Appeal from Circuit Court, Multnomah County. Richard J. Burke, Judge. No. 379-289.
James H. Clarke, Portland, argued the cause for appellant. With him on the briefs were Dezendorf, Spears, Lubersky & Campbell, Oglesby H. Young and John Wiley Gould, Portland.
Al J. Laue, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Langtry, Judge. Schwab, Chief Judge, and Thornton, Judge.
Plaintiff's railroad tracks intersect with Harmony Road in Clackamas County near the City of Milwaukie. Approximately 30 feet north of the grade crossing, Railroad Avenue and Linwood Avenue intersect with Harmony Road. The grade crossing is protected by an electric "wig-wag" signal. Switching operations on a siding near the grade crossing cause the "wig-wag" to be activated twice a day for periods of up to 45 minutes when no train is about to use the crossing. Motorists familiar with this pattern ignore the "wig-wag" and proceed across the tracks. Plaintiff operates approximately 28 freight trains daily and occasionally a passenger train over the crossing.
Pursuant to ORS 763.170 seven freeholders filed a complaint with the Public Utility Commissioner, alleging that the grade crossing was dangerous. The complaint was served upon plaintiff and various public bodies. Plaintiff by its answer denied that the crossing
was dangerous, but alleged that it was willing to share in the cost of installing and maintaining flashing lights, gongs and gates at the crossing. Clackamas County in its answer denied the crossing was dangerous, but alleged that gates, flashing lights and gongs should be installed along with an interconnected traffic signal at the road intersection to increase the safety of the crossing.
A hearing was held for all interested parties to produce evidence for the commissioner's consideration. At the hearing the plaintiff objected to evidence and testimony relating to the necessity of installing the traffic signals on the ground that protective devices off the plaintiff's right of way were beyond the scope of the hearing. Witnesses for the plaintiff testified that in their opinion installation of stop signs would be adequate to protect the intersection from any hazards that would result from the installation of the crossing gates.
A second issue at the hearing revolved around an interim solution to the problem of overactivation of the present "wig-wag" warning signal caused by the switching operations. The testimony showed that the protective gates, lights and gongs would take up to nine months to install. A "predictor" unit that would deactivate the "wig-wag" signal during the switching operations could be installed with 60 days' notice.
After the conclusion of the hearing the commissioner issued an order finding that the crossing was dangerous and ordering (1) that gates, flashing lights and gongs be installed by plaintiff, with Clackamas County to pay half the cost; (2) that Clackamas County install a traffic signal at the road intersection with the plaintiff to pay half the cost; (3) that plaintiff install
at its own expense a "predictor" unit within 60 days. Plaintiff initiated proceedings in circuit court challenging the second and third portions of the order and now appeals from ...