There is not a suggestion in the complaint that the plaintiff proposed to rely upon the lack of care on the part of the railroad company in maintaining the approaches to the crossing. As is held in the case of Hill v. R. Co.: "Where a railroad is constructed across an established highway, it is responsible for the safety of the approaches"; and, if the allegations of the complaint had made out a case of this character against the railroad, evidence in support of it and the charge of the Court appropriate thereto would have been entirely proper; but the defendant is entitled to stand upon the case as made by the complaint. Hardaway v. R. Co., 90 S.C. 480;73 S.E., 1020; Ann. Cas., 1913d 266; 21 R.C.L., 604.Goodwin v. R. Co., 76 S.C. 557; 57 S.E., 530. Fell v.R. Co., 33 S.C. 198; 11 S.E., 691. Sutton v. R. Co.,82 S.C. 345; 64 S.E., 401. Johnson v. R. Co., 53 S.C. 303;31 S.E., 212; 69 Am. St. Rep., 849. Brown v. R.Co., 57 S.C. 433; 35 S.E., 731. Jenkins v. McCarthy, 45 S.C. 278;22 S.E., 883.
It is very true that, in answer to the defense of contributory negligence, the plaintiff had the right to introduce evidence showing the character of the crossing and its approaches, all the surrounding circumstances bearing upon the degree of care required of the traveler and the excuse of *Page 379 justification for his not exercising that degree of care to be expected under different conditions; and, if the rulings of his Honor, the presiding Judge, had limited the evidence to that purpose there would have been no error. It is clear, however, from his rulings upon the admission of evidence, from the request to charge of the plaintiff and from the charge, that the jury was permitted to predicate a charge of negligence on the part of the railroad company upon such evidence. It is evident that this was the sole purpose of offering the evidence.
In the first place, witnesses were allowed to testify that the approaches were "dangerous," a relative term, not indicating their condition, justifying the traveler as to the exercise of certain care, but directed immediately towards the duty of the company, and its responsibility for that condition.
Again, the evidence was confined by the Circuit Judge to the condition of the approaches, excluding evidence of the condition of the parallel roads. The latter was as admissible as the former, so far as contributory negligence was concerned. The ruling indicates that such issue was not considered.
Again, in the fourteenth request to charge, submitted by the plaintiff, which was allowed, occurs this statement:
"If a railroad establishes its roadbed and railroad track over and across an established highway, road, street, traveled place, or road used by the public, then it is required to construct suitable and convenient approaches and maintain the same at the expense of the railroad. * * * If the railroad failed to construct suitable and convenient approaches when it constructed its roadbed and railroad track over said highway * * * the railroad would be liable for any damage or injury caused to any person traveling the road by reason of its failure, if you find that it failed, to construct suitable and convenient approaches and maintain the same for the use of the public."
It will hardly be contended that this indicated a purpose to *Page 380 confine the matter of defective approaches to the defense of contributory negligence. It is impossible to affirm upon the theory of negligence on the part of the railroad company; or that it did not affect the jury in connection with other acts of negligence which were alleged and relied upon.
I think, therefore, that the judgment should be reversed, and a new trial ordered.
MR. CHIEF JUSTICE MARION concurs.