§136‑20. Elimination or safeguarding of grade crossings and inadequateunderpasses or overpasses.
(a) Whenever any roador street forming a link in or a part of the State highway system, whetherunder construction or heretofore or hereafter constructed, shall cross orintersect any railroad at the same level or grade, or by an underpass oroverpass, and in the opinion of the Secretary of Transportation such crossingis dangerous to the traveling public, or unreasonably interferes with orimpedes traffic on said State highway, the Department of Transportation shallissue notice requiring the person or company operating such railroad to appearbefore the Secretary of Transportation, at his office in Raleigh, upon a daynamed, which shall not be less than 10 days or more than 20 days from the dateof said notice, and show cause, if any it has, why such railroad company shallnot be required to alter such crossing in such way as to remove such dangerouscondition and to make such changes and improvements thereat as will safeguardand secure the safety and convenience of the traveling public thereafter. Suchnotice shall be served on such railroad company as is now provided by law forthe service of summons on domestic corporations, and officers serving such noticeshall receive the same fees as now provided by law for the service of suchsummons.
(b) Upon the day named,the Secretary of Transportation shall hear said matter and shall determinewhether such crossing is dangerous to public safety, or unreasonably interfereswith traffic thereon. If he shall determine that said crossing is, or upon thecompletion of such highway will be, dangerous to public safety and itselimination or safeguarding is necessary for the proper protection of thetraffic on said State highway, the Secretary of Transportation shall thereuponorder the construction of an adequate underpass or overpass at said crossing orhe may in his discretion order said railroad company to install and maintaingates, alarm signals or other approved safety devices if and when in theopinion of said Secretary of Transportation upon the hearing as aforesaid thepublic safety and convenience will be secured thereby. And said order shallspecify that the cost of construction of such underpass or overpass or theinstallation of such safety device shall be allocated between the railroadcompany and the Department of Transportation in the same ratio as the netbenefits received by such railroad company from the project bear to the netbenefits accruing to the public using the highway, and in no case shall the netbenefit to any railroad company or companies be deemed to be more than tenpercent (10%) of the total benefits resulting from the project. The Secretaryof Transportation shall be responsible for determining the proportion of thebenefits derived by the railroad company from the project, and shall fixstandards for the determining of said benefits which shall be consistent withthe standards adopted for similar purposes by the United States Bureau of PublicRoads under the Federal‑Aid Highway Act of 1944.
(c) Upon the filing andissuance of the order as hereinbefore provided for requiring the constructionof any underpass or overpass or the installation and maintenance of gates,alarm signals or other safety devices at any crossing upon the State highwaysystem, it shall be the duty of the railroad company operating the railroadwith which said public road or street intersects or crosses to construct suchunderpass or overpass or to install and maintain such safety device as may berequired in said order. The work may be done and material furnished either bythe railroad company or the Department of Transportation, as may be agreedupon, and the cost thereof shall be allocated and borne as set out in subsection(b) hereof. If the work is done and material furnished by the railroadcompany, an itemized statement of the total amount expended therefor shall, atthe completion of the work, be furnished the Department of Transportation, andthe Department of Transportation shall pay such amount to the railroad companyas may be shown on such statement after deducting the amount for which therailroad company is responsible; and if the work is done by the Department ofTransportation, an itemized statement of the total amount expended shall befurnished to the railroad company, and the railroad company shall pay to theDepartment of Transportation such part thereof as the railroad company may beresponsible for as herein provided; such payment by the railroad company shallbe under such rules and regulations and by such methods as the Department ofTransportation may provide.
(d) Within 60 daysafter the issuance of the order for construction of an underpass or overpass orthe installation of other safety devices as herein provided for, the railroadcompany against which such order is issued shall submit to the Department ofTransportation plans for such construction or installation, and within 10 daysthereafter said Department of Transportation, through its chairman of theDepartment of Transportation, shall notify such railroad company of itsapproval of said plan or of such changes and amendments thereto as to it shallseem advisable. If such plans are not submitted to the Department ofTransportation by said railroad company within 60 days as aforesaid, thechairman of the Department of Transportation shall have plans prepared andsubmit them to the railroad company. The railroad company shall within 10 daysnotify the chairman of the Department of Transportation of its approval of thesaid plans or shall have the right within such 10 days to suggest such changesand amendments in the plans so submitted by the chairman of the Department ofTransportation as to it shall seem advisable. The plans so prepared andfinally approved by the chairman of the Department of Transportation shall havethe same force and effect, and said railroad company shall be charged with likeliability, and said underpass or overpass shall be constructed or such safetydevice installed in accordance therewith, as if said plans had been originallyprepared and submitted by said railroad company. If said railroad companyshall fail or neglect to begin or complete the construction of said underpassor overpass, or the installation of such safety device, as required by theorder of the Secretary of Transportation, said Secretary of Transportation isauthorized and directed to prepare the necessary plans therefor, which plansshall have the same force and effect, and shall fix said railroad company withlike liability, as if said plans had been originally prepared and submitted bysaid railroad company, and the Department of Transportation shall proceed toconstruct said underpass or overpass or install such safety device inaccordance therewith. An accurate account of the cost of said construction orinstallation shall be kept by the Department of Transportation and upon thecompletion of such work a statement of that portion thereof chargeable to suchrailroad company as set out in the order of the Department of Transportationshall be rendered said railroad company. Upon the failure or refusal of saidcompany to pay the bill so rendered, the Department of Transportation shallrecover the amount thereof by suit therefor against said company in theSuperior Court of Wake County: Provided, that the payment by such railroadcompany of said proportionate part may be made under such rules and regulationsand by such methods as the Department of Transportation may provide. If theDepartment of Transportation shall undertake to do the work, it shall notobstruct or impair the operation of the railroad and shall keep the roadbed andtrack safe for the operation of trains at every stage of work. If saidrailroad company shall construct such underpass or overpass or shall installsuch safety devices in accordance with the order of the Secretary ofTransportation, the proportionate share of the cost thereof as set out insubsection (b) hereof shall upon the completion of said work be paid to the railroadcompany by the Department of Transportation. The Department of Transportationmay inspect and check the expenditures for such construction or installation somade by the railroad company and an accurate account of the cost thereof shallupon the completion of said work be submitted to the Department ofTransportation by the railroad company. If the Department of Transportationshall neglect or refuse to pay that portion of the cost of said construction orinstallation chargeable to it, the railroad company shall recover the amountthereof by suit therefor against the Department of Transportation in theSuperior Court of Wake County.
(e) If any railroadcompany so ordered by the Secretary of Transportation to construct an underpassor overpass or to install safety devices at grade crossings as hereinbeforeprovided for shall fail or refuse to comply with the order of the Secretary ofTransportation requiring such construction or installation, said railroadcompany shall be guilty of a Class 3 misdemeanor and shall only be fined notless than fifty dollars ($50.00) nor more than one hundred dollars ($100.00) inthe discretion of the court for each day such failure or refusal shallcontinue, each said day to constitute a separate offense.
(f) The jurisdictionover and control of said grade crossings and safety devices upon the Statehighway system herein given the Department of Transportation shall beexclusive.
(g) From any order ordecision so made by the Secretary of Transportation the railroad company mayappeal to the superior court of the county wherein is located the crossingaffected by said order. Such appeal shall not defer or delay the constructionof such underpass or overpass or the installation of such safety device asrequired by the order of the Secretary of Transportation, but the railroadcompany shall proceed to comply with such order in accordance with his terms. The action of the railroad company in complying with and carrying out suchorder pending said appeal shall not prejudice or affect the right or remediesof such railroad company on such appeal. Upon such appeal the court shalldetermine only whether the order of the Secretary of Transportation for suchconstruction or installation is unreasonable and unnecessary for the protectionof the traveling public and the apportionment of the cost to the extenthereinafter provided in this subsection, and if upon the hearing of said appealit shall be determined that said order was unnecessary for the protection ofthe traveling public, the Department of Transportation shall bear the totalcost of the construction of such underpass or overpass or the installation ofsuch safety device. In the event the decision on appeal should be that theconstruction or installation was necessary but the cost or apportionmentthereof unreasonable, then the railroad company shall bear its proportion asprovided in this section of such cost as may be determined on appeal to havebeen reasonable to meet the necessity of the case. Upon said appeal from an orderof the Secretary of Transportation, the burden of proof shall be upon therailroad company, and if it shall not be found and determined upon said appealthat said order was unreasonable or unnecessary for the protection of thetraveling public at said crossing, then such railroad company shall bear itsproportion of the cost of such construction or installation in accordance withthis section.
(h) The Department ofTransportation shall pay the cost of maintenance of all overpasses and therailroad company shall pay the cost of maintenance of all underpassesconstructed in accordance with this section. The cost of maintenance of safetydevices at all intersections of any railroad company and any street or roadforming a link in or a part of the State highway system which have beenconstructed prior to July 1, 1959, or which shall be constructed thereaftershall be borne fifty percent (50%) by the railroad company and fifty percent(50%) by the Department of Transportation. The maintenance of said overpassesand underpasses shall be performed by the railroad company or the Department ofTransportation as may be agreed upon and reimbursement for the cost thereof, inaccordance with this section, shall be made annually. The maintenance of suchsafety devices shall be performed by the railroad company and reimbursement forthe cost thereof, in accordance with this section, shall be made annually bythe Department of Transportation. (1921, c. 2, s. 19; 1923, c.160, s. 5; C.S., s. 3846(y); 1925, c. 277; 1929, c. 74; 1933, c. 172, s. 17;1957, c. 65, s. 11; 1959, c. 1216; 1973, c. 507, s. 5; 1977, c. 464, ss. 7.1,11, 15; 1993, c. 539, s. 979; 1994, Ex. Sess., c. 14, s. 60, c. 24, s. 14(c).)
§136‑20. Elimination or safeguarding of grade crossings and inadequateunderpasses or overpasses.
(a) Whenever any roador street forming a link in or a part of the State highway system, whetherunder construction or heretofore or hereafter constructed, shall cross orintersect any railroad at the same level or grade, or by an underpass oroverpass, and in the opinion of the Secretary of Transportation such crossingis dangerous to the traveling public, or unreasonably interferes with orimpedes traffic on said State highway, the Department of Transportation shallissue notice requiring the person or company operating such railroad to appearbefore the Secretary of Transportation, at his office in Raleigh, upon a daynamed, which shall not be less than 10 days or more than 20 days from the dateof said notice, and show cause, if any it has, why such railroad company shallnot be required to alter such crossing in such way as to remove such dangerouscondition and to make such changes and improvements thereat as will safeguardand secure the safety and convenience of the traveling public thereafter. Suchnotice shall be served on such railroad company as is now provided by law forthe service of summons on domestic corporations, and officers serving such noticeshall receive the same fees as now provided by law for the service of suchsummons.
(b) Upon the day named,the Secretary of Transportation shall hear said matter and shall determinewhether such crossing is dangerous to public safety, or unreasonably interfereswith traffic thereon. If he shall determine that said crossing is, or upon thecompletion of such highway will be, dangerous to public safety and itselimination or safeguarding is necessary for the proper protection of thetraffic on said State highway, the Secretary of Transportation shall thereuponorder the construction of an adequate underpass or overpass at said crossing orhe may in his discretion order said railroad company to install and maintaingates, alarm signals or other approved safety devices if and when in theopinion of said Secretary of Transportation upon the hearing as aforesaid thepublic safety and convenience will be secured thereby. And said order shallspecify that the cost of construction of such underpass or overpass or theinstallation of such safety device shall be allocated between the railroadcompany and the Department of Transportation in the same ratio as the netbenefits received by such railroad company from the project bear to the netbenefits accruing to the public using the highway, and in no case shall the netbenefit to any railroad company or companies be deemed to be more than tenpercent (10%) of the total benefits resulting from the project. The Secretaryof Transportation shall be responsible for determining the proportion of thebenefits derived by the railroad company from the project, and shall fixstandards for the determining of said benefits which shall be consistent withthe standards adopted for similar purposes by the United States Bureau of PublicRoads under the Federal‑Aid Highway Act of 1944.
(c) Upon the filing andissuance of the order as hereinbefore provided for requiring the constructionof any underpass or overpass or the installation and maintenance of gates,alarm signals or other safety devices at any crossing upon the State highwaysystem, it shall be the duty of the railroad company operating the railroadwith which said public road or street intersects or crosses to construct suchunderpass or overpass or to install and maintain such safety device as may berequired in said order. The work may be done and material furnished either bythe railroad company or the Department of Transportation, as may be agreedupon, and the cost thereof shall be allocated and borne as set out in subsection(b) hereof. If the work is done and material furnished by the railroadcompany, an itemized statement of the total amount expended therefor shall, atthe completion of the work, be furnished the Department of Transportation, andthe Department of Transportation shall pay such amount to the railroad companyas may be shown on such statement after deducting the amount for which therailroad company is responsible; and if the work is done by the Department ofTransportation, an itemized statement of the total amount expended shall befurnished to the railroad company, and the railroad company shall pay to theDepartment of Transportation such part thereof as the railroad company may beresponsible for as herein provided; such payment by the railroad company shallbe under such rules and regulations and by such methods as the Department ofTransportation may provide.
(d) Within 60 daysafter the issuance of the order for construction of an underpass or overpass orthe installation of other safety devices as herein provided for, the railroadcompany against which such order is issued shall submit to the Department ofTransportation plans for such construction or installation, and within 10 daysthereafter said Department of Transportation, through its chairman of theDepartment of Transportation, shall notify such railroad company of itsapproval of said plan or of such changes and amendments thereto as to it shallseem advisable. If such plans are not submitted to the Department ofTransportation by said railroad company within 60 days as aforesaid, thechairman of the Department of Transportation shall have plans prepared andsubmit them to the railroad company. The railroad company shall within 10 daysnotify the chairman of the Department of Transportation of its approval of thesaid plans or shall have the right within such 10 days to suggest such changesand amendments in the plans so submitted by the chairman of the Department ofTransportation as to it shall seem advisable. The plans so prepared andfinally approved by the chairman of the Department of Transportation shall havethe same force and effect, and said railroad company shall be charged with likeliability, and said underpass or overpass shall be constructed or such safetydevice installed in accordance therewith, as if said plans had been originallyprepared and submitted by said railroad company. If said railroad companyshall fail or neglect to begin or complete the construction of said underpassor overpass, or the installation of such safety device, as required by theorder of the Secretary of Transportation, said Secretary of Transportation isauthorized and directed to prepare the necessary plans therefor, which plansshall have the same force and effect, and shall fix said railroad company withlike liability, as if said plans had been originally prepared and submitted bysaid railroad company, and the Department of Transportation shall proceed toconstruct said underpass or overpass or install such safety device inaccordance therewith. An accurate account of the cost of said construction orinstallation shall be kept by the Department of Transportation and upon thecompletion of such work a statement of that portion thereof chargeable to suchrailroad company as set out in the order of the Department of Transportationshall be rendered said railroad company. Upon the failure or refusal of saidcompany to pay the bill so rendered, the Department of Transportation shallrecover the amount thereof by suit therefor against said company in theSuperior Court of Wake County: Provided, that the payment by such railroadcompany of said proportionate part may be made under such rules and regulationsand by such methods as the Department of Transportation may provide. If theDepartment of Transportation shall undertake to do the work, it shall notobstruct or impair the operation of the railroad and shall keep the roadbed andtrack safe for the operation of trains at every stage of work. If saidrailroad company shall construct such underpass or overpass or shall installsuch safety devices in accordance with the order of the Secretary ofTransportation, the proportionate share of the cost thereof as set out insubsection (b) hereof shall upon the completion of said work be paid to the railroadcompany by the Department of Transportation. The Department of Transportationmay inspect and check the expenditures for such construction or installation somade by the railroad company and an accurate account of the cost thereof shallupon the completion of said work be submitted to the Department ofTransportation by the railroad company. If the Department of Transportationshall neglect or refuse to pay that portion of the cost of said construction orinstallation chargeable to it, the railroad company shall recover the amountthereof by suit therefor against the Department of Transportation in theSuperior Court of Wake County.
(e) If any railroadcompany so ordered by the Secretary of Transportation to construct an underpassor overpass or to install safety devices at grade crossings as hereinbeforeprovided for shall fail or refuse to comply with the order of the Secretary ofTransportation requiring such construction or installation, said railroadcompany shall be guilty of a Class 3 misdemeanor and shall only be fined notless than fifty dollars ($50.00) nor more than one hundred dollars ($100.00) inthe discretion of the court for each day such failure or refusal shallcontinue, each said day to constitute a separate offense.
(f) The jurisdictionover and control of said grade crossings and safety devices upon the Statehighway system herein given the Department of Transportation shall beexclusive.
(g) From any order ordecision so made by the Secretary of Transportation the railroad company mayappeal to the superior court of the county wherein is located the crossingaffected by said order. Such appeal shall not defer or delay the constructionof such underpass or overpass or the installation of such safety device asrequired by the order of the Secretary of Transportation, but the railroadcompany shall proceed to comply with such order in accordance with his terms. The action of the railroad company in complying with and carrying out suchorder pending said appeal shall not prejudice or affect the right or remediesof such railroad company on such appeal. Upon such appeal the court shalldetermine only whether the order of the Secretary of Transportation for suchconstruction or installation is unreasonable and unnecessary for the protectionof the traveling public and the apportionment of the cost to the extenthereinafter provided in this subsection, and if upon the hearing of said appealit shall be determined that said order was unnecessary for the protection ofthe traveling public, the Department of Transportation shall bear the totalcost of the construction of such underpass or overpass or the installation ofsuch safety device. In the event the decision on appeal should be that theconstruction or installation was necessary but the cost or apportionmentthereof unreasonable, then the railroad company shall bear its proportion asprovided in this section of such cost as may be determined on appeal to havebeen reasonable to meet the necessity of the case. Upon said appeal from an orderof the Secretary of Transportation, the burden of proof shall be upon therailroad company, and if it shall not be found and determined upon said appealthat said order was unreasonable or unnecessary for the protection of thetraveling public at said crossing, then such railroad company shall bear itsproportion of the cost of such construction or installation in accordance withthis section.
(h) The Department ofTransportation shall pay the cost of maintenance of all overpasses and therailroad company shall pay the cost of maintenance of all underpassesconstructed in accordance with this section. The cost of maintenance of safetydevices at all intersections of any railroad company and any street or roadforming a link in or a part of the State highway system which have beenconstructed prior to July 1, 1959, or which shall be constructed thereaftershall be borne fifty percent (50%) by the railroad company and fifty percent(50%) by the Department of Transportation. The maintenance of said overpassesand underpasses shall be performed by the railroad company or the Department ofTransportation as may be agreed upon and reimbursement for the cost thereof, inaccordance with this section, shall be made annually. The maintenance of suchsafety devices shall be performed by the railroad company and reimbursement forthe cost thereof, in accordance with this section, shall be made annually bythe Department of Transportation. (1921, c. 2, s. 19; 1923, c.160, s. 5; C.S., s. 3846(y); 1925, c. 277; 1929, c. 74; 1933, c. 172, s. 17;1957, c. 65, s. 11; 1959, c. 1216; 1973, c. 507, s. 5; 1977, c. 464, ss. 7.1,11, 15; 1993, c. 539, s. 979; 1994, Ex. Sess., c. 14, s. 60, c. 24, s. 14(c).)
§136‑20. Elimination or safeguarding of grade crossings and inadequateunderpasses or overpasses.
(a) Whenever any roador street forming a link in or a part of the State highway system, whetherunder construction or heretofore or hereafter constructed, shall cross orintersect any railroad at the same level or grade, or by an underpass oroverpass, and in the opinion of the Secretary of Transportation such crossingis dangerous to the traveling public, or unreasonably interferes with orimpedes traffic on said State highway, the Department of Transportation shallissue notice requiring the person or company operating such railroad to appearbefore the Secretary of Transportation, at his office in Raleigh, upon a daynamed, which shall not be less than 10 days or more than 20 days from the dateof said notice, and show cause, if any it has, why such railroad company shallnot be required to alter such crossing in such way as to remove such dangerouscondition and to make such changes and improvements thereat as will safeguardand secure the safety and convenience of the traveling public thereafter. Suchnotice shall be served on such railroad company as is now provided by law forthe service of summons on domestic corporations, and officers serving such noticeshall receive the same fees as now provided by law for the service of suchsummons.
(b) Upon the day named,the Secretary of Transportation shall hear said matter and shall determinewhether such crossing is dangerous to public safety, or unreasonably interfereswith traffic thereon. If he shall determine that said crossing is, or upon thecompletion of such highway will be, dangerous to public safety and itselimination or safeguarding is necessary for the proper protection of thetraffic on said State highway, the Secretary of Transportation shall thereuponorder the construction of an adequate underpass or overpass at said crossing orhe may in his discretion order said railroad company to install and maintaingates, alarm signals or other approved safety devices if and when in theopinion of said Secretary of Transportation upon the hearing as aforesaid thepublic safety and convenience will be secured thereby. And said order shallspecify that the cost of construction of such underpass or overpass or theinstallation of such safety device shall be allocated between the railroadcompany and the Department of Transportation in the same ratio as the netbenefits received by such railroad company from the project bear to the netbenefits accruing to the public using the highway, and in no case shall the netbenefit to any railroad company or companies be deemed to be more than tenpercent (10%) of the total benefits resulting from the project. The Secretaryof Transportation shall be responsible for determining the proportion of thebenefits derived by the railroad company from the project, and shall fixstandards for the determining of said benefits which shall be consistent withthe standards adopted for similar purposes by the United States Bureau of PublicRoads under the Federal‑Aid Highway Act of 1944.
(c) Upon the filing andissuance of the order as hereinbefore provided for requiring the constructionof any underpass or overpass or the installation and maintenance of gates,alarm signals or other safety devices at any crossing upon the State highwaysystem, it shall be the duty of the railroad company operating the railroadwith which said public road or street intersects or crosses to construct suchunderpass or overpass or to install and maintain such safety device as may berequired in said order. The work may be done and material furnished either bythe railroad company or the Department of Transportation, as may be agreedupon, and the cost thereof shall be allocated and borne as set out in subsection(b) hereof. If the work is done and material furnished by the railroadcompany, an itemized statement of the total amount expended therefor shall, atthe completion of the work, be furnished the Department of Transportation, andthe Department of Transportation shall pay such amount to the railroad companyas may be shown on such statement after deducting the amount for which therailroad company is responsible; and if the work is done by the Department ofTransportation, an itemized statement of the total amount expended shall befurnished to the railroad company, and the railroad company shall pay to theDepartment of Transportation such part thereof as the railroad company may beresponsible for as herein provided; such payment by the railroad company shallbe under such rules and regulations and by such methods as the Department ofTransportation may provide.
(d) Within 60 daysafter the issuance of the order for construction of an underpass or overpass orthe installation of other safety devices as herein provided for, the railroadcompany against which such order is issued shall submit to the Department ofTransportation plans for such construction or installation, and within 10 daysthereafter said Department of Transportation, through its chairman of theDepartment of Transportation, shall notify such railroad company of itsapproval of said plan or of such changes and amendments thereto as to it shallseem advisable. If such plans are not submitted to the Department ofTransportation by said railroad company within 60 days as aforesaid, thechairman of the Department of Transportation shall have plans prepared andsubmit them to the railroad company. The railroad company shall within 10 daysnotify the chairman of the Department of Transportation of its approval of thesaid plans or shall have the right within such 10 days to suggest such changesand amendments in the plans so submitted by the chairman of the Department ofTransportation as to it shall seem advisable. The plans so prepared andfinally approved by the chairman of the Department of Transportation shall havethe same force and effect, and said railroad company shall be charged with likeliability, and said underpass or overpass shall be constructed or such safetydevice installed in accordance therewith, as if said plans had been originallyprepared and submitted by said railroad company. If said railroad companyshall fail or neglect to begin or complete the construction of said underpassor overpass, or the installation of such safety device, as required by theorder of the Secretary of Transportation, said Secretary of Transportation isauthorized and directed to prepare the necessary plans therefor, which plansshall have the same force and effect, and shall fix said railroad company withlike liability, as if said plans had been originally prepared and submitted bysaid railroad company, and the Department of Transportation shall proceed toconstruct said underpass or overpass or install such safety device inaccordance therewith. An accurate account of the cost of said construction orinstallation shall be kept by the Department of Transportation and upon thecompletion of such work a statement of that portion thereof chargeable to suchrailroad company as set out in the order of the Department of Transportationshall be rendered said railroad company. Upon the failure or refusal of saidcompany to pay the bill so rendered, the Department of Transportation shallrecover the amount thereof by suit therefor against said company in theSuperior Court of Wake County: Provided, that the payment by such railroadcompany of said proportionate part may be made under such rules and regulationsand by such methods as the Department of Transportation may provide. If theDepartment of Transportation shall undertake to do the work, it shall notobstruct or impair the operation of the railroad and shall keep the roadbed andtrack safe for the operation of trains at every stage of work. If saidrailroad company shall construct such underpass or overpass or shall installsuch safety devices in accordance with the order of the Secretary ofTransportation, the proportionate share of the cost thereof as set out insubsection (b) hereof shall upon the completion of said work be paid to the railroadcompany by the Department of Transportation. The Department of Transportationmay inspect and check the expenditures for such construction or installation somade by the railroad company and an accurate account of the cost thereof shallupon the completion of said work be submitted to the Department ofTransportation by the railroad company. If the Department of Transportationshall neglect or refuse to pay that portion of the cost of said construction orinstallation chargeable to it, the railroad company shall recover the amountthereof by suit therefor against the Department of Transportation in theSuperior Court of Wake County.
(e) If any railroadcompany so ordered by the Secretary of Transportation to construct an underpassor overpass or to install safety devices at grade crossings as hereinbeforeprovided for shall fail or refuse to comply with the order of the Secretary ofTransportation requiring such construction or installation, said railroadcompany shall be guilty of a Class 3 misdemeanor and shall only be fined notless than fifty dollars ($50.00) nor more than one hundred dollars ($100.00) inthe discretion of the court for each day such failure or refusal shallcontinue, each said day to constitute a separate offense.
(f) The jurisdictionover and control of said grade crossings and safety devices upon the Statehighway system herein given the Department of Transportation shall beexclusive.
(g) From any order ordecision so made by the Secretary of Transportation the railroad company mayappeal to the superior court of the county wherein is located the crossingaffected by said order. Such appeal shall not defer or delay the constructionof such underpass or overpass or the installation of such safety device asrequired by the order of the Secretary of Transportation, but the railroadcompany shall proceed to comply with such order in accordance with his terms. The action of the railroad company in complying with and carrying out suchorder pending said appeal shall not prejudice or affect the right or remediesof such railroad company on such appeal. Upon such appeal the court shalldetermine only whether the order of the Secretary of Transportation for suchconstruction or installation is unreasonable and unnecessary for the protectionof the traveling public and the apportionment of the cost to the extenthereinafter provided in this subsection, and if upon the hearing of said appealit shall be determined that said order was unnecessary for the protection ofthe traveling public, the Department of Transportation shall bear the totalcost of the construction of such underpass or overpass or the installation ofsuch safety device. In the event the decision on appeal should be that theconstruction or installation was necessary but the cost or apportionmentthereof unreasonable, then the railroad company shall bear its proportion asprovided in this section of such cost as may be determined on appeal to havebeen reasonable to meet the necessity of the case. Upon said appeal from an orderof the Secretary of Transportation, the burden of proof shall be upon therailroad company, and if it shall not be found and determined upon said appealthat said order was unreasonable or unnecessary for the protection of thetraveling public at said crossing, then such railroad company shall bear itsproportion of the cost of such construction or installation in accordance withthis section.
(h) The Department ofTransportation shall pay the cost of maintenance of all overpasses and therailroad company shall pay the cost of maintenance of all underpassesconstructed in accordance with this section. The cost of maintenance of safetydevices at all intersections of any railroad company and any street or roadforming a link in or a part of the State highway system which have beenconstructed prior to July 1, 1959, or which shall be constructed thereaftershall be borne fifty percent (50%) by the railroad company and fifty percent(50%) by the Department of Transportation. The maintenance of said overpassesand underpasses shall be performed by the railroad company or the Department ofTransportation as may be agreed upon and reimbursement for the cost thereof, inaccordance with this section, shall be made annually. The maintenance of suchsafety devices shall be performed by the railroad company and reimbursement forthe cost thereof, in accordance with this section, shall be made annually bythe Department of Transportation. (1921, c. 2, s. 19; 1923, c.160, s. 5; C.S., s. 3846(y); 1925, c. 277; 1929, c. 74; 1933, c. 172, s. 17;1957, c. 65, s. 11; 1959, c. 1216; 1973, c. 507, s. 5; 1977, c. 464, ss. 7.1,11, 15; 1993, c. 539, s. 979; 1994, Ex. Sess., c. 14, s. 60, c. 24, s. 14(c).)
