The cause of action arose in the State of South Carolina and it must be tried under the laws prevailing in that jurisdiction *475 (Harrison v. R. R., 168 N. C., 384), but as no evidence was introduced upon this question the presumption is that the common law is in force in that State. Hall v. R. R., 146 N. C., 351; Carriage Co. v. Dowd, 155 N. C., 316.
The principle of the common lawT pertinent to the facts in this record is stated in 10 C. J., 922, as follows: “It is the duty of the carrier to keep the station or waiting room reasonably safe, comfortable, and decent, and a passenger suffering injury by reason of being unable to sit therein when he desires, and.it is proper for him so to do, may have damages for injuries, suffered. Thus the carrier may be liable for injuries suffered by a passenger by reason of the waiting room not being properly heated and ventilated, particularly where there is a statutory provision requiring it to be heated in cold and inclement weather, although such a statute does not relieve the carrier of its common-law duty so to do,” and also in 4 R. C. L., 1074, “Though the subject of statutory enactment in some States, yet independent of such statutes, a carrier owes ‘to its passengers, while that relation exists, the duty of providing reasonably safe stations, whether permanent or temporary, where they may await the arrival of trains, and it is also the duty of the carrier to keep its station or waiting rooms open, heated and lighted, for a reasonable time before and after the time advertised for the arrival and departure of trains, and it will be liable for any injury which is the proximate result of its breach of this duty.”
Applying this principle to the facts not in dispute, his Honor might have instructed the jury that the defendant was negligent in any view of the evidence, as it is not controverted that the plaintiff had purchased a ticket from the defendant; that she was in its waiting room for more than two hours waiting for a delayed train; that it was very cold weather in January; that there was no fire in the waiting room, and her evidence that she suffered severely from cold is not contradicted, and if so, any error in the instruction in assignment 5 would be harmless, as would be any expression of opinion alleged in assignments 1, 2, and 3. We do not, however, think there was any expression of opinion.
The use of the words “as in this ease,” pointed out in the first assignment, is followed by the words “if there is any injury,” and when considered as a whole his Honor was simply applying to the case before him the principle that it did not follow that a party could recover damages, although injured.
In the second assignment the language, “was the negligent act of the defendant,” would be an expression of opinion if it was not followed by the expression, “if you find there was a negligent act,” and it was not error to say to the jury, “and which there is evidence tending to show she suffered,” as the record fully sustains the statement. Lewis v. R. R., 132 N. C., 386.
*476The excerpt from tbe charge in assignment three follows immediately after the part of the charge copied in assignment two, and when read together is predicated on a finding by the jury of a failure of duty on the part of the defendant, and is free from objection.
The error complained of in the fourth assignment is that his Honor told the ■ jury “it was the duty of the railroad company to maintain separate waiting rooms,” and is upon the ground that the action is to be tried by the laws of South Carolina, and that there is no such common-, law duty and no evidence of any duty imposed by statute in South Carolina.
By reference to the charge it will be seen, that the statement of the duty was in reference to the law of this State, but in any event the charge is immaterial as the evidence of the plaintiff and defendant shows that the defendant maintained separate waiting rooms in South Carolina.
The charge in the sixth assignment is favorable to the defendant, and in the seventh is a part of the charge on damages, predicated upon a finding that the plaintiff was injured by the negligence of the defendant.-
No error.