concurring.
I concur in the grant, of a new trial, and I do not know 'that there is much material difference, in the important principles discussed by my learned associate, between him • and myself. Lest there should be some misunderstanding • and misconstruction, however, of what he has written, I •deem a word or two of explanation necessary ; and in the 'views now suggested I have the concurrence of my other ■colleague, Judge Blandford.
1. I do not think that there is any Procrustean rule in the mode of estimating the value of a life. The age of a man, the health he enjoys, the money he is making by his labor, his habits, are data from which the jury may argue how long he will probably live and work, and what his life is worth to his wife in its pecuniary value. I know of no law which requires tables of the probable length of life and its probable worth to be introduced. They may '¡be a useful circumstance, but are -not conclusive or absoJutely essential.
2. I think section 2972 of the Code must be construed .in connection with those sections which relate lo damages •caused by his own negligence alone, and by his contributory negligence. It gives another defence to the "defendant corporation, and that defence is to show that after the negligence of defendant, if the plaintiff could "avoid the damage by “ ordinary care,” he must do so, or cannot recover.
The section reads thus : “ If the plaintiff, by ordinary care, could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover.” Code, §2972. The meaning is clear, as held by *447this court in 56 Ga., 540, that where defendant has by its negligence brought impending danger on plaintiff, he must get out of the way, if he can by ordinary care avoid the consequences of that danger to himself. In that case Judge Bleckley says: “ It (section 2972) applies in terms to personal injuries, and if its meaning can be extended to injuries affecting property, it would seem to be applicable only where the plaintiff’s duty is to act after the defendant’s negligence has commenced and become apparent. When the consequences of a present or antecedent negligence are impending, whoever can shun them by ordinary care, and fails to do so, ought not, perhaps, to be heard to complain of them, whether they touch his person or his property.”
It is true that in that case property alone was involved, but the construction is applied to persons as well as property. I know of no case wherein this construction has been reviewed and reversed in terms. There may be dicta of other judges in our reports which confound section 2972 with section 3034, which enacts that “ no person shall recover damages from a railroad company for injury to himself or his property where the same is done by his consent or is caused by his own negligence.” But the two sections ought not to be construed as the same, but in pari materia as separate defences.
Where one causes the injury by going where he had no excuse to go, as one of ordinary sense, as under a car in 'motion, or consents to it by lying down deliberately on the track and being run over, and in such cases as these, section 3034 applies, because his consent or his own negligence was the sole cause of the injury to his person. But where one is on a track, walking along, though a trespasser in one sense of the word, yet entitled to protection as a human being, and a train of cars comes rushing on towards him out of time, and the danger is impending, but by ordinary care he can step off and save himself from the consequences of the negligence of the conductor in *448running out of time, then section 2972 applies; and if he does not step off, he cannot recover.
It must be borne in mind that both the principles of defence in sections 2972 and in 3034 are qualified in the sections respectively. The qualification in §2972 is this: “ But in other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained;” and the qualification in §3034 is: “ If the complainant and the agents of the company are both at fault, the former may recover, but the damages shall be diminished, by the jury in proportion to the amount of default attributable to him.” Both ■ contain the doctrine of contributory negligence and the effect of it. That effect is more plainly marked in §3034 than in §2972; yet is seen in each. In §3034 the meaning is that where the negligence of the complainant is the sole cause,- he cannot recover at all; if it be in part the cause, and negligence of the company in part the cause—then he may recover in part. In §2972 the meaning is substantially the same, as applicable to the danger impending. Though the plaintiff may have contributed in some way to the peril impending—“ the injury sustained” by him in consequence of it,—yet he may recover, if he could not, by ordinary care, have got out of the peril and escaped the injury. Recover what ? And the company “relieved” to what extent ? Certairdy to the extent of plaintiff’s contributory blame the company is relieved, and the plaintiff may recover damages less the just apportionment or proportion of his own contributory fault.
Such, I think, is the clear meaning of these two sections, construed so -that “ res magis valeat guam pereaf1—that both may stand, and neither die. It is a fair and j nst construction to the railroad, and to human beings who meet with casualties, where sometimes the one is wholly at fault, and sometimes the other wholly at fault, and where sometimes each is at fault. Our legislators, in my judgment-, have wisely made both these sections, and the construe*449tion here put upon them is that alone by which both can stand. Judge Bleckley and myself reached it years ago, in the Georgia Railroad Company vs. Neely, as inti mated in that case, and I have seen no reason since to depart from it.
To apply the principle to the case at bar, the presumption is against the company. Section 3033. To rebut, it, it may prove that this plaintiff’s conduct in putting himself in a place where he could not escape on that trestle, wilfully or carelessly, was the sole cause that he was killed; or it may prove that when the emergency was upon him, when on the trestle, and the cars were negligently coming upon him, he could by ordinary care have got off and avoided the consequences, and did not. If it fail to prove one or the other, then the wife can recover, but the damages should be diminished in proportion to the fault and negligence of her husband.
3. In my concurring opinion in the Brinson case, last term, I said to the effect that railroad companies were liable for want of all ordinary care and diligence in all cases in general; to extraordinary care in the case of passengers and others under their care. Section 3033 of the Code makes that the rule applicable to all cases other than passengers, etc., and the rule in respect to them is found in all our own reports, and all others, I believe, in England and America. This company was bound to that care in this case, to be measured by all the circumstances of the case. What would be all ordinary and reasonable care in one case might not be in another. The circumstances of each must measure each; but it must amount to all ordinary and reasonable care suited to each case—especially where life is involved.
4. Sections -4437 and 4438 of the Code have no application, I think, to this or similar cases. It is hardly unlawful intruding, in the sense of that statute, merely to walk on the track. The section is codified from the act of 1837. Cobb’s Dig'., p. 850. Any one who will read that act will see that *450it was intended to punish persons interfering with these roads by “ placing obstructions upon, or moving, touching or altering the gates, rails, switches, or other appendages of said roads,” or “ in any manner interfering with such roads or their appurtenances,” evidently meaning interfering in any manner like the above. It was not meant to indict and punish for misdemeanor everybody that walked along quietly on a railroad;—but those, at farthest, who persisted in intruding uj>on the track, in defiance of the command of the superintendent, or other officer of the road in command at the time, to get off and keep off.
5. I have nothing to say as to what the jury should find on the next trial, and must not be understood as intimating an opinion either for or against the plaintiff.
Thus much I have written explanatory of my own views on the important topics discussed with his usual ability and learning by my colleague.
I concur in the grant of the new trial, because I think the charge probably confused the jury, and justice demanded a new trial.
Blandeord, Justice, announced that his views coincided with those expressed in the concurriug opinion of Jackson, Chief Justice, but he furnished no written opinion.