March 20, 1913. The opinion of the Court was delivered by This is an action for damages arising from an injury to the horse of the plaintiff while on a crossing on plaintiff's land. The crossing was put there by the railroad company. The following is taken from the case:
"The case came on for trial in the Court of Common Pleas for Richland county on the 15th day of May, 1912, before his Honor, Judge Ernest Gary, and a jury. It is agreed by counsel that the following is a statement of the testimony:
"Plaintiff and his son testified that at a point about two miles north of Columbia defendant's railway passed through a tract of land owned by the plaintiff, the right of way having been acquired by condemnation. At the time defendant's line was built a private railway crossing was put in by the defendant, which enabled plaintiff and those working on his place to cross from one part of plaintiff's farm to the other, and said crossing had been used by plaintiff and those employed by him for nearly ten years. They testified that the crossing was one made by spiking down strips of plank on each side of the rail. Plaintiff's son testified that he was present when plaintiff's horse had one of its feet caught between the spike, which he describes as not properly driven in and being in a defective condition, and that said horse was *Page 107 thereby injured. Plaintiff himself testified that he examined the crossing and found the spike protruding and the crossing in a defective and unsafe condition. Both witnesses testified that the horse was seriously injured.
"For defendant, J.E. Sewell, section foreman, testified that he passed there with some of the employees shortly after the alleged accident and that the crossing was in proper condition. Also, that he examined the horse and could find nothing wrong with him.
"At the conclusion of the testimony, his Honor, the presiding Judge, at the request of defendant, directed a verdict in favor of defendant, stating that he was bound by the case of Moragne v. Railway Company, 77 S.C. 437,58 S.E. 150, which precluded any recovery where the injury took place at a private crossing. His Honor further said his own view of the law was that the plaintiff, under circumstances where he came on the premises at the invitation of defendant, should be allowed to recover, but that the case ofMoragne v. The Railway Company held differently, and he was thereby bound, and he therefore directed a verdict for defendant.
"The plaintiff duly served notice of intention to appeal to the Supreme Court."
The following are plaintiff's exceptions:
1. "Because his Honor, the presiding Judge, erred in directing a verdict for defendant on the ground that under the law in this State the plaintiff cannot recover where the accident occurs at a private crossing, even though the defendant impliedly invited plaintiff on the premises and plaintiff was a permissive user of same; whereas, his Honor should have held that if defendant was maintaining a crossing between plaintiff's two tracts of land, and negligently allowed same to become defective, whereby plaintiff's horse was injured, that plaintiff was entitled to such damages as the jury should determine he had sustained. *Page 108
2. "Because his Honor, the presiding Judge, erred in directing the jury to find in favor of the defendant, because although he considered the law should be that if plaintiff was a licensee, or came on the premises by invitation of defendant and defendant was due him the duty of ordinary care, that nevertheless the law in this State has been determined contrary to this view in the case of Moragne v. The RailwayCompany, 77 S.C. 437, 58 S.E. 150, and that his Honor was thereby bound; whereas, he should have held that the defendant owes those who go on its premises, through license or invitation, the duty of ordinary care so as not to injure them, and that it was a question to be determined by the jury whether the defendant had in this respect fulfilled its obligation to the plaintiff."
The case of Moragne v. The Railway Company, 77 S.C. 437,58 S.E. 150, does not govern this case. In that case it did not appear that the plaintiff owned the land at the crossing over which the railroad has a right of way. In this case the plaintiff, Miller, was the owner of the fee in the land and the defendant had all that it could acquire by condemnation, to wit, the right to make such use of the land as was necessary for railroad purposes. In this case the land was "condemned." The condemnation statutes provide only for the taking of a right of way. In Simpkins v. Columbia andGreenville R.R. Co., 20 S.C. 263, this Court says: "The plaintiff still retained the ownership of the land and might lawfully use it in any way not inconsistent with the easement of the defendant."
Miller, therefore, had the right to cross the railroad on his own land wherever he saw fit to do so, provided, he did not interfere with the right of the railroad to use its right of way for railroad purposes. In the exercise of this right to cross the railroad right of way at any time and place not inconsistent with the use for railroad purposes he might, through want of skill or negligence, have seriously or disastrously interfered with the use of the right of way. *Page 109 When, therefore, the company put a crossing at a place chosen by it and thereby invited him to exercise his right to cross at that point, the company was liable for injury resulting from the negligent construction or maintenance of the way which it had made.
The judgment is reversed, and the cause remanded for a new trial.
MR. CHIEF JUSTICE GARY concurs in the result.