1. In this action against a railroad company for the homicide of the plaintiff’s husband, who, when walking on the railroad-track, was struck and killed by the defendant’s locomotive, the petition alleges, not that the defendant’s servants killed him wilfully or wantonly, but that the “agents in charge of the defendant’s locomotive could have discovered the presence and perilous position of petitioner’s husband and avoided killing him,” and that the homicide was negligent. See, in this connection, Thomas v. Georgia Granite Co., 140 Ga. 459 (1) (79 S. E. 130). In such a case, if the decedent himself was guilty of negligence equal to or exceeding- the negligence of the railroad company, or if by the exercise of ordinary care he could have avoided the consequences of the company’s negligence after it was or should have been discovered, the plaintiff can not recover. Civil Code (1910), §§ 2781, 4426.
2. There being- no allegation to the contrary, it must be assumed that the decedent was a person of ordinary intelligence, and that he was laboring under no physical defect or disability that rendered him incapable of knowing or appreciating the danger of his -situation. Biederman v. Montezuma Mfg. Co., 29 Ga. App. 589 (116 S. E. 225).
3. Considering the allegations of the petition and the inferences necessarily deducible therefrom, it appears that the decedent, when struck by the train, was walking in front of it and in the same direction, along a path running parallel with the railroad-track and “located so near the iron rails . . over which the defendant company’s locomotive and train moved as to make it impossible for a locomotive and train to pass along said iron rails without striking” him, and “had reached a point within 40 feet of” a public street-crossing; that he was an adult of normal physical and mental faculties, that he did not look to see if a train was approaching (there being no allegation that he did look), and was prevented from hearing the approaching train by noises of other locomotives, machinery, and the like, in the vicinity. No other reason for his conduct is shown. Held: It af*632firnmtively appears that the decedent was guilty of such negligence as to bar a recovery for his death on account of the negligence of the railway company. This question in the case was certified to the Supreme Court, and in the answer thereto it was held: “The decedent being at the time of the homicide an adult possessed of normal mental and physical faculties, though, he was prevented by noises in the vicinity from hearing the train which approached him from the rear, could and should have exercised the faculty of sight, by which he would have ascertained upon merely turning his head that the train was approaching. He knew that he was in a place of danger when walking longitudinally along the track, and knew that there were noises there which interfered with his hearing, and consequently the slightest degree of care upon his part would have required him to look in the direction from which the danger might- come, and a failure to exercise this care was such gross neglect upon the part of the decedent as to bar a recovery for his death.” See Atlantic Coast Line R. Co. v. Fulford, 159 Ga. 812 (3, 5) (127 S. E. 271). It follows that the petition failed to sot forth a cause of action, and that the general demurrer thereto was improperly overruled. The subsequent proceedings were nugatory.
Decided April 11, 1925.Judgment reversed.
Jenkins, P. J., and Stephens, J., eoncivr. J. H. Merrill, H. II. Merry, Bennel & Branch, for plaintiff in error. Eldon L. Joiner, contra.