1. Railroads : Regulation as to flag stations. 2. Same. The refusal of a railway company to designate as a flag station for its through trains a place which is not an incorporated town, which contains only a few houses- and is situated within three miles of a regular station, is not an-unreasonable regulation. The facts being uncontroverted, it was the province of the court to declare the regulations reasonable. To submit -the question to the jury for determination, under such circumstances, was simply to leave the matter to their discretion, which was error.
3 Failure to stop for passenger. II. If the plaintiff, without fault of his, was mislead by the company’s custom into believing that the place was a flag-station for night passenger trains, then his right to recover was the same as though he had been misdirected by its authorized agent. Atkinson v. Ry., 47 Ark., 74; Hobbs v. Ry., 4p ib., 357; 2 Woods Ry., p. 1174. It would be otherwise if he was not informed of, or had not relied upon the custom; or if the stoppage of trains was only casual and not habitual. The charge upon that phase of the case was too restricted.
If the company’s agent, from whom the plaintiff purchased his return ticket, was informed and understood that the plaintiff purchased the ticket with the intention of using it to return from his destination on the night train, it was the-agent’s duty-to notify him that the train would not stop at his-destination, and the court so instructed the jury. If it were certain the agent had knowledge of the plaintiff’s intent, and permitted him to act when it was his duty to speak, we would affirm the judgment, notwithstanding the errors pointed out; but the evidence is conflicting upon that point and we cannot say how far the jury were mislead by the false charge.
The judgment must be reversed and the cause remanded for a new trial.