1. In view of the evidence in this case upon the question of frequent use of the railroad track at the particular place of the homicide, by pedestrians as a pathway, known to the defendant company, we think, as a question of fact, it should have been submitted to the jury to say whether or not the use was shown to exist to such an extent as to require those operating the cars of the defendant to anticipate the presence of persons on the track. If the evidence was such as to require them to anticipate the presence of pedestrians on the track, then they were bound to use ordinary care to avoid injury to any one who might be on the track at that place. To do this would depend upon the particular conditions surrounding each case; but, among others, the condition of the machinery, the condition of the track, the capacity for stopping within a given distance, and the capacity, for discovering any one on the track within that distance, are matters which should J?e *12'taken into consideration and observed by the engineer in approaching a part of the track where, from the publicity and frequencjr of its use by pedestrians, he has reason to apprehend the presence of ■one. In Atlanta Ry. Co. v. Gravitt, 93 Ga. 369, this court held that, relatively to a person who, without license from the company, is walking upon a railroad track on a trestle, though such trestle be situated between a blow-post and a public crossing, the duty of the railway company to observe “all ordinary and reasonable care .and diligence towards such person arises when his presence becomes known to the engineer, and not before.” This is a broad statement, and an examination of the opinion will show that the court ■did not have in mind a place on the track so frequented by pedestrians as to afford reason for the engineer to anticipate their pres■enee. The law would not be so lax with human life as to allow the ■operation of such dangerous machinery as a railroad train over .such place with utter disregard. So afterwards, in the case of Georgia R. Co. v. Cromer, 106 Ga. 296, this court emphasized the ■duty .of a railroad company to observe care with reference to one .not on a public crossing, but at a place so frequented by the public .as to give reason to anticipate their presence. In that case the ■court held: “Where a railroad crossing is in a populous locality .and is much used by the public, but the same is not within the limits •of an incorporated city or town and is not a part of a public road ■established pursuant to law, what rate of speed in approaching and running over such crossing would be negligence, and what signals ■ordinary care would require to be given, are matters to be determined by the jury according to the circumstances of each particular ■case.” This case was referred to approvingly in Bullard v. Southern Ry. Co., 116 Ga. 644, and there the court said: “Where a ■number of persons habitually, with the knowledge and without the disapproval of a railroad company, use a private passageway for “the purpose of crossing the tracks of the company at a given point, the employees of the company in charge of one of its trains, who .are aware of this custom, are bound, on a given occasion, to anticipate that persons may be upon the track at this point; and they are under a duty to take such precautions to prevent injury to such persons as would meet the requirements of ordinary care and diligence.” While these cases refer particularly to localities where the nustom was to cross, and not to go longitudinally along the track, *13the principle is just the same. The ruling was put upon the duty which arose, not upon the technical ground that it was a public crossing, but upon the ground that because of the frequency of the-use, the presence of pedestrians was to be anticipated. Therefore-it was that in Bullard’s case this court approvingly referred to W. & A. R. Co. v. Meigs, 74 Ga. 864, where it was said: “There was no error in admitting the testimony relating to the habit of the-public in walking on the defendant’s tracks 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 trespasser, 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.” In Bullard’s case this court also quotes approvingly from Hopkins, Pers. Inj. § 87, p. 142, as follows: “Where no permission is given, but there is a habit on the part of individuals- or the public of traveling over the track on foot, and nothing is done to prevent it, that does not modify or change the legal rights- or obligations of either the public or the company. By such use the public are not tacitly licensed to go upon the track and the consent of the company to the use is not implied; but the fact that they do go there enters into the situation as it is known to the company, and affects the caution and amount of care required in running the trains.” The distinction already drawn between the case at bar and Atlanta Ry. Co. v. Gravitt, supra, was made in the well considered case of Crawford v. Southern Ry. Co., 106 Ga. 873, where Mr. Justice Fish, after citing numerous authorities, evolved the following rule: “Taking the locality where the train is running and all the surrounding circumstances, if those in control of the movement of the train have no reason to -apprehend that there may likely be a human being on the track in front of the engine, they are under no duty to one who may in fact be there, until they have actually discovered that he is there. But if, from the locality or surrounding circumstances, there is reason to appre*14bend that the track in front of the locomotive may not be clear of human beings, then, it seems to us, it is the duty of the employees of the company to keep a lookout ahead of the train; most assuredly so unless they are performing some duty which prevents their looking out upon the track in the direction in which the train is moving.” This rule is approved in Ashworth v. Southern Ry. Co., 116 Ga. 635, and Bullard v. Southern Railway Co., supra. In Southern Ry. Co. v. Chatman, 124 Ga. 1026, Mr. Justice Lumpkin, after reviewing a number of cases, text-books, and other authorities on the duty of a railroad company to a trespasser, states the law thus : ■“The general rule, that as to a trespasser upon a railway track the duty of observing ordinary care and diligence for his protection does not devolve upon the company’s-agents in charge of a train until his presence upon the track becomes known to them, does not relieve the company under all circumstances from anticipating the presence of a trespasser upon its track and from taking proper precautions to prevent injury to him. Wherq the circumstances are such that the employees of the company in charge of one of its trains are bound, on a given occasion, to anticipate that persons may be upon the track at a certain place, they are under a duty to take such precautions to prevent injury to such persons as would meet the requirements of ordinary care and diligence.”
Assuming that the jury 'would have found that the place where the deceased was killed was so frequented by pedestrians as to afford reason for the engineer to anticipate their presence, what, then, did he do-in the performance of his duty towards the deceased? There was evidence to the effect that the train was light, and, for that reason, not quick to stop. It was down grade and the track slick with dew. The speed was fifty miles an hour. From the evidence of the engineer it appears that he saw the deceased as soon as, under surrounding conditions, it was possible to do so. He gave the danger signal, immediately saw that the deceased was not responsive'; immediately applied his brakes, and did all that was possible to stop before reaching the deceased. Although his engine and equipments were in perfect condition, it struck the deceased and passed 150 to 200 yards beyond, before it was possible to come to a stop. Can it be said that at this particular time and place and under these particular conditions, with reference to the deceased, the engineer was in the exercise of all ordinary and rea*15sonable care and diligence? Was he not, under those conditions* running at an unreasonable rate of speed, and was not his conduct in that respect negligence? These were questions for the Jury, and it was erroneous for the court to charge: (1) “I charge you it is not lack of ordinary care and diligence to fail to keep a lookout for persons on the track not on a public crossing.” (2) “I charge you, the duty to exercise all ordinary and reasonable care and diligence towards a person not on a public crossing arises when his presence becomes known to the employees in charge of the.engine, and not before. A failure of such care and diligence after that time, and from which injury occurs, unless it could have been avoided by the use of ordinary care on the part of the person killed or injured, will render the company liable.”
2. In the light of the evidence and the charge of the court taken as a whole, there was no such error in any of the other grounds of the motion for new trial as would Justify this court in reversing the judgment of the court below.
Judgment reversed.
All the Justices concur, except Fish, C. J., and Beck, J., who dissent.