These contentions were rejected by the Commission which found the Oxford Avenue crossing to be less suitable because of financial reasons, because it would serve a smaller area, because the Oxford crossing would be more hazardous and because it and the Ridgeland Avenue crossing could be blocked at the same time causing a large traffic problem.

Because of the result we reach, it will not be necessary for this court to set forth in any detail the evidence presented to the Commission. That testimony pertinent to the conclusions we draw will be developed in our discussion of the issues.

I.

• 1-3 The Commission brushed off any consideration of the effect the grade crossing might have on railroad operations with the observation that the railroad is a public utility deriving its franchise from the State and by accepting the same, agrees to submit to all burdens, conditions and regulations imposed by the State with reference to its tracks and intersections by highways. This is, of course, the law. (Chicago & Northwestern Ry. Co. v. Illinois Commerce Com. (1927), 326 Ill. 625, 158 N.E. 376.) Nevertheless, the fact that the railroad is subject to regulation does not mean that the Commission need not consider the concerns of the railroad. In an application for a grade crossing, the primary and controlling interest to be considered is the public interest (Yowell v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. (1935), 360 Ill. 272, 195 N.E. 667.) The convenience and necessity required to support an order of the Commission are those of the public and not of the individual or a number of individuals. (Choate v. Commerce Com. (1923), 309 Ill. 248, 141 N.E. 12; Yowell v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. (1935), 360 Ill. 272, 195 N.E.2d 667.) Accordingly, since the issue was raised, it was incumbent upon the Commission to determine whether any benefit to the few townspeople would be offset by an even greater detriment to the public elsewhere because of an interruption in train service, or delays in service, or higher ...


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