Ill. Cent. R. R. Co. v. Commonwealth

• Decision Date: 03 June 1910
• Citation: 138 Ky. 742
• Parties: Ill. Cent. R. R. Co. v. Commonwealth.
• Court: Kentucky Court of Appeals

138 Ky. 742

Ill. Cent. R. R. Co. v. Commonwealth.

Court of Appeals of Kentucky.

June 3, 1910.

Appeal from Graves Circuit Court.

R. J. BUGG, Circuit Judge.

Defendant convicted and appeals. — Affirmed.

TRABUE, DOOLAN & COX, C. L. SIVLEY and ROBBINS & THOMAS for appellant.

JAS. BREATHITT attorney general and TOM B. McGREGOR assistant attorney general for Commonwealth.

OPINION OF THE COURT BY JUDGE LASSING — Affirming.

Appellant was indicted, tried, and found guilty of suffering a common nuisance to be and remain upon its property. A fine of $100 was imposed, and, to reverse the judgment predicated thereon, this appeal is prosecuted.

Two grounds are relied upon for reversal: First, that the indictment is defective; and, second, that there is a failure of evidence to show that the bridge in question is upon appellant's right of way. Other objections are urged, but the real contentions of appellant are covered by the foregoing. The offense charged is that of suffering and permitting its bridge on the Lebanon Street crossing, in the town of Wingo, Graves county, to become and remain out of repair, so as to impede, if not entirely prevent, public travel over said crossing for a considerable time, to wit, from January 1st to June 23d, the date of the indictment.

It is urged that, as the indictment failed to state affirmatively that the bridge is on appellant's right of way, and further failed to charge that the bridge was suffered to remain out of repair for an unreasonable length of time, the demurrer should have been sustained. Technically considered, the indictment is defective, in that it does not charge that the bridge is over the right of way of appellant. It does charge that appellant suffered "its railroad bridge" to be and remain out of repair, and, while this is a conclusion of law expressed by the pleader, it apprised defendant fully of the charge upon which it was to be tried; and this is the real aim and purpose of the indictment. Appellant was in no wise misled or prejudiced because the indictment failed to charge that the bridge was on its right of way. This is especially true when considered in the light of the instructions given by the court, for in the instructions the jury was required to find that the bridge was on appellant's right of way before it could convict. The commonwealth failed to show the extent of appellant's right of way, or how much of the bridge was on or over it, but it did show that the end of the bridge came to within a few inches of the ends of the ties, and ran from the railroad embankment to the street at the...