(After stating the foregoing facts.)
Where a person killed as a result of a crime or criminal or other negligence leaves no child, spouse, or dependent parent surviving, ‘•“the administrator or executor of the decedent may sue for and recover and hold the amount recovered for the benefit of the next of kin, if dependent upon the decedent, or to whose support the decedent contributed. In any such case the amount of the recovery shall be determined by the extent of the dependency or the pecuniary loss sustained by the next of kin.” Code, § 105-1309. The question whether or not under this section a temporary administrator is authorized to maintain a suit was certified to the Supreme Court, with certain other questions arising in this case, and that court answered that “A temporary administrator is authorized to maintain the suit provided for under the Code, § 105-1309.”
Wilson v. Pollard,
190
Ga.
74 (
There is no merit in the contention that a jury,would not have been аuthorized to find from the evidence that Mrs. Aiken did not contribute to the support of the families of her brother and sisters, and that such brother and sisters were not dependent to an extent upon Mrs. Aiken. The jury were authorized to find that both contribution and dependency existed under the facts of this case. See instructions of the Supreme Court in response to requests therefor in this ease, Wilson v. Pollard, supra. The Supreme Court held as follows: “Where a married woman living with her husbаnd and receiving support from him, has an unmarried sister living in the house with her and performing all duties connected with housekeeping, but receiving food, lodging, and clothes from her or her husband, the value of which is less than her services, such mаrried woman is dependent upon and receives contributions to her support from the sister, sufficient to authorize a recovery under the Code, § 105-1309. Where the unmarried sister lives in like manner with another married sister and a brother, sрending three months yearly with each sister and six *785 months with the brother, recovery is authorized on behalf of each for the tortious homicide of such unmarried sister. In order to authorize a recovery under the Code, § 105-1309, both dependеncy a>nd contribution must exist.” The evidence tended to show that each of the parties for whom the plaintiff administrator brought this action was partially and fo some extent dependent upon the services contributed by Mrs. Aiken, and that each sustained “pecuniary losses” by reason of her death.
Mrs. Aiken was killed by being struck by a locomotive of the defendant at a private crossing which had been maintained, and still was being maintained, by the railroad comрany. The evidence was that persons habitually used this crossing. It is alleged in the petition, as one of the acts of negligence charged against the defendant, that the engineer and fireman in charge of the train failed to keep a proper lookout ahead along the track as the train approached the crossing, in order to be able to warn persons of danger from the approaching train. There being no evidence whatsoever rebutting this allegation of negligence, the negligence here alleged is established by the presumption. It therefore appears that the defendant was negligent as alleged, which includes negligence in failing to anticipate the presence of persons on the track at the crossing. “Where persons habitually, with the knowledge and without the disapproval of the railroad company, use a private pаssageway for the purpose of crossing the tracks of the company at a given point, the employees of the company in charge of one of its trains, who are aware of the custom, are bound, on а given occasion, to anticipate that persons may be upon the tracks at this point; and they are under a duty to take such precautions to prevent injury to such persons as would meet the requirements of ordinаry care and diligence.”
Western & Atlantic R. Co.
v.
Michael,
175
Ga.
1 (6) (
A person can not be charged with the duty of using any degree of care and diligence to avoid the negligence of a wrong-doer until hе has reason to apprehend the existence of such negligence. “The duty imposed by law upon all persons to exercise ordinary care to avoid the consequences of another’s negligence dоes not arise until the negligence of such other is existing and is either apparent, or the circumstances are such that an ordinarily prudent person would have reason to apprehend its existence. . . Failure to exercise ordinary care on the part of the person injured, before the negligence complained of is apparent, or should have been reasonably apprehended, will not preclude a recovery.”
W. & A. Railroad Co.
v.
Ferguson,
113
Ga.
708 (
Whether under all the cirсumstances the plaintiff’s intestate in this case, in stepping upon the crossing without stopping, looking, and listening, was guilty of such conduct as to defeat or diminish a recovery, is a question for the jury. This is not a case where the plaintiff’s intеstate, seeing and knowing the danger, in manifest imprudence attempted to cross ahead of the train. There was evidence that Mrs. Aiken’s eyesight was not good, that she was unable to clearly distinguish objects at a distance; thаt there was a gradual curve of the defendant’s track in the direction from whieh'the train
*787
was approaching; that there were obstructions which might impair one’s vision in detecting a train approaching from that direction; and that there was a railroad cut and high banks south of the crossing and on this curve. The evidence was that no whistle was blown as the train rounded the curve and approached the crossing. It can be inferred from the evidencе that the plaintiff’s intestate was not aware of the approach of the train, and that the defendant’s negligence, if it were negligence, in approaching this crossing had not become apparent to the plaintiff’s intestate at the time she attempted to cross the railroad tracks at this point. It has been held that the court might properly charge the jury that "the precise thing which every person is bound to do before stepрing upon a railroad track, is that which every prudent man would do under like circumstances,” and that '"if prudent men would look and listen, so must every one else, or take the consequences so far as the consequencеs might have been avoided by that means.” "But this is an entirely different thing from the court undertaking to decide for itself, and as a matter of law, what such a person . . entering upon a public or private railroad crossing must or must not do in ordеr to free himself of a guilt of a lack of ordinary care constituting the proximate cause of his injury. On the contrary, it has been many times ruled that such a question is one to be determined by the jury as a question of fact, rather than by the court as a matter of law. This long line of decisions, contrary to the rule in some jurisdictions, is to the effect that it can not be said,
as a matter of law,
that the failure on the part of a person approaching and entering upon a rаilroad crossing, and unaware of the approach of a train, to stop, look, or listen, renders such person guilty of a lack of ordinary care such as would prevent recovery.”
Southern Railway Co.
v.
Slaton,
41
Ga. App.
759, 761 (3) (
It is inferable that because of her impaired eyesight, the obstructions near the track in the direction from which the train was approaching, and because no warning was given by those operating the train of its approach, Mrs. Aiken could not see and was not awаre of the approaching train on the track. It is inferable that had Mrs. Aiken looked as she approached the railroad-track she could not, on account of her impaired eyesight, have seen the approaching train. As her hearing was good and as the- wind was blowing from the direction from which the train was approaching it is inferable that the train was running without sounding any alarm, and that she did not hear the train. This being the case, she could not be accounted negligent as a matter of law in failing to stop, look, and listen, or in failing to hear the train. The -facts here are distinguishable from those in the
Lassiter
and
Parlcman
eases, 61
Ga. App.
23, 62 (
Judgment reversed.