McGhee v. Guyn

32 S.W. 615, 98 Ky. 209, 1895 Ky. LEXIS 39

• Court: Court of Appeals of Kentucky
• Decided: October 29, 1895
• Status: Published

Opinion

JUDGE HAZELRIGG

delivered the opinion op the court.

When sued for negligently killing stock a railroad company may overcome tlie statutory presumption of negligence by introducing satisfactory and consistent proof that the killing could not have been avoided by the exercise of ordinary care. And when this is done by the uncontradicted and unimpeaclied testimony of the employes in charge of the train it is not within the province of the jury to find otherwise. (Kentucky Central R. Co. v. Talbot, &c., 78 Ky., 621.)

From the testimony in the case now before us the finding of the jury should have been for the company and not against it.

By a cross appeal the appellee questions the ruling of the trial judge in sustaining a demurrer to the first paragraph of his petition. This paragraph seeks to hold the company liable for tlie killing- because of its failure to erect and maintain suitable cattleguards at a designated public crossing, and where it is alleged the mare passed from the public road onto the railroad, where she was killed. The averments of the petition in this behalf appear to conform to the requirements of the statute, and the demurrer should have been overruled.

It is well settled that a neglect on the part of the company to erect suitable cattleguards at public crossings and keep them in repair, when a statute so requires, renders it liable for injuries to cattle escaping from a highway upon its track by reason of such defect. (Woods’ Railway Law, volume 8, section 419.)

Judgment reversed on original and cross appeals for proceedings consistent with this opinion.