Action upon a written contract entered into between the railway company and the predecessor in title of the defendant company, by which the railway claims that the defendant assumed one-half of the expense of maintaining protection to the public at a certain crossing in the city of Spartanburg.
There is no question but that the defendant company, which for convenience I shall hereafter refer to as the "street car company," is bound by the contract of its predecessor *Page 167 in title, and I shall therefore treat it as having entered into the original agreement.
In the year 1900 the railway company crossed with its track Main street in the city; it of course had the easement of a right of way over the street at that place; the street car company was organized about that time, and proposed to lay its tracks in the center of Main street, and to cross the railroad track at the point where the latter crossed the street; in order to do this it was necessary that the street car company obtain the consent of the railroad company to cross its right of way, or to proceed to condemn that right, which even then could be exercised only under such precautionary conditions as might be required by the proper authorities; rather than attempting to secure this privilege in invitum, the street car company entered into the agreement in question, by which the right was accorded upon certain conditions: (1) That the material and appliances used should be of a specified character; (2) that its track and trolley should be constructed in a specified manner; (3) indemnity against certain accidents; (4) that it would require all cars to be stopped before reaching the crossing and the conductor to walk over the crossing to see that the way was clear from approaching trains; (5) "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 tracks of the parties hereto, then the expense in that respect shall be borne by and equally divided between the parties hereto."
Thereafter the city council passed an ordinance requiring the railway company to erect, maintain, and operate at said crossing a suitable and proper gate for the protection of the public.
The railway company claimed that it had expended $2,160 during the last six years, the wages of a flagman at $30 per month, and that the defendant was indebted to it in one-half of that amount. *Page 168
The contentions of the defendant were: (1) That there was no consideration for the contract; (2) that the agreement to pay one-half of the expense of maintaining "electric lights and a flagman" at the crossing did not cover the erection, maintenance, and operation of a suitable and proper gate for the protection of the public; (3) that the railway company had waived its right to insist upon reimbursement of one-half the expense.
I concur with Mr. Justice Fraser in holding that there was a sufficient consideration for the contract. The street car company had no absolute right to the passage over the railway company's right of way; the fact that it might have secured this right by condemnation does not affect a contract by which it was relieved of this necessity upon certain undertakings upon its part; the construction of a line of railroad across the track of the railway company was a superimposed easement and an additional source of peril, which it had the right to object to and to acquiesce in upon certain conditions.
But I do not concur in the conclusion that the maintenance of a gate for the protection of the public was neither within the letter nor spirit of the contract. I think that it was within both.
As to the matter of the contract: A crossing gate does not operate itself; there must be a human agency set there for that purpose; and I cannot see what difference it can possibly make whether that human agency performs the duty of flagging against an approaching train with a flag, a piece of cloth, or with a gate constructed of wood; the fact that he may be designated a "gateman" makes him none the less a "flagman," both being charged with the identical duty of flagging against an approaching train. Instead of a flag, a hand board with the word "stop" upon it is sometimes used; at night a red lantern. Is the employee any the less a flagman because he uses a board or a lantern *Page 169 instead of a flag? If the effort of the railway company was to bill the street car company for one-half of the expense of erection, there might be some force in the attempted distinction.
As to the spirit of the contract: The leading opinion declares:
"It is manifest that the purpose of the contract was to provide joint payment of the expenses incurred by the two companies in this joint use of the crossing."
I see nothing in the contract that lends color to this suggestion. The purpose of the contract must be gauged by the situation of the railway company at that time and its situation after the car line crossed its track. It was then in no danger of having to respond in damages for a collision between one of its trains and a street car; the running of such cars across its track created that new danger, which it had the right to provide against. In view of the increased danger, it apprehended that the council would require it to adopt precautions to meet it. What could be fairer than that the company which created the increased peril should bear at least one-half of the cost of maintaining the preventative measures adopted "for the protection of the public?"
It seems to be suggested that the railway company is not within the spirit of the contract, for the reason that it operates the gates without reference to the street car company which flags its own cars. How could it operate the gate with reference to the street cars unless it constructed another gate parallel with Main street and stopped the railroad train upon the approach of a street car? This evidently was not intended, and is not suggested even in the ordinance. The fact that the street car company sends out its own flagman as a car approaches the crossing is in conformity with the express provisions of the contract; an additional safeguard which the railroad company had the right to insist *Page 170 upon in view of the increased danger created by the street car company.
I cannot but think that the intention of the parties was that, in view of the then situation, of the increased peril to which the railroad company would be subjected by the construction of the car line across its track on the principal street of the city, and of the apprehension that, owing to that increased peril created by the street car line, the city council would require precautions of the railroad company, the street car company, in order to secure the privilege of crossing, would bear equally the expense of maintaining such precaution without interposing the quibbling defense that a gateman is not a flagman.
In Merrill Co. v. U.S., 49 Ct. Cl. 553, it is said:
"In construing a contract the Court will ascertain the intention of the parties and to that end will, as far as possible, ascertain the situation of the parties, as well as the purposes had in view at the time the contract was entered into."
If there were a substantial difference between the salaries of a flagman, strictly so called, and a gateman, or between their respective duties and the purposes of their assignment, there might be some reason in a technical insistence upon the precise terms of the contract; but to hold that a man put at a crossing to warn against an approaching train by the waiving of a red flag or board with "stop" on it is par excellence and solely a flagman, and a man put at a gate to warn against an approaching train by the lowering of the gate is a gateman, and not a flagman, is a refinement which the purpose intended to be accomplished does not justify. *Page 171