ON REHEARING
Stephens, P. J.It is insisted on the motion for rehearing that Code, § 105-402, applies to persons who are injured on the right of way of a railroad by the running of a train. This section seems to have been taken from Petree v. Davison-Paxon &c. Co., 30 Ga. App. 490 (118 S. E. 697), which was a case of a child injured in a store. Other Georgia cases cited in support of this contention relate to the general duty of a landlord to keep the premises safe. Therefore it may be doubted whether the Code section cited applies at all to such an injury as is involved in the present case. But this court has said, in speaking of licensees: “The fundamental concept in this class of cases, as in that of trespassers, is of a liability only for wilful or wanton injury; but it is usually wilful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be, or reasonably is expected to be, within the range of a dangerous act being done.” Mandeville Mills v. Dale, 2 Ga. App. 607 (58 S. E. 1060), quoted in Petree v. Davison-Paxon Co., supra. See also Cook v. Southern Railway Co., 53 Ga. App. 723, 726 (3) (187 S. E. 274).
Under these decisions and the evidence in this case it was for the jury to find whether the failure to use ordinary care in the operation of the train (if any) amounted to wanton or wilful conduct.
*772It is also insisted that to require a company to reduce the speed of its through trains at such places as the one where the homicide in this case occurred would be to put an unreasonable burden on interstate commerce. The case of S. A. L. Ry. v. Blackwell, 244 U. S. 310 (37 Sup. Ct. 640, 61 L. ed. 1160, L. R. A. 1917F, 1184), in which the Georgia blow-post law was held unconstitutional, is cited. This question is without the purview of the present ease. In a prior case in which the blow-post law was attacked it was held that proper pleadings and evidence were necessary. Southern Ry. Co. v. King, 217 U. S. 534 (30 Sup. Ct. 594, 54 L. ed. 868). Under this decision the constitutional question could hardly be considered. In the present case there is no attack on any statute or ordinance as' unconstitutional.
Judgment adhered to.
Sutton and Felton, JJ., concur.