Lou., Cin. & Lex. R. R. Co. v. The Commonwealth

• Decision Date: 02 March 1882
• Citation: 80 Ky. 143
• Parties: Lou., Cin. & Lex. R. R. Co. v. The Commonwealth.
• Court: Kentucky Court of Appeals

Page 143

80 Ky. 143

Lou., Cin. & Lex. R. R. Co. v. The Commonwealth.

Court of Appeals of Kentucky.

March 2, 1882.

APPEAL FROM KENTON CIRCUIT COURT.

M. J. DUDLEY FOR APPELLANT.

P. W. HARDIN, ATTORNEY GENERAL, FOR APPELLEE.

JUDGE HARGIS DELIVERED THE OPINION OF THE COURT.

This was a prosecution for a common law nuisance, charged to have been committed by the appellant at a crossing of the turnpike and its railroad, by habitually running its trains at an unsafe and unreasonable rate of speed, and so rapidly as to endanger, hazard, and injure persons traveling upon the turnpike, without giving warning signals or taking precautions to avoid injuring such persons by approaching trains.

A trial was had, and a verdict and judgment rendered against the appellant for $500, from which it prosecutes this appeal, and asks a reversal of the judgment because of erroneous instructions and an improper exclusion of evidence from the jury, and a refusal to sustain the motion in arrest of judgment.

The instructions asked by the appellant, and rejected by the court, in effect negatives the legal sufficiency of the alleged and proven facts, and applies to this character of case the doctrine of contributory negligence.

This court said in the case of the L. & N. R. R. Co. v. Commonwealth, 13th Bush, 390, that a railroad company "may lawfully run its trains at any reasonable rate of speed, but it is bound to take reasonable precautions to prevent the enjoyment of its privilege from injuring those crossing its road upon public highways."

This general rule must be considered the settled law of this State, and being sound in principle, we perceive no reason for departing from it.

Tested by it, the indictment states a public offense, and substantially sets forth a public nuisance, and the motion in arrest of judgment was therefore properly overruled.

The evidence shows that the turnpike is daily used in travel by a large number of people passing on horseback and in vehicles over the crossing. Some days as many as one hundred and fifty people thus travel over it. The turnpike is the main thoroughfare from the city of Covington to the town of Independence, whither the public officers, attorneys at law and others go to transact the ordinary official business of the county, and that the appellants ran as many as four trains a day over the crossing at the rate of fifteen to twenty miles an hour, and the formation of the country at the crossing prevented persons approaching it along the pike on one side of the railroad from seeing trains until they came within twenty-four to fifty...