109 Ky. 59 | Ky. Ct. App. | 1900
Opinion oe the court by
Reversing.
The appellee was indicted in the circuit court of Boyle county for the offense of suffering and permitting a public*
The accusing part of the indictment, after charging the «existence of the corporation, proceeds: “Did unlawfully ■suffer and permit a public nuisance at a point where its road crosses a certain highway, namely, where its road crosses the county road leading from Parksville to Junction City, Boyle county, Ky., the same being the second crossing of said railroad over said county road south of Parks-ville, by unlawfully suffering and permitting the approaches • and grade of said road on either side of the railroad track within said railroad company’s right of way to become and remain for an unreasonable length of time, to-wit, thirty days, very steep and narrow at the point aforesaid, so as to 'be inconvenient and dangerous of ascent and descent for wagons and other vehicles, to the common nuisance of all good citizens passing and repassing along and over said highway and county road, against the peace and dignity,” etc. The objection urged to the indictment by counsel for appellee is that there is no averment that the public highway was constructed before the railroad was built; that, in construing the indictment most strongly in favor of the accused, the necessary deduction is that the highway was built after the railroad, and counsel therefore contends that there was no duty resting on appellee to maintain and repair the approaches on either side of the railroad ttack; and, this being true, there could be no conviction. In the case of Paducah & E. R. Co. v. Com., 80 Ky., 147, this court said: “Where a railroad company lays its track across a public highway, reason and necessity unite in demanding that the company should have paramount control over the full extent of its