delivered the opinion of the court.
Appellant, who was plaintiff below, got upon one of the defendant’s passenger trains at Potts Camp, a station upon defendant’s road, to go to Holly Springs. Shortly after the train had left Potts Camp, the conductor asked for his fare; not hav- ■ ing a ticket, he tendered the regular’ fare of three cents per mile. This was declined, and the conductor, acting under a-rule of the company, demanded four cents per mile. This was unlawful, and the rule, therefore, cannot be sustained in this case, unless appellee had.afforded appellant reasonable opportunity and facilities to procure a ticket at the lower rate, and thereby avoid the disadvantage of such discrimination. If appellant endeavored to buy a ticket before he entered the car, and was unable to do so on account of the fault of appellee, its agent or servants, and offered to pay the ticket rate on the train, he had the right to be carried for the regular fare. He explained to the conductor that he had not been able to purchase a ticket, and insisted on his right to be carried at the ticket rate. This demand was ignored, and he was ejected from the train.
This action of the conductor was unlawful, and appellee is liable therefor in damages, if appellant had endeavored, before he entered the car, to buy a ticket, and was unable to do so on account of the fault of appellee, its agent or servants. Forsee v. Ala. G. S. R. R. Co., 63 Miss., 66 (56 Am. St. Rep., 801).
Hpon the trial of the case, plaintiff testified upon this point that he went to the depot, and went into' the ticket office and *575knocked upon the window, knocked on the door, and hallooed, “Give me a ticket;” that he stayed in the depot room some two or three minutes, and when he came out the train was in sight, and was nearly a half mile — more than a quarter mile — off; that it was fully five minutes after he got into the ticket office before the train came into the yards; that the 'window to -the ticket agent’s office was down; that he kicked and knocked on the door and nobody responded, and that he failed to get a ticket.' Taylor, witness for plaintiff, testified that on the morning in question he was at the depot when plaintiff came, and that plaintiff was at the station five to seven minutes before the arrival of the train, and had plenty of time to get a ticket,, and that he went in and asked for a ticket five to seven minutes before the arrival of the train. Stephens, witness for defendant, testified that he' recollected Mr. Rivers (plaintiff) Coming over to the depot on the morning in question and asking for a ticket; that this was at 8:15, which was about the regula? schedule time for the train. Other witnesses say the train' was twenty to twenty-seven minutes late that morning, and this i$ not disputed. Gaulding, appellee’s agent at Potts Camp, testified on behalf of defendant that he kept the ticket office open that morning for an hour and five minutes; that he closed it up at eight o’clock and went after the United States mail, was gone about three or four minutes and came back, and was not gone any other time; that be remained in the office until the train came, which was twenty-seven minutes late, when be went out to the train to put on the mail and express and take off any baggage, and to attend to other duties of like character, and that he did not see plaintiff. Lowrey, for appellee, testified that he went with plaintiff to the depot that morning, and that, when they got to the steps there, the train had run up to the station, and the agent was going out down, the platform towards the train. Miller testified that Rivers ran into the office just about the time the train stopped, and called for a ticket at the ticket window, and that Gaulding, the agent, had *576then gone out to the baggage car. Reid testified, for appellee, that the train was mating its way in as plaintiff came over to the depot, and that G-aulding, the agent, went out to meet the train as soon as the engine ran into the station. Stephens testified that, when Rivers knocked at the window and called for a ticket, Gaulding, the agent, was up attending to the mail and baggage. This was substantially the testimony touching the opportunity afforded plaintiff to get a ticket and the effort made by him to get one. The court ordered a verdict for defendant, which is assigned for error.
The instruction should not have been given, but the jury should have been permitted to say, under proper instructions, whether plaintiff had been afforded reasonable opportunity and facilities for getting a ticket, and whether it was through his fault or that of the defendant, its agents or servants, that he failed to procure one. The facts as to the time when plaintiff reached the ticket office, and as to the whereabouts of the train at that time, are in dispute, and the inferences h> he drawn from these disputed facts ai*e doubtful. The doubt should be resolved by the jury.
Reversed and remanded.