"With all due respect to the rule of the
railroad commission, and without being prepared to declare unreasonable the rule which permits railroad companies to close their offices and waiting-rooms in towns of less than 1,000 inhabitants at 10 o’clock p. m., except for delayed trains which are due before ' that hour, and leaving entirely out of consideration the fact that in the particular case the train was due to arrive only 10 minutes after 10, I feel compelled to dissent from the opinion of the majority of the court in this case.
It is plain to me, from the allegations of the petition, that the defendant, by the conduct of its ágent, waived the rule in this case. He knew, or by the exercise of ordinary diligence could have known, that the plaintiff was intending to take passage on the train to Savannah; and as it is alleged in the petition that the train was not expected to arrive until a quarter past one, he knew also that the train was several hours behind time. Therefore, to my mind, the keeping open of the waiting-room in the earlier portion of the night was an invitation to the plaintiff to use the waiting-room; and the ease does not differ materially from that of Riley v. W. & T. Railroad Co., 133 Ga. 413 (65 S. E. 890, 24 L. R. A. (N. S.) 379), where the agent of the railroads invited the plaintiff to enter, and thereafter forced her to leave the waiting-room. See the opinion in that case, pages 417-418, and Phillips v. Southern Railway Co., 124 N. C. 123 (32 S. E. 388, 45 L. R. A. 163). To my mind the entry of this plaintiff into the depot (which must be construed to have been permitted by the company’s agent, because the depot was warmed and lighted, and because it is the duty of the agent to know who is in the depot) constituted her a passenger; and a tacit invitation was equivalent to the express invitation set forth in the Riley case. The conduct of the agent implied a promise that in this instance the rule which permitted the railroad company to close the office would be waived for her benefit.
*236Furthermore, in my opinion, the railroad company owed the plaintiff a common-law duty irrespective of the rule. It is the duty of a railroad company to provide a comfortable waiting-room for its passengers a reasonable length of time before the arrival of trains. International & G. N. R. Co. v. Doolan (Tex. Civ. App.), 120 S. W. 1118. The defendant railroad company having received Mrs. Smith in its waiting-room, which was heated and lighted, and thereby waived the regulation of the railroad commission in its favor, thereafter violated its common-law duty in not providing a comfortable place for the passenger while waiting for her train, irrespective of the railroad commission’s rule. Any other rule, in my opinion, would, in many instances, enable railroad companies, where trains are delayed, to take advantage of their own wrong. We have been unable.to find a copy of Sayles’ Annotated Civil Statutes of 1897, so as to examine the statute cited in the case last cited; but we can fairly determine its contents by the reference made to it in the decision. In fact, it is stated in the tenth headnote of the decision that that article requires carriers to keep passenger stations warm for at least one hour before and after the departure of trains, and yet it is stated in the eleventh headnote that it is the duty of carriers to keep their passenger stations comfortably heated during all the time passengers are reasonably authorized to use the same, irrespective of the statute. Upon the authority of that case, as well as in view of the natural inference arising from the ruling in the Riley case, supra, it seems to me that the plaintiff in the present case suffered an actionable wrong when she was ejected from the railroad station after being tacitly invited to occupy it, and that if she was damaged by being exposed at night to the rigors of winter in a place where she could not obtain a shelter, the carrier is liable for these damages.