dissenting.
I am unable to concur with the majority of the court as to the application of the negligence implied from a failure to sound the whistle and check the speed of a train, so as to have it well in hand when approaching the crossing of a public highway over the railroad track, to an intruder on the track, who, at the point of collision, was over two hundred yards beyond the crossing. I think the case of Holmes vs. The Central Railroad, 37 Ga., 593, which was a decision rendered by a full bench, is directly opposed to their view, and that that decision is not at all shaken or in the least modified by the decisions relied on to uphold this finding in the 64 Ga., 649, and 65 Id., 631. In the first of these cases, a cow was upon the track between the signal post and the crossing, and in the last, a horse was on it some twenty-five yards beyond the crossing when first seen; in both cases, there was a failure to observe the requirements of the statute as to sounding the whistle and checking the speed of the train, and the company was properly chargeable with the negligence of its agents, as it would have been had the cow or horse been elsewhere on the track, and no effort had been made to frighten them from it, or to check the speed of the train, if they had been seen in time to prevent the collision by resorting to such *736precautions. The company would not have been in the exercise of “ all ordinary care and diligence ” under such circumstances. If it would keep stock running at large off its right-of-way, it should enclose it, or in the absence of such enclosure, it should use every reasonable precaution to drive them from the track, for under such circumstances their presence on it is not unlawful, nor is their owner subject to penalties for allowing them to be there ; whereas, a person who, contrary to the will of the company, intrudes upon its track is guilty of a misdemeanor and is liable to indictment and punishment therefor. Code, §4437. The company is bound to greater care in the case of irrational animals, incapable of appreciating danger, and of providing against its consequences, than in the case of intelligent human beings, whose reason instructs them as to the perils of any particular situation, and who, by the exercise of their senses, can avoid the calamities which may arise therefrom. In the case of a cow or a horse found walking along the track of a railway, there is no presumption that it will leave it in time to escape injury, but just the opposite presumption obtains in the case of a man; and it has been held that whatever the company has a right to presume, they have a right to act on, and to continue to act on it, until they discover that the person is not likely to escape the peril, when they are bound to exert themselves to avoid the calamity. Sims vs. Macon & W. Railroad, 28 Ga., 93 et seq. The plaintiff in this case had been an employé of the company; he lived in the vicinity and was familiar with the situation; he seems to have acted with utter indifference, if not with culpable neglect, in failing to make use of his faculties to avoid any danger to which he was exposed; he was walking on the end of the cross-ties next to the track, and nothing appears to have put the employes of the company upon notice that he would not or could not step aside and thus avoid the injury. It seems to me that, by the exercise of the slightest care, he could have avoided the seri*737ous consequences to bimself. It is quite apparent to my mind that he was at fault in using this track as a pathway, and was utterly negligent while so using it in failing to look out for danger and in making preparations to avoid it. For these reasons, and for others given more at length in my opinions in the cases of the Central Railroad vs. Brinson, 70 Ga., 207, and in The Savannah, F. & W. Railway vs. Stewart, 71 Id., 427, I am unwilling to hold out inducements to persons to trespass upon the rights of others, in the preservation of which rights the public are largely interested, by rewarding them with heavy damages .against the party wronged by the trespass, especially where tlieir own indifference to consequences, if not their utter want of care, is apparent, and it is at least capitally doubtful whether the opposing party was at fault. I think there was nothing to base the heavy finding in this case upon, and that upon every principle of law, as I understand it, the plaintiff had no right to his suit, and that there should be a reversal of the judgment refusing a new trial.