102 Ky. 373 | Ky. Ct. App. | 1897
delivebed the opinion of the coubt.
The appellant was indicted, tried and convicted under the following indictment; “The grand jury of Laurel county, in the name and by the authority of the Commonwealth of Kentucky, accuse John Rooney of the crime of willfully and maliciously tearing up, displacing, breaking and disturbing a fixture attached to the track and switch of a railroad in operation, whereby the engine and cars on said railroad might be upset, arrested and thrown from the track and switch of said road, committed in manner and form as follows, viz.; The said John Rooney did, on the 4th day of October, 1897, and before the finding of this indictment
“Commonwealth’s Attorney 27th Judicial District of Kentucky.
(Endorsed) “A true bill.
“S. W. BROCK, Foreman.”
The indictment was found under section 807, Kentucky Statutes, which reads as follows: “Any person who shall willfully and maliciously tear up, displace, break or disturb any rail or other fixture attached to the track or switch of ■any railroad in operation, or break any bridge or viaduct of such road, or do any act whereby any engine or car might be upset, arrested or thrown from the track of such road or switch, or any branch or turn out, shall be confined in the penitentiary not less than one nor more than five years.”
The defendant filed grounds for new trial, which are as follows:
1st. Because the court failed to properly instruct the jury as to the law of the case, and refused to instruct the jury as to the law of the case.
2d. Because the court- permitted illegal and incompetent
3d. Because the verdict of the jury is contrary to law and evidence.
4th. Because the court permitted the testimony of on® Johnson to go to the jury as to the printed rules of the Louisville Nashville Railroad Company, as to the operation of its trains, and the probable result of removing a switch-light, over the objections of defendant.
5th. Because he has discovered important testimony in his defense since the trial that he did not and could not by reasonable diligence have discovered before the trial.
It is insisted for appellant that the indictment is insufficient, and the demurrer thereto ought to have been sus; tained, and also earnestly contends that there is no evidence to authorize the verdict of the jury. It will be seen, that the injury to the road consisted in knocking off one-of the lamps or lights fastened to or belonging to one of the switches of the Louisville & Nashville Railroad Company. The destruction of the switch light is conclusively proven,, and it is also proven by the Commonwealth’s own witnesses that trains continued to run both ways during that night without being delayed or hindered in consequence of the destruction of the light. It is also proven that the switch-was closed at the time of the destruction of the light. The Commonwealth then introduced H. Y. Johnson, who testified' as follows: “I am a stock agent of the Louisville & Nashville Railroad Company. I reside in the city of Louisville, Ky. I am acquainted with the rules governing thg-operation of railroad trains and engines. A switch
Cross-examined by defendant — “I am not an engineer, and never operated or run an engine, nor never fired an engine. I never had anything to do with operating an engine or train en a railroad track, but have rode on engines and seen engineers operate them on the road.”
Counsel for defendant propounded the following question: “If knocking the lamp off of its place and putting it out would of itself cause or might cause a train on the main track to be arrested, upset or thrown from the track unless
“2 will not answer that question unless you permit me .to answer it in my own' way.”
Counsel — “The court will determine whether you’answer or not.”
“It could not of itself, but it might cause a train detained ■on the main track on account of the switch being dark, and another train to run into it passing on the main track. Trains! generally have orders where to switch for other trains to pass. Engineers do not always know the roads oyer ■which, they run well enough to know where the switches are located, especially of dark nights. Headlights do not always reflect light sufficient for the engineer to tell where the .switches are.”
It seems to us that the indictment is sufficient. It •charges that he did disturb a fixture attached to the tracks and switches of the Louisville & Nashville railroad, a rail1 ■road then in operation, and we do not think it was necessary to allege that the Louisville & Nashville railroad was a railroad corporation authorized to do business in the State, .and it is also evident that the allegations of .the indictment -are in strict accord with the section of the statute, supra, providing for the punishment of persons committing any of the offenses denounced.
It is earnestly contended for appellant that the witness, .'Johnson, was not qualified to testify as to. the danger or injury that might result from the destruction of a switch light, and that it was error to allow him to testify as to the
The jury were the judges as to whether the break was-willful and malicious, and also of the other facts and from the proof whether the act might result in any of the-injuries mentioned in the statute. The public and the railroad companies are vitally .interested in the protection of the means of railroad transportation, and it is of the utmost importance that the public as well as the roads, should be as secure as possible from any and all interference which might reasonably obstruct the operation of the road or endanger the lives of passengers. -The statute, having this end in-view, should be reasonably and fairly enforced, and although one year’s imprisonment might seem a severe punishment for the act complained of when no serious harm seems to-have resulted therefrom, yet we do not feel authorized to-
Judgment affirmed.