Whitner v. Southern Railway Co. , 101 S.C. 441 ( 1915 )

August 14, 1915. The opinion of the Court was delivered by This is an action instituted by the plaintiff for $800 damages, sustained by the plaintiff's automobile while attempting to cross the defendant's railroad track at a point near the city of Greenville, alleged to be a crossing commonly used by the public, and which was in defective condition on November 2, 1913, when alleged damage occurred. The case was tried before Judge Shipp at Greenville, S.C. October term, 1914, and resulted in a nonsuit, from which plaintiff appeals and by six exceptions seeks reversal. These exceptions practically raise but one question, and that is, that the Circuit Judge was in error in finding and holding from the testimony that at the time the plaintiff sustained injury to his car the road was not such a one as to impose upon the defendant the duty to provide or maintain a crossing at the point in question. The testimony established beyond question that even if the road ever existed at this point as an attempted private way it had been abandoned at the time the plaintiff sustained damage, and at no time was it a public road, as no part of the road had been turned over to the county until after the bridge was built. It was not a private road or neighborhood road, for it had not been used by the public adversely, openly, notoriously and consecutively for twenty years or more; because Henderson says in his testimony that they bought the property in 1913, and during the spring of that year they started to improve and sell the property; then they got permission from Gwynn and built the road. The railroad objected to the crossing being put there as it was dangerous, and Henderson agreed that it was dangerous, and the railroad would not permit the crossing to be put there, but agreed to pay half for an overhead bridge, which was assented to by Henderson. The crossing as it then existed was torn up by the railroad authorities, and before the overhead bridge was completed at a different place at the joint expense of Henderson and the railroad the damage to plaintiff's car occurred. The plaintiff was where he had no right to be, and at a place where the defendant under no view of the case owed him any legal duty other than not to wilfully injure him. Neither under Moragne v. Railroad Co., 77 S.C. 437,58 S.E. 150, or Miller v. Railway, 94 S.C. 105, 77 S.E. 748, is such a case made out as required the defendant to maintain this crossing. All exceptions are overruled.

Judgment affirmed.