Com. v. Louisville & N.R. Co.

• Decision Date: 02 October 1900
• Citation: 109 Ky. 59,58 S.W. 478
• Parties: COMMONWEALTH v. LOUISVILLE & N. R. CO. [1]
• Court: Kentucky Court of Appeals

58 S.W. 478

109 Ky. 59

COMMONWEALTH v. LOUISVILLE & N. R. CO. ^[1]

Court of Appeals of Kentucky.

October 2, 1900^[2]

Appeal from circuit court, Boyle county.

"To be officially reported."

An indictment against the Louisville & Nashville Railroad Company for maintaining a nuisance was dismissed, and the commonwealth appeals. Reversed.

Clifton J. Pratt and R. J. Breckinridge, for the Commonwealth. R. P Jacobs, C. R. McDowell, and E. W. Hines, for appellee.

WHITE J.

The appellee was indicted in the circuit court of Boyle county for the offense of suffering and permitting a public nuisance. A demurrer to the indictment was sustained, and the commonwealth appeals.

The accusing part of the indictment, after charging the existence of the corporation, proceeds: "Did unlawfully suffer and permit a public nuisance at a point where its road crosses a certain highway, namely, where its road crosses the county road leading from Parksville to Junction City, Boyle county Ky. the same being the second crossing of said railroad over said county road south of Parksville, by unlawfully suffering and permitting the approaches and grade of said road on either side of the railroad track within said railroad company's right of way to become and remain for an unreasonable length of time, to wit, thirty days, very steep and narrow at the point aforesaid, so as to be inconvenient and dangerous of ascent and descent for wagons and other vehicles, to the common nuisance of all good citizens passing and repassing along and over said highway and county road against the peace and dignity," etc. The objection urged to the indictment by counsel for appellee is that there is no averment that the public highway was constructed before the railroad was built; that, in construing the indictment most strongly in favor of the accused, the necessary deduction is that the highway was built after the railroad, and counsel therefore contends that there was no duty resting on appellee to maintain and repair the approaches on either side of the railroad track; and, this being true, there could be no conviction. In the case of Paducah & E. R. Co. v Com., 80 Ky. 147, this court said: "Where a railroad company lays its track across a public highway reason and necessity unite in demanding that the company should have paramount control over the full extent of its right of way, and the right to make and regulate the repairs necessary to the use of crossings by the public, and, as a consequence of this authority, become responsible to the public and individuals for injuries resulting from a failure to repair, or from unskillful repairs of such crossings; for as overseers of highways traversing railroads are either admitted or required to enter the space covered by the company's right of way, uncontrolled by it, for the purpose of repairing the crossings or approaches to them, disastrous consequences might result to the company from the negligence or unskillfulness of overseers, without the power or privilege to avoid them. For these reasons we think it was the company's duty to keep the crossing and its immediate approaches in such repair as would enable the public to use it with reasonable security and convenience." While the facts do not appear in the opinion, from the context we are led to believe the highway referred to was in existence when the railroad was built. However, the reasoning of the opinion is just as strong if the road had been established after the railroad. The fact that the railroad was built across an existing highway would not make the necessity greater that the railroad should have paramount control over its right of way than if the highway was established...