149 Ky. 459 | Ky. Ct. App. | 1912
Opinion of the Court by
Affirming.
The Louisville and Nashville Eailroad Company was indicted in the Christian Circuit Court for maintaining a common nuisance in that it unlawfully and wilfully suffered the public road leading from the Madisonville road by Concord Church to the Greenfield road at the point whére it crosses the railroad track, to be and remain steep on each side of the approach to the railroad track and permitted large rocks and other obstructions to be and remain in the road where it crosses the railroad track, by reason of which the crossing was rendered dangerous to the traveling public, and this dangerous condition of the road continued for weeks and months. The defendant demurred to the indictment, and the demurrer was overruled. The case was tried before a jury, the trial resulting in a verdict and judgment against the defendant, for two hundred and seventy-five dollars. The railroad company appeals.
It is insisted that the indictment is insufficient because it does not show that the railroad company failed to keep the road in repair within the limits of its right
It is also insisted that there was a variance in that the proof shows that the road complained of is one leading from the Madis.onville road by Concord Church to the Greenville road, and not Greenfield, as written in the indictment, but this variance could not have misled the defendant, as the other description of the roa<|. referred to sufficiently informed it what road was meant. The facts of the case are these:
The railroad company rebuilt its railroad, moving its track about fourteen feet from the old track, and raising it' about four feet above the grade of the old .track. It completed the new road in April, 1911; this indictment was returned October 10, 1911,. and the complaint was that the railroad company had failed to properly construct the crossing over the new track. The proof on the trial showed that the crossing was in very bad condition from the time the new track was completed until after the indictment was filed, when ‘ the railroad company did some work upon the crossing and put it in much better condition. .As the new track was four feet higher than the old track, the approaches on either side of the railroad track had to be extended considerably in order to make the grade' of the highway a .proper one. Section 786, Kentucky Statutes, among other things, provides:
“A railroad company may construct its road upon or across any water course, private or plank road, highway, street or alley and across any railroad or canal, but the corporation shall restore the water course, private or plank road, highway, street, lane, alley, railroad or •canal to its former condition, as near as may be.”
When, as in this case, the railroad company reconstructs its road or builds a new track, it must restore the highway to its original condition as near as may be, and it must construct approaches sufficient for this purpose, although it may be necessary for it to go out ■on the highway beyond its right of way in building the
The defendant offered to show, by a number of witnesses, that the crossing in question was . no worse than some other, places on the highway. This evidence was properly excluded. The statute requires a railroad company to keep its railroad crossings in good order, and it is no defense for it to show that the county authorities have failed to keep their parts of the road in good order. There is particular necessity for the road being in good order at the railroad on account of .the danger from trains there. It is also complained that much proof was admitted on the trial .that the fill made by the railroad company for the crossing was too narrow, but this proof was introduced to show why the steepness of the crossing made the road dangerous,, and the case was only submitted to the jury on the-matters alleged in the indictment. While there was . no proof that there were rocks in the crossing, there was proof that the crossing was obstructed by mud, and .on the whole case, we do not see that there was any sub? stantial error in the instructions of the court to the jury, or in the admission or rejection of evidence.
Judgment affirmed.