126 Ky. 712 | Ky. Ct. App. | 1907
Opinion op the Court by
Reversing.
This appeal is prosecuted from a judgment/entered by the court below upon the verdict of a jury finding appellant guilty of committing a public nuisance and fixing its punishment at a fine of $500. The indictment under which the trial was had specifically charges that appellant did “unlawfully, willfully, habitually, and for an unreasonable length of time run its trains at an unsafe and unreasonable rate of speed and so rapidly as to endanger and hazard the safety and life of persons traveling upon the turnpike leading from Harrodsburg to and through Bur-gin, which was and is a public highway, at a point where said railroad crosses said pike in Burgin, an incorporated town, and at a point where there is much travel in buggies and vehicles and by pedestrians, and this without sufficient and necessary warning to prevent the danger, «hazard, and inconveni
According to the evidence Burgin is a town of the sixth class, with a population of about 1,000. Appellant’s road runs through it north and south, and the turnpike mentioned in the indictment is its principal thoroughfare or street, and the only one of the town crossing the railroad. The Burgin post office, school, and churches, as well as its principal business houses, are situated east of the railroad, and its main residence section west thereof. There is a large amount of travel over the crossing during the day, but the night travel is less than a third as great. Each day and night several of appellant’s fast trains, both passenger and freight, pass through Burgin without stopping. At and near the crossing are numerous side tracks, which are often occupied by empty or loaded freight cars, both day and night; and when this is the ease it is difficult for persons approaching the crossing to see appellant’s trains coming from the south. According to the Commonwealth’s evidence appellant’s through trains usually pass Burgin at a speed of 40 to 70 miles an hour. On the other hand, appellant's testimony was to the effect that these trains ran through the town at 25 to 50 miles an hour. The Commonwealth’s testimony also showed that a watchman was kept at the crossing by appellant from 6 a. m. to 6 p. m. each day, but wholly failed to show that the trains of appellant, in approaching and passing through Burgin, did not give the usual and proper signals, while that of appellant showed that such signals were invariably given; and
. Appellant’s complaint of the trial court’s action in overruling its demurrer to the indictment cannot be sustained. If, as charged in the indictment, appellant willfully, habitually, and for an unreasonable length of time ran its trains through Burgin at such a rapid, unreasonable, and unsafe rate of speed as to endanger the lives or safety of persons using the crossing, and this, as in substance further alleged, was habitually done without the customary and necessary warning signals of their approach, these acts were suffifficient to constitute the offense charged. In Louisville, Cincinnati & Lexington Railroad Company v. Commonwealth, 80 Ky. 143, 3 Ky. Law Rep. 644, 44 Am. Rep. 468, an indictment for a common-law nuisance, charged to have been committed by 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,” was held to sufficiently state a public offense. As in language and meaning the indictment in the case at bar is substantially the same as that of the ease supra, we are constrained to hold that the demurrer to it was properly overruled.
We are of opinion, however, that the evidence introduced by the Commonwealth in this case did not warrant a conviction; for, in order to find appellant guilty of the offense charged, it was necessary, not only that it should have proved such habitually rapid
We have in this State no statute regulating the rate of speed at which railroads shall. operate their
But, in order to sustain a penal prosecution against a railroad company for running its trains in city or country at a high or even dangerous rate of speed, either upon a street or in approaching a crossing, it must be shown that such running of the trains was attended with a failure on the part of those operating them to give the necessary and usual signals of their coming. Section 186, Ky. Stats. 1903, provides: “Every (railroad) company shall provide each locomotive engine passing upon its road with a bell of ordinary size and steam whistle, and each bell shall be rung, or whistle sounded outside of incorporated cities and towns of a distance of at least fifty rods from the place where the road crosses upon the same level any highway or crossing, at which a signboard is required to be maintained, and such bell shall be rung or whistle sounded, continuously or alternately, until the engine has reached such highway crossing, and shall give such signals in cities and towns as the legislative authorities thereof may require.” It will be observed that the last clause of section 786 confers upon the legislative authorities of all cities and towns of the Commonwealth the exclusive power to determine and by ordinance declare what signals shall be given therein by trains running through their corporate limits, whether upon the streets or'crossings. In Chesapeake & Ohio Railway Company v. City of Maysville, 69 S. W. 728, 24 Ky. Law Rep. 615, the validity of an ordinance of the appellee city compelling the appellant railway company tó erect and maintain gates at certain crossings in the city was
Not only may the town of Burgin, under the power conferred by section 786 of the Statutes, supra, by ordinance require appellant to adopt such signals as may be reasonably necessary to give warning of the approach of its trains to the crossing in question, but it may require of it such other reasonable precautions as to the speed of the trains in approaching the crossing or passing through the corporate limits of the town as may be needful for the safety of the public; for a town of the sixth class, like Burgin, is by the provisions of subsection 7, section 3704, Ky. Stats. 1903, empowered through its board of trustees “to * * * enact and enforce within the limits of said town all other local, police, sanitary and other regulations as do not conflict with the general laws. ’ ’ ' While, in requiring appellant to keep a watchman at the Burgin crossing, the railroad commissioners may have transcended their authority, it was a precaution which inured to the benefit of the citizens of' that town. The testimony as to the stationing of the watchman at the crossing and the
For the reasons indicated, the judgment is reversed, and case remanded for a new trial and other necessary proceedings consistent with the opinion.