dissenting. This is the second appearance of this case in this court. The'widow of the decedent brought suit against the defendant railway company for the homicide of her husband. The petition was in two counts. The first count was based on mere negligence. The second count alleged wilful and wanton negligence on the part of the defendant. In the first trial the court overruled a motion to dismiss- the first count, to which ruling exceptions pendente lite were preserved by a cross-bill of exceptions, and, after the introduction of testimony by both sides, the judge directed a verdict generally in favor of the defendant, without stating upon which count he based his action. The case was brought to this court and the judgment of the lower court reversed; this court stating “it therefore can not be held as a matter of law that the evidence demanded a finding of suicide, or that the plaintiff failed to make out her case as laid in the first count of the petition. The court having held that the first count, charging mere negligence, set forth a cause of action, this ruling became the law of the case until set aside. Georgia Northern Ry. Co. v. Hutchins, 119 Ga. 504 (2) (46 S. E. 659). Under the law as set forth in the preceding division of this syllabus, the action of the court in failing to sustain the demurrer to the first count of the petition was erroneous, and it therefore becomes necessary to reverse the ruling refusing to strike the first count of the petition.” 45 Ga. App. 728. There was no decision by this court as to whether or not the plaintiff had proved her -case as alleged in the second count, which count alleged wilful and wanton negligence. Before the remittitur was made the judgment of the court below, the plaintiff amended her petition. There was no demurrer to the petition as amended. In the second trial (which is now under review), after the introduction of testimony on both sides, the judge again directed a verdict generally. The evidence as to suicide was substantially the same in this trial as it was in the former trial. My discussion of this case hereafter will therefore be *827irrespective of suicide. The former decision of this court on that question, relative to the direction of a verdict, became the law of the case. The amendment to the petition, among other things, alleged “that the hot sun caused petitioner’s said husband [the deceased] to suddenly become ill and fall upon the track.” This amendment was evidently made in view of the former decision of this court in said case. The testimony as to the helpless condition of the deceased was sufficient to make this a jury question. Therefore, the jury would have been authorized to find that the deceased was not wanting in care so as to defeat a recovery. Central of Georgia Railway Co. v. Bridwell, 34 Ga. App. 77, 81 (128 S. E. 238); Snowball v. Seaboard Air-line Railway, 130 Ga. 83 (60 S. E. 189).
Next the question arises, was the jury authorized to find, under the evidence, that the agents of the defendant company could have averted the killing in the exercise of proper care. The evidence was to the effect that the train was running sixty miles per hour through Varnells, Georgia, a community of about 300 people, without ringing the bell or blowing the whistle, and did not stop at the station on this particular day; that the public generally were accustomed to walk upon the right of way where the deceased was injured; that the train was going south; that the track was straight for about a half mile north of where the deceased was killed; that there was no obstruction which would have prevented the engineer and fireman on the locomotive traveling south from seeing the deceased; that the operators of the engine testified they did not see any object on the track until they were about 300 yards from the point where the deceased was killed; and that they thought the object was a piece of paper; that the deceased was lying down about the end of the cross-ties, having on a white shirt and dark pants; that they discovered it was a man about 100 yards from the point of the homicide;.that it was impossible to stop, after they discovered it was a man, before striking him; that for one half a mile the operators could have seen a man bending over the trade, but could not have told what it was until they “got closer;” that, however, the plaintiff’s witness Nations, a flagman on another train, testified that “he [the deceased] walked over there and put his left hand, . . both hands on the end of the cross-ties, and I thought he was picking up something, and instead of raising up he stood *828there and looked at that train coming until it got about the depot, about 400 yards from him, that’s when he looked over there to see, and when the train got about, I will say, 300 yards from him he dropped down and laid down and rolled over on his back, and raised his head up on the rail and threw his hand up like that and the train struck him.” If, according to the defendant’s witness Nations, the man was in a stooping position on the edge of the track, 400 yards from the approaching train, and remained in this position until the train got within 300 yards of him and the operators of the engine did not see the object until within about 200 yards of it and did not discover it was a inan until within 100 yards of him, this was proof of facts and circumstances tending to discredit the testimony of the operators as to the care and diligence exercised by them to avoid the injury. The undisputed testimony shows that the operators of the locomotive actually discovered the presence of the deceased prior to the homicide. Our courts have enunciated the following principles of law:
“ Whether the frequent and continued use of the right of way of the railroad at the point where the deceased met his death was such as to require the railroad company to anticipate the presence of pedestrians on or near the track, and whether, with such notice and resulting duty, ordinary care was exercised on the part of the railroad company, are questions of fact for determination by the jury. . . 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 Tras 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. Contributory negligence on the part of even a trespasser will not defeat a recovery for a wanton homicide.” Payne v. Hayes, 25 Ga. App. 730 (104 S. E. 917). “The undisputed testimony in support of the first count of the petition, alleging wilful and wanton negligence, shows that the operators of the locomotive actually discovered the presence of the deceased prior to the homicide, and since there was proof of other facts and circumstances tending to discredit the testimony of such operators *829as to the care and diligence exercised by them to avoid the injury, it can not be said, as a matter of law, that the jury’ were not authorized to find that the servants and employees of the defendant were guilty of such a failure to exercise ordinary care and reasonable diligence to avoid the homicide as would, under the circumstances, amount to wilful and wanton negligence as charged.” Georgia Railroad &c. Co. v. Dawson, 37 Ga. App. 542 (141 S. E. 57). “The mere failure of the employees of a railway company to discover the presence of a trespasser at a place where and a time when it was their duty to anticipate the presence of trespassers, and thereafter to take such needful and proper measures for his protection as ordinary care might require, might amount to a lack of ordinary care on the part of the railway company, but would not, in and of itself, amount to wilful and wanton misconduct. . . A. C. L. R. Co. v. Fulford, 159 Ga. 812 (127 S. E. 274).”
Applying the law to the allegations and the proof in this case, it can not be said, as a matter of law, that the jury were not authorized to find that the defendant was guilty of such failure to exercise ordinary care and reasonable diligence to avoid the homicide as would amount to wilful and wanton negligence, and the judge should not have directed a verdict for the defendant on the .second count. See Crawford v. So. Ry. Co., 106 Ga. 870 (33 S. E. 826). I am also of the opinion that, under the petition as amended and the evidence adduced, the judge erred in directing a verdict for the defendant on the count -for mere negligence. See Georgia Railroad &c. Co. v. Dawson, supra; Central of Ga. Ry. Co. v. Stamps, 48 Ga. App. 309 (5) (172 S. E. 806). My opinion in this case would be otherwise if there had not been proof of facts and circumstances tending to discredit the testimony of the operators of the engine as to the care and diligence exercised by them to avoid the injury.