Mrs. Wilds obtained a verdict for $2,500 against the company for killing her husband. The court granted a new trial. We think this was proper. The homicide occurred at night, several hundred yards from any public crossing; and the only reason why there was any such unfortunate calamity was, that the company and the deceased were both attempting to use the track at the same time. The company had a right to its use; the deceased had none. There is no explanation whatever as to why he did not avoid the consequences of the company’s negligence. That he could have done so by exercising the care of a prudent person is manifest. Would a prudent person have remained upon the track at night without any business upon it, until stricken and killed by an approaching train? We think not, and doubtless the court below so thought. From the facts set out in the official report, it will be seen that this killing cannot be accounted for except' upon the theory that the plaintiff’s husband was grossly negligent. Had he been in the use of ordinary care, it seems impossible that he could have been in the way of the train at such an hour and in such a place. Central Railroad vs. Smith, 78 Ga. 694.
Judgment affirmed.