March 18, 1922. The opinion of the Court was delivered by This is an action based upon a contract.
The Southern Railway has a track that crosses Main street in the city of Spartanburg. The city of Spartanburg granted to the Spartanburg Railway, Gas Electric Company the right to construct and operate a line of street cars in said street that crossed the said track of the Southern Railway. These two companies made a contract as to the crossing. The appellant is the successor of the Spartanburg Gas Electric Company. The clause of the contract that gives rise to this action reads as follows:
"And it is mutually covenanted and agreed: That, in the event that the city council of Spartanburg should, at any time hereafter by lawful ordinance, require the maintenance of electric lights and a flagman at said crossing of the tracts of the parties thereto, then the expense in that respect shall be borne by and equally divided between the parties hereto."
The following is the ordinance:
"That in order to provide for the safety of the public at certain places in the city of Spartanburg where the tracks *Page 164 of steam railroad companies cross the streets of said city, it shall be the duty of the railway companies so crossing said streets, respectively, to erect, maintain and operate at said crossings suitable and proper gates for the protection of the public, as follows, to wit: By the Southern Railway Company at its crossing of East Main street and of Magnolia street at its passenger station. By the Charleston Western Carolina Railway Company at its crossing of West Main street and its passenger station. That this ordinance shall go into effect on and after the 15th day of April, 1903, and the said railway companies mentioned in section of this ordinance respectively be, and they are, required on and after said date to erect, maintain, and keep in operation gates as provided in said section."
The agreed statement of facts is:
"Execution of contract admitted. Ordinance admitted. That the first demand that was ever made upon the street railway by Southern Railway for contribution for labor by gateman was September 14, 1915. Street railway refused payment and has never paid anything. That the gates were constructed and operated by the Southern Railway Company in obedience to ordinances of the city council for 16 years, at a monthly cost of $30. The gates are operated from a tower on the right of way of Southern Railway on the northwest side of Main street, beyond the pavement. The gateman is on duty from about 7 o'clock in the morning until about 6 o'clock in the afternoon. The gates are not operated between the hours of 6 p. m. and 7 a. m. The gateman lowers his gate on the approach of the trains of the Southern Railway and they are kept lowered until the Southern Railway trains pass and they are then raised. The gateman does not pay any attention to the street cars, does not signal the street cars, nor perform any service for the street railway other than the closing of the gates as above stated on the approach of the Southern *Page 165 Railway trains. The conductors on the street cars do their own flagging — that is, they stop the cars at the Main street crossing. The conductor goes forward, looks up and down the tracks of the Southern Railway to see if a train is approaching, and signals the motorman accordingly. The conductors flag the street cars even if the gates are lowered when they stop at the crossing."
"The street cars begin running about 5:30 in the morning, and run until 11 to 11:30 at night."
"The Southern Railway did not consult the street railway as to the installation of gates, hiring of gateman, or amount of salary to be paid to him."
The plaintiff and defendant each moved for a direction of verdict in their favor. The presiding Judge directed a verdict for the plaintiff, and the defendant appealed.
I. The first question is, Is the contract void for want of consideration? There was sufficient consideration. It is true the plaintiff had only a right of way, and did not own the fee in the land. A right of way is valuable property. The use of this right of way by the defendant impeded the full enjoyment of this right, and to impose another right of way furnished a sufficient consideration. This point cannot be sustained.
II. The next assignment of error is that the presiding Judge erred in holding that the street car company is liable under the contract for the expense of keeping up the gate required by the ordinance. This must be sustained. According to the letter of the contract, the railroad company has no claim. According to the spirit of the contract, the railroad company cannot sustain its claim. It is manifest that the purpose of the contract was to provide joint payment of the expenses incurred by the two companies in their joint use of the crossing.
The agreed statement shows:
"The gateman does not pay any attention to the street *Page 166 cars, does not signal the street cars, nor perform any service for the street railway other than the closing of the gates as above stated on the approach of the Southern Railway trains. The conductors on the street cars do their own flagging — that is, they stop the cars at the Main street crossing. The conductor goes forward, looks up and down the tracks of the Southern Railway to see if a train is approaching, and signals the motorman accordingly. The conductors flag the street cars even if the gates are lowered when they stop at the crossing."
The contract provides:
"That it will make and enforce a rule, binding upon all its employees, to the effect that cars of the Spartanburg Company shall in every instance be stopped before reaching the crossing of the tracks of the Southern Company, and that before the same are moved over such crossing the conductor in charge of each car shall first walk over such crossing, and, after ascertaining that the way is clear, signal accordingly to the motorman operating his car."
The gates are operated without any reference to the street car company, and it is not liable, either according to the letter or the spirit of the contract.
A verdict should have been directed for the defendant, and the judgment appealed from is reversed.
MR. CHIEF JUSTICE GARY and MR. JUSTICE WATTS concur.