While, as stated in the Georgia decisions, the company owed no duty to the plaintiff's husband as a trespasser on its track until his presence became known to the servants of the defendant operating the train, and when his presence became known the only duty owed by them to him was not to wantonly and wilfully injure him, yet it has been held that the conduct of the operators of a railroad train, after a trespasser's presence on the tracks is known to them, amounting to negligence, may amount to wilfulness and wantonness. "The only duty which a railroad company owes a trespasser is not to injure him wantonly or wilfully; and ordinarily this rule imposes upon the company simply the duty of taking proper precautions after the presence of a trespasser in a position of peril has been discovered." Ashworth v. Southern Ry. Co., 116 Ga. 635, 637 (43 S.E. 36, 59 L.R.A. 592); Crawford v. Southern Ry. Co.,106 Ga. 870, 873 (33 S.E. 826); Bullard v. Southern Ry.Co., 116 Ga. 644, 647 (43 S.E. 39); Southern Ry. Co. v.Chatman, 124 Ga. 1026 (53 S.E. 692, 6 L.R.A. (N.S.) 283, 4 Ann. Cas. 675); Atlantic Coast Line R. Co. v. O'Neal,180 Ga. 153 (178 S.E. 451). As I understand the law, it would be a question of fact for the jury whether such negligence on the part of the operators of the railroad train, under all the circumstances, amounted to wilful and wanton conduct. Construing both lines of decisions together, the true rule under the Georgia law is that after the operator of a train discovers the presence of a trespasser on the track the operator's duty is to use the due care and diligence necessary under the circumstances not to injure him. Under a proper construction of the decisions I am of the opinion that the engineer or operator of a train, after discovering the presence on the track of a trespasser, owes to him the same duty that he would owe to any other person on the track, irrespectively of whether the latter is a trespasser or not. See American Law Institute Restatement Law of Torts, § 336. Under any view, it is a jury question whether the conduct of the operator of the train under the circumstances was wilful and wanton, or was not the care and diligence due to the trespasser when seen upon the track.
As I understand the law, the mere fact that the engineer, after discovering the presence of the trespasser on the track, may have acted in some manner, such as ringing the bell, or blowing the *Page 262 whistle, would not as a matter of law relieve him of the charge of wilful and wanton conduct. I do not concur in the proposition, that, although it may appear conclusively in the case at bar that the bell was rung by the operator of the train when the plaintiff's husband was first observed on the track, the operator of the train was not guilty of wilful and wanton conduct as respects the person on the track. Therefore it is not necessary, to constitute wilful and wanton conduct on the part of the operator of the engine, that both the bell and the whistle were not sounded. When the operators of a railroad-train become aware of the perilous situation of a person on the track, they should give a timely warning by bell, whistle, or otherwise, where it is apparent that the person is oblivious of the danger and is not preparing to leave the track. This might, under the circumstances, include both the ringing of the bell and the sounding of the whistle. 52 C. J. 598; Malko v. Chicago c. R. Co., 99 Neb. 158 (155 N.W. 876).
In Humphries v. Southern Ry. Co., 51 Ga. App. 585, 589 (181 S.E. 135), it was ruled: "After the presence of a trespasser upon the track of the defendant in front of its approaching train is discovered, it becomes the duty of the agents in charge of the train to give him some warning of his dangerous position. Even though such trespasser may not be deficient in any of his faculties of sight or hearing, or there be no surrounding physical conditions to interfere with or hinder the exercise of such faculties, and while the agents in charge of the train have the right to conclude and act on the conclusion that such person will leave the track in time to save himself from injury, in that they are then under no duty to check the speed of the train, yet `as a matter of ordinary prudence and care, it is their duty to sound the whistle and ring the bell, as a warning of approaching danger.' . . And the jury would be authorized to find that such negligence, under the circumstances, amounted to wantonness." In Hammontree v. Southern Ry. Co.,45 Ga. App. 728 (165 S.E. 913), citing authorities, it was held that "A failure to exercise ordinary care to prevent injury to a trespasser after his presence has become actually known may amount to wantonness." After quoting from, citing, and followingHumphries v. Southern Ry. Co., supra, this court in Fox v.Pollard, 52 Ga. App. 545, 548 (183 S.E. 854), held: "So where it appears . . that the plaintiff was walking along the tracks *Page 263 of the defendant, that the engineer in charge of its approaching train actually saw him on the tracks, walking with his head down towards the engine and train, in time to have rung the bell or blown the whistle and thereby attracted plaintiff's attention to the approaching danger, and where it is charged that such conduct on the part of the engineer was wilful and wanton, and that by reason thereof the plaintiff was injured, . . it was a question for the jury whether plaintiff made a case entitling him to recover of the defendant for his injuries."
It is contended by counsel for the defendant that the company owed to the plaintiff's husband the duty only of either ringing the bell or blowing the whistle upon its servants in charge of the operation of the train observing him walking along the track toward the approaching train; that it did not owe the duty of both ringing the bell and blowing the whistle; that the evidence shows conclusively that the bell was ringing from the time the train approached the crossing until it struck the husband of the plaintiff; and that a verdict in favor of the plaintiff, based on the theory that the defendant's agents were guilty of wilfulness and wantonness, was unauthorized and contrary to law. Counsel further contend that this is the rule laid down in Fox v.Pollard, supra. I can not agree to this contention. In the first place, the evidence does not show conclusively that the bell of the engine was ringing continuously until the train struck the plaintiff's husband. It appears from the testimony of the engineer and the fireman that the bell was rung as the train approached the public crossing, and that the bell was rung at the time the train struck plaintiff's husband. It does not affirmatively appear that the bell was ringing from the time the operators of the train saw plaintiff's husband in a position of peril until the train ran over him. There is testimony of the plaintiff's son that the operators did not give any warning or signal of any kind until just at the time the locomotive struck his father. In the second place, under all the circumstances, the ringing of the bell alone, upon the observance by the engineer of a person in a position of peril on the tracks in front of a rapidly approaching locomotive, might not meet the requirements of the duty owed to such person, and even though the bell might have been rung, ordinary and common prudence might require that the whistle be blown in order for the person on the track to have ample and sufficient *Page 264 warning of the approaching train. In other words, under certain facts and circumstances, the jury might find that the duty required of the servants in charge of the train included not only the ringing of the bell but also the sounding of the whistle in time for the person on the track to get out of the way of the train. Again, the decision in Fox v. Pollard, supra, does not hold that the ringing of the bell or the sounding of the whistle, either one, would in all cases be sufficient to meet the requirements of the duty placed on the operators of a train on observing one on the track in front of the train. That case was based mainly on Humphries v. Southern Ry. Co., supra, which was based on the principle laid down in 2 Rorer on Railroads, 1122, that "as a matter of ordinary prudence and care, it is their duty to sound the whistle and ring the bell, as a warning of the approaching danger," which principle was quoted with approval in Central Railroad Bkg. Co. v. Denson, 84 Ga. 774 (11 S.E. 1039). As stated in Southern Ry. Co. v. Wiley,9 Ga. App. 249, 252 (71 S.E. 11), after quoting the above principle, "This apt enunciation of the law has been approved by the Supreme Court in frequent decisions." In Fox v. Pollard, supra, the defendant neither rang the bell nor blew the whistle.
Whether or not it is established conclusively as a matter of law that the operators of the train exercised due care and diligence in ringing the bell, it does not appear conclusively and without dispute from the evidence that the whistle was sounded when they first saw the plaintiff's husband on the track, or, after it was sounded, that he had time to leave the track. From the statement of the engineer alone made to Worcester Todd, when the dead man was picked up, and which is part of the res gestae and binding on the defendant, that the engineer, when he came around the curve, saw the plaintiff's husband on the tracks, but thought that he would get off the tracks, and, quoting from the statement attributed to the engineer, that "he didn't get off until I got right on him, and I blew the whistle, slammed on the brakes, and ran right into him," it could be inferred that the whistle was not blown in time for the plaintiff's husband to leave the tracks, and was not blown until the train had gotten "right on him." It appears that from the curve where the engineer said he first saw the deceased to the point where the train hit him is from 275 to 300 yards. Also it appears from the testimony of Worcester Todd, who, it is inferable, was within *Page 265 hearing distance of the train at the time, that he did not hear anything until the "sharp blowing," and that the "sharp blowing" took place where he picked up the body of the deceased. A jury was authorized to find that the operators of the train failed to give the plaintiff's husband a timely and sufficient warning, either by the ringing of the bell or the blowing of the whistle, after the engineer had observed his presence on the track. Even if the bell had been rung after the plaintiff's husband had been observed on the track by the operators of the train, it could be inferred from the evidence and from the circumstances in evidence that it was not a sufficient warning, because the plaintiff's husband did not hear or heed it. Even assuming, though it does not appear conclusively from the evidence, that the bell was rung, as contended by the defendant, after the plaintiff's husband had been seen by the engineer on the track, the jury could infer that this was not a sufficient warning under the circumstances, and it could nevertheless still be inferred that a timely and sufficient warning by the blowing of the whistle was not given, and that the failure of the operators of the train to give warning by the blowing of the whistle, under the circumstances, after observing the plaintiff's husband on the track, notwithstanding the ringing of the bell, was a wilful and wanton act.
I am of the opinion that the verdict for the plaintiff was authorized, and that the judge did not err in overruling the motion for new trial.