April 21, 1914. The opinion of the Court was delivered by While Robert Sanders was walking along defendant's right of way, going from Columbus street to Line street, in the city of Charleston, he was knocked down and run over by a box car, which was being pushed by a switch engine, and his leg was cut off. He recovered judgment against defendant for $12,500 damages for the injury. He died a short time after the verdict was rendered, and the action was continued in the name of the plaintiff, as administrator of his estate.
That part of defendant's right of way which lies between Columbus street and Line street is a parallelogram in shape It is about 39 feet wide, and the distance between the streets is 491 feet. Besides the main track, it has on it five sidetracks and numerous switches connecting them with each other and with the main track. It is a part of defendant's switch yard, where switching is constantly being done. The west end of a public court, called Addison's court, which is 18 feet wide, abuts on the right of way about two-thirds of the distance from Columbus to Line street. This is in a populous part of the city, and, for more than 20 years, the public has used that part of defendant's right of way for a walkway between said streets, and between Addison's court and the streets. Whether they did so with the knowledge and acquiescence of the railroad company, and were licensees, or against its objection and in spite of its *Page 426 notices forbidding such use, and were trespassers, was one of the issues of fact which was hotly contested at the trial in the Court below.
The first question presented by the appeal is whether the allegations of the complaint are sufficient to bring the case under the crossing statutes (sections 3222 and 3230 of the Civil Code of 1912).
Section 3222 requires that the bell shall be rung or the whistle sounded 500 yards from the place where the railroad crosses "any public highway or street or traveled place," and kept ringing or whistling until the engine has crossed the same.
Section 3230 reads: "If a person is injured in his person or property by collision with the engines or cars of a railroad corporation at a crossing, and it appears that the corporation neglected to give the signals required by this chapter, and that such neglect contributed to the injury, the corporation shall be liable for all damages caused by the collision, or to a fine recoverable by indictment, as provided in the preceding section, unless it is shown that, in addition to a mere want of ordinary care, the person injured, or the person having charge of his person or property, was, at the time of the collision, guilty of gross or wilful negligence, or was acting in violation of the law; and that such gross or wilful negligence or unlawful act contributed to the injury."
The second and third paragraphs of the complaint are as follows:
"(2) That on or about the 8th day of August, 1907, at and between the hours of 5 and 6 o'clock p. m., the plaintiff above named, while on the east side of said defendant corporation's railway track, and at a point between Addison court, a public court in the city of Charleston, and Line street, a public street in the city of Charleston, and while at a traveled place and walkway and place where all people and the public in general have been passing and repassing *Page 427 for more than 20 years last past, and at a point where said defendant's railway track traverses a populous part of the city of Charleston, and a place much frequented by people passing to and fro along said railway going from Columbus street, one of the public streets of the city of Charleston, and from Addison's court, a public court in the city of Charleston, to Line street, another public street in the city of Charleston, all of which facts were well known to the defendant and its agents, servants and employees; the said defendant corporation, its agents and servants, so negligently, recklessly, carelessly and wantonly ran, managed and operated one of its trains of cars that said train of cars approached said traveled place or walkway and populous part of the city of Charleston at a high and dangerous rate of speed, and without giving any signal by ringing the bell, so that the said plaintiff might have been made aware of the approach of said train of cars, or taking any precaution whatever to avoid injuring said plaintiff, so that said plaintiff was unaware of the approach of said train of cars, and said train of cars struck said plaintiff with terrific force and violence, crushing and mangling plaintiff's leg, and bruising and injuring his face, and shocking his whole system.
"(3) That the injuries to the plaintiff as aforesaid were caused to the plaintiff by the negligence, carelessness, recklessness, and wantonness of the said defendant corporation, its agents and servants, in approaching said traveled place or walkway and populous part of the city of Charleston at a high and dangerous rate of speed, and in not giving any signal by ringing the bell of said locomotive or taking any precaution whatever to avoid injuring said plaintiff."
Taking the foregoing allegations without the explanatory aid of the evidence showing the location of the right of way, the streets, and Addison's court, it could not be said with certainly that the place where plaintiff's intestate was injured was not an ordinary crossing. Therefore, in view of the allegation which is repeated several times, that plaintiff *Page 428 was injured at "a traveled place," and that he was run down without any signal by ringing the bell or taking any precaution whatever to avoid injuring him, and giving these allegations a liberal construction, as we are required to do by the Code of Procedure (section 209), we think it clear that the complaint makes a case under the statutes.
In Easterling v. Railroad Co., 91 S.C. 546, 75 S.E. 133, the complaint alleged that Easterling "was crossing a public crossing and traveled place" when he was struck and killed by an engine and train of cars operated by the defendant railroad company. And it was alleged that his death was caused by the negligence, etc., of the defendant in "failing * * * to give any signal by ringing the bell or sounding the whistle or in any other way whatsoever of the approach of said locomotive and train of cars to said public crossing or traveled place." Those allegations were held sufficient to bring the case under the statute. The Court also said that if the allegations were so indefinite as to leave the matter in doubt, the remedy was by motion to make the complaint more definite and certain. That case seems to be conclusive of the question.
We think, however, that the Court erred in submitting the case to the jury as one under the crossing statute, because the testimony failed to sustain the allegation that the injury occurred at a traveled place. In several cases this Court has defined a traveled place to be one where people are not only accustomed to travel, but also have, in some way, acquired a legal right to travel.Hale v. Railroad Co., 34 S.C. 299, 13 S.E. 537; Barber v. Railroad Co., 34 S.C. 450, 13 S.E. 630; Hankinson v.Railroad Co., 41 S.C. 20, 19 S.E. 206; Strother v. RailroadCo., 47 S.C. 375, 25 S.E. 272; Risinger v. RailroadCo., 59 S.C. 429, 38 S.E. 1; Kirby v. Railroad Co.,63 S.C. 494, 41 S.E. 765.
When we speak of a legal right, we mean a right of such nature that it can be legally enforced, and cannot be lawfully denied or interfered with. There is no evidence that *Page 429 the public or the plaintiff's intestate had acquired any such right to travel where the injury occurred. The only evidence suggestive of such right is that the public had used the right of way for more than 20 years, under such circumstances as would ordinarily have given rise to a prescriptive right to travel there. But we have held that the public cannot acquire by prescription the right to use the right of way of a railroad company in a manner inconsistent with the company's right to use it for the purpose for which it was acquired. Matthews v. Railway, 67 S.C. 499,46 S.E. 335, 65 L.R.A. 286; Blume v. Railway,85 S.C. 440, 67 S.E. 546. Under the law as declared in these cases and the evidence in this case, the most that the plaintiff could have contended for was that he was a licensee, and entitled to ordinary care to prevent his injury.
As the facts do not bring the case within the statute, it requires no argument or citation of authority to show that defendant was prejudiced by the Judge's charge, submitting it to the jury as a case under the statute. There are material difference between a case at common law and one under the statute. In a case at common law, plaintiff must prove the failure to ring the bell or blow the whistle, that the omission was negligence, and that such negligence was the proximate cause of the injury. In a case under the statute, if the plaintiff proves the failure to give the signals required, it is negligence per se, which is presumed to have caused the injury. Strother v. Railway,supra. In the former, the action will be defeated, if the defendant proves that the plaintiff was guilty of ordinary contributory negligence. In the latter, defendant must prove that plaintiff's contributory negligence was gross or wilful, or that he was acting in violation of law, and that it contributed to the injury. Lee v. Railroad Co., 84 S.C. 125,65 S.E. 1031.
The jury were instructed several times that they should determine the nature of the place where the injury occurred, and whether plaintiff's intestate had the right to *Page 430 be there. The Court evidently meant, and the jury must have so understood it, that they should inquire whether plaintiff's intestate was there under such a legal right that defendant could not lawfully prevent him from being there. Plaintiff's attorneys contend, however, that, even if such charge was erroneous, it was harmless, because the defendant owed plaintiff's intestate the same degree of care, whether he was there under a legal right or as a licensee. But that contention cannot be sustained, because it assumes that, even if plaintiff's intestate was not there under a legal right, he was there as a licensee, which was stoutly denied by defendant. On the other hand, if the jury had been instructed, as they should have been, that the public could not acquire, and that intestate had not acquired such right by prescription, the issue would have been narrowed to the question whether he was a licensee or trespasser; and, in that event, if the jury found that the notices had been posted and kept posted, and that intestate went upon the right of way in defiance of them, he was a trespasser, and entitled only to immunity from reckless or wanton injury. In Lamb v. Railroad Co., 86 S.C. 106,67 S.E. 958, 138 Am. St. Rep. 1030, the Court said: "When a railroad company or other owner of dangerous property warns persons against its use, those who insist on incurring the peril of using it, however numerous they may be, have no right to charge the owner with acquiescence in the use. * * * As was well remarked by the Court in Burns v. SouthernRy. Co., 63 S.C. 46, 40 S.E. 1018, the care required of owners of such property does not extend to the guardianship of those who insist on becoming trespassers and using the property of others unlawfully." It is clear, therefore, that the error was prejudicial, and requires reversal of judgment.
The judgment of the Circuit Court is reversed.
MESSRS. JUSTICES FRASER and GAGE concur. *Page 431