People ex rel. Brooklyn Heights R. v. Public Service Commission for First Dist.

every common carrier, railroad corporation and street railroad corporation to be bound thereby.”

Section 50 provides, among other things, as follows:

“If in the judgment of the commission having jurisdiction, additional tracks, switches, terminals or terminal facilities, stations, motive power, or any other property, construction, apparatus, equipment, facilities or device for use by any common carrier, railroad corporation or street railroad corporation or in connection with the transportation of passengers or property ought reasonably to be provided, or any repairs or improvements to or changes in any thereof in use ought reasonably to be made, or any additions or changes in construction should reasonably be made thereto in order to promote the security or convenience of the public or employes, or in order to secure adequate service or facilities for the transportation of passengers or property, the commission shall, after a hearing either on its own motion or after complaint, make and serve an order directing such repairs, improvements, changes or additions to be made within a reasonable time and in the manner to be specified therein.”

On the 7th day of July, 1911, the commission on its own motion determined to institute a proceeding which it designated “Case No. 1369 Car Brakes,” and entitled “In the matter of the hearing on the motion of the commission on the question of changes and improvements in or additions to the equipment of all street railroad corporations, and the receivers of street railroad corporations, owning operating, managing or controlling any street surface railroad in the city of New York, or any cars used thereon or in connection therewith, in respect of brakes on surface cars operated in the city of New York,” and by resolution duly adopted formally resolved to hold a public hearing on the 20th day of the same month to determine whether the corporations and receivers described in the title of the proceedings should be ordered to equip all double-truck surface cars operated by them in the city of New York with “power brakes of a type to be approved by the Commission,” and whether any other changes, improvements in, or additions to the equipment then in use “should be ordered as necessary to the effective and safe use and operation of brakes on said cars,” and providing for five days’ notice of the hearing to the different corporations and their representatives. Notice of the hearing was duly given, and the relators appeared by counsel. Hearings were duly had before one of the commissioners on the 20th day of July, the 14th day of August, and the 18th and 20th days of September, 1911, and at said hearings evidence was offered and received in behalf of the commission and in behalf of the relators, and no evidence offered by the relators was excluded.

On the 10th day of October thereafter the commission adopted a resolution directing, among other things, that after June 1, 1912, “all passenger double-truck surface cars in service weighing over twenty-seven thousand pounds shall be equipped with power brakes and geared hand brakes”; that after June 1, 1913, “all passenger double-truck surface cars in service weighing over twenty-five thousand one hundred pounds shall be equipped with power brakes and geared hand brakes”; that after June 1, 1912, “all other passenger double-truck surface cars in service weighing twenty-five thousand one hundred pounds, or less, shall be equipped with geared hand brakes,” and the

[1, 2] The Public Service Commissions Law has been sustained as constitutional. Gubner v. McClellan, 130 App. Div. 716 , 115 N. Y. Supp. 755 . By the statute quoted the Legislature clearly conferred authority upon the public service commission to make the order requiring a change with respect to the brake equipment of the cars. The legislative authority of the commission to make the order is not questioned. The commission was authorized to institute the inquiry on its own initiative, and the hearing and determination are deemed judicial or quasi judicial proceedings, and are subject to review by the writ of certiorari pursuant to the provisions of the Code of Civil Procedure. People ex rel. Joline v. Willcox, 129 App. Div. 267 , 113 N. Y. Supp. 861 , affirmed 194 N. Y. 383 , 87 N. E. 517 . See, also, People ex rel. N. Y. C. Co. v. Public Service Comm., 195 N. Y. 157 , 88 N. E. 261 .

[3] The questions relating to the merits which are to be determined by the court upon the hearing are prescribed in the five subdivisions of section 2140 of the Code of Civil Procedure. As has been stated, the jurisdiction of the commission is not challenged, and it is not claimed that the authority conferred has not been exercised in the manner required by law, or that any rule of law has been violated to the prejudice of the relators. No question, therefore, arising under any of the first three subdivisions of said section is presented for review, and the only points upon which we are asked and authorized

It appears that all of the cars to which the order as modified applies were equipped with brakes known as plain staff brakes. The first provision of the order relates to passenger double-truck surface cars weighing over 27,000 pounds, and as modified requires that they be equipped with power brakes and geared hand brakes from February 24, 1913. The relators owned at the time of the hearing 564 cars which would be subject to this provision of the order. The relators also owned at the time of the hearing 637 cars weighing between 25,100 and 27,000 pounds which by the terms of the order as modified are required to be equipped with power brakes and geared hand brakes from February 24, 1914. The number of cars owned by the relators at the time of the hearing which weighed 25,100 pounds or less, and which are required to be equipped with geared hand brakes from February 24, 1913, was 624. It also appeared that at the time of the hearing the heavier cars on relators’ lines were equipped with both power and hand brakes. The relators do not, I think, seriously complain of the order in so far as it affects future purchases of cars, for one of their witnesses testified that all new cars purchased by the New York Railways Company ’are equipped with power brakes, and the evidence shows that all cars thus equipped also have hand brakes, and there ‘is no evidence that the new cars purchased by the relator are not equipped with both kinds of brakes. Their complaint is that, in so far as it requires that changes be made in the equipment o.f cars on hand, it is unnecessary, and that, inasmuch as it will involve an expenditure of more than half a million of dollars, it is unreasonable. It appears that all the other street railway companies in the city of New York are affected in the same manner, although not to the same extent, as the relators, and that they have acquiesced in and accepted the order.- The relators own slightly over one-third of the cars in operation in the city.

It appears that in the year 1908 99 per cent, of the cars owned by 84 street railway companies which constituted the International Street Railway Congress, a continental organization, were equipped with power brakes. It was also shown that in eight large cities of the United States all street cars were equipped with air brakes, and that in six

The transportation engineer of the commission, who had occupied the position about two years, testified that he believed that since his connection with the commission no cars had been added to the service in the city of New York which were not equipped with air brakes; that in his opinion all double-truck cars should be equipped with air brakes, and that in any event all cars weighing more than 25,000 pounds should be so equipped, and he assigned as reasons therefor that the power brake may be applied more quickly and with less exertion on the part of the motorman, and that power brakes are more efficient in preventing accidents with cars weighing more than 25,000 pounds than hand brakes. An electrical engineer who had been in the employ of the commission for a period of 4% years, and had made a special study with respect to street surface car brakes, and was entirely familiar with them, testified that in his opinion air brakes are more efficient than hand brakes for use on all the double-truck cars of the Brooklyn Rapid Transit System. His testimony shows that his opinion is predicated upon the fact that the air brake has only to be set in motion by the motorman, and that its operation is uniform and certain; whereas the efficiency of the hand brake depends, not

On the first hearing counsel for the different lines operating in Greater New York were asked by the commissioner for an expression of opinion with reference to the relative efficiency of hand and power brakes, and it appears to have been generally conceded at that time that air brakes were preferable for the heavier cars. On the part of the relators testimony was given by the superintendent -of rolling stock in the shops of the Metropolitan Street Railway Company to the effect that he considered it “questionable” whether or not cars weighing from 25,000 to 27,000 pounds required air brakes; but he admitted that the so-called pay-as-you-enter cars, which weighed 30,530 pounds, should be equipped with air brakes. This view with respect to the pay-as-you-enter cars was sustained by the testimony of the superintendent of transportation of the same company; but.he expressed the . opinion that experiments and tests had demonstrated that for the lighter cars the hand brakes were more efficient.

, The commissioner in his opinion rendered at the time of the issuing of the original order states that on the hearings the statements and arguments of counsel and witnesses were directed to the question as to what was the weight of cars which formed the dividing line between cars that could be safely and efficiently operated by hand brakes, and those which were so heavy that they should be equipped with power brakes. Records of accidents in the operation of the different classes of cars according to their brake equipment were received in evidence, and testimony was given on the part of the relators tending to show that motormen operated cars more safely -with hand brakes than with air brakes, and the reason assigned for this was that motormen “are inclined to take more chances” with the “power brake than with the hand brake.” On that evidence it is argued in behalf of the commission that the motormen recognize the greater efficiency of the air brake in thus taking greater chances of accidents with them; and that, if the motormen were 'properly trained, they would exercise better judgment in using air brakes which would then be more efficient than hand brakes.

An expert called in behalf of the relators admitted that the “air brake has a tremendous advantage over the hand brake in the speed with which it is applied.” After the first hearing, this expert directed and supervised a series of tests made with cars operated by three different motormen to determine the relative efficiency of the staff and chain brake, the geared hand brake and the air brake, and he testified that the tabulated results of these tests showed that a particular type of geared hand brake was the most efficient and the “best brake we have” for stopping cars at all speeds and all loads. The tests, however, conducted with the brake which in the opinion of the expert was the best, showed results differing as much as one-tenth in the distance required to make stops by the different motormeij operating the same cars at -the same speed and under like circumstances.

Counsel for the commission contends that these tests do not furnish

[4] This statement of the evidence is sufficient to show that it does not preponderate against the determination made by the public service commission in ordering the change of equipment. In the interests of the convenience and safety of the public the Legislature vested the commission with broad discretionary powers, and it would require clear and convincing evidence that their determination on the facts was erroneous to warrant the court in .annulling the order.

It follows that the proceedings of the public service commission in each case should be affirmed, and the writ dismissed, with $50 costs and disbursements. All concur. •