This controversy, in reality, is one between the Great Northern Railway Company and the people of the recently incorporated town of Mukilteo.
At a time prior to the hearing, the Great Northern Railway Company filed with the department its petition which reads as follows:
"I. "The main line of the Great Northern Railway, double-tracked, extends in a northerly and southerly direction through the community known as Mukilteo in Snohomish County, Washington, and in said community crosses at grade a county road known as Park Avenue, which road is under the jurisdiction of Snohomish County, Washington; the said crossing being further identified as the grade crossing located at Great Northern Railway Survey Station 1617+00.
"II. "Your petitioner alleges that the afore-described grade crossing is dangerous and unsafe and that public safety requires that the same be closed and permanently discontinued."
Just before the departmental hearing, sixty-six employees at the ammunition dock at Mukilteo, filed a protest against the closing of Park avenue "on the ground and for the reason that said road greatly `facilitated' their means of passage to and from work, as most of the employees live in Everett or toward Everett." In addition, several property *Page 260 owners and individuals doing business in Mukilteo protested and testified.
To better indicate my reasons for dissent, I give the following word picture of the community: The town, inhabited by about fifteen hundred people, is located on Puget Sound, a short distance southwest of the city of Everett. The shore line of the sound at this point extends generally in an easterly-westerly direction. That is, the community faces toward the sound looking toward the north. The town is laid out so that Front street runs parallel and close to the shore line. As the community built up and moved inland, other streets were made at block intervals running parallel to Front street, being designated numerically, one through ten, with First street a block from Front street. The streets which run north and south have been given names. Of those streets, we are here concerned with Park and Lincoln avenues. These two streets are approximately five hundred feet apart, with Park avenue being east of Lincoln. Park avenue approaches the bathing beach, and Lincoln avenue, the ferry slip. Park avenue is sixty feet in width, and is surfaced to the north and south of the railroad crossing. The crossing itself is equipped with a wigwag signal and a gong that sounds as trains approach. The grade of Park avenue north of the tracks is approximately level. South from the tracks the grade is 6.9 per cent, extending for about thirty-five feet, increasing to one of 17.9 per cent for a distance of seventy-five feet.
It is between Park and Lincoln avenues, running north and south, and Front and First streets running east and west, that the main business district of the community is situated. Park avenue between Front and First street, is considered the main street of the town.
The Great Northern Railway tracks come into Mukilteo from Everett about on a line with First street, cross Park avenue just south of First, and then cut diagonally through the community so that the tracks bisect Second street at Washington, which is the second avenue west of Park avenue. The main traveled highway, known as secondary *Page 261 highway 1-I, extends parallel to the railroad tracks, from the direction of Everett, a considerable distance before Park avenue is reached, and, as testified to by one of the witnesses, the motorist looks down the tracks before the crossing and buildings are reached. In addition, a sharp turn must be made shortly before reaching the crossing, necessitating the driver to slow down. A traveler approaching from the west must also make a sharp turn before reaching the crossing, and would likewise be traveling at a slow rate of speed.
An additional fact to be considered is that, when approaching from the east, the view is unobstructed, since, as stated, the highway parallels the tracks for some distance and the motorist looks down a considerable way before the crossing and buildings are reached. The testimony of Jack Wilson, assistant fire chief of the Mukilteo fire department, showed that approaching from the north one can see east on the tracks five or six thousand yards.
An individual on the south side of the tracks, desiring to continue on to Seattle, would remain south of the tracks, but those desiring to go to Whidby Island, or into the business district of Mukilteo, would be able, on coming to Park avenue, if it were open, to turn to the right, cross the tracks and proceed to the main business district or go to Front street, turn to the left, continue to Lincoln avenue and to the ferry slip. With Park avenue closed, they would be compelled to go to Lincoln avenue, cross the overhead pass, go to Front street, and then turn east to get into the business district, or straight ahead to the ferry slip.
In 1940-41, the state constructed an overhead passage at Lincoln avenue. Section 10 of the contract for the improvement, entered into without the knowledge of the people of Mukilteo, reads as follows:
"Upon the completion of the project the Railway Company will petition the Department of Public Service of the State of Washington for an order closing and discontinuing the existing grade crossing at Railway Station 1617+00 on Park Avenue in said Town of Mukilteo, to which the Director *Page 262 of Highways shall lend support. On final entry of said order the Railway Company will, at its own cost and expense, remove the planks, signs and signals."
Concerning the project, Mr. Schearer, state highway district engineer testified:
"Q. Do you know whether or not there was a grade separation or grade crossing at the present location of that highway overpass bridge before it was constructed? A. No. There was no open street there at the time it was constructed except that portion right at the ferry dock. A short portion that was constructed on Front Street down to the dock. Q. But there was no crossing there down to the dock? A. No. I believe there was a platted street, but it was not open to the traffic. Q. That bridge is located at what is known as Lincoln Avenue? A. Yes, approximately on Lincoln Avenue. Q. And that is about one block west of Park Avenue, is that correct? A. Yes. Q. And then I understand that there was no public crossing of any type on Lincoln Street prior to the construction of this bridge? A. That is correct. Q. Do you know approximately what the cost of that construction of that highway bridge was? A. Well, the bridge was built as a part of an entire project. That is, some road construction was included with the bridge. And my recollection is the total cost of that project was somewhere around $100,000. The bridge proper, — I looked it up before coming here, — the final estimate for that structure and that cost was just under $26,000 just for the structure itself, not including the approaches."
Although the passage crosses the railroad in line with Lincoln avenue, it is not built as a part of that street, but simply as a portion of the project. The project itself consists of a state highway approach from the direction of Seattle to the ferry slip. This highway, of which the bridge is a part, was built without regard to the platted streets of Mukilteo, but extends from the ferry slip through the community.
Keeping in mind the description of Mukilteo as presented above, I will now analyze the evidence presented by, first, the petitioning railroad and then the respondent community in order to show that the lower court was justified in reversing the order of the department. *Page 263
Mr. Burr, a Great Northern Railway division engineer, testified on behalf of the petitioning railroad concerning the dangerous aspect of the crossing. He stated that at the crossing there are two mainline tracks, a passing track, and another leading to a switch going to the government docks. Concerning obstructions to the automobile driver's view, the witness testified that there were many on both sides of the road, and on both sides of the tracks. However, a plat submitted at the hearing, showing visibility distances along the tracks in various locations on Park avenue, indicates conclusively that Mr. Burr was mistaken. This is also shown by testimony of Mr. Christopherson, the station agent, who testified as follows: (In passing, I should call attention to the fact that the depot is on the north side of the railroad, and but a short distance west of Park avenue.)
"Q. From your place of employment and in the station, that is where you work, is right at the station proper? A. Yes. Q. From that location can you see the traffic going over the Park Avenue grade crossing? A. I see most of it. Q. You have a view right out of the station windows? A. Yes, when I am working at the telegraph desk, I see most of Park Avenue cars crossing the grade crossing. Q. What hours do you work there now? A. Now it is from 7:45 a.m. until 4:45 p.m. Q. And have you observed the automobile traffic going over the Park Avenue crossing during your work down there? A. Yes, quite a bit. Q. What would you say generally as to the speed of cars that you have observed going north toward the Bay coming down the hill; what would you say their speed is? A. Well, I find that local people here know the danger here and are very careful. But I have seen strangers that — I figured they were strangers — people I have not seen before sometimes will be in a hurry for catching a ferry and they will go over there pretty fast. Q. From your observation how fast would you say they were going when you say `pretty fast'? A. Well, over that crossing I have seen them go 30 and 40 miles an hour. Q. As you would estimate it? A. Yes, those few cars. Q. Have you ever had occasion to see cars coming from the ferry and approaching — proceeding south and going over the crossing? A. Yes. Q. About how fast would you say those cars travel, from your estimate? A. Well, most of them were going very cautiously, not very fast. Once in a *Page 264 while you will see one that figures the track is clear and he will bounce over there pretty fast. That is just an occasional car. Q. Have you ever seen any cars having difficulty going over the grade? A. Yes. Q. What have you observed? A. Well, especially during the fall and the winter, cars coming over on the ferry, their cars are cold and they come up over that steep grade, that short steep hill, and their motors die and they either slip or roll back to get another start. Q. Do some of them roll back over the grade crossing proper to get another start? A. Yes. Q. And then go back and start over? A. Yes, and, to get a good start."
Frank Percival, employee of the petitioning railroad company, presented testimony concerning the train schedules and the speed of the trains. He stated that the maximum speed allowed in this area was sixty miles per hour for passenger trains, and fifty miles per hour for freights. At the time of the hearing, there was a schedule which called for twenty-four trains a day to pass over the crossing.
The record also shows that people, local and transients, coming from the east, would, in order to get into the business district, have to cross Park avenue, the main street of the community, south of the tracks, and proceed another block to Lincoln avenue, cross the overhead pass, turn to the right on Front street, and backtrack a block to Park avenue. The evidence shows that the business in this community is greatly enhanced by transients, and that the closing of the crossing would take much of the business away from the people of Mukilteo.
Other factors, perhaps more important than the business aspect mentioned above, were also related by the citizens of Mukilteo. These facts have to do with the traffic problem which is present on Lincoln avenue in relation to the use of the ferry. The undisputed testimony shows that traffic, especially in the summer, on that approach, is very heavy four days a week — Friday through Monday. The overpass is a two-lane highway. On the days mentioned, the cars awaiting the use of the ferry are lined up bumper to bumper back over the overpass for several blocks, at least to Fifth street. The evidence also shows that the ferries haul between *Page 265 twenty and forty vehicles, with a total capacity of sixty each trip, and that when the ferries are unloading there is a solid mass of cars on the overpass. It can be seen that this situation would be bad enough if the passage and approach were in conformity with the streets of the community of Mukilteo. At least the people in that town would be able to get into the traffic line. As it is now, it becomes nearly impossible for the people of the community to break into the line of traffic from the side streets.
In conjunction with this traffic snarl on those occasions, and the inconvenience and delay such a situation would cause the citizens of the community in traveling from their homes on the south side of the track to the business district on the north side of the track, if Park avenue is closed, there is the added fact that the community fire station is located on Park avenue south of the track. This station maintains modern equipment, and also a pulmotor. With the closing of the Park avenue crossing, the fire department in going to any part of the business district has to rely on the overpass and, with the traffic situation as it is, the citizens of Mukilteo are exposed to great danger. It should be remembered, also, that the public bathing beach in Mukilteo is at the north end of Park avenue. This beach, during the summer months, is crowded with children. With the Park avenue crossing open, both the fire fighting equipment and the pulmotor could be rushed immediately to any area, as emergencies arose. With it closed, the situation could, and probably will, arise where homes and business houses burn and people die, due entirely to the closing of Park avenue.
The assistant fire chief said that it would be impossible to get a fire truck down the overpass when it was occupied by automobiles waiting to get on the ferry. As another witness said, events such as a fire, or a person drowning, cannot be so regulated as to accommodate the traffic problem now present in the use of the overpass.
The facts, as testified to by the citizens of the community in showing their reasons for maintaining the crossing, are *Page 266 supported by one of the petitioner's witnesses, Mr. Schearer, state highway department engineer, who testified:
"Q. Well, Mr. Schearer, don't you feel that in a little town of this kind, of Mukilteo, that there should be more than one approach, more than one road going in, so there is an exit so to speak for these people? A. Well, of course, that is desirable, Mr. Leader. The more entrances to the business district or any other part of the town, the more stores you have open, the more access you have for your traffic. Q. Yes. And to go in just one way and have to go out the same way is not satisfactory. A. It is not so satisfactory. Q. And if you have the fire department outside of the main business section and you have that long ferry line to try and get through, you have a very dangerous situation, do you not? A. A dangerous condition, yes. If the road was blocked it would be difficult to get through. Of course, we hope to cure that condition because we know it is indeed a problem. Q. What are you going to do to eliminate that? A. We will just make a study. We don't know what will be the final answer."
Of course, the crossing is dangerous. Every railroad crossing is dangerous. So are street intersections in our cities and towns and so are intersecting highways in rural areas. However, THISCROSSING HAS EXISTED FOR FORTY-TWO YEARS AND DURING THAT TIME NOACCIDENT HAS OCCURRED UPON IT. That it is safer than most crossings is demonstrated by the testimony of Mr. Burr, who stated:
"Q. Wouldn't the fact that you had many accidents on one crossing which you considered not a dangerous crossing speaking from an engineering standpoint, and here is another one where you had many accidents and you considered it a safe crossing; wouldn't that indicate you were mistaken in your engineering knowledge as to whether one was more dangerous than the other? A. I am basing my answer on knowledge of grade crossings between Spokane and Seattle. I know that on some crossings with the best grades we have made, that we have some of the most accidents. But I don't call them hazardous crossings. Q. So some of them where you have the best views you have the most accidents? A. Yes, some of them with the best views or grades, it depends on the location a lot. Q. So this one down here, while *Page 267 you may have an obstructed view, you may have less accidents than you will on a crossing that has a regular straight of way crossing with good view? A. You may have less accidents on this than another one, yes sir."
As a matter of fact, the order of the department in closing Park avenue has not resulted in reducing a dangerous situation. Its real result has been to create a definite hazard — a real danger — which will without doubt cause loss of business and property and may result in a great loss of life.
I am fully persuaded that the individuals making up the town of Mukilteo have the best interests of themselves and the people who may visit their town at heart, and that they are more able to care for their safety than any governmental department.
The judgment of the trial court should be affirmed.