I concur in all the head-notes announced by the Chief Justice, except the last. In my opinion, a new trial should be granted because of the errors mentioned in the 4th head-note, and I therefore dissent from the judgment of affirmance.
On October 17, 1894, plaintiff obtained a verdict for $1,850. Defendant’s motion for a new trial was overruled, and it excepted. The motion alleged, among other grounds, that the court erred: In admitting in evidence, over objection, the .following testimony of Dr. "Wood: “I remember very distinctly asking plaintiff, after we moved him to the boarding-house, some time in the afternoon not later than two o’clock, something, and he didn’t know that he had been in my office at all. He thought we had brought him from where he was injured to the boarding-house.” The objection was, that tin's was simply the sayings of plaintiff, some five hours after the occurrence, and too far off to be a part of the res gesice. In excluding from the jury a diagram of the place where plaintiff was injured, which had been prepared by Whorley, civil engineer, and was sworn to by him as being a correct representation of the surroundings; the court ruling that counsel might use it before the jury, but that it could not be sent out as evidence. In charging: “You look to the evidence and see where on the line of railroad the injury occurred; was or was it not within the corporate limits of the city of Dalton? What speed was the engine running after it reached the corporate limits of"Dalton? Was it or not a greater rate of speed than allowed by the law and the ordinances of the city of Dalton? The ordinances of the city of Dalton áre in evidence before you, and you will see by regarding that ordinance that it requires the engineer of a train to check the speed of the train down to four miles an hour. A failure to comply with this ordinance of the city of Dalton would be negligence.” Alleged to be error, because not a proper way of submitting this question to the jury; because the ordinance might be reasonable as applied to one locality and unreasonable as applied to another; it might be reasonable as to populous parts of the city and not reasonable with reference to uninhabited districts near the corporate limits; and the jury should have been instructed as to the conditions under which, the ordinance should apply^ and those under which it would not, and left to say whether or not the ordinance was reasonable and applicable, according as they might find these conditions to exist or not. Error further, because it made defendant negligent for running faster than four miles an hour after its train reached the corporate limits of Dalton, regardless of the locality where the accident occurred. The evidence showed several public crossings within the corporate limits of Dalton had to be passed by defendant’s train before the crossing was reached where the accident occurred, and that the corporate limits were a considerable distance from this place; and if the statute and city ordinances were violated in regard to the speed of the train before this crossing was reached, the law is this is a circumstance showing negligence at the time of the accident Which may go to the jury, but not negligence per se as charged by the court. In charging: “If the plaintiff was injured by negligence of defendant’s agents in running its trains in violation of law, and if such negligence was wilful on the part of defendant or its agents, or was done in reckless disregard of the life or safety of people, then the plaintiff would be entitled to recover, and his recovery would not be lessened even though plaintiff might by ordinary care have avoided the consequence of defendant’s negligence.” Error, because there was no evidence to justify or authorize it, and the facts made it peculiarly inapplicable; and because the facts showed anything but a reckless disregard of human life by defendant’s agents. Payne & Tye and R. J. & J. McCamy, for plaintiff in error. Maddox & Starr and McCutchen & Shumate, contra.