Vermont Bar Journal
Winter 2008 - #3.
Crossing the Tracks
The Vermont Bar Journal #176, Volume 34, No. 4 WINTER 2008
Crossing the Tracksby Paul S. Gillies, Esq.Driving south on Route 103 from Ludlow toward Chester, just south of the turn for Cavendish on Route 131, there is a grade crossing. It has gates and alarms, and one day last fall I hit it just right, where I was first car waiting in a long line as a freight train closed the highway. Traveling the major state highways, you do not have many reasons other than repaving projects or one-way bridges to stop you in your journeys. Maybe it is a sign of how much railroads are in decline in Vermont that this seems such a novelty.
As the clanging and clacking continued, more than a century and a half of railroad history passed by. As it has been since this line was completed in 1849,(fn1) cars on the highway waited for the train to pass and the gates to rise. This preemption is dictated not only by law but by energy and mass.
Highways were here before the railroad, but when the land was cut and rails laid over it, the route decided by the railroad, highways had to accommodate the location of the tracks. The needs of landowners and towns came second.
Vermont's zeal during the 1840s in granting railroad charters and arming the companies with the power of eminent domain constituted the first major statewide economic development project in Vermont's history. The railroad connected Vermont to the rest of the world.(fn2) Produce came and left by rail. So did people. Vermont was suddenly not so rural.
The ground shook. The quiet valleys echoed with new sounds. Railroad engines without spark arrestors "sprayed burning brands over the countryside, setting grass and forest fires and burning down the wood bridges through which the trains passed," as Senator Ralph Flanders wrote in his autobiography.(fn3) The engines, as historian William Storrs Lee described them, "scream[ed] threats to the world at every grade crossing."(fn4)
The history of the railroads, in Vermont as elsewhere, is often ugly. The romance of the whistle turns shrill when you try to assess the carnage caused by the interaction of tons of metal with human or animal flesh. Trains could not stop at every crossing and keep a schedule.
Bodies were hit and mangled, wagons were destroyed, rarely at much damage to the train beyond a small jarring. Every accident was a cause of calls for reform.
This is a process that continues to this day. The most dangerous crossings were reconstructed as overpasses or underpasses. There were gates and cattle guards, flagmen in settled areas, whistles and bells, and eventually electronic signals, to alert the public to the danger of the train.(fn5) Still, accidents happened, lawsuits followed, and there emerged a rich legacy of decisions addressing the question of who was liable when trains collided with people and things.
A Short History of Grade Crossings
The Vermont General Assembly enacted the first railroad charter in 1834, but problems of finance delayed construction of the major north-south routes until the late 1840's. By the end of 1849, tracks had been laid and the first trains were run along the route from Windsor to Burlington on the Vermont Central and from Bellows Falls to Rutland to Burlington on the Rutland, originally chartered as the Champlain & Connecticut River Railroad.(fn6)
Highways were rerouted to run parallel to the tracks to reach the next crossing, and new villages grew up in towns to accommodate the economic vitality generated by a station and freight yard.(fn7) Some farmers lost access to their fields, when the railroad refused to construct a farm crossing.
The first general law regulating railroads arrived in 1849,(fn8) adding a new chapter to the thin volume of Vermont laws. It required all trains to use bells or whistles, ringing or blowing them at least eighty rods from any grade crossing, and continuing until the end of the train had passed by the highway.(fn9) It prohibited towns from laying out new highways across railroads at grade.(fn10)
The railroads balked at regulation, claiming preemption by charter. Vermont's chief judge earned an international reputation as an authority on railroad law, beginning with Thorpe v. Rutland & Bennington R. Co. in 1854. Chief Judge Isaac Redfield held that the railroad was liable for sheep killed at a farm crossing constructed without a cattle guard. The company argued its charter said nothing about having to build fences and cattle guards, but the 1849 law, according to Redfield, preempted the charter.(fn11) He wrote, "This police power of the state extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the state. According to the maxim, Sic utere tuo ut alienum no laedas, which being of universal application, it must of course, be within the range of legislative action to define the mode and manner in which every one may so use his own as to not injure others."(fn12) "[T]he business of railways is especially dangerous," he wrote, explaining why the entire cost of grade separation ought to be the responsibility of the railroad.(fn13)
Until 1855, when the legislature created the office of railroad commissioner, no state official was given responsibility for overseeing the railroads, and even then the job was largely powerless, beyond the duty to write annual reports to the legislature describing acts of neglect or infringement of the railroad laws.(fn14) George Perkins Marsh, the founder of the modern environmental movement, served as the first appointee, and his 1857 report to the legislature showed him a harsh critic, condemning those who managed railroads for their "monstrous venality."(fn15) Perhaps in reaction to his criticisms, the salary of the position was reduced to $500 per year in 1858.(fn16) Marsh resigned the following year.(fn17)
There was a palpable tension between regulation and economic development that worked to the advantage of the railroad companies. Reform was slow in coming. When William Rounds served as railroad commissioner in 1869, he reported that, "The Railroads in Vermont are far from being perfect . . . " But the legislature responded to railroad lobbyists when new lines needed to be built.
Laws authorizing towns to subscribe to railroad bonds, for purposes of encouraging construction of tracks and other improvements, were challenged as unconstitutional in 1877, in Town of Bennington v. Park.(fn18) Railroads, according to their critics, could not raise public money for what they considered a private purpose, but the Vermont Supreme Court turned down the appeal, ruling that such expenditures were proper because railroads were useful to the public.
Judge H. Henry Powers wrote, Men set up systems of government in order to subserve certain public ends, and reach advantages that could not otherwise be made available. The state is clothed with the trust of answering these ends. It is not to be limited to the mere duty of governing the people by the exercise of its police power, but it has a higher duty to promote, the educational interests of the people, encourage their industrial pursuits, develop its material resources, and foster its commercial interests, . . . and the state is not to be tied down to any narrow and merely utilitarian policy in promoting the prosperity of its citizens.(fn19)
If the end to be achieved is a public purpose, broadly defined, the act is constitutional, even if it was not of uniform advantage to all the people of the state.(fn20)
Railroads were very powerful. The question was, who would rule, the state or the railroads? The companies complained that regulation would destroy their viability. The railroads were so necessary, and so powerful there was always a concern that they would rule the state. Governors Charles Paine (18411843), John Gregory Smith (1863-1865), Erastus Fairbanks (1852-1855, 18621863), Edward Curtis Smith (1898-1900), and Percival Clement (1918-1920) were all former or future railroad presidents.(fn21)
The legislature expanded that regulatory function over railroads in 1886, creating a three-person board of railroad commissioners.(fn22) Its powers included the authority to subpoena witnesses and hold hearings, and to turn to the Vermont Supreme Court to compel compliance with its orders.(fn23) When electricity first became available in Vermont, the law mandated the use of electric signals at crossings, if the board required them, and gave three freeholders the right to petition to have them erected in cities and villages.(fn24)
The carnage continued. In his 1906 inaugural address, Governor Fletcher Proctor explained that over the ten years between 1894 and 1904, there were a hundred accidents at grade crossings, with more than fifty people killed and another fifty seriously injured. Promoting the elimination of grade crossings, Proctor argued that the cost should not be borne by the railroads alone. Part of the bill should be apportioned to the town and another to the state. To soften the blow, he suggested changing the existing system that required one reduction annually per county by each railroad system, for a quota based on the mileage of the company.(fn25)
Responding to the governor's...