ON MOTION FOR REHEARING.
Guerry, J.It is insisted by plaintiff in error that the allegations of the petition are insufficient to show that the negligence alleged did amount or could amount to that degree of negligence which might be termed wilful or wanton. In Charleston & Western Ry. Co. v. Johnson, 1 Ga. App. 441 (57 S. E. 1064), it was said: “A failure to exercise ordinary care to prevent injuring him (a trespasser) after his presence is known, is usually so akin to wilfulness or wantonness as to create liability.” This seems to be the rule which has been universally recognized and followed in the courts of this State. It was quoted approvingly in Southern Ry. Co. v. Wiley, 9 Ga. App. 249, 251 (71 S. E. 11). This court in that case said: “While we think the evidence in this case is exceedingly close on the question of liability, we are so reluctant to decide that the verdict of the jury on questions purely of fact is unsupported by any evidence, and therefore contrary to law, that we prefer to grant another trial on a specific error of law.” The new trial in that case was granted because the charge of the trial judge failed “to restrict the right of recovery to the evidence of wilful and wanton conduct on the part of the engineer, but distinctly instructed the jury that they would be authorized to find a verdict against the railroad company if they found from the evidence that the defendant’s employees were guilty of negligence in causing the homicide of the decedent. . . The repeated instructions of the judge, that the engineer, in the exercise of ordinary diligence, should have done all he could do to prevent the injury as soon as he discovered the decedent walking on the track [italics ours], or the railroad company would be liable for negligence, was not the enunciation of a correct principle of law as applicable to the facts of this *591case.” The negligence necessary to support a verdict in such case must be wanton and wilful. The exact point where ordinary negligence or the lack of ordinary care passes into and becomes wilful and wanton negligence is a question for the jury, under definite instruction from the trial judge that the facts must show that the failure to exercise ordinary care was not only negligence but that it amounted to wilful and wanton negligence. This has been clearly pointed out in the cases cited in the main opinion.
It is also insisted that in view of the allegation that deceased was walking on a path “between the tracks,” and not on the tracks, he was not, therefore, in such a place of danger as would give rise to any duty on the part of the defendant company. The petition alleges that he was struck while walking along this path. It must have been a place of danger, although it might be a circumstance to show a reason on the part of the defendant’s employees for the alleged failure to ring the bell or sound the whistle. It still remains a question for determination by the jury as to the liability of the defendant company under the circumstances.
Rehearing denied.
Broyles, O. J., dissents.