Louisville & N.R. Co. v. Commonwealth

• Decision Date: 06 June 1913
• Citation: 154 Ky. 293,157 S.W. 369
• Parties: LOUISVILLE & N. R. CO. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

157 S.W. 369

154 Ky. 293

LOUISVILLE & N. R. CO. v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 6, 1913

Appeal from Circuit Court, Bell County.

The Louisville & Nashville Railroad Company was convicted of failing to block a frog located at a specified point on its track, and it appeals. Affirmed.

C. W Metcalf, of Pineville, and Benjamin D. Warfield, of Louisville, for appellant.

Chas I. Dawson, of Pineville, Jas. Garnett, Atty. Gen., O. S Hogan, Asst. Atty. Gen., and J. G. Forester, of Harlan, Com Atty., for the Commonwealth.

MILLER J.

The appellant was indicted at the November term of the Bell circuit court, under section 780 of the Kentucky Statutes, for its failure to block a frog of its railroad track at a point on its main track in Middlesboro, opposite a building formerly occupied by the Norton Hardware Company, so as to prevent the feet of its employés from being caught in said frog. Upon a trial the jury imposed a fine of $100; and, from the judgment upon that verdict, the defendant appeals.

In its brief appellant assigns three grounds for a reversal: (1) The trial court erred in permitting witnesses for the commonwealth to testify that appellant was a corporation; (2) defendant's motion to require the jury to find for it upon the evidence should have been sustained because it is claimed the evidence shows that the frog referred to in the indictment and in the testimony was not the property of the defendant, but was the property of the Virginia Iron, Coal & Coke Company; and (3) the court erred in overruling defendant's plea of former conviction.

1. It would be a sufficient answer to the first error suggested to point out the fact that this alleged error was not made a ground for a new trial, and cannot therefore be considered upon appeal. It is a well settled rule of this court that no error committed during the trial is available upon appeal, unless it has been specifically relied upon in the grounds for a new trial. Hatfield v. Adams, 123 Ky. 428, 96 S.W. 583, 29 Ky. Law Rep. 880; Acme Mills & Elevator Co. v. Rives, 141 Ky. 786, 133 S.W. 786; Board of Councilmen of City of Frankfort v. Buttimer, 146 Ky. 818, 143 S.W. 410.

Furthermore, the evidence was competent. In order to show that the defendant is a corporation created under the laws of this state, it is only necessary to show the de facto existence of such corporation, and that may be established by evidence tending to show that it acted and was accepted in the community as a corporation under the name alleged. Standard Oil Co. v. Commonwealth, 122 Ky. 440, 91 S.W. 1128, 29 Ky. Law Rep. 5; Geo. H. Goodman v. Commonwealth, 99 S.W. 252, 30 Ky. Law Rep. 519; Morse v. Commonwealth, 129 Ky. 312, 111 S.W. 714, 33 Ky. Law Rep. 831, 894.

Furthermore, the court will take judicial notice that appellant is a corporation. In M. H. & E. R. R. Co. v. Commonwealth, 140 Ky. 258, 130 S.W. 1085, we said: "What evidence will be sufficient to sustain the allegation was pointed out in Standard Oil Co. v. Commonwealth, 122 Ky. 440 [91 S.W. 1128, 29 Ky. Law Rep. 5]. By section 1624, Ky. Stats., judicial notice is taken of acts of the General Assembly; and so, where a corporation is created by legislative act, the court will take judicial notice that it is a corporation. Commonwealth v. Cincinnati et al. R. R. Co., 6 Ky. Law Rep. 306; L. & N. R. R. Co. v. Commonwealth, 11 Ky. Law Rep. 442. Judicial notice will not be taken of articles of incorporation filed in the office of the secretary of state; but in view of the rights of railroad companies, and the statutes on the subject, it will, unless the contrary appears, be presumed that a railroad company is a corporation. All the provisions of the Kentucky Statutes regulating railroads are placed in the chapter on private corporations; and only corporations are authorized to condemn land for right of way, depot grounds, and the like. It is universal to incorporate companies to own and operate railroads. A firm cannot well do the business. The court, therefore, did not err in refusing to instruct the jury peremptorily to find for the defendant on the ground that the prosecution failed to introduce evidence that the defendant was a corporation."

2. We cannot agree with counsel for appellant that the evidence clearly shows the frog mentioned in the indictment and in the testimony belonged to the Virginia Iron, Coal & Coke Company. While some of the testimony of the prosecuting witness, Slusher, is vague and uncertain, it is not susceptible of the interpretation put upon it by appellant. Moreover, the testimony of Bingham, the other prosecuting witness, is not subject to the criticism applied to Slusher's testimony. At most, it can only be said that the testimony upon this point is conflicting; and, there being testimony upon either side of the proposition, it was for the jury to determine the disputed fact.

3. The indictment was found under section 780 of the Kentucky Statutes which reads as follows: "Before the first day of January, 1894, every company shall adjust, fix or block the frogs on its tracks to prevent the feet of its employés from being caught therein."

Section 793 of the Kentucky Statutes fixes the penalty as follows: "Any company failing to comply with or violating or permitting any of its employés or agents to violate any of the provisions of sections 772, 773, 774, 775, 777, 778, 780, 781, 782, 786, 787, and 791 of this article shall, in addition to subjecting itself to any damages that may be caused by such failure or violation, be guilty of a misdemeanor, and be fined for each failure or violation not less than one hundred nor more than five hundred dollars, to be recovered by indictment in the circuit court of any county through which the company in default operates a line of road, or in the Franklin circuit court."

Thirty-one similar indictments were returned against appellant at the same term of the Bell circuit court; and upon a trial under the first indictment (No. 1,025) appellant was on February 4 1913, found guilty and fined $100. When the second indictment (No. 1,026) on which this appeal was prosecuted was called for trial on February 5, 1913, the defendant pleaded its former conviction under indictment No. 1,025 in bar of the commonwealth's right to prosecute it under indictment No. 1,026. The circuit court, however, overruled the plea, and it is claimed this was error. The indictments specified separate and distinct frogs with sufficient...