The defendant, railroad company, acquired by condemnation a right of way through plaintiff's farm, and constructed its road so as to divide his tract of land into two parts. For the convenience of the plaintiff in using his lands, the defendant made for him a crossing, which was used by him and his employees for nearly ten years. The evidence on the part of the plaintiff tended to prove that his horse was injured by stepping on a spike which had been negligently driven into a plank on the crossing. In this action for damages for injury to the horse the Circuit Judge directed a verdict for the defendant, holding that the decision of the Court in the case of Moragne v. Charleston W.C. Ry. Co., 77 S.C. 437, was conclusive against the plaintiff.
We think that the Circuit Judge was in error, and that this case falls under an entirely different principle.
The rule established by authority and reason, from which we find no dissent, is that where a railroad company acquires a right of way, either by deed or by condemnation, which divides one tract of land into two parts, the law will not impute an intention so unreasonable as that the railroad company intended to exclude the owner from the right to pass from one part of his land to the other, or that the owner of the land meant to part with such right, but, on the contrary, will hold that the intention was that the owner of the land would of necessity have the right of crossing, if *Page 110 a crossing could be made so as to not to interfere materially with the use of the right of way, acquired, by the railroad company. Baltimore O. Ry. Co. v. Slaughter,167 Ind. 330, 79 N.E. 186; Kansas City E.R. Co. v. Kregelo,32 Kan. 608, 5 P. 15; Atchison, T. S.F. Ry. Co. v. Conlon,9 Kan. 338, Kan. 601, 5 P. 321; New York N.E.Ry. Co. v. Board of Railroad Commissioners, 162 Mass. 81,38 N.E. 27; Kirk v. Railway Co., 25 So. 463; Heath v.Railroad Co., 37 La. Ann. 728; Railroad Co. v. Ford, 42 S.W. 589. While the precise point was not involved inSimpkins v. Columbia G.R. Co., 20 S.C. 258, that case was decided on the same principle.
It is not necessary to decide in the present case whether the duty to make and maintain the crossing devolved on the landowner or the railroad company, because the railroad company having voluntarily assumed the duty, and having made the crossing, impliedly invited the plaintiff to use it, and was bound to keep it in repair. On this point, the case falls directly within the rule thus laid down in Matthews v.Seaboard Air Line Ry., 67 S.C. 499: "While a railroad company can not lose its right of way by alienation or prescription, because of the public's interest in its holding it for public purposes, it may impose upon itself as a private corporation duties and obligations to the public or to individuals, by inviting the use of the right of way, or indicating its willingness that it should be used by the public or particular individuals. In such circumstances, the duty devolves on the railroad company to exercise ordinary care to avoid injury to those using the right of way. This rule is not peculiar to railroads, but is of general application. The invitation need not be expressed in words, but may be implied in a number of ways: such, for instance, as the actual construction or repairing by the railroad of a road or a bridge along the right of way, which would not be suggestive of any other use except travel on foot or in the ordinary vehicles of the country." *Page 111
At the argument, counsel for the defendant earnestly insisted that the doctrine of an implied invitation, carrying with it the duty of using reasonable care to make the way safe, is limited to the public, and has no application to particular individuals. It is sufficient to say that the rule quoted above from the Matthews case was laid down after careful consideration of both reason and authority on the subject. There is certainly no reason for the distinction contended for between the invitation and liability to the general public and to a particular individual, and the authorities above cited, and many others, show that the distinction is without judicial recognition.
The case of Moragne v. Railway Co., supra, was entirely different. That decision being not only consistent with but required by the principles laid down in Matthews v. Railway,supra. The facts in the former case are thus stated by the Court: "Sometime after the road was built defendant established the crossing in question. The road leads from plaintiff's home across the railroad to the public road and certain farm lands, and is used by plaintiff's family, the family of the tenant of one Porter, and, according to the testimony of the plaintiff, every one who had business in there, coming or going to my house or going to Mr. Porter's place. The crossing had been bad for several years, but defendant, although frequently requested to do so, had neglected to fix it and refused to allow plaintiff to do so. On February 22, 1906, plaintiff was crossing with a load of fertilizer and his mule's foot was caught between a projecting spike and the rail, thus throwing it forward and crippling it, according to the testimony, permanently." Thus it appears that the crossing did not connect different parts of the plaintiff's farm, that it was not on his land, and that he had no right to maintain it or to require the railroad company to do so. More important still, the plaintiff knew it was in bad repair, and, therefore, dangerous, and he had full notice of the railroad company to abandon it and repudiate *Page 112 any duty to keep it up, by its refusal to repair it or allow him to do so. The evidence thus showed conclusively that if there ever had been an implied invitation to use the crossing, it had been withdrawn by a still stronger implication of withdrawal, namely by direct notice to the plaintiff that it would not be kept up. The rule and the distinction is thus stated in the Matthews case: "Those who walked in the path here described, entered, not a public highway, but the property of the railroad companies as licensee; and even if they did so in pursuance of an invitation, express or implied, but knew of the existence of the cut and its dangerous condition, they accepted the invitation in full view of the danger, and for their own convenience voluntarily assumed it. In such a case, it seems clear that the railroad companies would not be liable for resulting injuries."
It follows that the Circuit Judge was in error in not submitting the issues to the jury.
MESSRS. JUSTICES HYDRICK and WATTS concur.