In re the Elimination Under Chapter 233, Laws of 1926, of the Highway Grade Crossings of Railroad

Davis, J. (concurring).

The State Department of Highways recommended that the elimination of the crossing be by an underpass. Officials and citizens of the locality interested approved this plan. The Public Service Commission adopted it. Then ostensibly on its own motion but actually at the behest of the railroad company, it rescinded this order and after another hearing ordered an overhead crossing. This conduct might be deemed capricious.

The new plan, as is quite fully stated by my brother Hasbrouck, involves a change in the course of the highway so that it will cross over the railroad on a bridge at a right angle to the plane of the track. The course that vehicles must follow is on grades and curves in making this crossing. On such crossings where the approaches and the bridges are not lighted, as will be the case here, such curves and grades are high factors of danger. In the winter *612in the climate prevailing in St. Lawrence county, snow and sleet storms add greatly to the danger by furnishing a slippery track upon which automobiles must negotiate these curves and grades. It is common knowledge that many accidents occur on overhead crossings thus constructed, particularly under such climatic conditions. The opinion of those residing in the vicinity, based on their judgment and experience, was that the proposed crossing would be more hazardous to public safety than the one now existing. As already stated, they favored an underpass. The opinions of such people are entitled to great consideration. I do not find evidence of weight being given by the Commission to the wishes or judgment of the people of the locality. The elements of danger inherent in grades and curves of an artificial structure of this kind should be entitled to greater weight than either the general items of expense in constructing a crossing'or the particular expense charged against the railroad company, or even its convenience. Public safety should be the first consideration of the Commission. That is the basis of the law governing the elimination of highway crossings.

The test of conduct said to be arbitrary is whether or not it may be justified by reasonable statement indicating the grounds upon which it is based. I find no satisfactory explanation of the abandonment of a plan once adopted, and approved by the Department of Highways and by people residing in the locality who will have occasion to use the crossing daily. The chief concern of the railroad company is to escape or minimize expense. The testimony that there can be no sufficient drainage of an underpass is the plausible theory of the interested engineer of the railroad company and nothing more.

In the main I agree in principle with my brother Hinman that we should not attempt to review the acts of the Commission on frequent appeals by dissatisfied persons, where there is presented a choice between two reasonable plans. But in this case where the Commission once approved the underpass plan and furnishes no good reason for its change of view, I think we may properly exercise our discretion, as we have heretofore done, by sending the matter back for further consideration. (See Matter of Railroad Crossings, 226 App. Div. 255.)

I concur for reversal.

Whitmyer, Hill and Hasbrouck, JJ., concur.