The opinion
Kelly, P. J.
(concurring). I think the arguments of the railroad company that compliance with these orders for the elimination of existing grade crossings will result in the bankruptcy of the corporation, are for the Legislature and not for the courts to pass upon. They present serious considerations but the Supreme Court of the United States has so decided in the Erie case, cited by Mr. Justice Lazansky. It was the original scheme of this grade crossing legislation in 1890, following the general plan of the grade crossing legislation in Massachusetts then in force, that in providing for changes in existing grade crossings so as to carry the highways over or under the tracks by bridges or tunnels, that when such alteration was made with the attendant expense to the State, the particular locality and the railroad company, other grade crossings in the neighborhood should be eliminated altogether, and the highway traffic diverted to the new crossing. Such incon *107 venience as might be occasioned by closing these other crossings was compensated by the additional safety guaranteed to the user of the highway by the bridge or tunnel. In this way the prohibitive expenditure to the State, the locality and the railroads of changing all grade crossings to bridges or tunnels was to be avoided. But these are legislative questions to be determined by the Legislature and not by the courts.
In each proceeding: Final order of the Transit Commission unanimously affirmed, without costs.