137 Ky. 802 | Ky. Ct. App. | 1910
Of’nion of the Court by
Reversing-
The Louisville & Nashville Bailroad Company was indicted, under section 772 of the Kentucky Statutes, for failing to provide a convenient and suitable water-closet or privy, and keep and maintain same
Several grounds are relied upon for reversing, but the only one which we find it necessary to consider is: Did the court err in refusing to peremptorily instruct the jury to find for the defendant? Glasgow Junction is a small town of the sixth class, lying in Barren county, Ky., on appellant’s railway, and is the eastern terminus of the Mammoi.fi Cave Railway and the 'Western terminus of the Glasgow Railway. A great number of people get on and oft at Glasgow Junction in going to and returning from Mammoth Cave. The water-closet, or privy, is located about 200 yards from the depot, and behind the freight depot from the passenger depot. It is shown that at one time, some three or four years prior to the institution of this prosecution, the company had built a privy on its right of way, about half way between the passenger depot and the freight depot, but that such a protest was raised because thereof by one of the hotel keepefs, in front of whose property it was placed, that the company moved it to its present location. It is a frame building, with two rooms and two doors, and each room is provided with suitable accommodations for two persons. One of these doors is kept locked all of the time; the key being in charge of the agent at the passenger depot. The other was likewise kept locked until the door was broken open, and for some months prior to the institution of this prosecution this door was left unlocked. It is shown by the evidence of practically all of the witnesses for both the commonwealth and
The point is made that as one compartment of tlu> privy was found to be unclean, as above stated, the company liad violated that provision of the statute which required it to keep and maintain the privy in decent order. The statute is entitled to a fair and reasonable construction, and the company is only required to exercise reasonable care to keep its privy in decent order, and, before the company could be held liable or answerable for a failure to keep it in decent order, it would be incumbent upon the commonwealth to show that it suffered qr permitted its privy to remain in an indecent or unclean condition. It is not enough to show that upon one particular occasion, or even upon two particular occasions, it was found to be out of order or unclean.
Upon the above showing, it is insisted for the company that the court should have peremptorily instructed the jury to find for it. There is no sewerage system at Glasgow Junction; and while a large number of passengers are received and discharged annually from the trains that stop there, and some inconvenience has undoubtedly at times been ex
The burden of appellee’s complaint is that the privy is located too far from the depot. A similar question was presented in the case of Louisville & Nashville R. R. Co. v. Commonwealth, 114 S. W. 1192, in which the court said: “If there was no point where the closet could be placed to be more suitable or convenient, the defendant has not violated the statute. The law only requires that the closet shall be reasonably convenient, considering the existing conditions, and all the proof as to conditions existing, including the proof as to a better location for the closet, should be admitted.. In towns without a water supply, a very different condition is presented from that presented in a city where the water-
There are located in the immediate vicinity of the passenger depot two hotels, and these hotels are unwilling that a privy, even though surrounded by lattice work, should be located immediately in front of their property. Other residents in that locality enter the same objection, and, unless it is to be held that the railroad company is to be required to adopt one of the two methods suggested by the commonwealth — i. e., by digging a dry well or by installing a waterworks plant and sewerage system of its own ■ — the company is unable to maintain a water-closet nearer to its passenger depot than the present one is located. As there is a stream of running water under the ground along the right of way, it is very
We are of opinion that the privy in question is amply sufficient to meet the requirements of the statute in this particular, and, as it is shown that it could not be located at a point nearer to the passenger depot than it is, the trial judge should have'instructed the jury to find for the defendant at the conclusion of all of the testimony. For his failure so to do, the judgment is reversed.