concurring. As stated in the third headnote, we think (while Judge Russell does not) that if the conductor, in the exercise of his duties in the dual capacity of police officer and agent of the company in attempting to enforce §527 of the Penal Code, uses extraordinary diligence, that is to say, extreme care and caution, to prevent mistaking a white man for a negro or vice versa, and such a mistake nevertheless results, the carrier would not be liable. We concede that in. taking this position we are somewhat at variance with whát was said by the Supreme Court in the second division of the opinion in the case of Seaboard Air-Line Railway v. O’Quin, 124 Ga. 359, where a charge substantially embodying this proposition in a case standing upon a somewhat similar basis was disapproved. Still it will be seen that so much of the decision as asserts that this charge was error was obiter, since the court held that such a charge was more favorable to the complaining party than otherwise, and that *511the exception therefore could not be considered. Our idea of the matter is this: The carrier is charged by the statute with the absolute duty of separating the races, and is likewise charged with the duty to use extreme care and caution to'protect its passengers from insult. In performing the first duty, he must necessarily use his judgment to determine whether the passenger is a white man or a negro; and to the end that no mistake shall be made to the insult of the passenger, he must perform this duty with extreme care and caution; and if still, after all, a mistake is made and a passenger is insulted and consequently injured, the injury is damnum absque injuria.