It seems to us that the Court erred in two respects. We do not think it can be reasonably inferred from *122the testimony that the plaintiff admitted, or intended to admit, that the conductor told him to wait until he had finished his work and the caboose had been drawn up to the station, in the sense that he was forbidden by the conductor to enter the caboose until this had been done; and that he was so forbidden is the clear implication from what is stated by the Court, in the opening of its charge, to have been admitted. The jury might well find from the plaintiff’s testimony — and the writ- ' ten statement would not necessarily vary the finding — that the plaintiff admitted only that while the conductor did tell him to wait a few minutes and he would pull the caboose up to the station, he regarded it merely as a favor offered to him by an obliging conductor and not as a denial to him of the right to enter the car, or even as a warning to him not to do so. This is made clear by what he said on the cross-examination, where he gave the following version of the facts: “When I spoke to the conductor and asked him if I could travel on his freight-train, I said, ‘Captain, can I ride with you to Charlotte?’ and he said, ‘Certainly.’ I said, ‘Much obliged,’ and started to walk down, and he said, ‘If you will wait, I will pull the train a little further up,’ and I said, ‘No, much obliged; I will not put you to that trouble.’ When the statement which you show me was signed, I was in very great pain.”
We do not think the written statement materially conflicts with this testimony, although it may not be quite as full and exiDlicit as to what did occur, and even if it does conflict, the truth as to what was said and done was a matter solely within the province of the jury to determine. _ In Tillett v. Railroad, 118 N. C., at p. 1035, it appears that the Court charged the jury, upon evidence which in its general features was not unlike that in this case, as follows: “But if the statement was made by the conductor as simple information in response to a question, and was not intended as a direction or requirement, then no duty was imposed by such statement on the *123plaintiff to wait for .the train to pull up.” With respect to tbis instruction among others relating to the same matter, ' the Court, at page 1046, said: “There was no complaint that the question, whether the plaintiff was warned to wait until the car should be drawn up in front of the station, was not properly left to the jury on the last trial. A careful review of the whole statement shows that there was no error.”
It is not contended that the plaintiff made any judicial admission in the case which would he binding and conclusive upon him, but it is simply deduced by the Court from all the evidence that he did mate the admission attributed to him. This statement of the Judge certainly excluded from the consideration of the jury the right, which the plaintiff clearly possessed, to have them pass upon his testimony and to adopt his version, if they should find it to be the correct one. In eliminating this view of the case from the consideration of the jury, by which the plaintiff was clearly prejudiced, there was reversible error. Rumbough v. Sackett, 141 N. C., 495.
We have decided frequently that it is not proper, after laying down a legal proposition as applicable to a supposed state of facts, if found by the jury, to instruct them, as a deduction therefrom, that the plaintiff is or is not entitled to recover, but the proper course is simply to direct them how to answer the issues by applying the law as stated by the Court to the facts as they may find them to be; and this should be the invariable rule when the case is tried upon issues before a jury. In this case, though, his Honor told the jury that if the caboose was not coupled to the engine, or, as we understand him to mean, if the train of cars, including the caboose, was not coupled to the engine, or, in other words, if the train was not “made up,” the plaintiff boarded the caboose wrongfully, and was there-I fore on the car at the time of the injury in his own wrong, and for this reason he could not recover. The liability of the defendant did not exclusively depend upon whether *124tbe caboose, when tbe plaintiff got on it, was coupled to tbe engine. If it was not, tliere were other facts, and other questions to be considered, both in regard to tbe defendant’s negligence and tbe plaintiffs contributory negligence. There was at least some evidence that tbe plaintiff bad gone to tbe car and entered it with tbe knowledge of tbe company, through its servants, who bad charge of tbe train, if not with their implied consent, and this was sufficient to carry the case to tbe jury; and besides, even if be was at first to blame for boarding tbe car, tbe company might have been guilty of negligence in pushing tbe cars back against tbe caboose with unexpected and unnecessary violence and without tbe exercise of that degree of care which tbe situation of tbe plaintiff and tbe surrounding circumstances required of it.
Whether tbe plaintiff was himself guilty of such negligence as proximately contributed h> bis injury, is a question to be determined by tbe jury upon tbe evidence under proper instructions from tbe presiding Judge. It seems to us that tbe case, in tbe aspect of it now presented to us, is fully covered by tbe decision of this Court in Tillett v. Railroad, 118 N. C., 1031, which bears a striking similarity in some respects to it. We have so recently discussed tbe liability of carriers with respect to passengers traveling in caboose cars (Marable v. Railroad, 142 N. C., 557) that it is useless to enter upon the- general inquiry as to the degree of care required of each under such circumstances.
Tbe errors committed in tbe charge entitle tbe plaintiff to another trial.
New Trial.