Powell v. Greenwood County

• Decision Date: 09 March 1939
• Docket Number: 14836.
• Parties: POWELL et al. v. GREENWOOD COUNTY.
• Court: South Carolina Supreme Court

1 S.E.2d 624

189 S.C. 463

POWELL et al. v. GREENWOOD COUNTY.

No. 14836.

Supreme Court of South Carolina

March 9, 1939

Greene & Greene, of Abbeville, and Grier, McDonald & Todd of Greenwood, for appellants.

R F. Davis, of Greenwood, for respondent.

PER CURIAM.

The facts out of which this action arose, briefly stated, are these: When the rail line now known as the Seaboard Air Line was constructed in about 1891, it crossed in a deep cut a county highway at a point near Saluda, South Carolina, in what is now Greenwood County, the road in question leading from Ninety Six to Coronaca. The railroad company built a bridge across this cut and subsequently maintained the same. In 1926 Greenwood County decided to build an improved road between Ninety Six and Coronaca, and called to the attention of the company the fact that the bridge across the cut was obsolete in type and dangerous to traffic and suggested that it do something about it. After an extended correspondence in regard to the matter, the railroad company agreed to and did construct a new bridge across the cut. This bridge was built in close proximity to and parallel with the old bridge, the latter being torn down when the former was completed and opened to traffic. The county, under its agreement with the company, constructed the approaches to the bridge, each party to the agreement expending approximately an equal amount for work done. In 1934 the bridge floor needed repairs in the way of rock asphalt replacement. Upon refusal of the county to do anything about it, the railroad made such repairs itself and then brought this action to recover the sum of $252.92, the amount extended by it in doing so.

The case was tried in October, 1937. At the conclusion of all the testimony, each side made a motion for a directed verdict in its favor, it being agreed that only a question of law was involved. The grounds of plaintiff's motion were, in substance, that the county was liable to the railroad company under subdivision (c) of Section 8440 of the Code of 1932; if not, then under Section 8387. The trial Judge disposed of the motions by the following order, and the case is now here on appeal:

"I am of the opinion that Sections 8437 to 8447 apply only to the elimination of existing grade crossings. These sections are in derogation of the common law and therefore will have to be strictly construed. It is my opinion that it would not apply to a case of this kind. ***

"Assuming for the sake of argument that Sections 8437 to 8447 are applicable to a crossing of this kind, I think it is clear that the parties have not undertaken to act in accordance with the terms of such statute, they nowhere proceed under the terms of that statute. In one of the letters the railroad did say that they assumed that the procedure was being had under this statute, and the county did say in one letter that they were more than meeting the requirements of the statute. But the parties were only referring to the statute incidentally. If they were proceeding under the statute one-half the cost of this structure would have had to be paid by the railroad and one-half by the county. They did not undertake this arrangement at all, but made their own arrangement outside of and independent of the statute.

"At the very time that this bridge was constructed this is the construction which the...