Matthews v. Seabd. Air Line Ry

• Decision Date: 27 November 1903
• Citation: 46 S.E. 335,67 S.C. 499
• Parties: MATTHEWS . v. SEABOARD AIR LINE RY. et al.
• Court: South Carolina Supreme Court

46 S.E. 335

67 S.C. 499

MATTHEWS .

v.SEABOARD AIR LINE RY. et al.

Supreme Court of South Carolina.

Nov. 27, 1903.

RAILROADS—INJURY TO LICENSEE—USE OF RIGHT OF WAY—EVIDENCE.

1. Where a railroad company has acquiesced for a long time in the use of a path by pedestrians over a right of way, one using it becomes a licensee, and, if he knows the dangers of the path, he uses it at his own risk; but the company is liable to one injured thereon in ignorance of the dangers, where there are no guards and no notice thereof.

2. Defendant railroad company dug an excavation under the tracks of two parallel roads between which was a path customarily used by pedestrians. A bridge had been built over such excavation, but it had become decayed, and the public were accustomed at such place to cross a bridge used on one of the parallel roads. Held, that all the railroad companies were liable as joint tort feasors where a person was injured by falling into the excavation at night, he being ignorant of the fact that the bridge had been taken away, and that pedestrians were accustomed to cross over one of the railroad bridges.

Appeal from Common Pleas Circuit Court of Greenwood County; McCulIough, Special Judge.

Action by C. P. Matthews, administrator of John E. Partlow, against the Seaboard & Roanoke Railroad Company and the Ral eigh & Gaston Railroad Company, operating the system known as the Seaboard Air Line Railroad, as lessees of the Georgia, Carolina & Northern Railway, the Southern Railway, the Charleston & Western Carolina Railway Company, and town of Greenwood. All defendants appeal except the latter. Affirmed.

S. J. Simpson and F. Barron Grier, for appellant.

Charleston & W. C. Ry. Co. T. P. Cothran, for appellant Southern Railroad.

J. L. Glenn, for appellant Seaboard & R. R. Co.

Graydon & Giles and Wm. N. Graydon, for respondent.

WOODS, J. The plaintiff, as administrator of John E. Partlow, instituted this suit for damages, alleging his intestate was killed by falling into a railroad cut in the town of Greenwood, and that the accident was due to the joint negligence of the defendants. The defendants demurred on the ground that the complaint fails to state facts sufficient to constitute a cause of action. The demurrer of the town of Greenwood was sustained, and the plaintiff did not appeal. The separate demurrers of the three railroad companies were overruled, and they have all appealed.

The appeal involves no question concerning the incorporation, sales, and leases of the several railroads, which are set out in the complaint, and no reference need be made to them. The following statement contains all the allegations of the complaint necessary to the discussion of the questions involved:

The Columbia & Greenville Railroad was built in 1852 from Columbia to Greenville, and is owned and operated by defendant Southern Railway Company. The Charleston & Western Carolina Railroad was built in 1882 from Augusta,, Ga., to Spartanburg. The Georgia, Carolina & Northern Railroad, known as part of the Seaboard system, was built in 1890, and at Greenwood passes under the Southern Railway and the Charleston & Western Carolina, at right angles, through a cut about 30 feet deep and 18 feet wide. The Southern Railway and the Charleston & Western Carolina Railway, for about 200 yards above the crossing toward Greenville and about 500 yards below the crossing toward Columbia, run parallel to each other and about 10 or 12 feet apart. The sides of the cut for a distance of about 00 feet are held secure by granite walls, and the crossing is made by iron girders resting on the sides of these walls. The walls are entirely within the limits of the rights of way of the two roads by which they are crossed. The Southern Railway has a side track running across the cut parallel with its main line, on the side opposite to the track of the Charleston & Western Carolina Railway, and has always maintained a bridge across the cut between its main line andside track. Negligence is charged against all the defendants in that they allowed the cut to remain open and unprotected, and failed to keep a light burning at the cut, or to give any notice or warning of its danger, although it was in the corporate limits of the town, within 200 yards of the public square, and crossed one of the main thoroughfares; the defendants, well knowing the danger of leaving it thus unprotected, their attention having been called to it, several persons having fallen into it, and at least one having been killed by the fall.

It is further alleged "that at least twenty years before the building of the said Georgia, Carolina & Northern Railroad there was a well-beaten path—a regular traveled place— over which the public had acquired a prescriptive right to travel, and used by the public at their will and pleasure, along the space now between the track of the said Columbia & Greenville Railroad and the Charleston & Western Carolina Railroad, both above and below the said cut, which path or traveled way the public have continued to use up to the present time." Negligence is charged against the Georgia, Carolina & Northern Railway Company in not building a bridge across the cut it had made, thus leaving it open and exposed, and in a dangerous condition. After the cut was made, the path was deflected from its original course, about six feet from the cut, across the main track of the Southern Railway, and then led over the cut on the bridge built by the Southern Railway between its side track and main line. It is alleged the defendants all well knew the public were using the path as a passageway or sidewalk for pedestrians, with a right to do so; but none of them gave any notice or warning to the public not to so use it, but, on the contrary, such use was "with the knowledge, acquiescence, and consent of them all." The complaint then gives the following account of the accident: "That on the night of March 13, 1899, John E. Partlow, who was a citizen of Greenwood county, but not a resident of the town of Greenwood, and not acquainted with the cut and its surroundings, left the home of his daughter, Mrs. Bessie P. Andrews, in said town, to go down to the public square of said town on some matter of business or pleasure, walked along the said path, and on account of said cut being open and unprotected, his ignorance of its presence, and his being unable to see it in the darkness of the night, fell into the same, without fault or negligence on his part, and was so bruised and hurt by the said fall that he died from his injuries on the 2d day of April, A. D. 1899."

Responsibility is thus charged on the defendants, as a conclusion from the allegation above set forth: "That the direct and proximate cause of the death of the said John E. Partlow was the gross and concurring negligence of the said defendants in constructing said cut, and in allowing it to remain open and unprotected in the manner aforesaid, although they each and all well knew the danger of allowing it so to remain, and although it was the duty of each and all of them to cover or guard the same."

Since the accident, the town of Greenwood has bridged over the cut with strong and heavy timbers, and erected a fence at each end of the bridge; and the Southern Railway Company has erected a fence as a guard on the outside of the upper or northern granite wall, between its main track and the track of the Charleston & Western Carolina Railway Company, where the town had previously had a fence, which had fallen into decay.

In the foregoing synopsis of the complaint no reference is made to allegations concerning the duty and neglect of the town of Greenwood, for when its demurrer was sustained without appeal its alleged liability was eliminated from consideration.

The first question made by the demurrers is whether the plaintiff's intestate was using a way over which the public had by prescription a right to travel. There are some authorities which hold a railroad company may release or convey a portion of its right of way, and hence that individuals may acquire a private right of way, or the public a highway, over the company's right of way by continuous, open, and adverse use for 20 years. Gay v. R. R. Co. (Mass.) 6 N. E. 236; Turner v. Ry. Co. (Mass.) 14 N. E. 627; Blumenthal v. State (Ind. App.) 51 N. E. 496; Ry. Co. v. Crownpoint (Ind. Sup.) 50 N. E. 741; People v. Ry. Co. (Cal.) 33 Pac. 728; 22 Am. & Eng. Ency. Law, 1220; Elliott on Railroads, § 425. The subject is referred to in Boggero v. Ry. Co., 64 S. C. 104, 41 S. E. 819; Jones v. Ry. Co., 61 S. C. 560, 39 S. E. 758; Haltiwanger v. R. R. Co., 64 S. C. 7, 41 S. E. 810; Hankinson v. R. R. Co., 41 S. C. 1. 19 S. E. 206; and Ringstaff v. Ry. Co., 64 S. C. 546, 43 S. E. 22; but the question here made was not decided or involved in any of these cases. The doctrine above stated, under our statutes and the general principles of law, should be received, we think, with an important limitation. Railroad companies are allowed to acquire rights of way by condemnation because of the interest the public has in the construction and operation of their roads as highways, and hence a right of way so acquired is burdened with duties to the public. Therefore it may be stated as a general proposition, while the railroad company may deal with the right of way so acquired as its own in the conduct of its business as a carrier, it cannot dispose of it or use it so as to destroy or impair its ability to serve the public. 5 Thompson on Corporations, §§ 5878, 6137; Thomas v. R. R. Co., 101 U. S. 87, 25 L. Ed. 950; Ry. Co. v. Hyatt (Cal.) 64 Pac. 272, 54 L. R. A. 522; Col-lett v. Com'rs (Ind. Sup.) 21 N. E. 329, 4 L. R. A. 321; R. R. Co. v. Spokane, 64 Fed. 506, 12 C. C. A. 246. Our statute under whichthe right of way is acquired provides that nothing therein contained "shall be construed to confer upon such person or corporation any right in or power over the lands so condemned, other than such as may be...