The court erred in overruling the general demurrer.
1. "The mere fact that the public may have been accustomed to travel on foot along a certain portion of the right of way of a railway company, and that no measures have been taken to prevent it, does not of itself operate to constitute a person so using the track a licensee of the company; and in the absence of the company's permission for such use, such unauthorized custom does not change the relation of one so using the property of the railway company from that of a trespasser." Hammontree v.Southern Ry. Co., 45 Ga. App. 728 (165 S.E. 913); Dodson v. Southern Ry. Co., 55 Ga. App. 413, 417 (190 S.E. 392);Southern Railway Co. v. Barfield, 112 Ga. 181 (37 S.E. 386).
2. "What amounts to a qualification of this rule is that if the presence of the trespasser on the track at the time and place of the injury is brought about by such peculiar facts and circumstances as would free him from guilt of a lack of ordinary care in thus exposing himself, the company would then be liable for a mere lack of ordinary care on its part in failing to anticipate his presence at a *Page 309 time when and a place where it was charged with such duty, and in thereafter failing to take such precautions for his safety as might seem reasonable." Hammontree v. Southern Ry. Co., supra, citing Atlantic Coast Line R. Co. v. Fulford,159 Ga. 812 (127 S.E. 274); Parish v. Western Atlantic R.Co., 102 Ga. 285 (29 S.E. 715, 40 L.R.A. 364); Fairburn Atlanta Ry. Co. v. Latham, 26 Ga. App. 698 (107 S.E. 88);Georgia Railroad Banking Co. v. Dawson, 37 Ga. App. 542 (141 S.E. 57).
3. The petition in the present case does not allege wilful and wanton negligence, but bases its cause of action on simple negligence. In Pressley v. Atlanta West Point R. Co.,48 Ga. App. 382 (173 S.E. 731), it was held that the general rule is that if a homicide or injury occurs at a place on the railroad track of a company where it is the duty of the servants of the company to anticipate the presence of persons on the tracks, and their failure to so anticipate the presence of others thereon amounts to mere negligence, the negligence of the person killed under such circumstances amounting to lack of ordinary care for his safety, and where the person killed could, by the use of ordinary care, have avoided the consequences to himself of such negligence of the servants of the company, will prevent a recovery by one who sues for such homicide or injury. The case ofLowe v. Payne, 156 Ga. 312 (118 S.E. 924), is controlling as to this principle.
Even though it be conceded that under the decision inBullard v. Southern Ry. Co., 116 Ga. 644 (43 S.E. 39), the allegations in the present case are sufficient to make out a case of a lack of ordinary care on the part of the defendant company, the plaintiff would still not be entitled to recover if the pleaded facts are sufficient to show that he could have avoided the consequences of the defendant's alleged negligence by the exercise on his part of ordinary care. Vaughn v. Louisville Nashville R. Co., 53 Ga. App. 135 (185 S.E. 145), is relied on by the defendant in error. A reference to the record in that case discloses that the injury occurred within the city limits of Atlanta, and it was alleged that the defendant was violating a named city ordinance in respect to the speed of the train. It was also alleged in an amendment which the lower court erroneously refused to allow that by reason of a curve the plaintiff, when he started across the tracks of the defendant, could see but fifty feet in the direction from which the train was approaching, *Page 310 and the failure to give any warning and the other pleaded facts amounted to wilful and wanton negligence. It will thus be seen that in the Vaughn case wanton negligence was alleged, and that the plaintiff might have been entitled to recover even though he had been guilty of contributory negligence. Southern RailwayCo. v. Wiley, 9 Ga. App. 249, 251 (71 S.E. 11); CentralRailroad Co. v. Denson, 84 Ga. 774 (11 S.E. 1039); W. A.Railroad Co. v. Bailey, 105 Ga. 101 (31 S.E. 547); CentralRailroad Co. v. Brinson, 70 Ga. 207, 227; Humphries v.Southern Ry. Co., 51 Ga. App. 585, 588 (181 S.E. 135).
Under the facts as alleged in the present case the place where the injury occurred was some distance away from an incorporated town, or, as we say, "out in the country." The alleged path was evidently indistinct, for the plaintiff alleges that his mind was distracted in trying to discover a continuation thereof. No negligence per se on the part of the defendant was alleged. The plaintiff could see 900 feet down the track; he was walking between the rails and not on the paths which were alleged to be on either side of the track, and he failed to look south for four or five seconds until he felt the trembling of the ground when the train was 500 feet away. "A railroad track is a place of danger, and one who goes thereon is bound to know that he is going into a place where he is subject to the dangers incident to the operation of trains upon that track." Western A. R. Co. v. Ferguson, 113 Ga. 708, 713 (39 S.E. 306, 54 L.R.A. 802). "A person, while grossly negligent himself, has no legal right to count on due diligence by others, but is bound to anticipate that others, like he has done, may fail in diligence, and must guard, not only against negligence on their part which he might discover in time to avoid the consequences, but also against the ordinary danger of there being negligence which he might not discover until too late." Central Railroad and BankingCompany v. Smith, 78 Ga. 694 (4) (3 S.E. 397). And, as was further said on page 700 in that case: "If he had been on the crossing, or at any place he was by right entitled to be, he would have been warranted in assuming that the whole world would be diligent in respect to him and his safety."
Under the allegations of this petition this plaintiff could see 900 feet in the direction from which the train was approaching Seeing no train, he entered upon the track and without continuing *Page 311 to look "became so engrossed" with looking for other things that he failed to observe the train while it was running at least 400 feet, and then, though he discovered it 500 feet away, he failed to get out of its way. So far as appears from the pleadings, the plaintiff was an able-bodied man in possession of all his faculties. No peculiar circumstances are alleged which freed him from the duty to exercise ordinary care for his own safety in a known place of danger. He was not walking along the pathways on either side of the track, which were alleged to have been in constant use for many years, but was walking between the rails with his back to the approaching train. Its sudden discovery 500 feet away caused him to become entangled in some way not known and to fall across the tracks, and allowed his right foot to become mangled. His own negligence at a place where he had no right to expect due diligence by others prevents him from relying on the failure of others to exercise ordinary care for his safety. His sudden jump, which caused him to fall, was caused by his own negligence in failing to keep a lookout for the train. The petition does not allege that he merely crossed the track from one side to the other, which he certainly might have done while a train was traveling 900 feet, but it does allege that he walked between the rails for at least four of five seconds, and this fact caused him to be placed, and to remain, in the emergency that frightened him, and resulted in his injury by reason of his foot being struck by a wheel or other part of the train. See in this connection Atlanta and West Point R. Co. v.Loftin, 86 Ga. 43 (12 S.E. 186).
The demurrer to the petition as amended should have been sustained.
Judgment reversed. Broyles, C. J., and MacIntyre, J.,concur.