concurring.
1. I concur in the judgment of this court granting a new trial in this case, on the ground that the court erred in charging the jury, as requested by the plaintiff below, to the effect that, though that plaintiff was himself negligent, the railroad company must make good the damage.
The words “ must make good the damage,” without qualification, would convey the idea that the company must, in such a case, pay full damage, and thus withdrew from the jury the consideration of the doctrine of contributory negligence as lessening the damage which the jury should give in such a case. No matter how negligent the company may have been, yet if the plaintiff was also negligent, full damage ought not to be given, but the damage should be diminished in the proportion which the negligence of the plaintiff bore to that of the company. So declares our Code, and so this court has ruled again and again. The doctrine was applicable to this case, and should have been considered by the jury and weighed in the scales ■of the evidence, and decided as their judgment on those, facts determined, on a scrutiny of the negligence of both parties. The effect of the charge as given was to withdraw the contributory negligence of the plaintiff, if the *251jury found that he did contribute, from the jury, and thus to hurt the defendant.
It is true, that in the general charge the court does give the jury that doctrine, but this request, coming after-wards, and being given without any- qualification at the time it was given, was well calculated to mislead the jury, and may have done so.
I am the more satisfied to concur with my colleague in the grant of a new trial in this casé, because I believe, from our consultations upon it, that my late much-lamented colleague, Judge Crawford, was very decided in the opinion that it ought to be granted; and had he lived, he might possibly have gone to the full extent of denying any recovery, to which Judge Hall has gone in the opinion just delivered.
2. To that extent I cannot go. Where a parcel of youths and children are in the habit of passing to and from school -on a path within the right of way of a railroad company, •and have been for years in that habit within the limits of .a village, in the knowledge of the railroad authorities, I ■cannot hold them to be trespassers to the extent and in the sense that the railroad company are only liable for .gross negligence if any of them be killed or injured. On the contrary, I hold that the company is bound to use all ■ordinary and reasonable care and diligence to avoid injury to them, and neglect to use such reasonable and ordinary care and diligence would make the company liable. The rule in respect to passengers, diligence toward them, is -extraordinary care and diligence. It is that which a common carrier, which the company becomes, must use. Code, :§§2066, 2067, 2083.
The rule in the case of persons not passengers is that which I have given above, all ordinary and reasonable care and diligence, the presumption in all cases being against the company.” Code, 3033.
And this rule has been applied by this court to a person not at all rightfully on the railroad track, but wrong*252fully there, sixty yards from a crossing, without any consent of the company, express or implied. 37 Ga., 593.
In that case, gross negligence was expressly denied to be that neglect which would make the company liable, but it was held by the unanimous court that the measure of the liability is “ all ordinary and reasonable care and diligence, not gross negligence as was insisted by counsel for defendant in error,” in that case. But if gross negligence be the rule in the case at bar, it is for the jury to say whether the neglect to ring, to slacken speed, and having the scant-ling projected out as it was, be not gross negligence.
Such is the law of this state, plainly written and printed in her statute book and ruled and applied by her highest court.
The question of negligence is for the jury. 34 Ga., 330, and following cases passim. The quantum of diligence-required of the railroad company by the law being given by the court, it is for the jury to say whether or not facts proved make that quantum, subject of course to a review by the court to see whether the jury had enough testimony in to support the verdict. As the case goes back, I dislike to argue the facts or pass upon them at all. The views submitted by my associate make it necessary that I say that, if the railroad train swept through that village without ringing its bell or slacking its speed, with a scantling projecting unusually from its car, beyond the track, though within the right of way of the company, and thereby a youth was hurt in its rapid transit, the company is liable,, unless by the use of ordinary care he could have avoided the consequences to himself of such transit, or the injury was caused by his own negligence alone. If both himself and the agents of the company were to blame, or were at fault, but neither the sole cause of the injury, and if he-could not by ordinary care have avoided the consequences to himself, then the damages should be apportioned in proportion to the default of each. Under our law, it is. for the jury to pass upon all these questions of diligence and *253negligence and ordinary care in avoiding the consequences of such negligence or want of diligence when the emergency is upon the party complaining. The age of the plaintiff, his youth, should be considered on the one hand, and previous warnings, if any were given, on the other, and in the light of these and all other facts and circumstances proved, the jury should make their verdict.
Such, I think, is the law of Georgia applicable to the facts of this record; and I do not propose to examine the law of England or of other states on the issues made. The statutes of this state and the judgments of this court thereon construing them bind me.
3. The main question, I think, is ruled in the case of Baston vs. The Central Railroad Company, 60 Ga., 339. The only possible distinction between that case and this is that there the declaration alleged that the plaintiff was upon the railroad track by its consent, and here no express consent is proved. But in the Bastón case the declaration does not ayer express consent, and inasmuch as all pleading is construed against the pleader, it is clear that the mind of the court was not upon the character of the consent, whether express or implied, but upon assent to the man’s being on the road, by agents of the company; for otherwise the omission to aver that the consent was express, and to set it out as such, would have been fatal to the declaration, and the demurrer would have been sustained. Besides, the judgment there is not put on the consent of the company as essential to the ruling; but in the opinion it is said in conclusion, not that the right of plaintiff turned on the consent of the company that he should be on its road, but the language is: “ Especially must this be his right, when he was on the track by the consent of the defendant,” as much as to say, he had a right to go to the jury on the allegations any way, but the consent of the defendant rendered the right indubitable. True, consent is emphasized, because it put the point stronger and more irresistible; but without it, the declaration would have been held good.
*254Be that as it may, I hold in this case, as I did in that, that the plaintiff, under the facts, is not a mere trespasser, but is entitled to more consideration than a trespasser, that is, to all ordinary and reasonable care and diligence. It will be seen from that case that I wrote that a naked trespasser would be protected from gross negligence. The case cited from the 37th Ga., 593, where the point came squarely up, would seem to put even a naked trespasser upon the higher ground of ordinary diligence, that is to say, the liability which attaches to ordinary neglect. Code, §2061. Gross neglect is quite a different thing. Code, §2063. The one is the absence of the care of an inattentive man; the other of a prudent man.
I think that the unanimous decision in the 37th is the law rather than my obiter in the 60th. Code, §217. See also The Central Railroad vs. Glass, adm'x., 60 Ga., 441, where a recovery was had because the conductor and engineer were not sufficiently diligent in looking out for Glass, who was lying drunk 'on the road a mile from the place where he was put off. There the court say: “Leaving out of view altogether the conduct of the conductor and brakeman (of the down train) in putting Glass off at the place and time they did so, the law presumes that the up train which did the damage was negligent, and there is, in our judgment, no sufficient proof of diligence on the part of the officers of that train to rebut the presumption.” So that Glass, a naked trespasser, recovered on the ground, not of gross negligence, but ordinary negligence.
• This case at bar was here before. It is reported in 64 Ga., p. 475. The case was then sent back upon the law substantially as indicated above, and no intimation was made by the court that there could be possibly no recovery. On the contrary, on errors of law it was then remanded; on an error of law I now concur in again remanding it. The line of my brother’s argument leads inevitably to the conclusion that, underthe facts, there can *255be no recovery. It would have been the duty of this court to have so declared then, had it so thought; because it would have been a waste of time and of costs to have tried before a jury an issue which this court would not permit to stand if determined by that jury in a certain way. Having not so held, in common with my brethren, then, I cannot so hold now; but I concur in the judgment that the case be tried, again, because I think the court erred in giving, without qualification, the charge requested, content to abide the verdict of the jury on the issues of fact which may be again made before them.
I add that the court below may have charged the request because it was the language of this court in some case here; but what this court lays down as law is to be construed in the light of the facts of each case, and it will be found unsafe for counsel to copy from the reports an abstract principle of law, and request it to be charged, and for the court to charge as so requested. Besides, sometimes unguarded expressions of the individual member of this court writing the opinion may mislead, because those expressions needed qualification.
From the above it will be seen that the opinion of my brother, as a whole, is his own, and not that of the court; because but two of the court sat in final judgment of the case, and I cannot assent to ’ many views of the law which he has expressed as applicable to and ruling and controlling the case at bar. This I say in entire respect for the learning and integrity which distinguish him as a lawyer and a judge.