The movant, M. P. Callaway, trustee, contends that a different rule applies to private crossings kept up by a railroad company, because the lookout and warning law applies only to public crossings. We are aware of two distinctions: (1) the violation of a duty required at a public crossing is negligence per se; and (2) a traveler over a private crossing is bound to exercise more care than at a public crossing, but except in plain and palpable cases the questions of negligence of the parties and proximate cause are still questions for the jury. The movant apparently contends that there can be no recovery for injury at a private crossing where the injured person did not stop, look, and listen. The case of Comer v. Shaw, supra, is strongly relied on. This decision has never been followed by the Supreme Court as to such an intimation, nor by this court. Whether or not we have successfully distinguished the Comer case, it apparently has been classified with Harris v.Southern Ry. Co., 129 Ga. 388 (58 S.E. 873), Thomas v.Central of Georgia Ry. Co., 121 Ga. 38 (48 S.E. 683), andAtlanta Ry. c. Co. v. Owens, 119 Ga. 833 (47 S.E. 213); which class of cases is clearly inapplicable to the facts of this case. Shortly after the decision in Comer v. Shaw, that ofGeorgia Railroad c. Co. v. Cromer, 106 Ga. 296 (31 S.E. 759), was rendered. We know of no better way in which to answer the movant's contention than to quote from that opinion: "The collision not having occurred at a public-road crossing, the defendant was under no statutory duty to give a signal or check the train in approaching thereto. Civil Code, § 2222; Comer v.Shaw, 98 Ga. 543 [25 S.E. 733]. Within the limits of incorporated cities and towns, and outside of such limits wherever a line of a railroad crosses a road which has been established pursuant to law, a railroad company, in the operation of its trains, is bound to give such signals and perform such acts as are required by statute in the latter case, and those which may be required by such reasonable regulations as the municipal authorities may prescribe in the former. A failure in either case to comply with the requirements of the law applicable would amount to negligence *Page 564 in law. In the case of Comer v. Shaw, cited supra, Chief Justice Simmons uses this language: `Where a railroad crossing is in a populous locality and is much used by the public, even though the provisions of [Civil Code, § 2222] are not applicable, greater care is required of railroad companies with respect to speed and signals than is to be expected at places where the railroad is crossed by unfrequented country roads not established by law as public roads; but non-compliance at such a place with the statutory requirements applicable to public roads established by law is not, as a matter of law, negligence per se. It is generally for the jury to say whether under such circumstances the railroad company was negligent or not. This distinction is also to be taken into consideration when we come to consider the conduct of persons attempting to cross the railroad at such places. Where the crossing is one to which the statutory requirements above referred to are applicable, a person about to cross has a right to expect that the railroad company, in the running of its trains, will comply with these requirements; and reliance upon the discharge of its duties in the premises may in some degree excuse a want of full diligence on his part in looking out for the approach of a train. Where, however, the statute is not applicable, a person about to cross must assume a greater burden of care than he would be required to assume if the crossing were one to which the statute applied.' In the case of Thomas v. Railroad Co., 19 Blatch. 533, Wallace, J., says: `Railroad corporations may ordinarily maintain such rate of speed with their trains as they see fit. They may even permit their officers to enjoy the luxury of special trains and dash over their roads with a single car almost noiselessly and at lightning speed. They may use their side-tracks near the intersection of highways or private roads for the storing of empty cars. While these things may not be agreeable to the general public, they are, nevertheless, within the privileges with which railroad corporations have been invested; and the public have no right to complain, because they are legitimately within these privileges. But when these privileges come in collision with the rights of those who use the highways or private roads to cross the railroad, they must give way, because, as to these persons, the railroad corporation is under the obligation of exercising reasonable care to prevent injury. What is reasonable care, or conversely, what omission of precaution is *Page 565 negligence, can only be defined by general propositions, the application of which must depend upon the circumstances of the particular case.' Applying these principles to the case under consideration, it was for the jury to determine whether, under all the circumstances, it was the duty of the railroad company to give a signal of the train approaching this crossing, and to slacken the speed of the same; and if in this respect there was a failure of duty on the defendant's part, then whether the deceased, by the exercise of ordinary care, could have avoided the consequences of its negligence in not giving the signal and reducing the speed of the train."
The movant also contends that, since the contrary does not appear, it should be presumed that the common law obtains in Alabama, and that under the common law no jurisdiction of a non-resident of Alabama could be acquired by substituted service by publication. Ordinarily this contention would be sound, but the presumption of the validity of the last ceremonial marriage is one of the strongest presumptions known to the law, and the presumption that the common law obtains in Alabama yields to it as does every other conflicting presumption. In the circumstances, it will be presumed that Alabama has made constitutional statutory provision for substituted service, under which it is not absolutely essential to the validity of a judgment that a non-resident defendant have actual notice of the pendency of the proceeding. The same would apply to any other State. The evidence does not show that the deceased did not reside in any other State but Georgia and Alabama. Axtell v.Axtell, 181 Ga. 24 (181 S.E. 295); Stiles v. Stiles,183 Ga. 199 (187 S.E. 870). A statute providing for service by publication is valid, if it provides "a reasonable method of imparting notice." Arndt v. Griggs, 134 U.S. 316 (10 Sup. Ct. 557, 33 L. ed. 918); Jacob v. Roberts, 223 U.S. 261 (32 Sup. Ct. 303, 56 L. ed. 429). It could have been possible, and reasonably so, that the deceased could have sued his first wife for a divorce in Alabama or elsewhere, and that she did not receive the notice required to be sent to her if her address was known, or that her address was unknown. The argument that a man could desert his wife, move away and live in several States, and return to his wife's home town and marry again and occupy a position which it would be very difficult to attack by showing that he had not obtained a divorce, is untenable because the presumption of the validity of the *Page 566 last marriage does not apply in a criminal case. 7 Am. Jur. 770, § 40. "In a prosecution for bigamy, the State makes out a prima facie case when it proves that the man accused married two different women at different times, and that when he married the second time he knew that his first wife was alive." Reikes v.State, 71 Ga. App. 324 (30 S.E.2d 806).
Rehearing denied. Sutton, P. J., and Parker, J., concur.In Christopher v. Christopher, 198 Ga. 361 (31 S.E.2d 818), it was simply held that the full faith and credit clause did not apply to the decree of a foreign country. Joyner v.Joyner, 131 Ga. 217, 223 (62 S.E. 182, 18 L.R.A. (N.S.) 647, 127 Am. St. Rep. 220) followed the case of Haddock v. Haddock, 201 U.S. 562 (26 Sup. Ct. 525, 50 L. ed. 867, 5 Ann. Cas. 1), which was overruled in Williams v. North Carolina,317 U.S. 287 (63 Sup. Ct. 207, 87 L. ed. 279, 143 A.L.R. 1273).