(After stating the foregoing facts.)
1. If an act is obviously negligent, it can not be justified by proof of a custom to do it. Where the quality of the act as to negligence or diligence is not clear, there is more reason for admitting evidence of custom as throwing light on the subject. It is not necessary here to discuss fully the eases in which it has been held that proof of a custom is admissible, and those in which it has been held to be inadmissible. Confining our consideration to cases like the one in hand, or closely analogous thereto, it is generally held that evidence tending to show a custom or habit of alighting from trains elsewhere than at a depot, with the knowledge or consent of the carrier, is admissible, in an action by a passenger for injuries received while so alighting. Pennsylvania Co. v. McCaffrey, 173 Ill. 169 (6) (50 N. E. 713); Chicago City Ry. Co. v. Lowitz, 218 Ill. 24 (75 N. E. 755); Keating v. New York Central R. Co. 49 N. Y. 673; McGee v. Missouri Pacific Ry. Co., 92 Mo. 208 (4 S. W. 739, 1 Am. St. R. 706); Baltimore & Ohio R. Co. *180v. Kane, 69 Md. 11, 22 (13 Atl. 387, 9 Am. St. R. 387); McDonald v. Chicago & Northwestern R. Co., 26 Iowa, 139, 142; Nicholson v. Lancastershire & Yorkshire Ry. Co., 3 Hurl. & Colt. (Exch.) 534. The fact that the witness, who offered to testify as to the custom of stopping at a place a short distance from the station and permitting passengers to alight there, also stated that the conductor requested them to do so, did not render the evidence inadmissible. It tended to show that the company not only stopped its train at that point, when there was shifting to be done, and permitted passengers, with its knowledge, to alight there, but that its conductor asked that they do so. That the conductor did not make such a request on the occasion when the plaintiff was injured did not render the evidence inadmissible as tending to show the existence of the custom and the knowledge of it and acquiescence in it on the part of the company’s conductors.
In Auld v. Southern Ry. Co., 136 Ga. 266 (71 S. E. 426), a similar principle to that now being considered was involved. A passenger brought suit against a carrier on account of an injury caused by being precipitated from a moving train while crossing from one coach to another. It was held that testimony of a known usage or custom of passengers to cross from coach to coach was competent evidence, not to justify or excuse the passenger from attempting to cross when it would be obviously hazardous to do so, but as illustrating the character and nature of the act as bearing on the passenger’s alleged contributory negligence in crossing. The difference between evidence of this character and such as was offered in Metropolitan Street R. Co. v. Johnson, 91 Ga. 466 (18 S. E. 816), is patent. There a woman was injured in consequence of the running of a dummy engine against her while she was endeavoring to cross a street in front of a train. It was sought to prove what was the usual custom of pedestrians when they undertook to cross a street on which cars drawn by dummy engines were passing-; and such evidence was held not to be admissible. So in Mayfield v. Savannah &c. R. Co., 87 Ga. 374 (13 S. E. 459), it was held that evidence of a custom or usage obviously dangerous, and so shown to be in the plaintiff’s petition, was not admissible to excuse contributory negligence by the plaintiff. It was added that this was especially true where it did not appear that such *181custom or usage had been adopted by the defendant company, or that it prevailed at the place or on the particular road concerned.
2. Exception was taken to the portion of the charge on the subject of damages and their measure. Such charge did not clearly state the rules of law in reference to the measure of damages recoverable. It was especially inaccurate in its closing sentence, where it was said: “If you find that there has been no such damage, then, the rules of law that I have given you would apply, and if there has been none such, there can be no recovery; in other words, if no injury has been done, no permanent injury has occurred, then no damage could be awarded to the plaintiff.” This was calculated to lead the jury to believe that the plaintiff was entitled to no recovery unless he had received permanent injuries/.
3. It has been held, that, in a suit against a railroad company by a person who has received an injury from the operation of one of its trains, if the injured person and the 'company were equally negligent in the transaction, there can be no recovery. Willingham v. Macon & Birmingham Ry. Co., 113 Ga. 374 (38 S. E. 843); Brunswick & Western Railroad Co. v. Wiggins, Id. 842 (39 S. E. 551, 61 L. R. A. 513); Wrightsville & Tennille R. Co. v. Gornto, 129 Ga. 204 (8), 209 (58 S. E. 769). The giving of a charge to this effect was therefore not error.
Judgment reversed.
All the Justices concur.