Charles v. Norfolk & Western Ry. Co.

• Decision Date: 16 May 1951
• Docket Number: No. 10083.,10083.
• Citation: 188 F.2d 691
• Parties: CHARLES v. NORFOLK & WESTERN RY. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

188 F.2d 691 (1951)

CHARLES v. NORFOLK & WESTERN RY. CO.

No. 10083.

United States Court of Appeals Seventh Circuit.

March 12, 1951.

Rehearing Denied May 16, 1951.

Henry C. Ferguson, Leroy G. Charles and James G. Lemon, Jr., all of Chicago, Ill., for appellant.

Charles F. White, Herbert C. De Young, Chicago, Ill., for appellee.

Before KERNER, DUFFY, and SWAIM, Circuit Judges.

KERNER, Circuit Judge.

Plaintiff appeals from a judgment on a verdict for defendant and from an order overruling her motion for new trial and in arrest of judgment in her suit for assault and battery and false imprisonment based on her expulsion from a train and arrest and imprisonment following her refusal to transfer to a car for colored passengers.

There was considerable conflict in the evidence as to the degree of force used in putting plaintiff off the train and whether or not the conductor himself actively participated in the expulsion. Since plaintiff made no motion for directed verdict she may not, on appeal, challenge the sufficiency of the evidence to support the verdict for defendant. Barron and Holtzoff, Federal Practice and Procedure, § 1081; Aetna Casualty & Surety Co. v. Yeatts, 4 Cir., 122 F.2d 350; and Edwards v. Craig, 7 Cir., 138 F.2d 608. The appeal, however, does present a serious question whether under the circumstances disclosed by the record she was entitled to a new trial.

We state the facts out of which this action arose as they are disclosed by undisputed evidence or established by the evidence of the defendant. On February 5, 1944, plaintiff was a passenger on a train owned and operated by defendant. She was traveling from Chicago to Petersburg, Virginia, to visit her husband, a Chicago attorney then in military service in Camp Lee. She had transferred from another train to defendant's in Cincinnati, Ohio, and was riding in a coach in which she was the only colored passenger. While the train was still in West Virginia, before it reached the Virginia line, the conductor asked her to move to the head car and she refused, whereupon he told her he would have her moved when he got into Roanoke, Virginia. The passenger brakeman also asked her to move while they were still in West Virginia. The conductor wired ahead about her to the superintendent, a special officer, and the station master at Roanoke. When the train reached Roanoke, one Keister, the special officer who was in the employ of defendant and certified by the Judge of the City Court in Roanoke to act as such, met the train in response to directions from the station master, and the passenger brakeman took him through the car to point plaintiff out to him. He told her of the Virginia statute requiring segregation and told her they would move her into the other car. When he picked up her coat and took her arm she resisted, whereupon he asked a military policeman in the car to help him move her. There was some scuffling and she was taken off the train. Keister called for the patrol car and plaintiff was taken to the police station where Keister preferred charges against her of disorderly conduct and violation of § 3983 of the Virginia Code. Although it was then only 11:00 o'clock on a Saturday morning, plaintiff was placed in detention instead of being brought into court, and she was held in detention without food and with at most only one cup of water (which she denied receiving) until 10:30 that evening when she was released on $251.50 bond. She testified that she had obtained the cash for this bond by paying a colored porter in the jail $10 to get her a lawyer and he, in turn, had wired her mother-in-law for $300; that upon her release she continued her journey to Petersburg, arriving there early Sunday morning, February 6; and that her husband took her out to the hospital on the Army Post for treatment of her injuries and went back with her to Roanoke for her trial the following day. She was found guilty of disorderly conduct and fined $5 and costs amounting to $6.50. She stated that she paid her lawyer $50 in addition to the $10 she had given him while she was in jail.

Plaintiff's testimony described an ugly story of brutality in the force used by two men in dragging her off the train and throwing her luggage after her and her detention for almost twelve hours in a filthy, unsanitary cell, without the food or water or medical attention she requested. Defendant maintains that her story is a complete fabrication, and denies that its agents used any force against her or that she sustained any injuries during her removal from the train and detention in the jail.

It is undisputed that until efforts were made to move her, there had been no question as to her behavior. She had been sitting quietly in her seat until the officer started to pick up her effects, and the officer stated that the only reason he placed charges against her was that she was a colored woman riding in a coach with white people, and if it had not been for that he would not have bothered her. The conductor testified that he told her he would have her moved and that he sent the telegram which set the machinery in motion for her removal, arrest and detention.

The Virginia statute requiring segregation of white and colored interstate passengers was held invalid in the case of Morgan v. Com. of Virginia, 328 U.S. 373, 66 S.Ct. 1050, 90 L.Ed. 1317, decided on June 3, 1946, after the occurrence of the acts complained of in this case. It follows that plaintiff was entitled to remain in the seat she was occupying in defendant's train, without interference by defendant's agents and employees, and was entitled to resist their illegal efforts to move her since, as stated by defendant's agent, that removal was required solely on the ground of her color. If the jury believed plaintiff's evidence, the removal and imprisonment were accompanied and aggravated by unnecessary force and violence resulting in injury to her. But even the undisputed evidence established an assault, arrest without warrant, and detention for almost twelve hours on charges preferred by Keister after he was summoned by another agent of defendant to enforce an invalid statute. Plaintiff did not, however, move for a directed verdict, and the jury found defendant not guilty of the charges. She thereupon moved to set aside the verdict and for a new trial on the ground that the verdict was contrary to law; that it was contrary to the evidence, and resulted from passion and prejudice; and that as the result of an erroneous instruction the court wrongly required plaintiff to prove every cause of action set forth before she would be entitled to a verdict, thus, in effect, directing the verdict against her on the causes of action admitted by defendant's own evidence. The...