ON MOTION TOR REHEARING.
Sutton, J.1. The plaintiff in error contends in a motion for rehearing that this court erred in holding that the plaintiff’s petition set out a cause of action, and that the trial judge did not err *620in overruling defendant’s general demurrer, especially in that this court failed to apply to the petition in this case the rulings of this court in Brinson v. Davis, 32 Ga. App. 37 (122 S. E. 643), Central of Ga. Ry. Co. v. Adams, 39 Ga. App. 577 (147 S. E. 802), Lane v. Gay, 41 Ga. App. 291 (153 S. E. 72), Tidwell v. A., B. & A. Ry. Co., 42 Ga. App. 744 (157 S. E. 535), State Highway Dept. v. Stevens, 46 Ga. App. 359 (167 S. E. 788), Carroll v. Ga. Power Co., 47 Ga. App. 518 (171 S. E. 208), Anderson v. Collins & Glennville Railroad Co., 47 Ga. App. 722 (171 S. E. 384), and Rape v. Tennessee, Ala. & Ga. Ry. Co., 49 Ga. App. 175 (174 S. E. 551), and certain decisions of the Federal intermediate courts. These cases are different in their facts from the case at bar. Bearing in mind the apt statement that “Every case of this sort must, in the last analysis, be determined upon its own facts” (see Mann v. Central of Ga. Ry. Co., 43 Ga. App. 708, 710, supra), and applying to the facts of the present case the principles of law relied upon in Central of Ga. Ry. Co. v. Heard, 36 Ga. App. 332 (supra), and cases following that decision, the instant case is certainly materially different from the cases relied upon by counsel for the railroad company. Questions of negligence, diligence, etc., are, in this State, ordinarily questions of fact for determination by a jury. In the case under consideration there appears, from the allegations of the petition, to have been a dense fog, smoke from the standing locomotive mixed therewith, and the time was early dawn on a winter morning, and the driver of the automobile did not have knowledge of the proximity and location of this particular railroad-crossing. In this case the petition charges that, due to the atmospheric conditions, one could not see the gondola car across the highway, and tliat due care for the safety of travelers along the highway required the placing by the railroad company of a guard, light, or other warning at a proper point for the purpose of giving notice for the time being that the highway was obstructed, which was not done. The very things that distinguished the Heard case (36 Ga. App. 332) from the Tidwell case (42 Ga. App. 744) and from the Brinson case (32 Ga. App. 37) distinguish the present case from those cases and from other cases cited by counsel for the railroad company and above referred to.
Counsel for the plaintiff in error misconstrue the first syllabus of the opinion in this case. This court did not base its holding *621.that the petition set out a cause of action upon the fact that it was alleged that the railroad company had violated a municipal ordinance relative to blocking crossings. It is true that there appears approvingly in the latter part of this syllabus a quotation from the Mann case (43 Ga. App. 710), the petition in which case contained such an allegation; but the quotation from the Mann case was used by this court for the purpose of illustrating that the petition in this case made a jury issue, it being alleged that there was a foggy, dense atmospheric condition, and smoke from the locomotive, and that due care required the placing of some sort of guard, light, or other warning to travelers of the blocking of the highway. 'The Mann case, like the present case, had the features which distinguished the Heard case from the line of eases relied upon by counsel for the railroad company and hereinbefore cited, which were expressly distinguished in the Heard case, and the Tidwell case was expressly distinguished along this same line from the Heard case. Therefore we feel that this ground of the motion for a rehearing is without merit.
2. The plaintiff in error contends that this court should pass on the sufficiency of the evidence in this case, even though a reversal is had. It has been the practice of the appellate courts of this State, when reversing a judgment overruling a motion for new trial, to refrain from passing upon the sufficiency of the evidence to support the verdict, unless, of course, the reversal was solely because of the failure of the evidence to support the verdict. This is so because the evidence upon a second trial may not be the same. Atlantic & Birmingham R. Co. v. Reynolds, 117 Ga. 47, 54 (43 S. E. 456); 1 Michie’s Dig. 1025, 1026. Of course, if the evidence demanded the verdict found by the jury, then any error in the charge of the court, etc., would be harmless. Therefore this court will rule on the evidence on a bill of exceptions assigning error upon the overruling of a motion for new trial to the extent of holding that the verdict was not demanded by the evidence. “ Since the case is to be retried, this court will not pass on the sufficiency of the evidence further than to say that it did not demand a verdict for the plaintiff.” Hawk v. Western & A. R. Co., 20 Ga. App. 395 (93 S. E. 40). What will be the evidence when the case is tried again this court does not know. The fact that the plaintiff below was represented on the first trial by able and diligent coun*622sel does not necessarily mean that the evidence upon the second trial will be the same as that upon the first trial; and this court does not feel constrained for that reason to now pass upon the sufficiency of the evidence to support the verdict in this case.
3. Plaintiff in error states that this court “evidently misapprehended the testimony” of its engineer “on direct examination, that the train arrived at the crossing at 6 :10 a. m., and that the collision occurred at 6 :16 or 6:17,” and that the court “may have been led into this error by looking at the direct testimony of the engineer, in which he speaks of the general custom under which the train was supposed to leave Camak at 5 o’clock and get into Wrens at 6:10 a. m.” On page 212 of the record (page 140 of .the brief of evidence) in this case there appears the direct testimony of this witness, and he testified: “We left Camak that morning on time; we are supposed to leave there at 5 o’clock,—and got into Wrens at 6 :10.” To the mind of this court this is testimony that the train got into Wrens on the morning of the fatal accident at 6:10. On cross-examination, it is true, this same witness testified (page 224 of the record, page 151 of the brief of evidence) that the train got into Wrens about 6 :14 or 6:15, and the accident happened about 6 :16 or 6:17. The jury were at liberty to believe either statement’ of this witness.
4. Plaintiff in error insists that this court should have specifically ruled on the refusal of the trial court to comply with a request to charge the jury as follows: “One can not drive blindly through fog or darkness upon a public highway in Georgia and recover damages from another merely because he strikes an obstruction in the highway placed there by that other, if he takes no precaution whatever for his own safety. The same rule applies in the case of a mother suing for the death of her son riding in an automobile jointly hired for the use of himself, the driver, and others, and being so driven. The driver must use ordinary care to avoid danger to himself and to the other occupants of the automobile. The mere fact that a fog existed, though dense in nature, and even if it were impenetrable by the sight of one’s eye, as the lights of an automobile may be reflected through the fog upon the highway,— this alone is not sufficient to authorize a recovery under such circumstances. It must be found, in addition, that the defendant was negligent, that the negligence of the defendant was the proximate *623cause of the injury, that the driver of the automobile could not have avoided the consequence of the defendant’s negligence at the time he ascertained it, or it was reasonably to be apprehended, by the exercise of ordinary care. And if the negligence of the driver of the automobile was equal to or greater than the negligence of the defendant, the plaintiff can not recover.” This court had in mind this request when it stated in the original opinion that certain requests to charge were sufficiently covered by the court in the charge given, and the failure to give the requested instructions did not require the grant of a new trial. This court is still of the opinion that the charge of the court sufficiently covered and dealt with the principles of law embodied in the above-quoted request to charge submitted by the defendant, now plaintiff in error. It follows that the motion for a rehearing in this case is denied.