Appeal
from common pleas circuit court of Spartanburg county
Townsend, Judge.
GARY
A. J.
This is
an action for damages for killing Isom F. Kirby in the manner
set forth in the complaint, which, omitting the formal
portions thereof, is as follows: "(3) That near the
store of Clifton Manufacturing Company, located at Converse
station, on the line of said railway, in Spartanburg county,
there was on December 25, 1897, and there had been for a long
time previously, a road or traveled place, upon
which people came and went at will on foot, horseback, and in
vehicles, going to and from beef market, work, pasture, and
other places, and for other purposes, and that said railway
crossed said road near said store; that just west of said
crossing the railroad track curved in a deep cut, which
obstructed the view and hearing of trains coming from the
west. (4) That on December 25, 1897, while Isom F. Kirby was
traveling along said traveled place, as he had the right to
do, and driving his cow, he was struck and killed at said
crossing by the engine of a train of defendant company going
north over said track at great speed. (5) That his death was
caused by the gross negligence of defendant in the following
respects, to wit: (a) The train was off schedule time, being
some two hours late, and yet it crossed said traveled place
at as great, if not greater, speed as when on schedule time.
(b) The train approached said crossing from a curve in the
deep cut which made the approach dangerous even at a slow
speed, and yet it approached and crossed said traveled place
at a great speed. (c) There was no sign alongside said public
road, in violation and disregard of the requirements of
section 1686 of the Revised Statutes of the said state of
South Carolina. (d) A bell was not rung nor was a whistle
sounded by the engineer or fireman on the locomotive of said
train at a distance of 500 yards from said crossing, nor was
any bell kept ringing or whistle kept whistling until the
engine had crossed said traveled place; such omission being
gross negligence, and in violation and disregard of section
1685 of the said Revised Statutes." The defendant denies
the material allegations of the complaint, and sets up the
defense of contributory negligence. The jury rendered a
verdict in favor of the plaintiff for $5,000.
The
defendant appealed upon numerous exceptions, the first of
which is as follows: "In not charging defendant's
second request without modification or qualification, as
follows: '(2) A traveled place does not
always mean a place where people are accustomed to cross a
railway track. Therefore the mere fact that people are
accustomed to cross at such place does not of itself make it
a traveled place, within the meaning of the statute. To
constitute a traveled place, it must be shown by the
preponderance of the evidence to be a place where persons
have acquired the right to travel,--that is, it must be shown
that persons undertaking to travel along and across such
place could not be legally prevented from doing so by the
owner of the land over and across which such place passes
and unless it has been shown in this case by the
preponderance of the evidence that persons have acquired such
a right to travel over and across the point where the
deceased is said to have been killed, then it cannot be said
to have been a traveled place, within the meaning of the
statute; and, if it is not such a place, then the railway
company was not bound, under the statute, to ring its bell or
sound its whistle for 500 yards before reaching such
place.' (a) It is respectfully submitted to the court
that his honor, in modifying and qualifying this request, as
shown by his charge just succeeding the same, erred, in that
the request in itself embodied the true definition of what it
took to constitute a traveled place, and any addition,
qualification, or explanation such as he gave was calculated
to mislead and confuse the jury. (b) It is also respectfully
submitted that his honor's qualification and modification
or explanation was calculated to mislead and confuse the
minds of the jury as to the difference to the rights that
could, under the law, be acquired by a person using a path
through the uninclosed lands of another, even though such
path did lead from one public road to another, or from one
public place to another, and the rights that could be
acquired by using a path leading through inclosed or
cultivated lands, or by the use of a neighborhood road
leading from one public road to another or from one public
place to another. (c) Because his honor's explanation or
modification immediately succeeding such request was calculated to cause the jury to believe that a legal
right could be acquired by the public generally using a mere
path through the uninclosed land of another for more than
twenty years, if such path led between two public roads or
two public places; whereas it is respectfully submitted that
the public or persons generally cannot, under the laws of
this state, acquire a legal right merely by using a footpath
through the uninclosed lands of another, even though such
path might lead from one public road to another; the
presumption being, where nothing else appears except that
they had been accustomed to use such path for twenty years or
more, that such use was permissive and not adverse. (d)
Because his honor's charge in qualification, explanation,
or modification of the defendant's second request, as
shown by such charge immediately following such request, was
calculated, as it is respectfully submitted, to mislead and
confuse the jury as to the distinction between the rights
that could be acquired by persons or the public generally by
the mere accustomed use on foot and on horseback of a mere
path leading through the uninclosed lands of another, even
though such path did connect one public road with another,
and the rights that could be acquired by using such path
adversely, or by the right of a neighborhood road leading
from one public place to another. (e) In that his honor's
charge in explanation,
modification, or qualification of defendant's second
request did not draw the distinction between rights that
could be acquired by the accustomed use of a mere path
leading through the uninclosed lands of another and the
rights that could be acquired by the adverse user of a path
through cultivated lands, or of the use of a neighborhood
road." In disposing of the requests set out in the
exception, his honor says: "Keep your mind on the
statute, for I am talking now about traveled places. 'To
constitute a traveled place, it must be shown by the
preponderance of the evidence, etc.' I charge you that.
The difference between plaintiff's counsel and
defendant's counsel, it seems to me from the argument,
is, how that right to be there is acquired by law. There is no doubt that a traveled place is a place where
a person has a legal right to be, and where he cannot be
prevented from going by law. A traveled place is a place
where a person has a legal right to be; but how to acquire
the right, it seems to me, is the difference between
plaintiff's counsel and defendant's counsel,--how
that right is acquired. Now, the statute refers to three
places, as I told you, and called your special attention to
highway, street and traveled place. There might not be much
trouble, and probably no difference in their argument, as I
see it, as to what is a highway or a public street. The
contention is mostly upon what is a traveled place. Whether
it be a highway, or street, or traveled place, it is a place
where the people have the right,--that is, the legal
right,--and the question is, how it may be acquired. A public
way may be laid off by the legislature,--I mean, by an act
just directing the county commissioners to lay off a road
through the country for the public, making it public by an
act of law. Or it may be that the county commissioners are
authorized--empowered--under the general law to lay off a
road through the country, and thus make it public. Or it may
be that persons may dedicate the land along the line through
a long stretch of country, may actually dedicate to the
public a road, cut it out, dedicate and give it to the
public, make it public. There would not be much difficulty
then in ascertaining whether that was a public road, if it
were dedicated and given to the public, and the public
received it without any further manifestation probably than
of accepting and traveling it; but there are rules which
govern and enable us to determine what public highways are
outside of the acts of the legislature and the acts of county
commissioners. For instance, if a road runs from one public
road across to another public road, and all the people travel
it for all purposes generally, that is a public road. It is
often called a 'neighborhood road,' but it is a
public road if they travel it for twenty years, and then they
have the use of it by any particular adverse use,--I mean,
without any effort on the part of any one to defeat the right
of any one who might try to obstruct it. It
don't require anything. Twenty years' use of that
kind of a road, running from one public road to another
public road, or from a public road to some other public
place, as a town, or a mill, or a church, or something of
that sort; anything that shows the road is for the use of all
the people everywhere, that come from the ends of the earth,
if they want to do that, on public...
