Mayes, J.,
delivered the opinion of the court.
Some time in June, 1904, Iliram Byrd took passage on one of the trains of the Yazoo & Mississippi Valley Railroad Company from Natchez to New Orleans. The train on which he took his passage was an excursion train, and there is considerable conflict in the testimony as to whether or not the train was overcrowded on that occasion; but there is much testimony going to show that the train was crowded, and for this reason Byrd took a position on the platform of one of the cars, instead of taking his seat on the inside. There is also some testimony tending to show that Byrd had been drinking, and that at the time the accident befell him he was intoxicated. Byrd was a barber, about thirty [317]*317years of age, and when at work earned about fifteen to twenty dollars a week, according to some of the testimony. After passing Harriston, a station on appellant’s line of railway, and while the train was turning a curve near Applewhite, Byrd -was either suddenly jarred off by the lurch of the train while turning this ciirve, or he was accidentally pushed off by some of his companions. At all events, he fell from the train while .standing outside on the platform. The passengers on board of the train immediately made known this fact to the conductor, and asked that the train be stopped and Byrd taken aboard. The conductor refused to do this, assigning as a reason that another train was soon due to follow, and he could not stop his train at .this place, but when he reached the next station, some short distance further down, he would send back for Byrd. After reaching this station, Byrd was not sent back for immediately, but was not picked Up for about three hours. In short, he was left to lie alongside of the track, where he had fallen, without any attention, in midsummer, for three hours or more, and in the meantime there came up a heavy rain, which he was in. Byrd died on September 6, 1904, in Wesson, Mississippi, after having spent some time in the hospital at Natchez. It was also testified to by one of the physicians in attendance on.Byrd at Natchez— Dr. Chamberlain — that he had treated Byrd in May, 1904, for incipient tuberculosis, and that Byrd had marked symptoms of consumption; that he saw Byrd after the accident, and that he had only suffered some minor bruises, was walking around, and complained of his ankle; and that the injury received was not calculated to produce death, in his judgment. Dr. Brown, the physician in charge of the Natchez hospital, stated that he had known Byrd for about ten years, and that he had been several times in the hospital suffering from acute alcoholism and paralysis. When Byrd came to the hospital suffering from the injuries received from the fall, he made an examination of him, and he. could not have died from the injuries received. Dr. Rowan, the physician at Wesson, who last attended him, stated that Byrd [318]*318died of septicaemia. A peremptory instruction was asked for. after appellees had introduced their evidence, and refused by the court, and we think properly refused. .There was a judgment for plaintiffs in the sum of $1,000, and the railroad company appeals, and a cross-appeal is taken by appellees.
The fact remains that Byrd fell from the train under circumstances which may or may not have prevented his recovering anything against the company, according to the circumstances, and was allowed to lie in the sun and beating rain for three hours after he had fallen, without attention from any one, save by a negro in no way connected with the railroad company, who, seeing that a rain was coming up, pulled him out of a gully into which he .had fallen, to save him from drowning. All the facts were submitted to the jury — the fact of Byrd’s being on the platform; .the fact of his being permitted to remain exposed to the sun and rain for three hours; the testimony of the physicians, and as to his intoxicated condition — and, the jury having passed on the facts and holding the company liable, we are not warranted by anything that appears in the record in disturbing the verdict on the facts. It was not negligence per se, under the facts shown in this case, for Byrd to be out on the platform, instead of inside of the car; but it was a question to be passed on by the jury. Appellant cannot overcrowd its cars with passengers, making it impossible to obtain seats in safe places, and excuse itself from liability by saying a passenger under these circumstances was riding in a dangerous place. Ordinarily, it is negligence to ride on the platform of a car, instead of in .the place which is provided for the seating of passengers inside; but this is not an inflexible rule, and, when the railroad company has failed to provide sufficient cars to seat its passengers, it then becomes a question of fact as to whether a passenger was or was not guilty of negligence in riding on the platform. This question was properly submitted to the jury under proper instructions, and we see no error. Lehr v. Steinway, 23 N. E. Rep., 889; 2 Wood on Railroads, sec. 308. The facts in this case are [319]*319widely different from the facts in the case of Dougherty v. Railroad Co., 84 Miss., 502 (36 South. Rep., 699), and that case has no application here. Mr. Dougherty was thrown from the train in trying to pass from one car to another, in the night time, while the train was running' on a three-degree curve at a rate of speed of forty-five or fifty miles an hour, and the court held that if the act of going from one car to another under the circumstances was voluntary, which question had been submitted to the jury and passed on by them in favor of the railroad company — that is, that it was voluntary on the part of Dougherty' — that the accident was the result of Dougherty’s negligence, and he could not recover. It was not attempted to be shown in that case, as in this, that his going on the platform was due to the overcrowding of the cars, thereby making it necessary to stand on the platform.
It is further insisted by defendants that the court erred in modifying the first, fifth, seventh, and eighth instructions asked by them. We are relieved from the necessity of discussing whether or not the modifications complained of did or did not constitute error, since the original instructions themselves were incorrect. The .court held in the case of Miss. Cent. R. R. Co. v. Hardy, 88 Miss., 732 (41 South. Rep., 508), that where an instruction is asked, which is erroneous and is modified by the court, the modification of the instruction cannot be assigned as error, where the instruction has been used before the jury. If the party asking the instruction is not content with it as modified, he should decline to read it to the jury, in order to avail himself of any error in the action of the court. See, also, Railroad Co. v. Suddoth, 70 Miss., 265 (12 South. Rep., 205).
By the first instruction the jury is told that defendant company is not liable if the injury occurred to Byrd while he was voluntarily on the platform, if there was no necessity for his being there, if the injury happened “by reason'of the usual and ordinary operation and running of the train.” The “usual and ordinary operation and running of the train” might itself have [320]
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Mayes, J.,
delivered the opinion of the court.
Some time in June, 1904, Iliram Byrd took passage on one of the trains of the Yazoo & Mississippi Valley Railroad Company from Natchez to New Orleans. The train on which he took his passage was an excursion train, and there is considerable conflict in the testimony as to whether or not the train was overcrowded on that occasion; but there is much testimony going to show that the train was crowded, and for this reason Byrd took a position on the platform of one of the cars, instead of taking his seat on the inside. There is also some testimony tending to show that Byrd had been drinking, and that at the time the accident befell him he was intoxicated. Byrd was a barber, about thirty [317]*317years of age, and when at work earned about fifteen to twenty dollars a week, according to some of the testimony. After passing Harriston, a station on appellant’s line of railway, and while the train was turning a curve near Applewhite, Byrd -was either suddenly jarred off by the lurch of the train while turning this ciirve, or he was accidentally pushed off by some of his companions. At all events, he fell from the train while .standing outside on the platform. The passengers on board of the train immediately made known this fact to the conductor, and asked that the train be stopped and Byrd taken aboard. The conductor refused to do this, assigning as a reason that another train was soon due to follow, and he could not stop his train at .this place, but when he reached the next station, some short distance further down, he would send back for Byrd. After reaching this station, Byrd was not sent back for immediately, but was not picked Up for about three hours. In short, he was left to lie alongside of the track, where he had fallen, without any attention, in midsummer, for three hours or more, and in the meantime there came up a heavy rain, which he was in. Byrd died on September 6, 1904, in Wesson, Mississippi, after having spent some time in the hospital at Natchez. It was also testified to by one of the physicians in attendance on.Byrd at Natchez— Dr. Chamberlain — that he had treated Byrd in May, 1904, for incipient tuberculosis, and that Byrd had marked symptoms of consumption; that he saw Byrd after the accident, and that he had only suffered some minor bruises, was walking around, and complained of his ankle; and that the injury received was not calculated to produce death, in his judgment. Dr. Brown, the physician in charge of the Natchez hospital, stated that he had known Byrd for about ten years, and that he had been several times in the hospital suffering from acute alcoholism and paralysis. When Byrd came to the hospital suffering from the injuries received from the fall, he made an examination of him, and he. could not have died from the injuries received. Dr. Rowan, the physician at Wesson, who last attended him, stated that Byrd [318]*318died of septicaemia. A peremptory instruction was asked for. after appellees had introduced their evidence, and refused by the court, and we think properly refused. .There was a judgment for plaintiffs in the sum of $1,000, and the railroad company appeals, and a cross-appeal is taken by appellees.
The fact remains that Byrd fell from the train under circumstances which may or may not have prevented his recovering anything against the company, according to the circumstances, and was allowed to lie in the sun and beating rain for three hours after he had fallen, without attention from any one, save by a negro in no way connected with the railroad company, who, seeing that a rain was coming up, pulled him out of a gully into which he .had fallen, to save him from drowning. All the facts were submitted to the jury — the fact of Byrd’s being on the platform; .the fact of his being permitted to remain exposed to the sun and rain for three hours; the testimony of the physicians, and as to his intoxicated condition — and, the jury having passed on the facts and holding the company liable, we are not warranted by anything that appears in the record in disturbing the verdict on the facts. It was not negligence per se, under the facts shown in this case, for Byrd to be out on the platform, instead of inside of the car; but it was a question to be passed on by the jury. Appellant cannot overcrowd its cars with passengers, making it impossible to obtain seats in safe places, and excuse itself from liability by saying a passenger under these circumstances was riding in a dangerous place. Ordinarily, it is negligence to ride on the platform of a car, instead of in .the place which is provided for the seating of passengers inside; but this is not an inflexible rule, and, when the railroad company has failed to provide sufficient cars to seat its passengers, it then becomes a question of fact as to whether a passenger was or was not guilty of negligence in riding on the platform. This question was properly submitted to the jury under proper instructions, and we see no error. Lehr v. Steinway, 23 N. E. Rep., 889; 2 Wood on Railroads, sec. 308. The facts in this case are [319]*319widely different from the facts in the case of Dougherty v. Railroad Co., 84 Miss., 502 (36 South. Rep., 699), and that case has no application here. Mr. Dougherty was thrown from the train in trying to pass from one car to another, in the night time, while the train was running' on a three-degree curve at a rate of speed of forty-five or fifty miles an hour, and the court held that if the act of going from one car to another under the circumstances was voluntary, which question had been submitted to the jury and passed on by them in favor of the railroad company — that is, that it was voluntary on the part of Dougherty' — that the accident was the result of Dougherty’s negligence, and he could not recover. It was not attempted to be shown in that case, as in this, that his going on the platform was due to the overcrowding of the cars, thereby making it necessary to stand on the platform.
It is further insisted by defendants that the court erred in modifying the first, fifth, seventh, and eighth instructions asked by them. We are relieved from the necessity of discussing whether or not the modifications complained of did or did not constitute error, since the original instructions themselves were incorrect. The .court held in the case of Miss. Cent. R. R. Co. v. Hardy, 88 Miss., 732 (41 South. Rep., 508), that where an instruction is asked, which is erroneous and is modified by the court, the modification of the instruction cannot be assigned as error, where the instruction has been used before the jury. If the party asking the instruction is not content with it as modified, he should decline to read it to the jury, in order to avail himself of any error in the action of the court. See, also, Railroad Co. v. Suddoth, 70 Miss., 265 (12 South. Rep., 205).
By the first instruction the jury is told that defendant company is not liable if the injury occurred to Byrd while he was voluntarily on the platform, if there was no necessity for his being there, if the injury happened “by reason'of the usual and ordinary operation and running of the train.” The “usual and ordinary operation and running of the train” might itself have [320]*320been negligent, and the jnry should have been told by the instruction that the defendant company was not liable for any damage which occurred “by reason of the usual and ordinary operation of the train,” if they further believe from the evidence that such usual and ordinary operation and running of the train was reasonably safe; hut the jury was left to surmise as to whether or not the operation of the train was reasonably safe, and this, in the face of some testimony which went to show that the train was running • around a four-degree curve over a track not in perfect condition.
The fifth instruction is wrong for the same reason as the first, in that it also tells the jury that defendant is not liable under the circumstances enumerated in the instruction if they believe that the train was being operated in the usual and customary manner, without further stating that they must believe from the evidence the usual and customary manner of operating the train was reasonably safe.
The seventh instruction is wrong, because by it the jury was told that the company is not liable if they believe from the evidence that the injury to Byrd was due in part to the fact that he was occupying a position, on the platform voluntarily and unnecessarily. This is not the law. Negligence of the character which exculpates the company from any liability must have been such negligence on the part of Byrd as materially contributed to the accident. It is not every negligent act, singly and alone, not materially contributing to an injury, which will relieve from liability, and the statement of the .law in the instruction was incorrect and misleading.
By the eighth instruction, which is also wrong, the jury was told that the company is not liable if they believe from the evidence that Byrd was thrown from the train while unnecessarily standing on the platform, or steps, when the train was passing from a straight track to a curve. The instruction should have stated that the company was not liable, under these circum[321]*321stances, if they believed from the evidence that the train was being run around this curve with all due care.
Railroads owe to their passengers the consideration and^ care of common humanity, it matters not how negligent a passenger may have been in producing the injury for which he sues. Such negligence does not absolve the railroad from the duty which it owes to him of proper attention after an accident shall have occurred, and if, when injured, the railroad company neglects this care, which common humanity would dictate, and by reason of this neglect, after the injury has occurred, a passenger suffers damage, he may recover against the railroad company for its dereliction. It was the duty of the company to carry Byrd to a place where he could receive proper treatment, and that with reasonable promptness, and not to have left him in his helpless condition, lying alongside of the track, in the hot sun and beating rain, for more than three'hours, when it was not more than four or five miles to the next station from the place where he fell, and, to use the language of the conductor, “for humanity’s sake there should have been something done for him.” Dyche v. Railroad Co., 79 Miss., 361 (30 South. Rep., 171) ; Northern Cent. Ry. Co. v. State, 29 Md., 439, 442 (96 Am. Dec., 545) ; Baltimore & Ohio R. Co. v. State, 41 Md., 288.
Let the judgment appealed from be affirmed, on appeal and cross-appeal.
Affirmed.