
    APPEAL OF THE CATAWISSA RAILROAD CO.
    Where a Railroad Company consents to a grade crossing, by another - railroad until the second company has expended a large amount of money, in the construction of its road, the first company is estopped from proceeding to have the Court decree that the crossing shall not be at grade.
    Appeal from the Court of Common Pleas of Columbia County ; In Equity ; No. 254 Jan. Term, 1883.
    This was a Bill in Equity filed by the Catawissa Railroad Company and the Phila. and Reading R. R. Co., lessee vs. The North and West Branch- Railway Co., to prevent a grade crossing near Rupert. The Catawissa Railroad Co. had this road in operation long before the organization of the defendant Co. In the bill they alleged that the proposed crossing complained of was a dangerous one, and could be reasonably avoided. The counsel for the plaintiffs and defendant agreed that Judge Elwell should act as examiner and master, in order to procure an early decision. The master found as- a fact, that the grade crossing with modern signals, was not dangerous, and owing to the facts that an overhead crossing would induce an adverse grade of- 511-feet to the mile, for two miles, and the increased expense of constructing an overhead crossing, he found and reported that an overhead crossing was impracticable. His report, opinion and decree is as follows :
    On the 10th day of April, 1882, the bill of the plaintiffs was filed in this case, when a motion was made on their behalf for a preliminary injunction.
    On the first day of April the defendant by its solicitor not' being able to affect an agreement with the plaintiffs in respect to damages for the crossing of their railroad at the south end of their bridge across the Susquehanna river, known as the Rupert bridge, tendered a bond to the presidents of the Gatawissa Railroad Company and the Philadelphia and Reading Railroad Company, which were refused. He thereupon gave notice to said presidents that the bonds would be presented to the Court of Common Pleas of this County on the 7th day of April for approval. By agreement of the solicitors for the plaintiffs and the defendant the time for the hearing was extended to the 9th day April, at which time the solicitors for each party appeared before the judges convened for the purpose of such hearing. The bonds were there presented for approval. No objection was made to the amounts nor to the sureties therein, but the solicitor of the plaintiffs requested that no action be taken in regard to the approval' of the bonds until the question of the right of the defendant to cross the railroad of the plaintiffs with its (the defendant’s) railroad at grade was determined. He then presented this bill, when it was agreed that the hearing on a motion for a preliminary injunction should be had on the 19th day of April, the solicitor for the plaintiff taking the bill to have it printed, which was done and it was filed as before stated on the 10th day of April.
    On the 19th day of April the answer of the defendant and a replication thereto was filed. On the same day an agreement was signed by counsel and filed, that the President Judge “shall act as examiner and master in the above stated case, and that the testimony shall be taken before him and reduced to writing by a stenographer.”
    
      On the samé day and on the 28th day of April, a large amount of evidence was taken which has been printed, and is -herewith filed as an appendix to this report, together with the exhibits in evidence.
    The bill of the plaintiffs prays the Court to restrain the defendant from crossing the Catawissa railroad at grade about one hundred and fourteen feet from the.southern end of their bridge over the North Branch of the Susquehanna river at Rupert, where the plaintiff’s railroad has a six degree, curve and a grade of thirty-nine and six-tenths feet- to the mile — that the line of the defendant’s road is constructed so as to cross the Catawissa railroad diagonally — that a grade crossing at the point where the North and "West Branch railway has located it, and are preparing to construct it is not practicable, and will be dangerous to the travel upon both roads and to the employees operating the same ■ — that a crossing above grade at that point is not cflaly practicable, but can be constructed by the expenditure of a reasonable amount of money — that owing to a curve in the line of the defendant’s road north of this bridge, it will be impossible for an engineer running a south-bound train to see . a train of ears or any obstruction on the line of the plaintiff’s road at the proposed crossing — while an engineer on a south-bound train on plaintiff’s road could not see a train on the defendant’s railroad, owing to the covered bridge, and an engineer upon a north-bound train upon plaintiff’s railroad, owing to a curve in the hill above the said bridge could not diseoA'er a south-bound train on defendant’s railroad .until within fifty feet of the crossing.
    It is further averred that there is a large number of trains run over plaintiff’s road at this point daily, and owing to the proximity to the plaintiff’s shops and an interchange of ears at Rupert, at the northern end of the bridge, the track at this point is not only in constant use but at irregular intervals, and that a grade crossing as proposed would expose the plaintiff’s employees to constant danger, and subject the plaintiff to continued risks and great and unnecessary expense and delays in operating their road.
    The allegations in the first five paragraphs of the plaintiff’s bill are admitted by the answer, by which it is conceded that the Catawissa Railroad is a corporation duly incorporated by the laws of the Commonwealth of Pennsylvania, under which it is authorized to construct and operate a railroad between Tam'anend and the city of Williamsport, that many years since it constructed a railroad between said points and has since maintained the same, that the Philadelphia and Reading Railroad Company is a corporation duly incorporated under the laws of the State of Pennsylvania, that said company, by authority of law, on the 10th day of October, 1872, leased from the Catawissa Railroad Company its line of road between the points before mentioned with all its franchises, rights, property, privilege and appurtenances for the term of nine hundred and ninety-nine years, by a lease duly recorded on the 1st day of November, 1872, and have since been operating said line of road under the terms of said lease.
    On the l|th day of May, 1871, an Act of Assembly was passed incorporating the North and West Branch Railroad Company. (Pamphlet laws 1871, page 814); and authorizing said company to construct a railroad along the south side of the Susquehanna river from the borough (now city) of Wilkesbarre to a point opposite the town of Bloomsburg, with the right to connect with or moss at grade any railroad now (then) made or thereafter to be made in the Counties of Luzerne, Columbia, Montour, Sullivan or Lycoming, and with the right to build branches not exqeeding ten miles each in length.
    Under a charter duly granted, in pursuance of said act, the company was duly organized in 1871 by the election of officers. L>. J. Waller was elected President of the company and continued to act in that capacity under elections from time to time down to July, 1881, when the franchises and rights of the company were sold by the Sheriff under an execution, and were purchased by Charles Parrish, H. W. Palmer, C. R. Buckalew and others, who in pursuance of the act of the 25th day of May, 1878, duly organized a new company under the name and style of “The North and West Branch Railway Company,” whereby the said last mentioned company became vested with all the right, title, interest, property, possession, claim and demand in law and equity of, in and to the property and franchises of the former company.
    
      In the winter of 1871-2 or in 1872-3 the North and West Branch Railroad Company had a line run for the location of its road except that portion between a point opposite the town of Bloomsburg and the Catawissa crossing at the south end of the plaintiffs’ bridge; that portion of the line was located at a subsequent period, but the time is not certainly fixed by the testimony. Considerable grading was done by the company at different points along the line of the road between a point opposite Bloomsburg and Nanticoke, a distance of about thirty-three miles, in the year 1873, and about that time, but for some two or three or more years, very little or nothing was done down to 1880, when the entire line from Catawissa to Nanticoke was let to contractors to be graded for a fixed, sum. From that time to the present the work has been vigorously prosecuted', both by the original company and by that as now organized.
    The line is graded and ready for laying the rails the whole distance from Nanticoke to the junction with the Sunbury, Hazleton and Wilkesbarre Railroad at Catawissa, and workmen are engaged in laying rails east and west from Shickshinny. The whole distance of the road ready for the rails, the ties being upon the ground, is nearly' thirty-seven miles, and the portion from Nanticoke to Wilkesbarre will*soon be ready for the rails'. Before work had been commenced west of Bloomsburg ferry, distant about two miles oast of the Rupert bridge, the time being in 1873 or ’74, the President of the North and West Branch Railroad Company went to Franklin B. Gowen, the President of ihe Philadelphia and Reading Railroad Company, to see in regard to a connection with and to crossing of the railroad at the end of the bridge. Mr. Waller informed Mr. Gowen that his (Waller’s) company had laid its grade without any ascending grade to that point, and that before finishing the location from that point to the junction with the Danville, Hazleton and Wilkesbarre Railroad, his company desired to have the question of the crossing of the Catawissa railroad settled. He stated to Mr. Gowen that if it was absolutely necessary, they could at that time- construct their road without any ascending grade to cross, the Catawissa Railroad, then leased to the plaintiff, above grade. He further stated that he supposed the Reading Railroad Company would like to have a connection with the North and West Branch Railroad. Mr. Gowen stated in reply that they, the company, desired such a connection, and that there would be no> difficulty whatever about the new road crossing their’s at grade, and that he would have Mr. Lorenz, their chief engineer, examine into the minutiae of the arrangements.
    After that Mr. Lorenz came .and notified Mr. Waller that he-had come for the purpose of seeing about the crossing. Mr.. Waller and he went to the spot where the crossing was intended to be put. Mr. Lorenz made no objection and suggested no difficulty in respect to connection or crossing at grade at that-point.
    Subsequent to that time the presidents of the two roads had further interviews in regard to the connection of the two roads. In pursuance of the arrangement had with Mr. Gowen the new company fixed its grade and made the grade to the Oatawissa crossing so as to cross at grade at the point where it is now proposed to cross. The road was located, on a uniformly descending grade to a point opposite Market street in Bloomsburg, and from that point it was located for a crossing of plaintiff’s road and a junction with it. Before Mr. Waller went to see Mr. Gowen the line of the defendant’s road had been definitely fixed down to a point opposite ¡Slarket street in Bloomsburg, and the line to the bridge had been surveyed and was adopted, but nothing done upon it as it was understood to be an uncertain location.
    After the Philadelphia and Reading Railroad had been placed in the hands of Receivers, and after a large amount of money had been expended between the point opposite Bloomsburg and the Rupert bridge, Mr. Waller had a brief interview with Mr. Gowen who said to him' “it is all right, and you see Mr. Lorenz and he will fix on the minutiae or on all the particulars.” Mr. Lorenz was then absent and Mr. Waller did not see him. In the conversations while Mr. Gowen was President, and before Receivers were appointed his main object appeared to be to effect a connection between the two roads.
    In 1880 the contract for grading the whole of the defendant’s, road to Nanticoke was let for a fixed sum. James A. Wilson was the engineer for the contractors until the sale of the road and has been the chief engineer of the company since December, 1881.
    The grading east from south end of the Rupert bridge, was •commenced by the contractors in November, 1880. The line Rad been established before and some work had been done. The line was then graded as it had been previously, located.
    There was at that time partly graded, several hundred feet •close to the end of the bridge. East of that for some distance very little was done in some places. In some places there had héen extensive grading and in some places none. The grading •eastward from the bridge for some three miles or more was about ■•completed by the spring of 1881.
    In December, 1881, Mr. Wilson as engineer of the defendant, .and Mr. Lorenz, engineer of the plaintiffs, had an interview in reference to this crossing. Mr. Wilson prepared the form of an .•agreement between the receivers of the Philadelphia and Reading Railroad Company and the defendant which was submitted to Mr. Lorenz and James E. Gowen, attorney for Reading Railroad ’Company, and thereupon Mr. Gowen prepared a new agreement which, through Mr. Lorenz, was delivered to Mr. Wilson with instructions to have it executed by the proper officers of the defendant corporation and returned to him for execution by the -officers of the Philadelphia and Reading Railroad Company, a •copy of which agreement will be found on page 58 of the appendix.
    This agreem'ent was duly executed by the officers of the defendant and was returned to Mr. Lorenz as directed.
    By an extract from the minutes of the proceedings ■ of the ^receivers of the Philadelphia and Reading Railroad Company held on the 2d day of December, 1881, it appears that “Mr. Keim presented a form of agreement and plan for the crossing of the tracks of the Catawissa branch at Rupert bridge by those of "the North and West Branch Railroad Company. The receivers -consented to the construction of said crossing, but before committing themselves order the subject referred to James E.' Gowen, Esq., for his opinion as to the form of the agreement.”
    Then at a meeting of the receivers held on the 17th day of January, 1882, the minutes contain the following : “Letter from James E. G-owen, Esq., dated January 8, 1882, was submitted, enclosing form of proposed contract with, the North and West. Branch Railroad Company, granting them authority to carry their railroad across and to connect with the Catawissa Railroad near Rupert, which was approved.”
    Mr. Lor-, iz, as chief engineer of the. Philadelphia and Reading Railroad Company, and Mi’. Wilson, chief engineer of the-defendant company, then agreed upon the pattern for rail and crossing plates to be used at that crossing. Mr. Lorenz furnished to Mr. Wilson a section of the rails of the Catawissa road, and Mr. Wilson furnished two sections of the defendant’s rails to the-manufacturers and had the plates constructed and the rails put. in, and they are now on hand ready to put down. On the strength of the agreement the plates were procured.
    It is proper to state at this point that all testimony in regard to the action of the receivers, as well as that of the attorney and ■engineer of the Philadelphia and Reading Railroad Company,, and all conversations had with them and contracts made by them, wore objected to by the -plaintiffs’ counsel at the time evidence in. respect thereto was offered, for reasons stated on page 53 of the; appendix.
    The defendant at no time has had a line run with the view of an overhead crossing. It had no reason, to believe that such a-crossing would be required by the plaintiffs; on the contrary, as already’ stated, the President of the now complaining company assented to the crossingas now proposed, to be-, made, and desired a connection with defendant’s road, which could not be well accomplished except by a grade crossing. The-, engineer to whom the subject of crossing a,t grade was referred by the President of the plaintiff companies assisted in selecting the point of crossing, gave instructions as to how the plates-should be constructed. The resident engineer and superintendent: of this part of the plaintiffs’ road was often' at the proposed point of crossing and saw the work progressing for a grade-crossing at great expense and made no objection. And no objection was made until every preparation was completed for putting: in the plates, a work of a very short time.
    
      The plaintiffs, by their bill, insist that no other than an overhead crossing should be permitted at the point indicated, and that such crossing should be made twenty-one feet above the grade of their road for the reasons set forth in the bill.
    In the answer of the defendant the alleged agreement and assent of the plaintiffs, through their officers, are set up as an estoppel against the‘present proceeding, and it is averred that a crossing above grade at the point in controversy is not reasonably practicable, for the reason that the North and West Branch Railway has been constructed mainly for the purpose of carrying coal from the coal region to market, and that the grades are substantially descending grades the entire distance; that their road has been constructed with a view to a grade crossing, at great expense, and that such an alteration as would be necessrry to cross above grade would involve a change of grade for a long distance on both sides of the crossing and the expenditure of at least one hundred and seventy-five thousand dollars, and that the introduction of the exceptional grade above and below the crossing would largely reduce the value of the defendant’s road, increase its working expense, add to the cost of moving freight and seriously depreciate the value of the whole road.
    It is clearly established by the evidence and the fact is so found to be that the North and West Branch Railway, when completed, will be forty-two miles long, and extend from Wilkes-barre to the junction with the Sunbury, Hazleton and Wilkes-barre Railroad, about a mile west of the proposed crossing. The grading east of the crossing, for the distance of about two miles, was very expensive work, about three-fourths of the way being rock, that portion nearest the crossing being nearly perpendicular and solid.
    The testimony in regard to changing the line and grade to' an overhead crossing is quite conflicting both as to its practicability and the expense necessary to be incurred. Mr. Wilson, the chief engineer of the defendant, estimates the expense at two hundred and forty-seven thousand six hundred a-ffi sixty-on 3 dollars and fifty cents. The amount of rock excavation he put at sixty-seven thousand nine hundred and seventy cubic yards. The necessary embankment, which will be required west of the crossing, he estimates at sixty thousand- yards, the price of rock excavation at one dollar and five cents per yard, and the embankment at' fifty cents per yard, making for the grade alone one hundred and fifty-one thousand three hundred and sixty-eight dollars, to which he adds trestling, masonry, iron truss for bridge, additions to culverts and additional cost of right of way.
    O. B. Colton, the assistant engineer who took the measurements upon which the estimates of Mr. Wilson are based, confirms the statements as to the amount of rock excavations east and the embankment necessary to be made west of the crossing, and agrees with him as to the expense. In regard to the cost, I. A. Stearns, an engineer, concurs in the opinion of Mr. Wilson and Mr. Colton.
    Phillip Collins, an experienced contractor, testified that the embankment could be made for from thirty to forty cents per cubic yard, the masonry at ten dollars per cubic yard, and the rock excavation at one dollar per cubic yard.
    C. W. Buchholz, an engineer called by plaintiffs, estimated the entire expense of an overhead crossing at that point to be fifty thousand dollars, including masonry, the bridge excavation and embankment. He estimates the embankment at fifty thousand yards. His estimate was formed by going over the ground west of the crossing and walking up the the track about half a mile west of it, without making measurements.
    Bernard Reiley, formerly a contractor for many years, looked at five hundred or six hundred feet of the hillside above the crossing and estimated that the excavation could be done for eighty cents a yard.
    Charles King, a contractor, estimated the cost of the grading east at forty thousand dollars. He took no measurements. His estimate as to price was 'one dollar per cubic yard for rock, sixty cents for loose rock, and twenty-eight to thirty cents for earth. He did not investigate to ascertain the amount of earth or' the amount of rock. The estimate as to both by the witnesses for the plaintiff are made after a superficial and slight examination, while those of the defendant’s witnesses are from actual measurement of the cutting by cross sections, and of the embankment by the length, breadth and heighth. After inspection of the ground in the presence of- Mr. -Yetter,'superintendent of this division of the Reading road, and of Mr. Colton, engineer of the defendant, I conclude that the testimony on the part of the defendant exaggerates the expense of the woi'k to be done to affect an overhead crossing, and that the testimony of the plaintiff puts that expense nearly if not quite one hundred per cent, below what it would be.
    IJpon careful consideration of all the evidence I am satisfied, and find as a fact, that to now make the change from a grade to an overhead crossing will cost the defendant more than one hundred and fifty thousand dollars, and will delay the completion of the road at least six months.
    It is also further found as -a fact that the expense of the grading and the rock cutting east of the crossing, if the line had been originally laid for an overhead crosing, would have been between fifty and one hundred per cent, greater than the expense of the grading for a crossing at grade.
    DANGER PROM A GRADE CROSSING.
    The evidence sustains the allegations in the plaintiffs’ bill in respect to the inability of engineers on the different roads to see trains before reaching the crossing. It also sustains the allegagation contained in the seventh paragraph of the bill to this extent, that there are a large number of trains run over the plaintiffs’ road at this point daily, that the plaintiffs’ shops are at Catawissa, between which and Rupert there is an interchange of cars at the northern end of the bridge, so that the track between those points is much used by trains at irregular intervals.
    The bridge of the plaintiffs is nearly fourteen hundred feet in length, and is covered on the sides and roof with sheet iron. From the northern end of the bridge there is trestle work for about the same length as the bridge. Trains bound south on the plaintiffs’ road can be seen at Rupert and on this trestle from the defendant’s road for a half mile or more east of the crossing.
    It is shown by the testimony and found as a fact that where railroads cross at grade and signals are provided the general rule is, that the trains are to be run by the signals and not by. the sight of the engineers. It also appears and is found as a fact that experience has shown that by the use of signals of modern invention trains may be safely run over a line with grade crossings at points where approaching trains cannot be seen by the engineers until at the very point of crossing. The system of .signals in use at Elizabeth enables from three to four hundred trains to-pass over crossings at grade with safety, the crossing being located at a 'point where approaching trains are hidden from view of the engineers by buildings erected along the line of the respective roads.
    It is further found that by means of signals located at proper points for the protection of both roads, as shall be determined by the chief engineer of the plaintiffs, all trains on the defendant’s roád being required to come to a full stop at least two hundred feet from the point of crossing, and not to proceed until the proper, signal for the purpose shall have been given by the watchman in charge the danger of collisions will be very slight. Not sufficient, in my judgment, to compel the defendant to incur the great expense incident to an overhead crossing, even if there had been no understanding between the officers of the two roads.
    . The engineers differ in their opinions as to whether an overhead crossing is reasonably practicable at this point. In view of the fact that the road is designed chiefly for heavy freight, that its grade is descending all of the way except for a short distance, and that a grade necessary for an overhead crossing of five and a-half feet to the mile if the- ascent is commenced two miles east of the crossing and eleven feet to the mile if commenced but one mile east of the crossiug, would largely reduce the value of the defendant’s road, increase its working expense and add to the cost of moving freight, and of the other facts already found, I am of opinion and so find that the overhead crossing which the plaintiffs by their bill would require, is not reasonably practicable.
    The plaintiffs’ bill prays that the defendant may be restrained from crossing their railroad at grade as proposed. It is not suggested that there is any other point where a grade crossing would not be objected to. On the hearing, evidence was given for the purpose of showing that if the crossing were located some six hundred feet from, the south end of the bridge, it would not be as objectionable as is its present proposed location. The reason given for this conclusion is that there would • be less liability to danger of collision if there were a space of six hundred feet south of the bridge to the crossing, than if there were-but one'hundred and seven,'because trains would be in sight of each other longer. On the other hand it is testified and is the-fact that a crossing at grade six-hundred feet from the bridge-could not be had without encroaching on the plaintiffs’ right of way for some seven hundred feet, and bringing within the line of the defendant’s road an objectionable double curve. The road of the plaintiffs for perhaps five hundred feet of the distance is-against the foot of the hill ; the road of the defendant alongside would have to be made by excavating into the hill, and. would cross the plaintiffs road at an eight degree curve, occupying in crossing one hundred and fifty feet of the plaintiffs’ track, as now proposed the crossing will .occupy twenty-two feet of the plaintiffs’ track. The skew of the present crossing is twenty-five degrees, that .of the crossing at six hundred feet is at a more acute angle, but the degree is not showh by either side.
    The connection with the plaintiffs’ road by a crossing at the point now mentioned for the first time six hundred feet from the bridge might be made at a cost of a sum between eight and ten-thousand dollars, but upon the whole evidence, applied with the aid of a view, I am not satisfied that it has advantages that will compensate for the expense in making the change.
    The topography of the country on the so ith side of the river is such that these two railroads must come very close together at about the point where the preparations are already made for the crossing, and whether the crossing is at the one place or the other, the running must be regulated by signals and not by sight. Removing the crossing five hundred feet further from, the bridge: would not materially lesson the danger.
    - In the conclusion at which I have arrived in respect to the practibility of an overhead crossing at this point, I have not been . unmindful that the intendment of the act of 10th June, 1871, is to discourage crossings at grade, that such crossings are considered dangerous,.and.that the Supreme Court has declared that they should be discouraged in all'cases where it is reasonably pra cticable to avoid them.
    The act does not forbid crossings at grade where it is possible to avoid them. If it were to be so constructed it would be a-great obstacle in the way of constructing railroads. There is scarcely anything in the way of railroad construction at the present day, which cannot be done by the expenditure of money ■enough to do the work.
    What is reasonable to require depends, among other things, upon the place where the structure is to be, the character of the railroad and the uses to be made of it, the effect of an exceptional high grade for one or two miles necessitated by an overhead crossing, the additional expense, if very great, which will he entailed by such crossing, and the interest of the public and those of the company whose -road is crossed, are all to be considered in determining what is reasonably practicable to require;
    What is reasonable is that which ordinary persons acquainted with the business, would have anticipated as likely to be required, namely, that which has usually been done under similar circumstances.
    My position in this case is somewhat anomalous, being examiner, master and the Court that is to pass upon the report of the master! I have been in "doubt whether, after finding the facts, I •ought to say more until an opportunity was afforded to file exceptions, but have finally concluded, as the whole question was argued before me, to express my views upon the subject of what is claimed to have been a contract between the two companies.
    I am of opinion that the conversations between the Presidents <of the two companies did not amount to a contract which could be enforced by a suit at law or in equity. Nor do I think that a contract was consummated by the arrangement made between Mr. Lorenz, the chief engineer of the Philadelphia and Reading Railroad Company, and Mr. Waller, the President of the North and West Branch Railroad Company.
    The authority of the receivers of the Philadelphia and Reading Railroad Company, under the .order of Court appointing them, was not given in evidence, and I have no knowledge of its. extent. If they were empowered to enter into any agreement. Avith the defendant in regard to this crossing, or if a general decree of the Court gave them such authority, it ought to have been shown. In the absence of such decree or order they Avere not authorized to enter into the agreement. But as the President of the road assented to the connection with tlie defendant’s road at the point in question, and knew that the defendant was constructing its road to connect with and cross the road of the plaintiff, and as the superintendent saw the work going on, and a large amount of money was being expended Avith the view to such connection and crossing, and the receivers in possession of the plaintiffs road knew the same facts, and under the advice of' the attorney of the company assented, and, as far as they could, agreed to the crossing, and the chief engineer of the plaintiffs road, with full knowledge of the understanding between the Presidents of the Iavo roads before the appointment of receivers, prepared the drafts for the plates to be used at the proposed crossing, and as the grading has been done and the plates procured, and all this Avithout a Avord of objection from any officer, stockholder or employee of the plaintiff’ companies, they cannot now invoke the aid of a Court of Equity to restrain the doing of that which by Avords and acts they have for years encouraged and assented to.
    If their recent change of. views on the part of the plaintiff shall be the cause of a change of grade as now insisted upon, the consequence to the North and West Branch Railway, Company will be, 1st, The loss of the grading already done with their apparent sanction, consisting of one and probably two miles of very heavy and expensive rock cutting to form the track before this bill A\las filed. *
    Second. The loss to a great extent of the natural advantage of the low grade of their road. •
    Third. The expenditure of an unreasonably large sum of .money, belieA'ud to be not less than one hundred and fifty thousand dollars, in making a neAV track, in the construction of a bridge, trestles, embankments and in a rip rap wall, and increased damages for right of way. • ;
    
      Under the second point, in regard to loss, it is worthy of mention that the fall on the river is about two and a-half feet to the mile, and that from this grade the road only varies for a short •distance for convenience and cheapness.
    To maintain their low grade for the returning trains up the river is equally as important as for the descending trains. Another important matter to be remembered is that the steepest ascending grade on the road is the limit of its capacity throughout. It follows that for ascending traffic, if the proposed change of grade 'is made for the purpose of carrying freight or returning cars, the grade of this road will be twenty-six feet to the mile, thus reducing the capacity or hauling power of every engine that goes up the road for all time to come.
    The defendant’s road is a very important one, leading as it does from the centre of the great anthracite coal fields of the Wyoming Yalley to all southern markets. Its value consists mainly in its ability to transport heavy trains of coal. I doubt if the capitalists who are building and completing this road had been informed that this exceptional grade, and at this large expense to create that grade was to be borne by them, if they would have invested their money in the enterprize at all.
    The connection which from the first was contemplated between ■the two roads will, without doubt, be of great importance to both roads. If the overhead crossing is adopted it cannot be •conveniently made nor without considerable expense.
    In regard to the safety of running by signals I refer • to the testimony of Mr. Lorenz, p. 50, W. H. Brown, p. 86, to James Moore, p. 145, Jno. A. Wilson, p. 71, F. L. Shepherd, p. 136,1. A. Sterns, p. 143.
    The public interests and the public safety are of the first importance and must not be sacrificed on "account of the parsimony of railroad corporations in the improper construction and management of their roads. But when best managed all railroads may be said to be dangerous, every high embankment is danger■ous, bridges are dangerous, the deep waters of the rivers on ■whose banks so many railroads are constructed are dangerous, a •speed of twenty miles an hour is dangerous, any higher rate of ¿peed is still more dangerous, and yet, when we consider the number of persons injured'by railroad accidents in comparison with-accidents happening b'y other modes of travel, we will find that travel by rail is safer than by any other mode.
    Accidents rarely happen on account of any fault in the road, they almost, always arise from neglect or blunder of some employee. We are obliged to trust our lives and limbs in the hands of engineers, brakemen, watchmen, telegraph operators and despatchers. If they do their duty we are as a rule, safe. If they fail to do it, no amount of money spent in overhead crossings or other structures or safe guards, will save us from accidents. The surest way to prevent accidents is by holding the railroad companies strictly to duty, and not by requiring of them that, which is unreasonable or impracticable.
    In view of the fact that the plaintiff seeks to restrain the defendant from doing that which it had good reason to believe was with the assent of the plaintiff, the costs might properly be all imposed upon it. But inasmuch as the public, as well as the railroads, are interested in the question at issue between these parties, the defendant ought to have earlier, by legal and binding contract or by the decree of the Court, or both, to have the terms of crossing definitely and legally fixed. When the answer was filed it contained a prayer that the Court would, by its decree, define the rights of the defendant in the premises and the terms and conditions upon which it may cross with its railroad, the railroad of the defendant at grade. After all of the evidence -except thirteen pages of the one hundred and fifty-four pages had been taken and after the defendant had closed its evidjpce, the prayer above mentioned was withdrawn, or rather the prayer was so amended as to pray that the plaintiffs’ bill be dismissed with costs.
    Having possession of the case, I deem it to be proper to dispose of the question of crossing at grade in this proceeding, because although the act under which the defendant was originally organized, authorized it to cross by its railroad other roads at grade, that act is however to be construed in connection with the Act of 19th .of June, 1871, by which it is made the duty of the Court, when there are any legal proceedings upon' the subject, to define by their decree the mode of crossing and the terms to which such crossing shall be subject. The latter act is a police regulation which I am of opinion should be declarad in this case for the conduct and guidance of both these companies.
    I therefore report for adoption by the Court the form of a decree as follows:
    First. That the injunction prayed for be refused.
    Second. That the defendant company shall have the right to construct and operate its railroad across the roadway and tracks of the'plaintiff companies at grade, and over its adjoining land on the location proposed by the former company, and also to connect with the plaintiff' companies’ road at, or near said grade crossing, but subject to the payment when hereafter legally ascertained "of such damages as the plaintiff company may thereby sustain.
    Third. That such crossing must be constructed by the defendant company at its own cost, under the supervision of the chief engineer of the plaintiff company or an agent duly authorized by him, within the period of one week after demand made by defendant company.
    Fourth. The said crossing and connection shall, if such connection shall be made, be kept in good condition, and the expense of repairing and renewing the same, or any part thereof shall be borne by the defendant company. The chief engineer of the Philadelphia and Reading Railroad Company, or his duly' authorized agent shall have the ..right to say when, and in what manner or to what extent repairs or renewals shall be made, and may at his option have the said repairs or renewals done at the expense of the defendant company, and in such case- thh last mentioned company shall pay the expense thus incurred to the party or company then in possession of the Catawissa Railroad.
    Fifth. The defendant company shall erect and maintain a signal tower, at or near the said crossing, provided with suitable signal apparatus, and shall keep a competent and careful watchman or more if necessary, there at all times, whose duty it shall be to guard the said crossing and connection by proper signals.
    The place at and the manner in which the said signal tower and. appararus shall be erected and • maintained, shall be determined by tlie chief engineer, of the Philadelphia and Reading Railroad Company, or his duly authorized agent. The first cost and expense of erecting and equipping .the said watch tower, and all subsequent expenses of maintaining the tower and its equipment in good condition, shall be borne by the defendant company. The wages of the ■watchman at the signal tower shall be paid by the defendant company, and the said company shall be responsible for his acts or omission’s. '
    Sixth. If the site of said signal tower shall occupy any of the roadway of the plaintiff companies, the damages for such occupation shall be assessed according to law, unless agreed upon by the parties, and shall be paid by the defendant company.
    Seventh. In the use or working of the Catawissa Railroad and the railroad of the defendant company, at and near the points of crossing or connection, trains, engines, or cars of the defendant company, shall come to a full stop at a distance of at least two hundred feet from the point of connection or the point of crossing, as the case may be, and shall not proceed until the proper signal shall have been given by the watchman in charge ; and in moving from the point of stoppage the speed of such trains, engines, or cars shall not exceed four miles per hour until the crossing or connection shall have been passed.
    Eighth. In case the plaintiff companies, or either of them or their successors, while in charge of the Catawissa Railroad shall at any time determine to add another rail or other rails to the said railroad, the said crossing or connection . shall not prevent their doing so, and albadditional expense incurred in consequence of the existence of said crossing or connection, or either, shall be paid by the defendant company to the company at the time in possession of said Catawissa Railroad.
    Ninth. That either party may, upon ten days written notice to be served upon any of the officers of the other company, apply to the Court if in session, or to the President Judge at chambers, for such addition to or modification of these regulations as experience or observation may show, the safety of persons or property seem to require.
    Tenth. That the bill of the plaintiff be dismissed and that one-half the costs be paid by the Philadelphia and' Reading Railroad Company and onc-lialf by the North and "West Branch Railway Company.
    SUPPLEMENTARY REPORT.
    It having been agreed by the counsel that I might employ such competent engineer as I might select to report to me the practicability of a grade crossing at the point in question, I requested James Maefarlane, Esq., of Towanda, Bradford County, a gentleman of large experience in railroad matters, and especially so in regard to the hauling power of engines on different grades, to attend here to view the roads in question and to advise with me upon the subject in controversy between the parties.
    His views in regard to the. practicability of an overhead crossing at the point in question accorded fully with my own as expressed in the opinion herewith filed. On the hearing the evidence did not in detail show the effect of the proposed change of grade in respect to the hauling power of engines upon different grades.
    Mr. Maefarlane reports that the difference in the power of freight engines in drawing cars up a grade of fifteen feet to the mile, and a twenty-six feet grade is from 5-6 per cent, to 7 per cent., the average of twelve locomotives from Baldwin’s locomotive works, calculated from the tables of the establishment, showing the tractive power of the engines of their manufactory to be 6 15-100 per cent. He says, the tractive power of an engine on an up grade of fifteen feet per mile is one-half or 50 per cent, of its power on a level track, and on a twenty-six feet grade it is 44 per cent.
    In carrying coal the dead weight is more than 33|- per cent., the four wheel cars weighing over three gross tons and the coal carried being less than six tons, about forty per cent, would be a good average; with larger cars the proportions are about the same. On a road with descending grades of fifteen feet per mile, an engine loaded down to its full capacity could easily take back the empty cars and have 10 per cent, to spare, by fifteen feet up grade is equal to 50 per cent, of what the same engine could do on a level.
    
      As the result of observation in respect to drawing empty cars up grade he gives the following, viz:
    On 15 feet* to the mile, 175 empty cars of 3J tons each — 6121-tons.
    On 26 feet to the mile, 135 empty cars of 3$ tons each — 472 tons.
    By calculation this reduces 50 per cent, to 38J, thus 612 — 5 : 472 — 5, 50:88$.
    Trautwine, a very good authority, gives the capacity on different grades, thus: Level, 1,458 tons, 12 feet grade, 875 tons; 14 feet grade, 819 tons, and 26 feet grade, 587 tons.
    Mr. Macfarlane adds, there is- no doubt that 26 feet grade would be a very great injury to-the ■ North and West Branch Railroad.
    I append these statistics for the purpose of showing the effect upon the new road in respect to ascending traffic and the returning of empty cars, coming as they do from a reliable source, they are not only interesting but are proper to be considered in all cases in which questions in respect to grades may have an important bearing.
    The evidence, arguments of counsel, the report of the Court as master, including therein the opinion of the Court, having been printed at the request of and for the use of the parties, the expense thereof should be paid as costs, to wit: one hundred and ninety pages at one dollar per page, one hundred and ninety dollars. Mr. Macfarlane spent three days and traveled by rail two hundred and fifty miles, bearing his own expenses. I fix the sum to be paid to him at one hundred dollars, to be taxed as costs in the case.
    And now, May 30,1882, this case came on to be heard and was argued by counsel, whereupon and upon due consideration thereof it is ordered, adjudged and decreed as recommended by the report of the master, and that the form of a decree now Reported be entered as the decree of the Court.
    The Catawissa R. R. Co. then appealed and assigned for error in deciding that an overhead crossing, at the point in question is now impracticable. 2nd. In refusing' the injunction. 3rd. In making the decree.
    
      S. P. Wolverton, Esq., for appellant
    argued, that the proposed crossing was a very dangerous one. The fact that some expense may be required in order to avoid this grade crossing, is no reason why it should be allowed; Pittsburg and Connelsville Railroad Co. vs. The Southwest Penna. R. R. Co., 77th Penna. 173; Baltimore and Cumberland Valley R. R. Extension Co.’s Appeal, 10th W. N. C. 530.
    
      L. E. Waller, Esq., Contra
    argued, that the Catawissa R. R. Co. is but a nominal plaintiff, the Phila. and Reading R. R. Co., being the real plaintiff. That the crossing as made was agreed to by the Phila. and Reading R. R. Co., and they are estopped fi’om objecting to the crossing.
   The Supreme Court affirmed the decision of the Court below, on March 12th, 1883 in the following opinion: .

Per Curiam.

This decree is affirmed upon the able and satisfactory opinion of the learned judge, who also acted as examiner and master. Decree affirmed and appeal dismissed at the costs of the aprellant.  