State v. Roanoke R.R. & Lumber Co

• Decision Date: 13 October 1891
• Citation: 109 N.C. 860,13 S.E. 719
• Court: North Carolina Supreme Court
• Parties: State v. Roanoke Railroad & Lumber Co.

13 S.E. 719

109 N.C. 860

State

v.Roanoke Railroad & Lumber Co.

Supreme Court of North Carolina.

Oct. 13, 1891.

Obstructing Highway — Variance — Railroad Crossing—Arrest of Judgment.

1. An indictment against a railroad company charged it with obstructing a public highway by placing in and across the highway certain plank. The evidence showed that the company's road where it crossed the highway was about 10 inches above the highway, and that one of the planks used to raise the highway to a level with the railroad had slid down, leaving a hole about eight inches deep. Held, that the variance was fatal.

2. Code N. C. §§ 1710, 1957, par. 5, provide that where a railroad crosses a highway it must do so in a way not to impede public travel, and that the company must restore the crossing to such a state as not to unnecessarily impair its usefulness. Held, that the company may use plank in restoring a highway to a level with the railroad at one of its crossings.

3. Where the indictment did not show in what way the plank was misused or misapplied at the crossing, or that defendant allowed the plank to become out of repair, and in such improper condition as to obstruct the highway, it failed to appropriately charge a nuisance.

4. Though a motion in arrest of judgment was not made in the court b6low, the supreme court of North Carolina will entertain such a motion when the whole record is before the court, and it appears that the judgment was unwarranted.

Appeal from superior court, Beaufort county; Henry R. Bryan, Judge.

Prosecution against the Roanoke Railroad & Lumber Company for obstructing a public high way. The indictment charges "that he unlawfully and willfully did obstruct said public road by placing in and across it certain plank where the road of said corporation (the defendant) crossed the said public road, so that the good citizens of the state could not nor cannot now cross and recross over said public road with their teams, as they were accustomed to pass and repass, and so continues to impede and obstruct said road, to the common nuisance, " etc. The defendant pleaded not guilty. On the trial, but one witness was examined, and the material parts of his testimony were that "the defendant's road crosses this public road. The company did not have enough plank. It was elevated 8 or 10 inches above the public road. Between the track of the defendant's road and the platform which sloped to the track was a hole. This hole was 8 to 10 inches deep from top to bottom. It was not safe for teams. I think the elevation above the public road was 8 or 10 inches; might have been less. The hole was on the north side of defendant's road. The hole was there about April or May, 1890. The plank had slipped down, leaving the hole. The plank was well up to the railroad when I first saw it. The lumber road was not down there more than two or three months before I saw it. It was there some time before there was any hole. The hole was as much as four inches wide." There was a verdict of guilty, and judgment for the state. The defendant, having excepted, appealed to this court. Reversed.

John H. Small, for appellant.

The Attorney General and C. F. Warren, for the State.

Merrimon, C. J., (after stating the facts.) Accepting the evidence of the single witness for the state as true,...