Louisville, Cin. & Lex. R. R. Co. v. Commonwealth

• Decision Date: 02 March 1882
• Citation: 80 Ky. 143,3 Ky.L.Rptr. 644
• Parties: Lou., Cin. & Lex. R. R. Co. v. The Commonwealth.
• Court: Kentucky Court of Appeals

80 Ky. 143

3 Ky.L.Rptr. 644

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

Court of Appeals of Kentucky.

March 2, 1882

1. The crossing of a turnpike by appellant's trains at the rate of from fifteen to twenty miles an hour, without sufficient warning, is a public nuisance.

2. Where a nuisance is public, endangering the community by the careless and incautious exercise of a hazardous business, the contributory negligence of any, or, indeed, all the community, furnishes no defense to the injury to the public.

3. Evidence offered as to the absence of casualties on other roads conducted in a more populous community, and at crossings more generally used than the highway in question was properly excluded.

APPEAL FROM KENTON CIRCUIT COURT.

M. J DUDLEY FOR APPELLANT.

1. A master is not liable to a criminal action at common law for the acts of his servant unless actually authorized by him. (Sherman & Redfield on Negligence, 78.)

2. If the fault is on both sides, the burden of proof is upon plaintiff to show that, notwithstanding any neglect on his part, the injury is not attributable to him, but to the misconduct of defendant. (Greenleaf on Evidence, sec. 473.)

3. It is the policy, in the construction of railroads and the incorporation of railway companies, to have conveyed passengers, freight, and property with the greatest possible speed. (L. & F. R. R. Co. v. Milton, 14 B. Mon 80.)

4. As to the reciprocal duties of trains and strangers, I refer to 29 N.Y. 2 Tiffany, 315; 96 Ill.; 33 Ind. 333.

P. W HARDIN, ATTORNEY GENERAL, FOR APPELLEE.

No brief.

OPINION

HARGIS, JUDGE:

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 pe...