August 5, 1918. The opinion of the Court was delivered by This is an action for death by the wrongful act. The American Spinning Company owns a tract of land between Greenville and Spartanburg. It has houses for its employees. Instead of allowing each family to keep a cow at their dwelling, the company has an inclosure some distance away in which there is located a building used as a cow house. After the dwellings and the inclosure for the cows had been located, the defendant built its road, locating its line, between the inclosure for the cows and the dwellings of the mill village and near the cow lot. The plaintiff and his wife and family occupied one of the houses in the mill village and kept a cow in the cow lot. Just about dark, on the 8th day of February, Mrs. Isa Phillips, the wife of the plaintiff, went from her house to the cow lot to milk their cow, and took with her her son, Woods K. Phillips, to assist her with the milking. After the milking was done, Mrs. Phillips returned to her home, leaving her son, a lad of between 12 and 13 years of age, at the lot with another boy, Frank Dempsey. Dempsey said that he was sitting on the fence and Woods was in the cow barn; that he called to Woods (though he could not say that Woods heard him), that the interurban was coming; that Woods said, "I am going," but he advised *Page 431 Woods not to go; that Woods started, and the next thing he knew of Woods was that he saw him run on the track in front of the car and saw the car hit him. Woods was killed instantly. There was evidence that the car was lighted, but that the current had been shut off and made little noise, and that no signals were given, and that the car was running at high speed. This action was brought for negligence and wilfulness. The jury found a verdict for negligence only. From the judgment entered on the verdict, this appeal is taken. There are seven exceptions.
1. The appellant groups exceptions 1, 2 and 7. These exceptions complain of error in the refusal of defendant's motion for a nonsuit and a directed verdict. It is enough to say that these exceptions are overruled, because there was evidence enough to carry the case to the jury.
2. The third and fourth exceptions complain of error, in that his Honor, the presiding Judge, charged the jury that it is the duty of the defendant to give warning of the approach of its trains.
The defendant operates an electric railroad, and the statutory signals do not apply. In Tyler v. Railway Co., 104 S.C. 115,88 S.E. 544, it is said:
"What signals, if any (italics added), shall be given at other places (than regular crossing) is for the jury."
What signals, if any, was a question for the jury, and in so charging his Honor invaded the province of the jury. See Smith v. Railway, 90 S.C. 462, 73 S.E. 867.
This exception should be sustained, in my judgment.
3. Exception 5: "His Honor erred in charging the jury as follows: `Now, Mr. Foreman and gentlemen, where persons are in the habit and custom of using a railway track, walking up the track or crossing it, and do so with an expressed or implied invitation on the part of the railway, or they do so with the knowledge of the railroad without any protest on their part, then they are *Page 432 what the law terms licensees, and the railway must exercise toward them ordinary care. If it fails to exercise towards them that degree of care, then the railway company is guilty of negligence.'
"It is submitted that this charge was erroneous in two particulars: (1) It is an incorrect statement of the law. The use by the public does not fix the status of the users, but is merely one of the facts which with others may show a license. (2) The Court thereby invaded the province of the jury and charged upon the facts in violation of the Constitution."
This charge was too favorable to the appellant. No other conclusion can be drawn from the testimony but that the deceased was neither a trespasser nor a licensee. Certainly no authority is necessary to show that, when a railroad crosses a tract of land and divides it in two, the railroad company cannot prevent the owner from crossing from one part to the other, provided that in crossing the owner does not obstruct the use of railroad purposes. That which is true as to the owner is also true as to his tenants, agents and servants. The deceased was going from the cow lot where he had been in his father's service, to his father's dwelling house, and at all times on the land of the landlord, and making use of the land on either side that was contemplated by the parties. Woods, therefore, had the right to cross, and he was not crossing as a licensee (by permission), nor as a trespasser.
This exception cannot be sustained.
4. The last exception complains that his Honor spoke of the deceased as that "poor boy." This is not a reversible error. The term "poor fellow" is frequently used and applied to those who come to an untimely death, as a result of their own misused lives.
The judgment is affirmed by a majority of the Court. *Page 433