Court of Appeals of Kentucky.
April 24, 1907.
ACTION: The judgment is reversed for further proceedings consistent herewith.

The appellant, the Louisville & Nashville Railroad Company, was indicted by the grand jury of Knox county, charged with the offense of committing a public nuisance by throwing the surface water over and across a public road near its line of railway, so that the highway became submerged and overflowed, and consequently impassable. The evidence showed without contradiction that the defendant corporation did nothing to cause the overflow of the thoroughfare in question; but, on the contrary, the overflow was caused by the building of a switch from a coal mine, which connected with the defendant's railroad at or near the submerged spot in the highway. This coal switch belongs to one Asher, and was built by him, and the railroad corporation has no interest in it other than the fact that if any coal is hauled out of the mine it will receive the freight charges on it.

It is urged upon us, however, that inasmuch as the railroad corporation permitted Asher to build upon and over its right of way the switch, in order to make a physical connection with the defendant's line, it is responsible for the injury complained of. This reasoning would be sound if the Louisville & Nashville Railroad Company had an option as to whether or not the switch was built across its right of way in order to make a physical connection with the railroad tracks. The Constitution is as follows: "All railway, transfer, belt lines and railway bridge companies shall allow the tracks of each other to unite, intersect and cross at any point where such union, intersection and crossing is reasonable or feasible." Under this provision the railroad corporation could not prevent Asher building his embankment and connecting with the railroad embankment in order to make a physical connection between his switch and its tracks; and, this being true, it is not responsible for the acts of Asher, which it could neither control or prevent. All of the evidence showed that the injury complained of was done by Asher's embankment, and not by the railroad, and therefore the defendant was entitled to a peremptory instruction to the jury, at the close of the commonwealth's testimony, requiring them to find it not guilty.

The conclusion we have reached renders it unnecessary for us to pass upon the instructions given by the court.

The judgment is reversed for further proceedings consistent herewith.


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