The court gave as a part of his main charge the following:
"If you believe from the evidence that the plaintiff's wife, while she was a passenger on one of defendant's passenger trains, at the time and place alleged in plaintiff's petition, was assaulted by a fellow passenger and injured as substantially set out in plaintiff's petition, and if you further believe that such assault was committed by a white passenger which defendant, its agents and servants, knew, or in the exercise of that high degree of care required by law might have known, was in the coach assigned to negroes, then if you so find you will find a verdict for the plaintiff and assess his damage in accordance with instructions hereinafter given you, unless you find for the defendant upon subsequent instructions contained in this charge."
I cannot agree to the unqualified approval of this charge which is given by the majority of this court. It is true that on the former appeal language was used in the opinion reversing the case which justified the trial court in so instructing the jury, and I accept the full share of my responsibility for what was there said. The language which authorized this charge was dicta, and not binding on the trial court had he felt inclined to disregard it. However, he had the right to assume that this court would adhere to that holding on another appeal. The best time to correct an error is at the first opportunity, and it is for that reason that I now express my dissent from the holding of the majority on this appeal.
The vice of the charge consists in making the railroad company liable if "its agents and servants * * * in the exercise of that high degree of care required by law might have known" that the white passenger who committed the assault complained of was in the coach assigned to negroes. The liability of the appellant in this case rests solely upon the ground that its conductor violated the provisions of the separate coach law. For it cannot be said that the employés in charge of the train had any notice of conditions which would have made the appellant liable for the assault committed in the absence of this statute. Article 1523 of the Penal Code 1911 (Vernon's Ann. Pen Code 1916, art. 1523) requires railroad companies to provide separate coaches for white and negro passengers, and prescribes a penalty for a failure to make such provision. Subdivision 9, which is section 9 of the original act (Acts 22d Leg. c. 41), is as follows:
"Conductors of passenger trains, street cars or interurban lines, provided with separate coaches, shall have the authority to refuse any passenger admittance to any coach or compartment, in which they are not entitled to ride under the provisions of this law; and the conductor in charge of the train or street car or interurban car shall have authority and it shall be his duty, to remove from a coach or street car, or interurban car, any passenger not entitled to ride therein, under the provisions of this law, and, upon his refusal to do so knowingly, shall be guilty of a misdemeanor, and, upon conviction shall be fined in any sum not less than five or more than twenty-five dollars."
When the separate coach law was enacted in 1891 the word "knowingly" was not in the section quoted. It was added by an amendment in 1907. See Acts of 1907, p. 59. This amendment was evidently made for the purpose of restricting the penal liability of conductors for a failure to remove passengers from railway coaches set apart for the opposite race to those instances where the conductors knew, or at least had good reason for believing, that a passenger was in the wrong coach. If the amendment does not authorize that construction, it fails to make any material modification of the law. This is a penal statute, and until it is violated by the conductor there can be no civil liability on the part of the railway company responsible for his conduct; or, to state it differently, a failure to remove a passenger, under circumstances which do not expose *Page 668 the conductor to a criminal prosecution, cannot form the basis of a civil suit for damages against his principal. It is only that which the statute condemns as a crime that can be treated as a civil wrong. The court cannot, as a matter of law, denounce that as negligence which the statute does not denounce as criminal. The question then is: Does the conductor subject himself to a criminal prosecution for failing to remove a passenger when he does not know that such passenger is in the wrong coach? An indictment or a complaint under this law which merely charged that the conductor might have known that the passenger was in the wrong coach would be defective because of the failure to state the essential facts required to constitute an offense. If such facts are insufficient to support an indictment against the agent, for the same reason they create no civil liability on the part of the principal. To say that failure to protect a passenger against an assault is the breach of the contract of carriage does not alter the situation. It is the statute which imposes the duty to take the precaution for keeping passengers separated; and the court cannot declare as a matter of law that the contract is breached, except upon facts which show that the statute is violated.
The cases cited in support of the charge are Kentucky decisions, and are based upon a statute very similar to ours. But those decisions do not sustain the legal proposition embodied in this charge. In those cases where the railway company was held liable for the failure to remove the passenger the conductor knew of the passenger's presence in the wrong car, and knowingly permitted him to remain. Quinn v. L. N. Ry. Co.,98 Ky. 231, 32 S.W. 742, was a suit by a negro woman against the railroad company for damages sustained by her by reason of a drunken white man being permitted to remain in the coach set apart for colored passengers. The court in that case said:
"If, as we shall assume was the case, each one of the passengers had been assigned the coach required by the statute, and the white passenger had left his coach and gone into the coach with these colored people without the knowledge of the conductor while he was attending to his duties in the other cars, and had there abused and insulted the appellant, it is plain no action could be maintained against the company, but when the white passenger is assigned to the car set apart for those of another race the company will be held responsible for his bad conduct affecting the rights of other passengers, although the conductor may be ignorant of what is transpiring, and, where the conductor or those managing the train know that one is in the wrong car, it is his duty to expel him, and by consenting to his remaining the company becomes responsible for his conduct so long as he does remain. If a contrary rule is applied, and no liability exists on the part of the corporation to the passenger, the separate coach law becomes a dead letter, and those who are entitled to its protection have no means of enforcing its provisions but by indictment, where a penalty may be adjudged in favor of the state. It is made the duty of conductors, under heavy penalties, to execute this law, and, where there is a neglect of duty for which a penalty is imposed, and private injury results from this neglect, a cause of action arises in favor of the person injured. This is the universal rule applicable to such cases, and should be made to apply to the facts of this case. It may be contended that the white passenger having been assigned to his proper coach, and then leaving it without the knowledge of the conductor, exempts the company from liability unless the conductor knows of the wrongs being committed or the purpose of the passenger, by reason of his conduct, to mistreat passengers. This would, perhaps, be a rational conclusion, unless it further appeared the conductor, or those controlling the train, knew of the white passenger's presence in the colored compartment, and took no steps to require him to leave. Here the conductor assented to his remaining in the car until he dispatched his business with the old negro, and the company should be held responsible for his conduct so long as he remained."
Here the court made the civil liability of the railway company depend upon the failure of the conductor to act after an actual knowledge of the situation. I know of no case which holds to the contrary.
The testimony is undisputed that Melton, the assailant of the appellee's wife, when he boarded the train, went with a companion into the coach assigned to white passengers, and that they afterwards went forward into the negro coach. While the porter testified that there were some white men still in the negro coach as he passed through going to the rear of the train, he does not identify them as Melton and his party. The evidence shows that the train on that occasion carried seven coaches, four of which were assigned to white people, and three to negroes, and that all of them were full. The conductor testified that he took up 756 tickets from those who got on at Paris, and that he was unable to go through the train before reaching the next station without having the engineer to slacken its speed. The testimony also indicates, but does not clearly show, that it was during that time that Melton and his party went into the negro coach. Some of the witnesses say that Melton and his companions were in the negro coach as the conductor went through taking up tickets. This is, in effect, denied by the conductor, who said that he did not notice any white people in the negro coaches. I am inclined to think that the great preponderance of the testimony tended to show that the conductor saw Melton in the negro coach, but it is not entirely satisfactory to say that the court could have assumed that fact as conclusively established. Yet it is very improbable that a different verdict would have been returned had the court omitted the language I have objected to. I am not therefore disposed to protest as much against the result of the decision of the majority as against the proposition of law upon which they rest their conclusion. I do not believe that ruling should stand as a precedent to be followed by other trial courts in the future. *Page 669