dissenting. The gist of the opinion of the majority may be gathered from the following excerpt from "the opinion:, “Unquestionably the plaintiff was guilty of great negligence. He was a stranger, wholly ignorant of the schedule, had no reason to believe that a train would not pass any moment, saw the long, high, narrow trestle, saw the curve only seventy-five or a hundred yards north, hiding the trestle .from the view of the engineer, and yet he ventured to cross. Did he not take the chances? But for the plank walkway inviting him to cross, and giving him the right to assume that his presence would be anticipated, and that the engineer in charge would use care in approaching the trestle, so *316as to avoid injuring him, we would unhesitatingly hold that he did. . There is no evidence whatever that the engineer was guilty of wilfulness, wantonness, or reckless negligence amounting to wantonness.” This being the court’s view, the discussion in reference to the frequency of the use of the trestle as a footway by others is entirely academic, and the evidence of such use wholly immaterial. I do not challenge the correctness of the principle, that if the employees in charge of a railway train have reason to anticipate the presence of a trespasser on the track at a given time and place, a duty arises, based upon “a sound and wholesome rule of l'aw, humane and conservative of human life,” to use ordinary care to prevent injury to such trespasser. This does not change, but is merely an application of, the general rule, repeatedly announced by the Supreme Court and by this court, that the only duty owing a trespasser is not to injure him wantonly or wilfully; for if an engineer has reason to suspect the presence of a trespasser on the track, failure to use ordinary care for his protection would be such gross negligence as to amount to wantonness. The Shaw case (127 Ga. 8), cited by the majority, is authority for the proposition that the frequent use by pedestrians of a railway track longitudinally at a given point “enters into the situation as it is known to the company and affects the caution and amount of care required in running the trains.” That case does not rule that such use of the track raises an implied license or right of user, for the court quotes approvingly from Judge Hopkins as follows: “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.” The decision in the Shaw case was placed upon the ground that the defendant company knew of the frequency of the use of the tracks by pedestrians at the place of injury, and with this knowledge was guilty of negligence in failing to keep a' lookout for trespassers. In the absence of knowledge by the company of such use of the tracks, manifestly no duty to anticipate the presence of a trespasser can arise. Upon this idea the case of Comer v. Hill, 101 Ga. 340, was decided. In that case the wife of the defendant’s bridge-keeper was killed on a trestle. She had been in the habit of using the trestle as a means of reaching her house. The court held that the company was not shown to have been under any duty to keep a lookout, because of the absence of proof that the employees connected *317with the running of the train knew of the habit of the deceased to use the trestle, although it appeared that employees in charge of the road-bed did have such knowledge. The court held: “The plaintiff’s wife, therefore, being upon the trestle without authority and without the knowledge of the defendants, the only duty which was owing to her was to use all ordinary care to prevent harm coming to her after her presence upon the trestle was discovered.” There being no evidence that the defendant’s employees knew of the habit of pedestrians to use the trestle as a footway, the frequency of such use affords no ground for recovery by the plaintiff.
The opinion of the majority is predicated, solely upon what it assumes to have been an implied invitation to use the trestle. So far as I am aware, this is the first time any court has held that an invitation to use as a footway a long, high, narrow railway trestle will be implied from the mere presence on the trestle of a means or instrumentality by the use of which passage may be effected with apparent safety. In my opinion, there is no authority in the decisions of the Supreme Court for such a conclusion. The plank was about a foot wide and did not extend across the trestle at either end. On the contrary, there were a few feet of open space at each end of the trestle before the planks were reached. The trestle was four hundred and fifty to five hundred feet long, about fifty feet high, and too narrow to enable a person to remain thereon safely while a train was passing. There was some evidence that a notice was posted, warning persons not to go upon the trestle. The plaintiff could read, but says he did not see the notice. He had <no right to assume that he had permission to walk across the trestle merely because a plank was there on which he could walk. Doubtless the plank was placed there for use by the road-hands in connection with their duties in inspecting and repairing the trestle. The company was under no duty to provide a plank for the plaintiff, and yet, if, as the majority hold, the plank was an invitation to walk, the company would have been liable if the plank had broken and the plaintiff had in consequence been injured. Carried to its logical conclusion, the principle announced by the majority would prevent any master from employing means to make a dangerous instrumentality safe for his servants, for fear some' stranger might accept the presence of the means as an invitation to use the instrumentality and be injured thereby. What right had the plain*318tiff to assume that the planks were put there for his benefit, rather than for use by the railroad employees at a time when their presence there was known and precaution taken for their safety? In my opinion the only thing he had a right to assume was that he might be able to cross with less likelihood of falling than if he walked on the ties. In going upon the trestle without ascertaining that a train was approaching, the plaintiff assumed the risk of injury, and is not entitled to hold the company liable for a consequence resulting, not from any breach of duty to him, but solely from his own rash act.