(After stating the foregoing facts.)
1-4. The rulings made in the first four headnotes do not require elaboration.
5. The remaining question for determination, and the one principally argued, is whether the court erred in refusing to grant a nonsuit at the conclusion of the evidence introduced in chief by the plaintiff; and under the ruling frequently announced by this court, that question must be answered in the negative if there was any evidence whatever authorizing a finding in favor of the plaintiff. While the evidence to support the petitioner’s case is of doubtful sufficiency, it can not be said that the court erred as a matter of law in holding that a nonsuit was not authorized. Taking the evidence most favorable to the plaintiff’s cause as true, which must be done in passing upon this motion for a nonsuit, it appears that the plaintiff’s husband, who was a flagman and switchman, had taken a position upon the south main line over which a train coming into the city would run; he was facing towards the city for the purpose of watching out for any train that might be approaching on the north main line, that being the line upon which the switching-engine to which he was attached as an employee was then being operated in placing cars upon certain industrial tracks and elsewhere. There is evidence showing that the position on the south main line, on account of a curve in the tracks, was the most feasible position for the flagman to take in order both to keep in sight of his own crew and to signal an approaching engine on the north main line. Ilis back was turned in the direction from whence a train would come on the south main line, — that is, the line upon which he was standing; and from that direction a train did come, which was being pushed with a freight-car in advance. This came swiftly — 30 miles an hour — without any signals whatever of its approach. The spot at which the decedent was killed was about 200 yards from a crossing known as Bellwood crossing, and in the railroad yards. The jury would have been authorized to find under the evidence that no signal was given as the train of the defendant company passed over the crossing or approached it. Whether or not under these circumstances the train which ran *59over and billed the petitioner’s husband was being operated negligently and in disregard of the safety of its own employees and employees of other railways using these yards is a question of fact. No mere rule of law can be applied to the situation so as to enable the court to determine the question of negligence or not upon the part of the defendant company, as a question of law, unless we flatly hold that because of the fact that the train was being operated in the railroad yards the employees of the defendant could operate a train there at any rate of speed which the locomotive was capable of attaining. Both the south and the north main lines were tracks belonging to the Western & Atlantic Kail-, road Company, but were used, under an arrangement between the two companies, by the Seaboard Air-Line Kailway. The decedent was not an employee of the plaintiff in error, but he was not, it is conceded in the brief of counsel'for plaintiff in error, a trespasser upon that track. Counsel for plaintiff in error concede that he was a licensee. And if one switchman could be upon a track as a licensee, other licensees sustaining similar relations to other switching crews might, under the exigencies of varying situations, be there; and it can not be said as a matter of law that a train could be run at any rate of speed along that track and trainmen not be negligent in so doing. We can not, of course, say that the train which killed the decedent was actually running (even though going at the rate of 30 miles an hour) at such a rate of speed as to render the operation of the train negligence, but we do say that whether the movement of the train at this rate of speed was negligence was a question of fact, and that question could not be determined on a motion for a nonsuit. We are equally unable to say, as a matter of law, that the’decedent could, by the exercise of ordinary care, have avoided the consequences of the defendant’s negligence. That, too, was a question of fact for the jury, and the judge properly refused to determine that point on a motion for nonsuit.
It will be observed that we have held that whether the defendant was guilty of negligence or not in running the train at a high rate of speed was a question of fact for decision by the jury, without reference to the ordinance of the City of Atlanta, fixing a maximum rate of speed at which trains might be operated within the city limits. And if that was true, then the judge did not, merely by refusing a nonsuit, necessarily pass upon the question of the reason*60ableness or unreasonableness of that ordinance, and of its applicability to the place at which the homicide occurred. Save by the motion for a nonsuit, the refusal of which we have pointed out might have been based upon other grounds than the violation of the ordinance, the plaintiff in error did not invoke a direct ruling by the court upon the reasonableness or unreasonableness of the ordinance. It was not challenged, when offered in evidence, on the ground that the facts showed that it was not applicable to that particular place, or that, if it was, it was unreasonable.. And no charge of the court construing the ordinance appears to have been invoked. Therefore, as it does not appear that the superior court passed upon that question, this court will not undertake to do so.
It follows, from what we have said above, that the court properly refused to grant the nonsuit.
Judgment affirmed.
All the Justices concur.