This is the second appearance of this case in this court. Hammontree v. Southern Railway Co., 45 Ga. App. 728 (165 S. E. 913). At the former trial a verdict was directed for the defendant railway company, and the plaintiff excepted. The defendant, by way of a cross-bill of exceptions, complained of the overruling of a demurrer to the first count of the petition (the action being brought in two counts as shown by the first opinion rendered by this court, supra), and this court dismissed the main bill of exceptions and reversed the judgment complained of in the cross-bill. Before the remittitur reached the trial court the first count of the petition was amended. As amended it alleged that the plaintiff’s husband, the deceased, while walking along the defendant’s tracks, became suddenly ill from overexertion from walking in the hot sun, and fell down on the track of the defendant, when the south-bound train of the defendant was 1000 to 2000 yards away and while in plain view of the train crews of said southbound train, and also in plain view of one Nations, a switchman or flagman of a freight-train standing near the plaintiff’s husband, and that, seeing his perilous condition, they ran over and killed him; that the engineer of the south-bound passenger-train saw the deceased more than 500 yards away, and that the switchman was negligent also in not flagging the oncoming passenger-train which struck the deceased.
There is some evidence on behalf of the plaintiff that a short time prior to the injury the deceased was sitting on the cross-ties near where he was killed, and complained of feeling bad, hut that he got up and started walking away, facing the south-bound passenger-train, as the witness himself left the place. The only eyewitness to the occurrence, other than the engineer, was Nations, a flagman on a freight-train that had just pulled in on a side-track, near the scene of the killing. He testified, that he.was on the rear of the freight-train about 240 or 250 feet from the deceased, who was leaning against a blow-post, which was about 8 feet from the track; that when the passenger-train was about 400 yards away the deceased walked over to the track on which the train was approaching and leaned down and placed both hands on the rail or ties, and when the train was about 300 yards away, running 55 to *82460 miles an hour, the deceased turned or laid on his back between the ties with his head on the rail and his feet straight away from the track, and when the engine was about two or three rail: lengths away he raised his hand and gave the “high ball” sign, and the engine struck him. The evidence discloses that the deceased was struck on the head and that his right arm was broken. The body was not crushed or mangled. This uncontradicted evidence would compel a conclusion that the deceased committed suicide. The plaintiff, however, sought to impeach this witness by proof of contradictory statements to the effect that he was not present, did not see the killing, and knew nothing about it. If the switchman was not present and did not see it, the allegations with respect to his negligence are not sustained. If he were present and did see it, the evidence does not disclose any reason why he could have prevented it, as he was 240 feet away. The testimony of the engineer was that when he was 200 yards away he discovered a white object (the deceased had on a white shirt) between the cross-ties outside the rail, which he took to be a newspaper, and did not realize that it was a human being until too late to stop the train.
Even if, as alleged, the deceased could have been seen 2000 yards away by the engineer, “it is the general rule that a railway company is authorized to act on the presumption that a person apparently of full age and capacity, standing or walking near its tracks, will leave it in time to protect himself, unless it should also appear that such a trespasser is in an apparently incapacitated or helpless condition, so that he could not reasonably be expected to extricate himself from his peril.” Hammontree v. Southern Ry. Co., supra. The only evidence which could in any way be construed as being notice of any such alleged helpless condition on the part of the deceased is the testimony of the flagman, Nations, and this evidence is not sufficient to show that the defendant’s employees had an opportunity, after they should have discovered such alleged condition, to have prevented the injury.
In respect to the second count, it was said, in the former opinion in this case: “The mere failure of the employees of a railway company to discover the presence of a trespasser at a place where and at a time when it was their duty to anticipate the presence of trespassers, and thereafter to take such needful and proper meas*825ures for his protection as ordinary care might require, might amount to a lack of ordinary care, but would not in and of itself amount to wilful and wanton misconduct.”- Lowe v. Payne, 156 Ga. 312 (118 S. E. 924). The evidence wholly failed to show such wanton and wilful negligence on defendant’s part as would warrant a recovery on the second count of the petition.
The allegations in the first count in respect to the failure of the defendant to blow the whistle, ring the bell, and check the speed of the train, are not violations of any duty owed by the defendant to the plaintiff, who was at most a licensee on the property of the defendant at a place 400 yards beyond a public crossing. “Before negligence per se, or any other form of negligence, is actionable in a given case, it must appear that the broken' duty was due to the plaintiff personally or as a member of a class.” Platt v. Southern Plow Co., 4 Ga. App. 159; Atlanta &c. Ry. Co. v. Gravitt, 93 Ga. 369 (20 S. E. 550, 26 L. R. A. 553, 44 Am. St. R. 145). It is true that “Where persons habitually, with the knowledge and without the disapproval of the 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 the custom, are bound, on a given occasion, to anticipate that persons may be upon the tracks 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” (Western & Atlantic R. Co. v. Michael, 175 Ga. 1, 165 S. E. 37); and “while it is true that a railroad-track is a place of danger and one who trespasses thereon is guilty of negligence, yet when the railroad company discovers this negligence, or has reason to anticipate it, and such a trespasser is on the track in an apparently helpless condition, ordinary diligence requires the use of every means then available to avoid running down and killing him, and if, under such circumstances, this degree of care is not exercised, and death results, the killing will be deemed in law to have been wilful and wanton” (Payne v. Hayes, 25 Ga. App. 730, 104 S. E. 917), yet the evidence adduced at the trial fails to show that, even if the deceased had no design to end his own life and was truly in a helpless condition, the defendant discovered, or, by the use of ordinary care, could have discovered such alleged helpless condition in time to have avoided the injury. *826Uiitil such helpless condition became apparent, the railroad company had the right to rely upon the assumption that such person would remove himself from the tracks. The court, therefore, did not err in directing the verdict; '
Judgment affvrmect.
Broyles, G. J., concurs. MacIntyre, J., dissents.