Commonwealth v. Prall

• Citation: 133 S.W. 217,141 Ky. 560
• Parties: COMMONWEALTH v. PRALL.
• Decision Date: 12 January 1911
• Court: Kentucky Court of Appeals

133 S.W. 217

141 Ky. 560

COMMONWEALTH v. PRALL.

Court of Appeals of Kentucky.

January 12, 1911

Appeal from Circuit Court, Nelson County.

Penal action by the Commonwealth against T. L. Prall. From a judgment of dismissal, the Commonwealth appeals. Reversed and remanded.

Jas Breathitt, Atty. Gen., Tom B. McGregor, Asst. Atty. Gen Redford C. Cherry, and F. E. Daugherty, for the Commonwealth.

Nat W Halstead, for appellee.

CLAY C.

This is a proceeding by penal action in the Nelson circuit court instituted by the commonwealth of Kentucky against appellee, T. L. Prall, to recover the penalty imposed by the statute for materially damaging a public road by making an unusual use thereof and failing to repair the same when notified by the supervisor or overseer of roads to do so. After describing the road the petition is as follows: "That the said defendant made unusual use of said public road and turnpike in this: That during said time he loaded upon wagons with narrow tread wheels as many as six or more large saw logs to each wagon, aggregating very great weight, and hauled same along, upon, over, and across the said turnpike road from a point eight or nine miles east of Bardstown to the railroad station at the latter place. That at many times said heavy hauling was done while the road was muddy and wet, and said loads were so heavy that at no time would it stand said heavy hauling without material damage, although said road, before said hauling was done on same, was a good, durable, strong, and well-built road, having Tilford paving beneath and a layer of crushed or knapped stone on top. That the defendant, his agents, servants, and employés, in charge of said wagons loaded with heavy logs as aforesaid, in driving and hauling over said road, and especially in going down the grades on same, in order to hold the weight of said loads off the teams, pulling same many times and in many places on said road, recklessly drove over to the edge of said road, and off the edge of said road with one wheel, the other wheel being thereon, so that the face or curb stones of said pike were torn out of place; and in other places on said road, owing to the extremely and unusually heavy and excessive loads on said wagons, and owing to the narrowness of the tread of the wheels of the wagons on which logs were hauled, and owing to the careless and reckless driving and hauling, said road was torn up, and the top metal and Tilford paving beneath were displaced, so that said road was left in great holes and ruts, some of them from six to twelve inches in depth, and said road was greatly and materially damaged by said unusual use, so that it became at places almost impassible and unfit for public travel. Plaintiff says that said loads of logs hauled over said road by the defendants during said time were of such unusual and excessive weight and so heavy that no public road or turnpike could withstand the loads so hauled without great and material damage and injury, a fact well known to defendant, and that the hauling of such loads with such unusual and excessive weight was wholly unnecessary, and said acts and conduct upon the part of the defendant was wanton, willful, and high-handed, and in utter disregard of the rights of the public using and having a right to use said public road." The petition then concludes with an allegation to the effect that John E. Blain, who at the time was the supervisor or overseer of the road, notified appellee to repair the road, and appellee failed and refused to do so. Appellee demurred to the jurisdiction of the court. The demurrer was sustained, and the proceeding dismissed. From that judgment, the commonwealth appeals. The only question to be determined is whether or not the Nelson circuit court had jurisdiction.

Section 4325, Ky. St. (Russell's St. § 5470), is as follows "Any corporation, company or individual who may, by unusual use of a road, materially damage the same, shall repair all damages caused by the use of such road or roads. The supervisor or overseer of roads shall, at any time when necessary, notify said corporations, companies or individuals of their duty as provided in this section; and should the said parties so notified fail, in a reasonable length of time, to be filed in the notice, to make such repairs, such parties shall be deemed guilty of obstructing the public roads, and...