As we have said, the question in this case is, was there, or was there not a delivery of the cotton to the railroad. In Hutchinson on Carriers, § 90, is this language: "While it is the undoubted general rule that the delivery, to bind the carrier, must be made either to him, or to some one with authority from him, or who may be rightly presumed to have such authority, it is not to be understood that it is not subject to such conventional arrangements between the parties as they may choose to make in regard to the mode of delivery, or that it may not be varied by usage, or by a particular course of dealing between them. . . . If, therefore, the parties agree that the goods may be deposited for transportation at any particular place, and without any express notice to the carrier, such deposit will be a sufficient delivery; and proof of a constant and habitual practice and usage of the carrier to receive the goods when they are deposited for him in a particular place, without special notice of such deposit, is sufficient to show a public offer by the carrier to receive goods in that mode, and to constitute an agreement between the parties, by which the goods, when so deposited, shall be considered as delivered to him, without any further notice. Such a practice and usage are tantamount to an open declaration, a public advertisement by the carrier, that such a delivery should, of itself, be deemed an acceptance by him; and to permit him to set up, against those who had been thereby induced to omit it, the want of the formality of an express notice which had been thus waived, would be sanctioning injustice and fraud." Now, it seems to us this is a clear statement of the principle, and the ground on which it rests. See also ib. § 91. error. The bill of exceptions does not purport to set out all the evidence, and we must presume there was testimony to justify all the rulings of the court, if, under any state of proof, they would be free from Alexander v. Alexander, 71 Ala. 295, and authorities cited. Under the statement of testimony found in this record, we are not informed whether its tendency was to prove a usage for the station agent to receive and receipt for cotton delivered in violation of the regulations, before it was placed on the platform for shipment, or whether the usage simply had the extent, that when cotton was delivered in disregard of the instructions, he would himself have the cotton placed on the platform, and otherwise prepared for shipment, and then give the railroad's receipt for it. The statement of testimony bearing on this question is as follows: "Testimony was introduced by plaintiffs going to show that the station agent did take cotton bales from the street, and receipt for them "; and the further fact that plaintiffs had no receipt for the nine bales of cotton, the subject of this suit. No question appears to have been raised in the court below on this shading of the question, and we can not consider it. We must presume, in the absence of averment to the contrary, that the testimony was such as to justify the circuit court in submitting the question of usage, as applied to this case, to the determination of the jury. The question, then, is, did the court correctly declare the law, upon any possible state of testimony bearing on the question.- 1 Brick. Dig. 336, § 12. The testimony, as recited, leaves this question in some obscurity. Under the rules declared above, the circuit court did not err in refusing to give charges 2, 3, 4, 5, asked by the defendant. Each of them ignored the question of usage, and made the defendant's liability to depend alone on compliance by the plaintiffs with the regulations prescribed in the circular. The charge given by the court at the instance of the plaintiffs is in harmony with our views, and is free from error. Neither did the circuit court err in instructing the jury as to the method of ascertaining the value of the cotton. We must suppose, in favor of the ruling, that there was testimony tending to show the average weight, class, and value of the cotton delivered, or claimed to have been delivered, possibly as part of a larger lot. The first charge requested by the defendant raises a somewhat different question. It asserts that a failure by plaintiffs to produce the railroad's receipt for the cotton, made it incumbent on them to account for the loss of the receipt, or (and) failing therein, such failure must be taken as prima facie evidence that the goods they claim to have delivered to defendant, never were delivered. It is not claimed in this case that any receipt ever was given for the nine bales alleged to have been lost. It is stated as fact that none ever was given. There was, therefore, no testimony which raised inquiry as to a loss of the receipt. None had been given. Charges should be framed in reference to the testimony; and if a charge asked raises inquiry on a matter of fact of which there is no testimony, it should always be refused. Its only tendency is to multiply inquiries, and confuse the jury. That charge was rightly refused for this reason.- 1 Brickell's Digest 338, § 41; ib. 339, § 61; ib. 340. §§ 64, 65. Section 2139 of the Code of 1876 makes it the duty of common carriers to give receipts for merchandise delivered to them for transportation. Their failure to do so may render proof of delivery more difficult. It can not vary their liability, if delivery is satisfactorily shown. Affirmed.2 2 See Merriam v. Hartford & N. H. R. R. Co. (1850), 20 Conn. 354; Southwestern R. R. Co. v. Webb (1872), 48 Ala. 585; Note, 70 Pennsylvania L. Rev. 232. METCALF v. YAZOO & MISSISSIPPI VALLEY 97 Miss. 455. 1910.1 MAYES, C. J., delivered the opinion of the court. In 1908 J. B. Conly instituted suit against the Yazoo & Mississippi Valley Railroad Company for the purpose of recovering damages for injuries alleged to have been sustained by him, some time in September of that year, by falling into an excavation made by the company round its depot at Duncan, Miss., which, it is claimed, was negligently left open without warning light or safety guard. Mr. Conly alleges that he fell while at the depot for the purpose of taking passage on a train, due about 10 or 15 minutes after he entered the depot, and about 7:20 P. M. After the institution of the suit Mr. Conly died, and the suit is prosecuted by the executor. The facts are substantially as follows: Mr. Conly left Round Lake, Miss., in a buggy about 5 o'clock, and drove to the town of Duncan, intending, as it seems, to take passage on the 7:20 P. M. south-bound passenger train on defendant's road. After arriving at the town of Duncan he proceeded to the hotel to get supper. After supper, and 15 or 20 minutes before the train was due, he left the hotel for the depot, with his grip in his hand and a mileage book in his pocket, having in view the purpose of taking passage on the train when it should arrive. It was the double purpose of Conly to deposit his grip in the waiting room of the depot in preparation of his contemplated trip, and then to go over to the store of a Mr. Wynn, which was but a short distance from the waiting room, as he desired to speak to Mr. Wynn on a matter of business. Conly proceeded to the depot, and entered the waiting room safely, and after depositing his grip turned to go out to see Mr. Wynn, and as he stepped out of the door fell into an excavation in front of same, and sustained painful injuries, at least. It appears that the excavation was made by reason of the fact that the company was repairing its depot. The excavation seems to have been immediately in front of the waiting room entrance, and from three to five feet deep, and some two or three feet wide. Across this trench, and for the purpose of getting into the waiting room, some planks were placed leading into the door; but they were unguarded and without warning light. Conly said he could not see the excavation when he entered, because there was no light. As 1 The statement of the case and arguments of counsel are omitted.- ED. he entered, he says the light in the waiting room was shining in his eyes and blinded him, and when he came out the light was behind him, and the excavation so close to the door that, while it was bright enough to make the gravel walk visible, it did not light up this excavation. It is not our purpose to intimate how serious were the injuries Conly received. That question is left to the jury. The question before this court is simply whether or not the facts make out a case of liability on the part of the company. The court below gave a peremptory instruction to find for defendant, holding that Conly was not a passenger at the time of the injury, and from this action of the trial court an appeal is prosecuted by the executor. Let us first review the statutes of the state on the subject of the railroad's duty in respect to its depots and waiting rooms. By section 4854 it is made the duty of every railroad to establish and maintain such depots as shall be reasonably necessary for the public convenience; and by section 4867 it is made the duty of every railroad to keep rooms open for the reception of passengers at least one hour before the arrival, and one half hour after the departure, of all passenger trains. Thus it is that the law requires that the railroads shall have depots, and that they shall make them comfortable and accessible at reasonable times to intending passengers. It would be useless for the statute to require the railroads to keep rooms open for the reception of passengers an hour before the arrival of the train, unless intending passengers could make lawful use of the rooms, within that limit of time, for any necessary or convenient purpose which is in furtherance of the bona fide intention to become a passenger. This is the manifest purpose of the statute, and the very object of having the waiting room open is to receive intending passengers and their hand baggage. When an intending passenger avails himself of the convenience which the law has established for his benefit, and which the railroad must provide, within a reasonable time before the arrival of the train, his object being to facilitate and further his purpose to take passage, even though it be to place his hand baggage in the waiting room as a matter of convenience to himself and in furtherance of his ultimate object, such person, while on the depot grounds or in the waiting room, is a passenger, and entitled to all the protection of a passenger, though he have a purpose to leave again before the arrival of the train on a matter of convenience, pleasure, or business. To hold otherwise would place the rights of persons accepting the conveniences provided by law for their use in a precarious and uncertain condition under the law, and relieve railroads from a duty which they stand under to the traveling public, for which no sensible or just reason can be assigned. It is a matter of common knowledge that intending passengers use the waiting rooms for depositing their hand satchels, and such like, many minutes before a train is due to arrive. Some may loiter around the grounds and the platforms, while others may find it convenient and necessary to cross a street on a matter of business or pleasure; but because of this it is none the less the duty of a railroad to keep its grounds and rooms in a safe condition, both for the intending passenger who imprisons himself within the four walls of the waiting room and the passenger who is on the grounds for the purpose of relieving himself from the burden of his baggage in order that he may go out for some purpose, it being certain that both come to the depot for the ultimate purpose of taking a train. It is argued by counsel for appellee that, before there can arise the relation of carrier and passenger, there must not only be an intent on the part of a person to become a passenger and to avail himself of the facilities offered by the carrier for transportation, but there must be an express or implied acceptance by the carrier of the person so intending as a passenger. Many authorities are cited to sustain this proposition, and we find no fault with the law there announced; but the question is, What constitutes this acceptance? Must the person go to the agent of the carrier and formally announce his arrival and intention to take passage? Must the agent then and there formally accept such person, in order to establish the relation? Clearly no such formality is required, in view of the fact that it is the lawful right of every citizen to establish this relation, with or without the consent of the railroad. The true rule is that, when the railroad has opened its waiting room for the reception of passengers as required by law, and any person intending to take passage on the train next to come has resorted to the depot in lawful furtherance of that purpose and in a proper condition to be received as a passenger, there arises from these acts, as a matter of law, the relation of carrier and passenger. The contention of counsel for appellee that the relation of carrier and passenger could not arise until after Conly had entered the depot grounds on his return from Wynn's store is unsound and too narrow. Conly had gone to the depot to deposit his satchel in the waiting room only fifteen minutes before the arrival of his train. His resort to the depot was for a lawful purpose and in furtherance of his intention. The depot was open for the reception of passengers and for their convenience. If he had hunted up the agent, and told him that he contemplated taking the next train, and desired to place his baggage in the waiting room and go out to see Wynn, the agent would doubtless have told him that the wait |