delivered the opinion of the court.

This is an attachment in chancery under section 537, Code of 1906 (Hemingway’s Code, section 294), in which *780the appellee was complainant in the court below, and appellant was the principal defendant. ¡

Appellee is a negro, and the ground of his complaint is that, while a passenger on one of the appellant’s trains, he was not provided with a seat; the coach in which he traveled was not properly heated; no place was provided for the members of his race to smoke; and the coach set apart for his race and in which he traveled was equipped with only one toilet which was marked “Women,” when it should have been equipped with two, one for each of the sexes, resulting in his being deprived of smoking and toilet facilities, and because of all of which he became ill, and remained so for some days. The cause was submitted to the jury, which returned a verdict for the appellee, and there was a decree accordingly. It appears from the bill and evidence in support thereof that in September, 1917, the appellee purchased a ticket over the appellant’s railroad from Jackson, Miss., to St. Louis, Mo., and return, and traveled on the return portion thereof from St. Louis by way of Cairo, Ill., to Memphis, Tenn., from which place he went to Holly Springs over another railroad, and from there to Jackson, Miss., over the appellant’s railroad. In making the trip he traveled across the states of Kentucky and Tennessee and into the state of Mississippi, the statutes of all of which provide in varying language that railroads carrying passengers shall provide equal, but separate, accomodations for the white and colored races, the pertinent portions of which will be set out by the reporter. One of the coaches attached to each of the trains of appellant on which the appellee traveled was divided by a partition across the center thereof, one of the compartments thus made being set apart for the colored race, and the other for a smoking compartment for the white race, each compartment being equipped with one toilet, the other coaches set apart for the white race being each equipped with two toilets, one for each of the sexes, and so *781marked. No smoker compartment was provided for the colored race.

When the train on which the appellee traveled from St. Louis to Memphis crossed into Kentucky at Cairo, Ill., he, along with other passengers of his race thereon, was caused by the conductor to enter and thereafter to travel in the coach set apart for colored passengers. According to the evidence of the conductor, there were more colored passengers than the compartment set apart for them could accomodate, so that he caused the white passengers to vacate the smoking compartment, turned the whole coach over to the colored passengers, and thereby deprived the white passengers of a place in which to smoke.

According to the evidence of the appellee, he and the other passengers of his race were confined to the colored compartment, which was so crowded that he was unable to obtain a seat, and that the conductor, although requested so to do, refused to provide him with one, resulting in his being compelled to stand from Cairo to Memphis which' portion of the journey consumed several hours. The conductor denied that any request for a seat was made to him by appellee.

The toilets of the colored compartments in each of the appellant’s trains on which appellee traveled were marked “Women,” and, according to the appellee, were in frequent use throughout his journey by the colored passengers of that sex, and he was told by each’ of-the conductors when appealed to by him that he would have to use the one toilet or none at all, and this he preferred not to and did not do. He also testified that both conductors were requested by him to provide him with a place to smoke, but declined to do so. Both of these statements were denied by each conductor.

The coach' in which appellee traveled from Holly Springs to Jackson was not heated, and the evidence was conflicting as to the necessity therefor, and also as *782to any request to have the heat turned on having been made of the conductor by the appellee.

The separate coach laws here under consideration do not require that the ’ accomodations furnished to passengers of the one race be identical with those furnished to passengers of the other, but they do require in plain and unambiguous language that the accomodations (which, of course, include not only those things which are necessary for, but also such as add to comfort and convenience) provided for passengers of the one race shall be equal to those provided for passengers of the other race, from which it necessarily follows that, if separate toilets are provided for the sexes of the one race, separate toilets must also be provided for the sexes of the other, and if a place in which to smoke is provided for the one race, such a place must also be provided for the other.

It may be that, as an original proposition, the ap* pellant was under no duty to equip its cars with smoking-compartments and separate toilets for" the sexes, as to which we express no opinion, but, be that as it may, when it so equipped its cars set apart for its white passengers, and thereby added to their comfort and convenience, it became its duty under these statutes to so equip its cars set apart for colored passengers. “Ita. leca scripta est.”

The Court of Appeals of Kentucky, in Railroad Co. v. Commonwealth, 160 Ky. 769, 170 S. W. 162, Ann. Cas. 1916A, 405, in an opinion which does not commend itself to our approval, has held that the statute of that state is not violated by the railroad equipping its cars set apart for colored passengers with only one toilet, while those set apart for white passengers are equipped with two, one for each of the sexes, so that the appellee cannot, and ,by his instructions did not attempt to, recover on that ground, in so far as his journey through the state of Kentucky is concerned.

*783Prom the foregoing views it follows that the court below committed no error in refusing the appellant’s first, seeond, third, fourth, fifth, and sixth instructions. Its seventh refused instruction is unobjectionable, but was substantially covered by another that was granted, and its eighth' instruction was properly refused for the reason that the defense that it was impossible for the appellant to furnish the appellee with a seat from Cairo to Memphis because of a sudden and unusual influx of passengers is an affirmative one and should have been, but was not, specially pleaded; the answer of the appellant containing not even the remotest reference thereto.

The statute here in question does not violate either the commerce clause of, or the Fourteenth Amendment to, the federal Constitution, as the courts of the states of Kentucky, Tennessee, and Mississippi have heretofore several times decided. There is no merit in the other assignments of error.

Affirmed.