delivered the opinion oe the court.
Appellant was indicted and convicted for failing and refusing’ to obey that part of section 772, Kentucky Statutes, as follows: “That every company operating a railroad in this State shall provide a convenient and suitable waiting-room and water-closet at all cities and towns, and at such other stations as /the Railroad Commission may require on its.line, and keep and maintain, the same in decent order and repair.”
It is stated substantially in the indictment that defendant in February, 1897, and at least 150 days previously, kept a passenger depot at Berry, an incorporated town in Harrison county, and during all that period “failed, neglected and refused to provide any suitable water-closet and privy or either a water-closet or privy.” ■
The statute requires “provided and maintained both a convenient and suitable waiting-room and water-closet.” But failure to keep a waiting-room is not alleged, nor is it stated defendant failed to keep a convenient water closet, *608the statement being it failed to keep a suitable one. That •omission, however, does not render the indictment defective, nor release defendant from liability; because the statute requires the water-closet, in addition to the waiting-room, and that it be both convenient and suitable, and failure in either respect subjects the guilty party to the penalty prescribed.
There can be no reasonable doubt or uncertainty about the character or purpose of the structure called water-closet, contemplated and required by the statute. It is intended for the private and often necessary use of women and children, as well as men and boys, who may be waiting at a depot to take passage on a train, or may get off a train at that place, and being patrons of a railroad company may reasonably demand the provision and maintenance at or accessible to the depot of such building.
The evidence in this case makes it plain defendant failed to provide and maintain a suitable water-closet at ■or accessible to the depot at Berry; the only place that could be used by even men or boys for that purpose being a coal-house.
Whether a water-closet has been provided and maintained, as also whether if so, it is convenient or suitable, .are questions of fact it is the province of the jury to determine, and it was not, as contended, error to submit the inquiry to the jury as was done in this case.
Judgment affirmed.
The court delivered the following response to a petition for a re-hearing, June 21, 189S:
What is a suitable a’nd convenient waitingwo'om and wa*609ter-closet is a question about which there ordinarily can be no serious difference of opinion between persons of that class usually selected as jurymen. It is a question of fact dependent upon the size of the city, town, or station where the railroad train stops, and the number of passengers arriving at and departing therefrom. As said in Louisville R. R. Co. v. Com., 97 Ky., 297: “Without attempting a minute description or accurate scientific distinction of the particular structure to be used, or the internal arrangement thereof, we think it is sufficient to say that, while same is kept decent, and in a cleanly condition, as required by legislative enactment, the railroads may exercise a reasonable discretion as to the details, without apprehension of any prosecution by the Commonwealth on account of the one adopted.”
The case of Louisville & Nashville R. R. Co. v. Commonwealth, 99 Ky., 132, has no application. The prosecution in that case was for charging and receiving more than a just or reasonable rate of toll or compensation for the transportation of passengers and freight in this State, in violation of sections 816, 819, Ky. Statutes. It was there properly held that what is a just and reasonable rate of toll or compensation is a question dependent on so many uncertain and complicated elements that different juries might reach different conclusions on the same testimony, and therefore the statute was invalid for uncertainty. It is entirely practicable to fix by statute the rate of toll or compensation, and thereby establish at least a prima facie standard by which to determine what is just and reasonable. But *610what is a convenient and suitable waiting-room and water-closet at each particular station is not a complicated or doubtful question, but must necessarily, and can be safely, left to the jury.
Petition overruled.