after stating the case: We are of the opinion that the plaintiff is not entitled to recover the penalty announced by section 2622 of the Revisal for failure to provide separate cars. »
Where the carrier has-obeyed the law and provided separate cars for the white and colored passengers which afford equal accommodations, no statutory penalty is incurred if the individual passenger is directed by a train hand or conductor into the wrong car.
This is manifest from the language of the statutes. Omitting superfluities, section 2619 reads as follows: “All railroad companies shall provide separate but equal accommodations for the white and colored races on all trains carrying passengers.
“Such accommodations may be furnished by railroad companies either by separate passenger cars or by compartments in passenger cars, which shall be provided by the railroad under the supervision and direction of the Corporation Commission.”
Section 2320 provides that the commission may exempt certain roads and trains. Section 2321 provides when the two races may be put in the same coach, and section 2622 imposes a penalty for failing to provide separate cars.
Assuming, as contended by plaintiff, tbat tbe conductor erred in showing plaintiff into the colored car, because be bad bis rafting gear with him, tbat does not alter tbe admitted fact tbat so far as tbe carrier is concerned it bad complied in good faitb with tbe law and provided separate cars and equal accommodations for tbe two races. Tbat being so, no statutory penalty is incurred.
. Tbat our construction is right is manifest from tbat portion of tbe law which provides tbat tbe separate cars, and accommodations, for failure to supply which tbe penalty is given, must be furnished by tbe carrier under tbe direction and supervision of tbe Corporation Commission.
As said by tbe Federal Court, tbe equipment is tbe required thing, tbe failure to furnish which brings on tbe penalty, and not tbe management of tbe equipment by tbe employees. U. S. v. Ill. Cent. R. R., 156 Fed., 183. Tbat was an action brought by tbe Government for tbe penalty imposed by tbe safety-appliance act of 2 March, 1893. Tbe Circuit Court held tbat the penalties were incurred by a failure to furnish tbe appliances, and not becaus'e improperly managed by tbe company’s employees after being furnished.
Tbe motion to nonsuit is sustained.
Eeversed and dismissed.