adequate and proper regulations, practices, equipment, appliances and service thereafter to be in force, to be observed and to be used in such transportation, etc. The corporation counsel being compelled to go a step further after the evidence had shown that the present aerial lines of the railroad were not unsafe, claimed that the company should be compelled to put them underground for the reason that while they were safe as aerial lines they would be safer if placed underground. He also calls attention to the fact that a decision in this case would be a precedent of great importance, and that while our decision in this case will only affect the New York Central and Hudson River Railroad Company, he intimated that we may be deciding embryo cases as yet unnamed where the conditions are exactly similar. And in another point he calls attention to the fact that should this Commission decide that the aerial lines of the New York Central and Hudson River Railroad should go underground along their right of way, the city will notify the New York, New Haven and Hartford Railroad Company that their permit can not be granted for overhead lines and that they must retire the few hundred feet of construction that they now have in the city of New York; and also that the city would then go to the Long Island Railroad Company and demand of it that its lines, so far as is deemed necessary for public safety, be placed underground within a reasonable time. I think the counsel to the complainant, when he states that his complaint is to enforce the law which requires all of the lines in cities to be placed underground, confuses the right of way of the railroad with a public street. The act that he calls our attention to relates to the burial of wires on streets, avenues and other highways, and does not pretend to apply to the private right of way of a railroad corporation. And even that act gives to the Commissioner discretion as to the suburbs of a city or along streets, avenues or other highways in sparsely inhabited or unoccupied portions of any such city. Where the public interests do not require the electrical conductors to be placed underground, and wherever in any other locality of said city it is deemed by said Board to be for any cause impractical to construct or successfully operate underground or electrical conductors required by any company, then and in either of those cases it shall be the duty of said Board of Commissioners to examine and grant the application for permission to deviate from an underground system. It appears from this that the lawmakers had in mind the very circumstances that surround these outlying suburban districts, such as are traversed by the three great railroads leading into New York, the New York Central and Hudson River Railroad Company, the New York, New Haven and Hartford Railroad Company and the Long Island Railroad Company. In regard to the New York, New Haven and Hartford Railroad Company, its system is entirely different from that of the New York Central and Hudson River Railroad Company. It uses what is known as the trolley system, taking its electricity from overhead, and it has this system installed now from Woodlawn to Stamford, and is waiting for permits to construct the same system over its New Rochelle and Harlem branch. Should it be compelled to bury its wires it could not use the present system, and all that it has now expended in developing the same would be absolutely lost. The cases cited by the counsel for the complainant relating to proceedings that referred to companies using those streets and avenues of the city are not in any way analogous to the present case. To my mind it would be exceedingly unjust and unfair for this Commission to require the railroad company to place its wires underground so far as the city line, unless it were also to be compelled to place them underground to the terminus of its lines, for there is certainly no more danger to the traveling public (and that is the only danger that the complainant seemed to fear) in the aerial lines south of the city line than there would be north of the city line. The great danger that the counsel for the complainant argued for upon the trial was the danger of derailment. He laid great stress on the fact that if a train of cars should be derailed. and if the cars should hit one of those poles, and if the pole should be knocked down, and if the high tension wire should strike the car, there might be a dreadful fatality. These poles are most of them, excepting at stations, located 14 feet from the center of the nearest track, and from the evidence produced it seemed most unlikely in case of a derailment that the cars would ever reach the poles; and the testimony of some of the experts best qualified to testify as to what the result would be in case a car did hit one of those poles was that the pole would be broken loose at the base and the high tension wire was of sufficient strength to hold the pole in suspension, with no probability that the wire would ever touch the car. Another danger that the counsel for the complainant was exercised about was the danger of interference from outsiders with the overhead high tension wire, such as vicious persons might be inclined to exercise during periods of strike, &c. If vicious or malicious persons were inclined to injure the defendant in this case by interfering with their service, they could do more damage by interfering with the underground conduit than they could if they interfered with the aerial line. The evidence showed that interference with the aerial line would be very easily located and speedily remedied, while an interference with the conduit line would be exceedingly serious and dangerous; as a dynamite bomb placed in one of the manholes would readily place the whole system out of commission for considerable time, while the cutting or breaking of some of the aerial lines would leave the others in commission and even if they were all broken they could be very readily repaired. Section 49 gives the Commission power to order improvements in equipments where the property and equipment are proved to be unsafe. I am of the opinion that the complainant has failed to prove in all the evidence submitted that the aerial system for the lines in question is unsafe. No evidence of any injury to persons or property due to these aerial lines was presented. There is no doubt that in many sections it might be exceedingly dangerous to have this high tension carried through the air even on such well constructed poles as those used by the defendant in this case, but what would be best in a thickly congested part might not be considered necessary in the sparsely settled portion, especially where the aerial lines run, over a private right of way, excepting at a few street crossings, entirely inclosed with a high iron picket fence, principally to protect the third rail. It also gives protection from the high tension wires as well to the public outside of those that are in the cars themselves. There is no such thing as absolute safety in railroad operation, unless possibly if the roads were to run their cars at a rate a horse would be driven, five or six miles an hour. If the overhead lines are safe, as admitted by all, it would seem to be a great injustice for this Commission to compel the railroad company over its right of way to destroy its present lines, the construction of which has been so highly complimented by all of the witnesses, and construct an underground conduit system, estimated to cost from one and a half to two millions of dollars, especially when there is a doubt whether that form of construction is any safer than the overhead line. I think that the best evidence of what will be is usually what has been, and the experience of this railroad since the inception of its electrical operation has been that its troubles have all been with the underground conduit system. In coming to this decision it should be well understood that the Commission does not take a stand for aerial high tension lines in preference to underground, but is simply passing on the evidence submitted in this case, which has failed to prove that these aerial lines are unsafe. I would therefore recommend that the complaint against the railroad company asking for an order requiring it to place its high tension aerial lines underground along its right of way within the city limits be denied. This brings us to the consideration of the high tension lines crossing the various highways over which the complainant has stated that it has jurisdiction itself. Now, the evidence submitted on the trial in this case is all similar to that of the chief engineer of the complainant, Mr. Lacombe, in which he said "I think it would be weakening to the electrical strength of the line to place it underground across the streets and have it overhead on the right of way; that would be a botch job." He further says it would not in his opinion be safe construction looking at it from service and operating side and from the public side, and that if the line had to be put along the right of way and they had to have some overhead and some underground he would rather have it overhead all along than have overhead there and underground somewhere else, and then says, "if I could not have it our way, rather than have it part one way and part another, I would be in favor of leaving it overhead." All of the other experts voiced the same sentiment as to changing the line from aerial to underground simply under the highways over which it crossed. I therefore recommend that no order be issued regarding the aerial lines over the highways. The special objections made to the aerial line by the complainant's experts in part have been remedied. One of the objections made by several of the witnesses was the fact that at certain highway crossings other lines, such as telephone and telegraph wires, crossed over the bigh tension lines. These, I understand, have all been, or will be, corrected by the company by the erection of higher poles so that the high tension lines will be the overhead lines; although at Spuyten Duyvil the railroad company has already had the telegraph and telephone lines placed beneath the high tension lines. Another objection was raised to giving what was called suspension support to the high tension lines where they crossed highway crossings. I am of the same opinion as the expert, Gibbs, who said that he believed that if the high tension lines were made of sufficient strength it was not necessary to duplicate them by placing another wire upon the same poles to support them. In fact, it was more likely to weaken than it was to strengthen the structure. And I believe with the constant watching and attention that the defendant is giving to those aerial lines, that the present overhead aerial line crossing various streets in the city of New York is adequate and safe. Objection was also made to the use of several wooden poles at or near Spuyten Duyvil. The evidence shows that these poles are for temporary use, and are to be replaced with steel poles as soon as the line of the road at this point has been changed. Objection was made by the engineers of the complainant and Mr. Gibbs to a section of the high tension line on the Harlem division north of Woodlawn Road Bridge where the line comes on about a level with the back yards of a few houses, and it was suggested that this section be removed to the other side of the right of way. I have personally gone over this section and find that for most of the distance from Woodlawn Road Bridge to the cross-over bridge at pole 54, north of Williamsbridge, the westerly side of the right of way is the best side for the high tension line, as for quite a distance it is protected from the street by a high retaining wall. On the east side of the right of way there are now the telegraph and telephone wires in great numbers. These would necessarily have to be removed before the high tension wires could be constructed along that side. The present situation would be better remedied, in my judgment, by causing the present poles from No. 30 to No. 36 to be lengthened at least fifteen feet, and that the iron picket fence along this stretch be erected where not now done. I would therefore recommend that an order issue directing the defendant to lengthen poles 31, 32, 33, 34 and 35 on its Harlem branch at least fifteen feet, and that the westerly side of the right of way between Woodlawn Road Bridge and Williamsbridge be protected by an fron picket fence similar to the fence now erected south of Woodlawn Road Bridge. This matter coming on upon a petition of John H. O'Brien, Commissioner of Water Supply, Gas and Electricity of the city of New York, verified January 23, 1908, and the answer of the New York Central and Hudson River Railroad Company thereto, verified February 13, 1908, and an order for hearing having been made on said complaint and answer, being Order No. 299, of this Commission, on the 3d day of March, 1908, and returnable on the 18th day of March at 2:30 P. M., and said order having been duly served upon the New York Central and Hudson River Railroad Company, and said hearing having been duly held on the 18th day of March, 1908, at 2:30 o'clock P. M., and by adjournment duly had on March 27, 1908, and by adjournment duly had on March 30, 1908, and by adjournment duly had on March 31, 1908, and by adjournment duly had on April 1, 1908, and by adjournment duly had on April 3, 1908, and, by adjournment, duly had on April 9, 1908, and, by adjournment, duly had on April 16, 1908, and, by adjournment, duly had on April 22, 1908, and, by adjournment, duly had on April 30, 1908, and, by adjournment, duly had on May 8, 1908, and, by adjournment, duly had on May 22, 1908, and, by adjournment, duly had on June 4, 1908, and, by adjournment, duly had on June 15, 1908, before Hon. John E. Eustis, Commissioner, presiding, William P. Burr, Esq., Assistant Corporation Counsel, appearing for the complainant, and Alexander S. Lyman, Esq., General Attorney, appearing for the New York Central and Hudson River Railroad Company; and the Commission being of the opinion after said hearing that the New York Central and Hudson River Railroad Company ought to make the changes in its overhead high tension transmission system hereinafter provided, in order to promote the safety and the convenience of the public, and in order to secure safe, adequate, and proper service and facilities for the transportation of passengers; It is ordered, That the New York Central and Hudson River Railroad Company lengthen to the extent of at least fifteen feet, poles Nos. 31, 32, 33, 34 and 35 of its overhead high tension transmission system on its Harlem branch; And it is further ordered, That the said company protect the westerly side of its right of way between Woodlawn Road Bridge and Williamsbridge with an iron picket fence, similar to the fence now erected south of Woodlawn Road Bridge; And it is further ordered. That except as hereinbefore provided, said complaint of John H. O'Brien, Commissioner of Water Supply, Gas, and Electricity of the city of New York against the New York Central and Hudson River Railroad Company, be, and it hereby is, dismissed, without prejudice to the right of the Commission to make such order or orders for hearing as it may deem necessary upon any of the matters contained in said complaint: And it is further ordered, That this order shall take effect on the 28th day of August, 1908, and remain in force until modified by further order of this Čommission. And it is further ordered, That said New York Central and Hudson River Railroad Company notify this Commission in writing within five days after the service upon it of this order, whether the terms of this order are accepted and will be obeyed. New York, New Haven and Hartford Railroad Company, Harlem River and Portchester Railroad Company.-Application for permission to operate the Harlem River and Portchester Railroad by the high potential, alternating electric current system. In the Matter Application of the NEW YORK, NEW HAVEN & HARTFORD RAILROAD COMPANY and the HARLEM RIVER & PORTCHESTER RAILROAD for permission and approval to exercise the right to operate the Harlem River and Portchester Railroad by the high potential, alternating electric current system, under section 53 of the Public Service Commissions Law. CASE No. 1.001, Whereas, the Public Service Commission for the First District has received the petition of the New York, New Haven & Hartford Railroad Company and of the Harlem River and Portchester Railroad, dated and acknowledged November 19, 1908, praying the permission and approval of said Commission to exercise the right to operate the Harlem River & Portchester Railroad by high potential, alternating electric current system, under section 53 of the Public Service Commissions Law; and Whereas, it appears from said petition that the construction to be made incidental to the use of the high potential. alternating electric current system on the Harlem River & Portchester Railroad and the right to operate trains by means of such high potential, alternating electric current system, are to be made and exercised in both districts; Now therefore, it is Resolved, That the application of the New York, New Haven & Hartford Railroad Company and of the Harlem River and Portchester Railroad be heard by and before the Public Service Commission for the First District on the 11th day of December, 1908, at 2:30 o'clock in the afternoon in the hearing room of the Public Service Commission for the First District, and that said New York, New Haven & Hartford Railroad Company and the Harlem River and Portchester Railroad publish a notice of said application and of the time and place of said hearing in the following newspapers: New York Times and the New York Evening Post, published in the city of New York, on at least two separate days before said hearing, and file proof of such publication with the Secretary of the Public Service Commission for the First District on or before the opening of said hearing. Hearing held December 11th. INSPECTION OF RECORDS, POWER PLANTS AND EQUIPMENT OF STREET RAILROAD CORPORATIONS. Street Railroad Corporations.- Inspection of records, power plants and equipment. [The Commission has express power to enter the offices of street railroad companies to inspect their records, and may delegate this power to its officers or employees. It has authority to inspect power plants of such companies. It also has power to require such companies to give its electrical engineer access to their car barns to ascertain whether its order to repair cars is being obeyed. Procedure to enforce this right.] The counsel to the commission rendered the following opinion as to the right of employes of the commission to enter car barns. OPINION OF COUNSEL. Public Service Commission for the First District: July 2, 1908. SIRS- I have received the communication of the Secretary, dated June 25, 1908, transmitting a letter from the Electrical Engineer, in which he states that the watchmen at the car barns of the New York City Railway have refused to permit him to enter the buildings for the purpose of examining street cars directed to be repaired by certain orders of the Commission. My opinion is asked as to what are the rights of the Commission in the premises. Subdivision 3 of section 66 of Article IV of the Public Service Commissions Law provides that the Commission, "shall have access through its members or persons employed and authorized by it to make such examinations and investigations to all parts of the manufacturing plants owned, used or operated for the manufacture or distribution of gas by any such person, corporation or municipality." The sections of the act referring to the powers of the Commission in respect to railroads, street railroads and common carriers confers no such specific power upon the Commission. This may perhaps be explained by the fact that Article IV of the act relating to gas and electrical corporations was substantially a re-enactment of the prior statute relating to that subject (Chap. 737, Laws of 1905). But section 45, subdivision 2, provides that * "Each commission shall have the general supervision of all common carriers, and shall have power to and shall examine the same and keep informed as to their general condition, * and the manner in which their lines, owned, leased, controlled or operated, are managed, conducted and operated, not only with respect to the adequacy, security and accommodation afforded by their service, but also with respect to their compliance with all provisions of law, orders of the commission and charter requirements." Subdivision 3 of that section provides that the Commission, "shall have power to examine all books, contracts, records, documents and papers of any person or corporation subject to its supervision." *See foot note, page 9. |