The present suit is one for damages, instituted by the appellee, who was a passenger on the defendant’s railroad train, having paid his fare for transportation to Cullman, a station or depot on the line of the road within this State. The averment of the complaint is, that the plaintiff, without any fault of his own, “ was compelled and forced by *140the agents of said defendant to get off defendant’s train while in motion, and before said train had readied the usual stopping-place at said depot,” and that the plaintiff’s injury was produced by the negligence of defendant’s agents “m compelling and forcing said pláintiff to get off defendant’s train.” It is obvious that the whole gravamen of the action is made to lie in the alleged forcible ejection of the plaintiff from the passenger car by the agents or servants of the defendant railroad company. Whether the complaint be regarded, in form, as declaring in trespass or trespass on the case, is immaterial. It is equally unimportant that the averment in question was unnecessary in order to have fixed the liability of the defendant. It was necessary to allege some act of wrong on the part of defendant, or its agents, some act of omission or commission, constituting a tort, or breach of legal duty, before a recovery could be had by the plaintiff. This was requisite in order that the defendant might have notice of the nature of the case which he was called on to defend. The plaintiff has elected to state his own ground of action, and if, in doing so, he has stated a particular fact, and, by his mode of statement, has inseparably connected it with the substance of the issue, so as to render proof of it essential, it is a misfortune of his own, which can not be justly visited upon his adversary.
We fail to discover in the record any evidence tending to support this averment of the complaint. There is no fact stated which tends to prove that the plaintiff was compelled or forced in any manner by defendant’s agents, or by any one else, to leave the train. The only part of the evidence which is invoked in argument, as giving any color of support to this view of the case, is the statement, testified to by the plaintiff himself, that when the passenger train was approaching the platform at the station, the conductor came towards him in the car, where he was seated, crying out the name of the station and saying, “ We have got no time, hurry up /” and that this ejaculation was repeated several times while the plaintiff was making his egress from the car and before he stepped from the moving train a few minutes afterwards, thus receiving his injury. It is not only proper, but it becomes necessary for us to say that these words, alleged to have been used by the conductor, are not susceptible of a construction which would impute to him any purpose to force or compel the plaintiff to prematurely alight from the train, or to put himself in the slightest peril in leaving it. There was, for this reason, a material disagreement between the allegation of the complaint and the proof, which constituted a fatal variance. The substance of the issue, as made by the pleadings, is unsupported by any evidence found in the record. The court erred, tliere-*141fore, in refusing to give the first and fifth charges requested by the defendant, which properly raise this feature of variance. The several charges also given at the request of the plaintiff, which seem to have been based upon the supposed existence of" any force, compulsion, or terror exercised by the conductor upon the plaintiff, were clearly misleading, and should not have been given.
In view of the errors above stated, the judgment of the circuit court must be reversed, and the cause remanded. We proceed to state a few principles, pertinent to the rulings of" the court as found in this record, which may serve to facilitate the promotion of justice, and for the guidance of the court and jury upon another trial.
It is plain that the first inquiry must be as to whether the agents of the defendant have been guilty of any tort, wrongful act, or negligence, which has resulted in producing the injury received by the plaintiff. If there has been no wrongful act of omission or commission, such as constitutes a violation of legal duty on the part of the defendant, or its agents who were in charge of the train at the time of the accident, no recovery of damages by the plaintiff can be had, whatever may be the extent of his injury. So, if it be shown that the defendant, or its servants were guilty of such wrongful act, but that this act had no legal connection with the injury received, so as to have-operated to produce it as a natural and proximate consequence, there is no liability cast on the defendant, and this must be an end of the case.
If, however, itis ascertained that the defendant or its servants have been guilty of some wrong or negligence, the question then is : (1) Whether the damage complained of was occasioned entirely by the negligence or wrongful act of the defendant, or such servants; or (2) whether the plaintiff, by his own negligence, or want of ordinary care and prudence, has so far contributed to his own misfortune, that; but for such contributory negligence on his part, the misfortune or in jury complained of as the basis of his action would not have happened.—Ala Gr. S. Railroad Co. v. Hawk, 72 Ala. 112, and cases cited; Railroad Co. v. Jones, 95 U. S. 439. In the first contingency the plaintiff may be entitled to recover, but in the second he is not.
In considering the question of contributory negligence on the part of the plaintiff, it is competent for the jury to consider wliat was said by the conductor at or about the time of the accident. If the testimony of the conductor, McCants, be taken as true — which seems to be fully corroborated by Johnson, the conductor of the sleeping car — asserting that he told the plaintiff to “ hold up, the train was going to stop,” it is quite apparent that the injury received by the plaintiff was the-*142result of his own want of prudence and caution, without which it could not have happened, and that he would be barred of a recovery. The law would not tolerate that a passenger, who was encumbered with articles of hand-baggage, should prematurely step from a train of moving cars in the darkness of night, while running at the speed of six or eight miles per hour, against the advice of the conductor in charge, when he had no reason to believe that the train would not stop as usual at the platform of a regular station, with the locality of which he is shown to have been acquainted. This would be an act of carelessness by which he himself might clearly be adjudged to be the author of his own injury.—Shear. & Red. Negl. §§ 281, 283 ; Central Railroad, etc., Co. v. Letcher, 69 Ala. 106 ; Ala. Gr. Sr. R. R. Co. v. Hawk, 72 Ala. 112; Gothard v. Ala. Gr. So. R. R. Co., 67 Ala. 114.
The plaintiff, however, denies that he was warned by the conductor to hold up, or not to jump, but that the language used by him was to “ hurry up, we have no time,” or words of this import. This conflict in the evidence is not to be dealt with by this court, but is to be resolved by the jury upon the usual principles by which the credibility of witnesses should be determined. We have no right to assume that they will not do this upon their consciences as upright men, free from the influence of every prejudice, as it will be their sworn duty to do. If, in the discharge of this duty, they can justly arrive at the conclusion that the statement of the plaintiff on this point should be believed, rather than that of the two other witnesses, by whom he is contradicted, the question will arise as to what effect the language used by the conductor will operate to excuse the conduct of the plaintiff, so as to exempt him from the imputation of contributory negligence. If the conductor told the plaintiff to “hurry up, we have no time,” would this excuse the premature egress of plaintiff from the passenger car, in a manner which would have been an act of inexcusable negligence withonCsuch direction or declaration by the conductor?
There are numerous cases where the question has been considered as to the effect of advice or directions given to passengers by conductors, or others in the management of vehicles and railroad trains. Two propositions seem to be settled by the authorities, which may be stated as follows : First, such advice, even though plain and unambiguous, can not be held to excuse an act of negligence on the part of an adult passenger, which would be so opposed to'common prudence as to make it an obvious act of i’eckiessness or folly.—Railroad Co. v. Jones, 95 U. S. 439 ; Shear. & Red. Negl. § 282. Second, where the act advised to be done is one where the danger would not be *143apparent to a person of reasonable prudence, and the passenger acts under the influence of such advice, given by the'conductor or manager in the line of his ordinary duties, it becomes the province of the jury to say how far the plaintiff’s negligence may be excused.—Lambeth v. N. C. Railroad Co., 66 N. C. 494; Cleveland, etc., R. R. Co. v. Manson, 30 Ohio St. 451; McIntyre v. N. Y. Cen. R. R. Co., 37 N. Y. 287; Penn. Railroad Co. v McCloskey, 23 Penn. St. 526; Woods’ Fields’ Corp. (2nd Ed.) § 497, p. 756, note.
We can not know under which of these principles the case may be made to fall by the evidence introduced on another trial. We do not seek, therefore, to make any application of them in detail. This we leave to the wisdom of the court below, without further discussion.
Beversed and remanded.