The case of Montgomery & Eufaula Railway Co. v. Thompson, 77 Ala. 448, relied upon, by appellant, falls dbort of 'bolding that under tbe common law tbe defendant was under tbe duty of establishing and maintaining a comfortable waiting room at its stations fo>r persons purposing becoming passengers on its trains. An examination of tbe cases bearing on tliis question discloses tliat no sucb duty exists, unless imposed by tbe charter of tbe defendant or by a statutory regulation, or by some other legislative authorization conferring tbe powers upon a railroad commission to impose the duty.—People v. N. Y. L. E. & W. R. R., 104 N. Y. 58; Railroad Co. v. Wash. Territory, 142 U. S. 492, and authorities therein cited. When legislative enactments declare tbe ' duty, tbe courts will enforce it. Bucli regulations are a proper exercise of police power by the legislative body.—23 Am. & Eng. Ency. Law, (1st ed.), 118 and notes 1 and 2.
Tbe act of tbe General Assembly approved February 15, 1897, (page 974 of Code) requires a railroad company operating its road through -the corporate limits of any incorporated town or city of more than one thousand inhabitants to establish and maintain one or more depots within such corporate limits sufficient for the accommodation of passengers and the storage of freight. Whether' the duty imposed by this act requires tin» maintenance of a 'warm and comfortable waiting room during cold weather for passengers, it is unnecessary to decide, for the reason there is no averment in any count of the complaint that defendant’s road was being operated through the corporate limits of the town of Evergreen, and that said town had more than one thousand inhabitants. In the absence of these averments, it is clear the plaintiff has failed to bring her case within the provisions of this act.
Section 3451 of the Code confers authority on the railroad commission to require railroads to maintain a sufficient 'sitting or waiting room suitably heated, (do., for the comfort of passengers, but there is no averment, in either of the counts of the complaint that *238such requirement was. ever made with reference to the station or depot at Evergreen. No duty is, therefore, shown in this respect.
The theory that the defendant was bound to heat the room by reason of a promise made bjr its agent to the plaintiff’s next friend is wholly untenable. Suffice it to say, the plaintiff being a non compos mentis, her next best friend was wholly without authority to make any contract that would bind her or her estate. Contracts to be binding must- be mutual. Clearly if both Avere not bound, neither Aims.
The several counts of the complaint failing to sufficiently aver a. state of facts, showing the duty, the breach of which, was complained of, there was no error in sustaining the demurrer to each of them.
Affirmed.