Waldauer v. Vicksburg Railway & Light Co.

40 So. 751, 88 Miss. 200

• Court: Mississippi Supreme Court
• Decided: April 15, 1906
• Status: Published

Opinion

Truly, J.,

delivered tbe opinion of tbe court.

It was error to refuse to admit testimony to establish tbat it was tbe custom of tbe appellee to permit passengers of both races to occupy tbe back platforms of its street cars. So far as tbe proof discloses, it was only by an established custom tbat even tbe inside of tbe^cars was divided between tbe two races. Tbe proof of this custom was elicited by an inquiry of tbe trial judge propounded to tbe appellant, and to which interrogatory tbe reply ■was made tbat “tbe rear seats are reserved inside of tbe car for negroes, and for tbe white people tbe front seats, has been tbe custom.” Similar testimony to establish tbe custom in reference to tbe use of tbe platform was immediately théreafter excluded. This was clearly erroneous.

The appellee caused the public arrest and ejection from its cars of the appellant for an alleged violation of what is commonly called the “Jim Crow” law. Laws 1904, ch. 99, ji. 140. But that law does not deal with platforms at all. It deals with the cars in which passengers generally ride. Its provisions are confined in their operation to “cars and compartments,”, and requires the divisions of cars into compartments for the accommodation and separation of the races. In order to justify a street car company in directing the arrest of a passenger for a violation of this law, it must be manifest that the company has itself 'faithfully carried its provisions into effect. The law was enacted in pursuance of a wise public policy, and its mandate is obligatory on all street car companies. But in the instant case it does not appear that the appellee has complied with its requirements. The contrary fact is plainly deducible from the entire testimony in this record. It is very apparent from this record that this street car company, as in Traction Co. v. Compton, 86 Miss., 269 (38 South. Rep., 629), has resorted to the subterfuge of putting up “signs,” instead of providing screens or partitions, as required by the express terms and manifest intent of the statute. We again condemn as unavailing this attempt to evade the law. The testimony discloses that the sign intended to operate as a separation of the seats to be occupied by the two races was not visible from the platform where appellant stood. Assuredly, a sign so small as not to be visible from any portion of the car cannot be magnified into a partition or screen dividing a car into separate compartments.

It was error to take this ease from the jury. The appellee must first comply with the law before its protection can be invoked to avoid liability for an otherwise tortious act. If the appellee, while itself willfully violating or ignoring the law, still attempts to punish a passenger for refusing to obey the same law, and wrongfully ejects him from the car because of such refusal, the wronged passenger would be entitled to such damages as the .jury, under the circumstances attendant upon the expulsion and arrest, might feel justified in awarding.

Reversed and remanded.