ON MOTION EOR REHEARING.
Broyles, C. J.It is contended by the plaintiff in error, in an amendment to its motion for a rehearing, that this case is controlled by the recent rulings of the Supreme Court and of this court in Atlantic Coast-Line R. Co. v. Fulford, post, 631, which case (after certified questions therein had been answered by the Supreme Court) was decided by this court on April 11, 1925. 159 Ga. 812 (127 S. E. 274). While the cases are very similar, there is, as we view them, one vital distinction. In the Fulford case the only reason assigned in the petition why the decedent failed to observe the approach of the train which was approaching from his rear and which killed him was that he “was prevented from hearing [italics ours] its approach by the operation of a number of motor-vehicles and other locomotives in and around its yards, near the point where petitioner’s husband was struck. The operation of the machinery of the water and light department of the City of Thomasville, located near the point where the injury occurred, also contributed to the general noise that rendered it impossible for petitioner’s husband to know of the approach of said locomotive.” Anri the Supreme Court held, in substance, that as the petition alleged merely that the decedent “was prevented from hearing [italics ours] the approaching train by noises of other locomotives, machinery, and the like, in the vicinity, [and] no other reason [italics ours] for his conduct being shown,” the petition showed upon its face that he “was guilty of such negligence as to bar a recovery for his death on account of the negligence of the railway company.” It will be observed that in that case there was no allegation that the decedent was so engrossed in looking at some other moving locomotive or other object that he was not aware of the train approaching from his rear until he was struck by it. In fact, the petition did not allege that any of the noise-making objects that prevented the decedent from hearing the train was in motion. As was said, in substance, by Chief Justice Bleckley in *579Smith v. Central Railroad Co., 82 Ga. 806, it was not alleged that the injured person’s attention was directed to other trains that were near, and thus withdrawn from the danger that threatened. In the instant case the plaintiff alleged and proved not only that the noise of the passing freight-train prevented her from hearing the approaching passenger-train that injured her, but that she was so engrossed in watching the moving freight-train, and in keeping a safe distance from it, that she was unaware of the approach of the passenger-train until she was struck by it.
As was said by Mr. Justice Little in Western & Atlantic R. Co. v. Bailey, 105 Ga. 101, 102: “The presumption that a person apparently of full age and capacity, who is walking or standing on the track, will leave it in time to save himself from harm, will not avail when the person who is on the track appears to be intoxicated, asleep, or othenvise off his guard, etc. [italics ours]. Pierce on Railroads, 331, and authorities cited. A like doctrine is announced in the case of Central Railroad v. Brinson, 70 Ga. 207. The company is at liberty to act on this presumption, and to continue to act on it, until it discovers that the person is not likely to escape the peril, and then it is bound to exert itself to avoid the calamity. Georgia Railroad v. Williams, 74 Ga. 736.”
The other cases cited in the original motion for a rehearing are distinguished from the instant case by their particular facts.
Rehearing denied.
Luke, J., concurs.