Bleckley, Chief Justice.
Raiford obtained a verdict for $1,500 damages against the railroad company for a personal injury, and a motion for a new trial by the company was denied. The injury resulted in the loss by Raiford of one hand and part of one foot. "We are satisfied that the damages were assessed upon the theory that both parties were negligent. That theory is well warranted by the evidence. The injury occurred at a street crossing, and Raiford was stricken while upon the crossing or very near to it, but he was not using the highway for the purpose of crossing the railroad but was using the .track for the purpose of walking along it. It was late at night. He had already passed up the railroad for some distance, and had stepped off the track to allow a freight-train to pass. He then returned to it and continued to walk along it, although he knew that another freight-train was behind and would probably soon overtake him. The only explanation he gives why he was not looking out, was that he expected that train to “ drill” at the station. He says it came upon him unawares, and he did not discover its approach until it was within some four feet. He then attempted to leave the track, but was too late. It struck him and inflicted the injury. Whether he was then upon the crossing or slightly beyond it is uncertain, but in either case there was negligence on the part of the railroad employés, under sections 708, 709 and 710 of the code, in failing to ring the bell and check the train. While these measures of statutory diligence are intended for the protection of persons crossing the track, and not for those walking along the track, yet relatively to the latter, as well as the former, a failure to comply with the statute is evidence of negligence to be considered by the jury. Georgia Railroad vs. Williams, 74 Ga. 723. Looking at the whole charge of the court, as we find it set out in the record, there was no error committed either in the instructions given, or by refusing to instruct as requested. So far as requests were legal, they were substantially embodied in the main charge.
We should affirm the judgment refusing a new trial without hesitation were it not that, according to any view we can possibly adopt with reference to ordinary diligence on the part of Raiford, we are unable to see how it could have failed to protect him against the consequences of the company’s negligence. On the part of the company there seems to have been no negligence whatever except in failing to ring the bell and check the train as required by the statute. With knowl edge that the train was behind, and was soon to pass along the track, Raiford, while walking along the track in front of it, was bound to come up to that measure of diligence which a prudent person would have exercised for his own safety under like circumstances. He may have exercised that degree of care which such a person would have used in crossing a railroad upon a public crossing, but that would not suffice; for one who walks upon a railway track, using and intending to use, it as a passway, not only at the crossing but on both sides, must, even when at the crossing, be much more on the alert than when he merely attempts to cross from side to side of the railroad. 2 Thomp. on Trials, §1803, citing 55 Ill. 386. The train was a heavy freight-train, going slowly up grade, and it seems to us that if Raiford had given even slight attention to the perils of his situation, he would have discovered the approach of the train in time to protect himself. He must have been not only negligent, but grossly negligent, to have been run down by such a train, under the circumstances. Central Railroad vs. Smith, 78 Ga. 694. "We fully recognize it as a question of fact and not of law, whether by the use of ordinary diligence he could have avoided the consequences to himsélf. of the company’s negligence. But it is our duty, on a motion for a new trial which complains that the verdict is contrary to the evidence, to form our own opinions upon such a fact, and where they are so decided as in the present case, it is our duty to give effect to them by ordering a new trial. But we shall confine the new trial to the single question, and direct that such trial be had for the sole purpose of ascertaining by the verdict of another jury whether Raiford could, by the use of ordinary diligence, have avoided the injury. If he could, and the jury so find, we direct that the action be dis missed. If lie could not and the jury so find, we direct that judgment be entered up in his favor for the amount assessed by the former jury, to wit, $1,500, with interest thereon from the date of the previous verdict.
Judgment reversed, with direction.