Simmons, Chief Justice.
In the case of Americus, Prestan & Lumpkin Railroad Co. v. Luckie, 87 Ga. 6, this court, construing sections 2972 and 3034 of the code, held, in substance, that the plaintiff in an action against a railroad company for personal injuries cannot recover, even though the company may have been negligent, if, after the negligence of the defendant began or was existing, the person injured could by ordinary care have avoided the consequences to himself of that negligence; also that if the person injured could not, by the exercise of ordinary care, have avoided the injury, and the injury resulted from the defendant’s negligence, he can recover although to some extent negligent himself, but the amount of the recovery should be diminished in proportion to the amount of fault attributable to him; and that this latter rule is not a qualification of the former. The first rule prevents his recovery at all if by ordinary care he could have avoided the injury; the second allows him to recover although negligent himself, if he could not by the exercise of ordinary care have avoided it. Taking into consideration the entire charge of the trial judge upon-the law of contributory negligence, it was substantially in accord with the law as above stated, and covered substantially the defendant’s requests to charge on this subject.
It appears from the record, that the railroad company’s track extended longitudinally through Bay street, one of the principal thoroughfares of the city of Brunswick, and that the trains of the company ran from one end of the street to the other. The locomotive and train which ran over and killed the plaintiff’s son were at the upper end of the street, standing still, and blocked a crossing which was in general use by the people in that locality. In order for the train to run down the street, the locomotive had to run backwards, with the tender in front. The deceased started across the street a short distance beyond the crossing, and while he was crossing the track the train suddenly started and ran over him. The declaration alleged that the defendant was negligent in failing to have a flagman or some other person at the rear of the locomotive, while it was being run backward, so as to warn persons who-were crossing or attempting to cross the track as the train was approaching. The court, in its charge to the jury, submitted to them whether under all the circumstances disclosed by the evidence the failure to do this was negligence. The defendant, in its motion for a new trial, alleged that this was error, because there was no statutory-requirement or ordinance requiring the company to make-any provision of this kind for warning persons crossing the track. As before remarked, the track, at this point, ran through a leading thoroughfare of the city; a large number of people doubtless crossed it every hour; and whether there was a statute or ordinance requiring it or not, we think the jury would have a right, under the circumstances, to say that the railroad company ought to have had some person stationed at the end of the train at that point,, to give warning.
It was contended on the part of the railroad company, that the crossing blocked by the train on that occasion was-a private crossing. If the street was a public one, we do, not see how there could be a private crossing upon it. Nor-do we agree with counsel for the railroad company in his, contention with regard to the right of the public to cross the street elsewhere than at certain points. It is true that, in most cities streets are usually crossed at certain points, generally at the intersection of other streets, but there is no law which requires people to cross only at such places. If the street is a public one, people have a right to cross it at any place along its line, and the law will protect them. from being run over, either by ordinary vehicles or railroad trains. The only difference in the duty of a i*ailroad company towards persons crossing at the usual places of crossing and towards those crossing at other places in the street, is in the greater degree of care required in the one case than in the other. On the other hand, there is a corresponding duty on the part of persons who cross the street elsewhere than at the usual crossings, to exercise a greater degree of care for their own protection than would be required of them at such crossings. And of course no person would have a right to cross the track in front of a moving train when it woiúd be dangerous to do so.
It is complained that the court erred in refusing to charge as follows: “If the declaration of the plaintiff sets out that the crossing at Cook’s mill was blockaded by the locomotives and flat cars, and that Richard B. Gibson walkc-d south to a point about fifty feet, and started to cross said track near the back or rear of said locomotive at a point not a crossing, the plaintiff is bound by such allegations; they are to be considered the truth of this case, as an admission that Richard B. Gibson did not undertake to cross at a public crossing.” If we are correct in what we have said as to the rights of the public to cross the street at any place along its line provided they do so with proper care and caution, there was no error in refusing to give this request in charge; and whether this would have been a proper charge or not, the failure to give it would not, under the facts of the case, be sufficient to demand a new trial. Nor did the court err in refusing the other requests set out in the motion for a new trial. It would have been error against the plaintiff if the court had instructed the jury as requested, because these requests contain intimations from the court to the jury as to what would have been negligence on the part of the deceased, and this question, as we have often held, is for the jury alone and not for the court.
Tbe evidence authorized tbe finding of tbe jury, and tbis being tbe second verdict in tbe plaintiff’s favor, we will not overrule tbe discretion of tbe trial judge in refusing a new trial. Judgment affirmed.