The defendant railway company and Wm. Katzenberger were indicted for
It appears from the evidence, that the part of the avenue occupied by the track of the defendant company was not, at all points, in such condition that the sаme could be crossed by travelers on horseback or in vehicles, or be traveled over longitudinally with safety. By an agreed state of facts it appeared that the “railroad tracks, its ties and rails, were above the surface of McLemore Aveuue, a public road at the time laid in the indictment, and. obstructed public travel on that part of said highway occupied by said railroad, as alleged in the indictment.”
The decision of the cause wаs submitted to the Judge without a jury, and he found defendants guilty as charged in the indictment, fined them one thousand dollars, and ordered the obstructions to be removed, unless defendants should so do within thirty days. It appearing that the receiver had no means and no authority, under his appointment, to abate the nuisance, or pay the fine, the amount of his fine was reduced by the Court to five dollars.
On January 29, 1887, the Memphis, Greenwood,
At the April Term, 1887, said company applied to the County Court of Shelby for permission to lay its tracks upon, that portion of McLemore Avenue designated in the indictment, and on April 22, 1887, a cоntract was made between the county and said company, whereby the county consented to the construction of a railroad by said company upon-said portion of McLemore Avenue. This contract contаins provisions as to the manner of grading and constructing the road, and provides that the company, “at the crossing of each street and alley on said avenues and roads, shall place good and sufficient crossings, so as not to interfere with travel over such streets and roads.”
There is no stipulation for the keeping in repair by the company of any portion of the avenue occupied by its track, or of the crossings.
On October 24, 1887, the defеndant, the Memphis, Prospect Park & Belt Railroad Company, was chartered under the form provided for steam railway companies.
Defendant company, so far as the record shows, had no contract with the county, but оn November 22, 1887, it purchased the franchises and prop
On April 10, 1888, a committee, to whom had been referred a petition of the Memphis, Greenwood & Prospect Park Railroad Company, reported that they had gone over the track and road-bed of said сompany located on said portion of said avenue and found the grading satisfactory. Nothing is said in this report, nor in any other proceedings of the County Court, which appear in the record, about the manner of construction of the road, and nothing of the acceptance of the road by the county, as having been constructed in accordance with the contract with the county, as counsel, for the defendant contend.
There wаs no change in grade, and no repairs from the time of said report up to the time of indictment.
The railroad provided for in the charter and the contract with the county is that known as a street railroad. Such a road cоntemplates travel upon it longitudinally* This is manifest from the charter, which provides for other vehicles, yielding the right of way over the track and switches to the passing cars, and for the cars yielding the right of way of the track to the fire еngines. (M. & V. Code, § 1924.)
There is no proof by defendant as to how the
As stated above, the County Court did not pass upon and accept the road. The report relied upon as showing this fact related merely to grades in reference to the grades of surrounding county roads, a uniform system of grading being the particular matter under contemplation. There is nothing in the record to show whеn the nuisance began, whether the road was a nuisance and obstruction to travel from the start, or whether it became so by use and the action of the elements.
The defense is made upon the latter assumption, and it is prеsumable that the facts are that way, for otherwise there could be no ground for contest.
The State and defendants both treat the case, as presenting only the question of duty to repair, and it will be considered in-that aspect.
The doctrine contended for is, that a railroad company, after constructing its road, and having restored those portions of the public highway disturbed, to their former state of usefulness, is under no duty to make any repairs.
The case of Railroad v. State,
In Louisville and Nashville Railroad Company v. The State,
In a note on page 332, Yol. X., American and English Railway Oases, giving a summary of the decisions on this subject, the following is stated:
*751 “As to the question whether the company is bound to maintain the crossing permanently or not, the current of authority seems to be that it is so
The only case called to our attention holding the contrary doctrine is that of the M. K. & T. R. R. Co. v. Long, 6 A. & E. R. R. Cases, 254.
In Burritt v. City of New Haven,
The duty to mаintain the usefulness of streets under charters which did not, in express terms, impose the, obligation to repair was enforced in
In Woods’ Railway Law it is stated that “the right to lay a railway track in a public street or highway carries with it the obligation not only to lay it in a proper manner, but also to keep it in repair; ” and “ if the statute simply provides that the company ‘ shall restore the highway to its former state of usefulness,’ etc., they are invested with a discretion as to the matter, and are not subject to the control of the municipal authorities in this respect, and are liable for the consequences of a failure to discharge this duty, and are also charged with the further duty of keeping that part of the highway in proper condition. In other words, the obligation imposed upon them in this respect is a continuing one, and they must so restore the highway that its use by the public shall not be materially interfered with, and so that it shall not be rendered less safe or convenient, except in so far as diminished safety and convenience are inseparable from its use by. the railroad; and the question whether or not the company has discharged its duty is a question of fact for the jury.” See Yol. II., Sec. 269, page 970, note 1, and page 976.
In the case of Dyer County v. Railroad,
These rules, laid down in rеspect to steam railway companies, apply not only to the crossings but to the entire road-bed of street railway companies; for their occupation of the street is held not to be a new burden upon the street or a diversion of its use as a highway, for the reason that such occupation is assumed to be entirely compatible with the use by the public. This is based upon the idea that a street railway, propei’ly constructed and maintained, is not an obstruction, though it may be an inconvenience. When it is so constructed or maintained, as to become an obstruction, it ceases to preserve the character upon which its grant of rights in public highways is prеdicated.
The charter of this company shows that it was intended that -the space occupied by it should be used by the public as a highway, the right of way being given to defendant s cars. It is its common-law duty to keep the space of the highway occupied by its road-bed (which extends, at least, to the ends of its cross-ties) properly graded and in good repair, so as not to be any obstruction to travel ¡across the road-bed or longitudinally upon it, and also to keep the crossings where its roadbed is traversed by streets in good repair.
The judgment is affirmed, but the fine against the company is reduced to fifty dollars. The cause is remanded for further proceedings, and