November 25, 1902. The first opinion was delivered by I cannot concur in a judgment of reversal in this case, inasmuch as a careful reading of the testimony satisfies me that the nonsuit was properly granted. There was no evidence whatever of any negligence on the part of the defendant, except upon the theory that there was some evidence that the railroad trestle upon which the fatal collision occurred was a "traveled place," in the sense of the statute, and that the trestle constituted a part of the crossing. The decisions, which need not be cited, show that the collision must be on the crossing where the railroad track crosses the public way. It seems to me that the statute contemplates a direct crossing, not such as is attempted to be set up in this case. There was no evidence of any way, which the public had acquired the right to use, leading on to, along and from the trestle, so as to constitute the trestle a part of such way; and even if it were admitted *Page 553 to be possible for the public to acquire the legal right to use the railroad trestle already dedicated to other public uses, there was no evidence that the collision occurred at a place where the railroad and public way crossed each other. It may also be noticed that the evidence showed that on each end of the trestle there was placed a board warning all persons to "keep off," and that such notice had been there ever since the lease of the line to the Charlotte, Columbia and Augusta Railroad Company, and before the defendant company became the owners. It was further shown that the president of the defendant company refused to allow planks to be placed along the trestle as a walkway. If the evidence in this case tended to show that the trestle was a "traveled place," then there is scarcely any portion of the line of a railroad which has been in existence for twenty years which may not be shown to be a "traveled place," for many individuals will persist against all protests in walking along the railroad track when it suits their convenience to do so.
MR. JUSTICE POPE concurring in this view, the judgment of the Court is, that the judgment of the Circuit Court be affirmed.