OPINION OF THE COURT BY JUDGE NUNN-Reversing. This action was brought by appellant against appellee for malicious prosecution. The petition was in the usual form. The answer denied the malicious prosecution and alleged that after appellant was arrested under a warrant procured by appellee for breach of the peace, she confessed her guilt and was fined $100.00 and sen tenced to fifty days imprisonment in the county jail which was suspended by written request, for ten days, and appellee pleaded such action upon her part as a bar to this proceeding. The facts of the case, as they appear in the record, are about these: Appellee procured a warrant for the arrest of appellant to be issued by Squire Meglemery, and after her arrest she was carried to the county jail and there, by the direction and consent of appellee, she was told that if she did not confess she would have to remain in jail, but that if she would confess a penalty would be assessed against her but would be suspended and never collected. Under these circumstances, she did confess and a judgment was rendered as stated, and, she afterwards learning that it was suspended for only ten days, appealed to the circuit court. That court decided that she could not change her plea and dismissed the appeal and she then prosecuted it to this court which reversed the action of the circuit court.. (Holtman v. Commonwealth, 129 Ky., 710; 112 S. W., 851). After the case was remanded she was tried in the circuit court for a breach of the peace and acquitted. She then brought this action. She alleged that she entered her plea of guilty while in jail, to the offense of a breach of the peace when she was not guilty, and that she entered such a plea under the directions and consent of appellee who knew she was not guilty of any offense. The lower court sustained appellee's plea in bar, and she has appealed. The only question to be determined in whether a plea of guilty made under the circumstances alleged in this case, is a bar to a suit for malicious prosecution for that of fense. Both parties cite the case of Duerr v. Ky. & Ind. Bridge & R. Co., 132 Ky., 228; 116 S. W., 325, as authority for their position. Appellee cites from the opinion in that case the following: "But the appellant completely closed the door of the courts to his petition for redress when he admitted that he had pleaded guilty to a charge that was made unjustly, as he avers, against him." The appellant in that case pleaded guilty after the advice of counsel of his own selection; it is nowhere shown nor intimated that the appellee had anything to do with making or getting him to confess. That is unlike this case, as the appellant herein was in jail and had no opportunity of seeing a friend or any one for advice, and she alleged that appellee consented to and directed this method of obtaining her confession. The court also said in the case above cited: "There is, however, an exception to the rule that a judgment of conviction is conclusive evidence of the fact that there was probable cause for the prosecution, and this exception is that if the accused alleges in his petition that the prosecution and conviction were procured by fraud, corruption or perjured evidence, and supports these allegations by sufficient evidence, he may notwithstanding the conviction, maintain his action and recover damages for the malicious prosecution.” And again it is said: "But, if he can prove that the judgment of conviction against him was unjustly obtained, thereby in effect establishing his innocence, notwithstanding the judg ment, he will occupy in the eyes of the law the same position as if he had been discharged or acquitted." A number of cases are cited to support these views which we believe to be correct, and if the judgment of confession was obtained from appellant as she alleged in her petition, it is no bar to this proceeding, and if she can show that the prosecution of her in the criminal court was inalicious and without probable cause, she can maintain this action. For these reasons, the dgment of the lower court is reversed and remanded for further proceedings consistent herewith. 1. L. & N. R. R. v. Sweet, (Decided February 17, 1911.) Appeal from Mason Circuit Court. Railroads-Farm Crossings-Duty to Repair-Safe Condition For Traveling. The duty of a railroad company to maintain crossings in reasonably safe and fit condition for travel, obtains as to all who have a legal right to use the crossing, and this includes those 2. rightfully traveling to and from the farms to which the road is an appurtenant. Same-Absence of Agreement-Duty of Railroad to Repair.-The same principle which requires those operating railroads to maintain the crossings on public highways applies to private passways as well, in the absence of an agreement between the parties to the contrary. 3. Fublic and Private Crossings-Reasonable Safeguards-Grades— The railroad company must be the judge of the grade on which it builds and maintains its tracks, as well as of such reasonable safeguards at crossings as will protect the public using the railway and those using the crossing. 4. Crossings-Neighborhood Repairing-Inexpediency.-It would be most inexpedient to allow the public or neighborhood travelers to interfere with the tracks and grade thereof at crossings by attempting such repairs on them as they thought proper. ALLAN D. COLE and BENJAMIN D. WARFIELD for appellant. THOS. D. SLATTERY and T. R. PHISTER for appellee. OPINION OF THE COURT BY JUDGE O'REAR--Affirming. Appellee was moving a traction engine and thresher through the country. In passing from one neighborhood where he had been threshing wheat to another section he used a neighborhood road which crosses the Louisville & Nashville R. R. tracks in Mason county. The road probably was not a public highway, but was only a neighborhood passway used as appurtenant to certain farms, including the farm where appellee had just been threshing. As appellee came to the railroad he stopped and listened for trains, but hearing none attempted to cross the track. Owing to the condition of the road at the crossing, described by appellee and his witnesses as being difficult to pass over with the traction engine, it was stalled on the track. The rails of the track were allowed to stand up some six inches above the grade of the highway, because the railway company had failed to put in the ballast or guards along the sides of the rails so as to present a reasonably even surface. This caused the traction engine to slip on the rail as it attempted to cross so that the engine was thrown to the side of the highway, where, before it could go on, some work was necessary to remove an obstructing rock. When the threshing outfit was caught in this predicament appellee sent one of his workmen up the road some two hundred yards in the direction a train was due to come soon, to flag the ap proaching train. The man went as far as he could before the train came along, some two hundred yards up the track, when he stood in the middle of the track and waved, his hat across the track as a warning to the engineer on the train, which had then come into view. The engineer paid no heed to the warning until too late to avoid striking the thresher. The machine was completely demolished and the traction engine considerably damaged. In this suit by appellee to recover damages for the injury to his property there was a recovery for the plaintiff. The principle ground urged as error in the trial is the assumption by the circuit court in its instructions that appellant was under the duty to maintain the crossing in reasonably safe and fit condition for travel. It is contended by appellant that as the evidence failed to show that the road was a public highway, the duty, if it existed, extended to those only who had the easement across the railroad at that point. We hold that the duty obtained as to all who had a legal right to use the crossing. That includes those rightfully traveling to and from the farms to which the road was an appurtenant. Appellee in using the crossing was as much entitled to do so on the occasion in question as the owners of the land. Appellant had conceded the right to the crossing by such owners and their servants and licensees by erecting and maiutaining the crossing. The owners of the farms would not have been justified in going upon the railroad right of way to make repairs on the crossing. The same principle which requires those operating railroads to maintain the "rossings on public highways applies to private passways as well, in the absence of an agreement between the parties, to the contrary. The railroad company must be the judge of the grade on which it builds and maintains its tracks, as well as of such reasonable safeguards at crossings as will protect the public using the railway and those using the passway. It would be most inexpedient to allow the public, or neighborhood travelers, to interfere with the tracks and grades thereof at crossings by attempting such repairs on them as they thought proper. It is contended further that appellee was himself negligent in attempting to cross the track near the time when a train was known to be due. Whether he was so negligent was submitted to the jury in the instruction on contributory negligence. We can not say as a matter of law that his conduct was necessarily negligent. He could not well have known that his engine would skid along the rail instead of mounting it, or that necessarily he would be involved in delay in getting across. The principal apparent danger was that his machine would suffer somewhat by the jolting in making the crossing. The question was one for the jury, and we cannot say that their verdict was against the evidence. The other grounds urged as error are of immaterial matters which could not have affected the verdict in any probability. Judgment affirmed. Creamer v. Louisville Ry. Co. (Decided February 17, 1911.) Appeal from Jefferson Circuit Court Street Railways-Injury to Pedestrian-Question of Negligence-Contributory Negligence of Appellant.-Appellant alleged that he was damaged by the negligence of the appellee, Louisville Railway company, in striking him with one of its cars in passing a car from which he had just alighted, by which he was greatly injured upon his head and other parts of his body. The jury upon hearing the evidence returned a verdict for the appellee on the ground of concontributory negligence on the part of appellant. Held, it is sufficient to say that there was evidence from which the jury had the right to determine whether appellant's injuries were caused by the negligence of appellee's servants cr by appellant's own negligence, and the instructions being correct and not objected to, the finding of the jury will not be disturbed. EDWARDS, OGDEN & PEAK for appellant. FAIRLEIGH, STRAUS & FAIRLEIGH and HOWARD B LEE for appellee. OPINION OF THE COURT BY JUDGE SETTLE-Affirming. Appellant, a resident of Sellersburg, Indiana, upon reaching the City of Louisville, took a Fourth street south bound car, operated by appellee, to go to a cooper shop on N. Street where he was employed. Upon reaching M. street the car stopped and appellant got off of it on the west side and and immediately went around the rear end of the car to cross Fourth street to the east |