On Motion for Rehearing. If, as appellant insists is true, its liability should have been determined without reference to the "separate coach statute," the view this court has heretofore taken of the law applicable to the case was erroneous, and the instructions to the jury in accordance with that view were wrong. For the rule applicable, if that statute should have been ignored, would have relieved it of liability, unless it appeared that appellant reasonably should have foreseen in time to have prevented it that Melton would assault appellee's wife; and the jury should have been so advised. 4 Elliott on Railroads, § 1639. We are still of opinion, after further consideration, that the statute was a part of the law of the case; and a majority of the court are still of opinion that, because it was applicable, the instructions to the jury were not erroneous. 3 Thompson on Negligence, § 3098. As we construe the statute, it imposed on appellant duties it did not before its enactment owe to its passengers, to wit, to provide separate coaches for the races and to see to it that white and negro passengers were separated into the coaches provided for them respectively. If by force of the statute appellant owed the duty to see that passengers were so separated, then it was bound to use a high degree of care to discharge it, and became liable for the consequences proximately following to appellee's wife from its failure to exercise that degree of care. If, in the exercise of that degree of care, it would have ascertained that Melton was in the negro coach and have removed him there-from, and did not, then it seems to us it necessarily follows that its failure to discharge the duty must have been the proximate cause of the injury to appellee's wife, if she was herself without fault. For, when the purpose of the Legislature in enacting the statute is kept in mind, we think appellant should not have been heard to say that it reasonably could not have foreseen that Melton would assault appellee's wife as he did. It was mainly to prevent such outrages as the one perpetrated upon appellee's wife that the statute was enacted, and appellant should be held to have known it. It is plain that had it discharged the duty and not permitted white passengers to enter the negro coach, or *Page 667 had it promptly removed them when its employé Stanley found them in that coach, appellee's wife would not have been assaulted as she was. The injury to her, therefore, was the direct result of a failure on the part of appellant to discharge a duty it owed to her, and the most it could contend for in the circumstances was that it should not be held liable for the consequences of its omission, because it could not reasonably have anticipated that such consequences would follow. As stated above, we think it should be held to have anticipated consequences the statute was enacted to prevent. If, however, the conclusion reached by us that it was not error to tell the jury that appellant owed to appellee's wife the duty to exercise a high degree of care to discover that white passengers were in the negro coach is wrong, we nevertheless would be of opinion the judgment should not be reversed for the error in the instructions; for it conclusively appeared that at least one of its employés (the witness Stanley) assisting as porter in the operation of the train knew that white men were in the negro coach before the assault on appellee's wife was committed. Stanley, testifying as a witness for defendant, said: "I left some white men in the colored coaches, and went on back to the end of the train."
The contention in the motion that the instructions were erroneous because same authorized a finding against appellant if "its agents and servants" knew that a white passenger was in the negro coach is based on a claim that the testimony showed that its employé John Harris, in no way connected with its operation, was on the train. As we understand the record, it did not show that. Harris testified that he had been an employé of appellant, but was not working that day, and that at the time of the trial, more than three years later, he was still an employé of appellant. If there is any other testimony in the record with reference to his being an employé, we have not found it.
The motion is overruled.