These are two actions of tort arising out of an assault committed by a conductor of the defendant on the plaintiff’s intestate while ejecting him from one of the defendant’s cars. The injuries received by the plaintiff’s intestate resulted in his death. One action is for conscious suffering and the other for his death. There was a verdict for the plaintiff in each case with which the plaintiff is dissatisfied, and the cases are here on her exceptions to the rejection of evidence and to the refusal of the presiding judge to give certain rulings that were requested.

The plaintiff introduced evidence tending to show that her intestate boarded the car at the rear and that the car was crowded so that he could not enter it and he remained standing in the vestibule; that the conductor spoke to him and told him he must go into the car or get off and he replied that if the conductor would find him a place he would go in; that the conductor repeated his direction to go into the car or get off once or twice and then stopped the car and again told the plaintiff’s intestate to go in and he replied there wasn’t room, and the conductor then ejected him by pushing him backward off the steps of the car, thereby causing the injuries complained of. The defendant introduced evidence tending to contradict that of the plaintiff as to some of the circumstances under which the assault occurred though not as to the directions given by the conductor to the intestate to go inside the car. The jury found in answer to two questions submitted to them by the presiding judge that *239the intestate was not a passenger and was not in the exercise of due care.

The plaintiff offered to show, as bearing upon the question of her intestate’s due care and the negligence of the defendant, that at the time of the alleged assault there was a custom which had existed for a long time for passengers to ride in the vestibules of the defendant’s cars, that this custom was known to the defendant and that no objection was made to passengers so riding. The evidence was excluded and the plaintiff excepted. We think that the evidence was rightly excluded. The custom, even if it existed, did not compel the defendant to permit passengers to ride in the vestibule. The only effect of it was to justify passengers in riding in the vestibule in the absence of any objection thereto on the part of the person or persons in charge of the running of the car. Uncontradicted evidence on both sides showed that the plaintiff’s intestate was told by the conductor either to go inside of the car or to get off. We do not see, therefore, how the existence of a custom was material. The fact that the plaintiff’s intestate was directed by the conductor to go inside or get off distinguishes this case from those relied on by the plaintiff to show that evidence of a custom on the part of passengers to ride in the vestibule or on the platform was admissible.

What we have said disposes, we think, of the first two requests. The first of those was that it was for the jury to say whether a rule of the company which had been introduced in evidence requiring conductors to keep the rear platform and steps clear of passengers when there was room inside was intended to be enforced by the company. The second was that in passing upon the question whether the rule was intended to be enforced evidence of a custom for passengers to ride upon the rear platform without objection was competent for the consideration of the jury. There was nothing to show except the alleged custom that the company had waived the rule. As we have said, the alleged custom did not compel the company to allow passengers to ride in the vestibule or on the rear platform, and when passengers were notified to go inside or get off the car the custom ceased to be of any consequence. We think that these requests were rightly refused.

*240The third request was given in substance and effect so far as it properly could be given. We do not think that under the rule of the company or otherwise it could be said as matter of law that the plaintiff’s intestate, having paid his fare and been received as a passenger, “ had a right to ride in the vestibule of said car until he could with a reasonable degree of diligence gain admission inside said car.” He was subject to the direction of the conductor even after he had paid his fare and had been received as a passenger, and, if he was requested by the conductor to go inside or get off the car, he was bound to do so, leaving the question, if there was any, of the rightfulness of the conductor’s action for future settlement.

The result is that we think that the exceptions should be overruled.

So ordered.