On the 14th day of September, 1882, William H. Meigs was killed by a locomotive drawing a passenger train of the Western and Atlantic Railroad Company in the city of Atlanta. There were several tracks of railway at the ■place where the killing occurred, and it was a constant-habit of the public to pass along these tracks at all hours. Deceased was walking on the main line with his back to the engine which struck him. On his right Avas a switch engine, somewhat in advance of the passenger engine, and moving in the same direction. The bells on both Avere ringing, and the whistle on the passenger engine was bloAvn when in about 127 feet of the deceased. It is evident from the testimony that he attributed the signals to the SAvitch engine, and did not seem aware of his danger from the other till it was too late to save himself. The pla.ce of the homicide was several hundred feet from the Foundry street crossing, which the train had passed, and the testimony is conflicting as to the rate of its speed when Meigs 'was struck, the plaintiff’s witnesses making it from 12 to 15 miles an hour, and the defendant’s witnesses estimating it from 8 to 10 miles an hour.
The AvidoAV of the deceased brought an action to recover damages from the company for this homicide of her husband.
1. There was no error in admitting the testimony relating to the habit of the public in walking on defendant’s *865tracks at and near the place where this injury happened. While this habit, even if acquiesced in by the railroad company, did not prevent the deceased from being a tres, passer, it was a circumstance which the jury might properly consider in determining whether or not the persons in charge of the train showed proper diligence at the time the killing occurred. Railroad engineers should observe more caution in running at places where they know persons are likely to be on the track than elsewhere, even if those persons are trespassers, and especially is this true when the company has at least tacitly consented to this otherwise unauthorized use of its property by the public.
2. The mayor and council of Atlanta adopted an ordinance, July 18th, 1881, requiring the Western and Atlantic Railroad Company to keep a flagman at the place where its track crosses Foundry street, and making his duties the same as those of the flagman at the Whitehall crossing, and also by another ordinance, which is incorporated in the city code, required all railroad companies using the tracks across Whitehall, Foundry and other named streets, to keep flagmen at the crossings, whose duty was to prevent all trains from passing them at a greater speed than four miles per hour, and to protect the lives of persons at these places. This ordinance also forbade engineers from running over these crossings at a greater speed than that above mentioned. The rule to regulate the admissibility of testimony is not derived from its value or weight, but its bearing on the case. Although the injury in this case occurred a considerable distance from the Foundry street-crossing, the rate of speed with which the train passed that crossing'and the ordinances above mentioned had some bearing on the question of negligence at the place where the deceased was struck, and were, therefore, properly admitted to go to the jury for what they were worth.
3. Defendant’s counsel requested the court to charge the jury that a railroad company would not be liable for an injury to a trespasser upon its track, unless it was *866shown that the acts of the company’s servants in charge of the engine were wanton and malicious, or there was such gross negligence on their part as was tantamount to wilfulness. It is undoubtedly true that the company would be liable, even to a trespasser, for wanton, malicious or wilful conduct on the part of its servants in running its engines, but the question presented is, shall this be the limit of the company’s liability in such cases? There is a full discussion of this subject by Mr. Justice Hall in the case of The Central Railroad vs. Brinson, 70 Ga. Reps., 207. Two justices presided in that case, and a new trial was granted, upon the sole ground of an error in the court’s charge, concerning which both justices agreed, but that charge was not upon the question now under consideration.
Without discussing the differences of opinion between ■Chief Justice Jackson and Mr. Justice Hall, appearing in the decisions delivered by them, respectively, in the case just cited, we are satisfied that the opinion delivered by the latter, and upon which counsel for plaintiff in error in the present case relied, does not go to the extent claimed in the argument by said counsel. On page 219, Mr. Justice Hall says: “ Conceding this principle as to the right ■of the company to the exclusive use of its track, etc., except at crossings, it does not follow that, because a person thus wrongfully using this right-of-way is a trespasser and a wrong-doer, he thereby becomes ‘ altogether an outlaw,’ to whom the company owes no duty whatever. At the ■ common law, in case of gross negligence or carelessness on the part of those in charge of the train, they are held liable for an injury inflicted, even on a trespasser. 6 Am. and Eng. R. R. Cases 1-17, and note to last page, which collects and classifies many of the American cases upon this subject, as well as upon the liability of the company, where the injury appears to be a mere wanton or malicious act upon the part of the employé.”
On page 246, he says : “ The term ‘ gross negligence,’ *867used in connection with such circumstances, has a relative, rather than an absolute and strict signification, and as thus used is the equivalent of acts which result from a failure to observe that ‘ ordinary and reasonable care and diligence’ prescribed by our Code. It was certainly used in this connection in all the cases herein cited, including that of Baston vs. The Georgia Railroad."
In the case last mentioned, Jackson, J. (now Chief Justice), said: “ Even a trespasser upon the track of a railroad is entitled to be protected from gross negligence. Human life is sacred, and if a human form appear on the load, walking or sitting, or lying down, some effort should be made to save life.” 60 Ga. Reps., 340. While, therefore, railroad companies do not owe to trespassers the same degree of care and diligence which they are bound to exercise towards their passengers, or to the public generally, at crossings and such other places on their right-of-way as the public has a right to be, still they are liable, even to trespassers, for gross negligence, and it would be stating the rule too strongly to confine such negligence, as the charge requested sought to do, to acts of the company’s servants amounting to actual wantonness or malice, or a reckless and wilful disregard of human life and safety.
4. Section 2970 of the Code read as follows: “If the injury amounts to a felony, as defined by this Code, the person injured must, either simultaneously or concurrently or previously, prosecute for the same, or allege a good excuse for the failure so to prosecute.” The act to amend this section, approved August 27, 1879, declared that it should not “ apply to torts committed by railroad corporations, or other incorporated companies, or their agents or employés, nor shall the same apply to natural persons.” As no persons of any sort, either artificial or natural, were left, to whom the section could apply, the effect of the amending act was to strike it out entirely.
5. Damages to which a widow is entitled from a railroad company for the iiomicide of her husband should not be *868reduced by the amount of insurance paid to her on his life. If her recovery could thus be reduced, it might be insisted that, where the husband’s life was insured for more than she was allowed to recover under the law as its actual cash value, the company could claim a balance against the family of the deceased, on the idea that the killing of the husband and father was a positive pecuniary benefit to them.
6. It is proper for the court to give in charge to the jury the doctrine of contributory negligence and apportionment of damages in all suits of this character, when the testimony would warrant the jury in finding that both parties were at fault. Portions of the testimony in this case authorized this instruction to be given to the jury; but even if the charge had not been so authorized, it resulted in no injury to the defendant, as it is manifest from the amount of the verdict, $4,000.00, that the jury did not intend to apportion the damages at all.
7. It appears from the charge of the court that he explained to the jury the nature of the pleadings, stating to them what was claimed by the plaintiff, and why, and what the defence was, and then added, “ I have stated to you the respective claims of the parties in this case. What I have stated is but the pleadings, and is not to be considered by the jury as evidence. You are to try this case by the evidence as it comes to you from the witnesses, and with that, under the law as given you in charge by the court, you are to arrive at a verdict.” These instructions were not erroneous, but entirely proper.
• 8. The court stated in his charge to the jury that he used the word “ negligence ” in the sense of “carelessness.” This was not erroneous, especially as the court, in his charge, explained fully and accurately all the legal degrees of diligence and negligence, and instructed the jury that, under the law, it was their duty to pass upon all questions of negligence arising in this case.
9. There were a large number of assignments of error *869in tbe verdict, alleging it to be contrary to certain specified charges of the court. The court, in several different charges, instructed the jury that, if certain things were true, they should find for defendant. In a number of other charges, he instructed the jury that, if certain other things were true, they should find for plaintiff. Whether the verdict was contrary to the court’s charge or not depends, therefore, on the views the jury took of the testimony. The charge was full and very fair on all the issues made by the pleadings and proof. Both alternatives on every branch of the case were placed clearly before the jury, and it does not follow, because they deemed it their duty to believe the plaintiff’s side and disbelieve the defendant’s, that the verdict was contrary to the charge of the court.
10. .There was no motion for a new trial in this case. The testimony was quite voluminous, but it is not deemed necessary to discuss it, as this court has no power to review a verdict, or pass on the question, whether it was contrary to evidence or not, unless a motion for a new trial, on this ground, is made and decided by the court below, in which event, it would become the duty of this court to determine whether or not that court abused its discretion in granting or refusing such new trial.
Judgment affirmed.