| Ky. Ct. App. | Jan 29, 1918
Opinion of the Court by
Eeversing.
The railroad company was indicted by the grand jury of Larne county for an alleged violation of section 772, of the Kentucky Statutes providing that ‘ ‘ every company operating a railroad in this State shall provide a convenient and suitable waiting room.”
The indictment charged that the railroad company, “within twelve months before the finding of this indictment, did unlawfully and wilfully fail, neglect and refuse to provide a suitable waiting room at its depot in Hodgenville, an incorporated town of the sixth class; that said waiting room in said depot, its passenger depot, was on said date not convenient and suitable for accommodation of the passengers of the said company and the public, there being only one waiting room for white passengers, which was too small for the accommodation of said passengers and public, and was and is not suffiiciently lighted, heated or ventilated and was not supplied with suitable or sufficient furniture for the accommodation of said passengers and the public and was not kept and maintained in decent order and repair.”
After a demurrer to the indictment had been overruled, the case went to trial, and there was a verdict and judgment against the railroad company for $250’.
On this appeal it is suggested that the indictment is not good, but finding no merit whatever in this contention, we will pass it without further comment.
Another ground relied on is the failure of the Commonwealth to show by the evidence that the railroad company was a corporation.
It was not necessary that there should have been any evidence in behalf of the Commonwealth on this subject. It is a legal presumption that every company operating a railroad in this state is a corporation. No distinction
It is next contended that the court committed prejudicial error in the instructions. The particular instruction complained of advised the jury that if they believed the railroad company “within twelve months next before the finding of the indictment failed and neglected to provide a waiting room at said depot in said town reasonably convenient and suitable for the accommodation of the passengers traveling to and from Hodgenville on said railroad company’s passenger trains^ considering the size and population of the town of Hodgenville and the number of passengers arriving at and departing therefrom on said railroad company’s trains, by reason of said waiting room being too small, or not supplied with suitable or sufficient furniture, or not sufficiently heated or ventilated for the accommodation of said passengers, or not kept in decent order or repair, then they will find defendant guilty as charged in the indictment. ’ ’
The objection urged to this instruction is that it permitted the jury to find a verdict of guilty if they believed that the waiting room was not “sufficiently heated or ventilated” for the accommodátion of passengers within twelve months before the finding of the indictment. It is argued that under this instruction the jury were authorized to find the company guilty if they believed that at any time within twelve months before the finding of the indictment the waiting room was not sufficiently heated or ventilated for the accommodation of passengers. And the instruction appears to be open to the construction put upon it. The verdict of course does not show whether the jury were influenced to find a verdict of guilty because they believed the waiting.room was too small, or because it was not supplied with suitable'or sufficient furniture, or because it was not kept in decent order or repair, or because it was not sufficiently heated or ventilated. Under the instruction the existence of any of these conditions within twelve months would have authorized a finding of guilty.
We are, therefore, of the opinion that the evidence of _ the witnesses as to the heating and ventilation of the waiting room should have been limited to the time the company was required under section 784 to keep it open for the public. The failure, however,' to so limit the evidence on this point is not available error, as it does not appear that any objection was made to the introduction of the evidence. But the admission of this incompetent evidence without objection did not cure the prejudicial eror in the instruction, as it is the duty of the court to give the correct law in criminal cases; Thompson v. Com., 122 Ky. 501" court="Ky. Ct. App." date_filed="1906-01-15" href="https://app.midpage.ai/document/thompson-v-commonwealth-7136112?utm_source=webapp" opinion_id="7136112">122 Ky. 501; Illinois Central R. R. Co. v. Com., 28 Ky. L. Rep. 802; Ward v. L. & N. R. R. Co., 168 Ky. 826" court="Ky. Ct. App." date_filed="1916-03-07" href="https://app.midpage.ai/document/ward-v-louisville--nashville-railroad-7143231?utm_source=webapp" opinion_id="7143231">168 Ky. 826; L., H. & St. L. Ry. Co. v. Com., 144 Ky. 541" court="Ky. Ct. App." date_filed="1911-09-26" href="https://app.midpage.ai/document/louisville-henderson--st-louis-railroad-v-commonwealth-7138944?utm_source=webapp" opinion_id="7138944">144 Ky. 541.
On another trial if’there is evidence on the subject of the heating and ventilation of the waiting room tending to show that within thirty minutes immediately preceding the schedule time of departure and until the departure of trains, the depot within the year was not sufficiently heated or ventilated, the court in instructing the jury upon this point should confine their consideration of it to the condition of the waiting room thirty minutes immediately preceding the schedule time of departure and until the departure of trains.
For the error indicated, the judgment is reversed for a new trial consistent with this opinion.