(dissenting).
I respectfully dissent from the majority opinion. I do not construe KRS 277.060(2), which contains the duty of railroad companies to maintain roadways within the railroad right-of-way, as applicable only to the railroad roadbed and the immediate area of the roadbed or only to situations where a railroad is constructed over an existing highway. I feel this statutory duty applies to the entire right-of-way and this application exists regardless of which was there first, the highway or the railroad.
The railroad company clearly recognized its duty to maintain safe tracks and .crossings. A supervisor was employed to make frequent inspections of tracks and all crossings and, in fact, had observed the Frog-town Road crossing on the Monday and Tuesday preceding the accident on Wednesday. By virtue of this fact, the railroad company not only could have but should have discovered the dangerous condition represented by the accumulation of sand.
The following quoted language as cited in this court’s opinion in Louisville & I. R. Co. v. Speckman, 169 Ky. 385, 183 S.W. 915, 919 (1916) clearly expresses my view of the manner in which cases of this type should be viewed:
“ ‘As a general rule, it is the duty of a railroad company, both by virtue of statute, and under the principles of common law, to use reasonable care to so construct and maintain in good repair crossings and approaches over all public streets and highways intersecting the line of its road that they will be reasonably safe and convenient for the usual and ordinary purposes of the public; and its failure to do so renders it liable to one who is injured by reason thereof while making a proper, reasonable, and necessary use of the crossing . . .
There was ample evidence presented in the instant case to support the findings of' the jury and I am not inclined to overturn its verdict.
I would, therefore, affirm the judgment.