Paducah and Elizabethtown R. R. Co. v. The Commonwealth

• Decision Date: 09 March 1882
• Citation: 80 Ky. 147
• Parties: Paducah and Elizabethtown R. R. Co. v. The Commonwealth.
• Court: Kentucky Court of Appeals

80 Ky. 147

Paducah and Elizabethtown R. R. Co. v. The Commonwealth.

Court of Appeals of Kentucky.

March 9, 1882.

APPEAL FROM GRAYSON CIRCUIT COURT.

H. C. PINDELL FOR APPELLANT.

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

JUDGE HARGIS DELIVERED THE OPINION OF THE COURT.

The appellant company was indicted for a public nuisance, alleged to have been committed by neglecting to keep in repair the crossing where its road intersects with the Litchfield and Elizabethtown public highway.

The facts stated in the indictment constitute a public nuisance, and the allegations thereof are legally sufficient; although not verbally accurate, yet they are so plainly stated that a person of ordinary understanding would know what is intended.

The evidence establishes, with reasonable certainty, that the crossing was very muddy and miry, and that the iron rails of appellant's road were as much as six or eight inches above the level of the highway, so that it was difficult to draw wagons and vehicles up over them, and that it was dangerous to animals and persons to travel over the crossing, which was permitted to remain so out of repair for at least six weeks before the indictment was made.

Soon after the indictment the appellant repaired the crossing, and has kept it in good order ever since.

From a verdict and judgment for $700 against it the appellant has appealed, and insists that it was not bound to repair that part of the crossing outside of and approaching the rails of its road, although within thirty feet of them, and embraced by the company's right of way; but that the duty of repairing that portion of the crossing belonged exclusively to the surveyor of the public highway.

Any authorized use of the highway, in the absence of special authority under the charter, must be presumed to have been granted on the condition that its exercise should be consistent with the establishment of the highway and accordant with its use by the public.

The restoration of highways with which railroad companies have interfered is generally regulated by statute; but where there is no statute, the common law requires that the railroad companies should restore them to such condition as will not impair their usefulness, "for it can scarcely be supposed that the legislature intends, in any case, to allow a railroad company needlessly and permanently to destroy a public way." (Sec. 452, Sherman & Redfield on Negligence.)

And it would seem to be a necessary corollary from this rule that the railroad company should not be afterwards permitted to destroy the usefulness of a public way by allowing its own road and the approaches thereto to become dangerous for the want of repairs.

Where an individual or railroad company permanently occupies a highway or street which is a public road, they are bound to keep the portion occupied by them "in such a reasonable state of repair that travelers may safely pass over them." (Sec. 357, Ibid.)

And in discussing this question, the court said in Oakland R. R. Co. v. Fielding, 48th...