(After stating the facts.)
1. It is unnecessary' to pass upon the questions raised by the special demurrers to the petition in this ease. The case should have been dismissed upon general demurrer. The plaintiff’s husband, at the time he received the fatal injuries, was walking on the track of the defendant railroad company, which had the right, at any hour of the day or night, to. use that track, as well for its extra as for its regular trains. When killed, the deceased was a trespasser. He was using the track in a way and for a purpose never intended, and, as far as the pleadings show, without excuse. It does not even a°ppear that there was not a safe, direct, and convenient highway along which the deceased could have traveled. And being a trespasser, the agents and servants of the defendant company owed him no duty, except not to wilfully and wantonly injure him after his presence in the dangerous position was perceived by them. “One who walks upon the track of a railroad, not at a road crossing, is a trespasser thereon, and while the road would be liable for a wanton or wilful wrong of its agents, acting within the scope of their duty.; or for gross negligence or carelessness, evincing reckless disregard of the safety of others; or where they perceive the danger of a party in time, and make no effort to avoid it, — still the company is under no such obligation to a trespasser as to those who are properly and lawfully upon its premises, either for the purpose of transacting legitimate business with it, or in furtherance of rights reserved to them by law.” Central Railroad v. Brinson, 70 Ga. 309.
There is no allegation that at the point at which the injury complained of was inflicted the railroad track was used by the public as a walkway, nor were there any circumstances alleged which required the engineer running the defendant’s locomotive to anticipate any one being on the track at that point. Atlanta & Charlotte Ry. Co. v. Leach, 91 Ga. 419; Hambright v. W. & A. R. Co., 113 Ga. 36. In this respect the present case differs from the case *568of Griffin v. B. & W. R. Co., 113 Ga. 642, which is relied upon by-counsel for defendant in error as being directly in point. An examination of the record in the latter case discloses that the track upon which the plaintiff in that case was injured was, with the defendant’s consent, used by the public as a footway, and little used by the defendant, one witness having testified that there was “hardly any time you couldn’t see people walking across that track down there near'the place where he was killed.” In the present case there is no allegation that the track was used by the public or by any number of persons as a pathway. Under such circumstances it is apparent that the husband of the plaintiff was himself guilty of gross negligence. And although the train which ran over him was an extra freight, the language used by Chief Justice Bleckley in the case of Central R. Co. v. Smith, 78 Ga. 694, is applicable : “The presence of the engine was more to be expected by him than his presence was to be expected by the engineer. He had much less reason to be surprised than the engineer had. As a matter of fact, to walk along in the middle of a railroad track between crossings when it is darle, and without knowing and remembering whether a train is due or not, and without looking out in both directions for trains that may be due, and without listening attentively unci, anxiously for the roar and rattle of machinery as well as for the sound of bell or whistle, is gross negligence.” It is not alleged, in the declaration, that the plaintiff was not in full possession of the faculty of hearing; and surely if it is the duty of one about to cross a railroad track at a public crossing to exercise his faculties of •seeing and hearing, the same obligation would rest upon one who, being a trespasser, pursues his way along the track, multiplying, with the lapse of every minute, the chances of receiving an injury from the operation of the trains, which can there rightfully be run ¡at a rate of speed much in excess of that permissible at such crossings. “A person, while grossly negligent himself, has no legal right to count on due diligence by others, but is bound to anticipate that others, like 'he has done, may fail in diligence, and must guard not only against negligence on their part, which he might •discover in time to avoid the consequences, but also against the •ordinary danger of there being negligence which he might not discover until too late.” Central R. Co. v. Smith, 78 Ga. 694. See also Southern Ry. Co. v. Chatman, 124 Ga. 1026, in which are re*569viewed and restated many of the rulings touching the duty of the employees operating trains, relatively to trespassers.
Judgment reversed.
All the Justices concur, except Fish, C. J., absent.