Bowie v. Birmingham Railway & Elec. Co.

• Decision Date: 12 April 1900
• Citation: 125 Ala. 397,27 So. 1016
• Court: Alabama Supreme Court
• Parties: BOWIE v. BIRMINGHAM RAILWAY & ELECTRIC CO.

27 So. 1016

125 Ala. 397

BOWIE v. BIRMINGHAM RAILWAY & ELECTRIC CO.

Supreme Court of Alabama

April 12, 1900

Appeal from city court of Birmingham; William W. Wilkerson, Judge.

Action by Alice A. Bowie against the Birmingham Railway & Electric Company. From a judgment for defendant, plaintiff appeals. Affirmed.

The complaint contained two counts. The first count alleged that the plaintiff on June 26, 1896, became and was a passenger on one of the cars operated by the defendant company along its electric street railway, "and while so upon said car she was assaulted, struck, and wrongfully ejected therefrom by the agents and servants in the charge and control of said cars, to wit, the conductor, one Lavender, whose name is otherwise unknown to plaintiff, the motorman, whose name is unknown to plaintiff, or defendant," whereby she suffered the injuries complained of. The second count of the complaint, after alleging that the defendant operated an electric street railway in the city of Birmingham, further averred that on June 26, 1896, the plaintiff purchased a ticket to ride on one of the lines of defendant's road and had gotten on one of the cars of the defendant as a passenger, "but before she could take her seat thereon she was assaulted by the servants and employés of defendant to wit, the conductor, one Lavender, whose other name is otherwise unknown to plaintiff, and the motorman, whose name is wholly unknown to plaintiff, having the charge and control of said car, and forcibly and wrongfully ejected therefrom and not allowed to ride thereon, although there was ample room on the same for plaintiff to ride," whereby she suffered the injuries complained of.

The testimony for the plaintiff tended to show the following facts: On the 26th day of June, 1896, the defendant owned and operated an electric railway from the city of Birmingham to the surburban town of Eastlake. The electric cars on said line were at that time open cars, having each 14 seats running across the entire width of the cars, which seats were reached by stepping from the ground upon a "running board" extending the full length of the car on each side, and then stepping into an aisle which ran across the full width of the car in each section, between the seats. Said seats faced each other in sections, two seats being in each section, and were made with their backs joined together. All of said seats were fixed and immovable, and were long enough to seat about 6 grown people, of average size, on each seat, and the seat backs extended as high as the shoulders of passengers sitting upon them. Said cars were run separate on said line, but were scheduled several minutes apart, and each car was operated and controlled by a motorman and conductor the motorman standing upon a platform at the front end of the car, where the electric motor was fixed, and the conductor exercising general supervision over the car and passengers. During the morning of said June 26th the plaintiff, who is a negro woman, and who was at that time a negro school teacher, and who also had charge of a large class of negro Sunday-school children, undertook to go with this class of Sunday-school children to a picnic on said Eastlake car line, between Birmingham and Eastlake, and attempted to take passage (having already passage tickets for herself and Sunday-school class in her hands) upon one of the electric cars on said line, which had stopped in front of the Morris Hotel, in Birmingham, which was the usual place where said cars waited for passengers at the Birmingham terminus of said car line. There were near 100 Sunday-school children in the entire party, and 3 or 4 grown women, and 2 or 3 men; including one Brown, the superintendent of the Sunday school. The plaintiff assisted in getting all the children on the car, and the entire car, except the two seats of the rear section, was filled by said children. After the children had all gotten into the car, plaintiff stepped into the car, and was about to take her seat upon the second seat from the rear end of the car. There were 2 or 3 white ladies and 1 or 2 white men seated upon the seat of the car which was facing the one upon which plaintiff started to sit. This particular seat upon which plaintiff started to sit was entirely vacant. Just as plaintiff was about to take her seat, the conductor of the car stepped up on the running board of the car, at the end of the seat where plaintiff was about to sit, and told plaintiff not to sit there, but to get out from between those seats and walk to the opposite end of the car, and take a seat there. Plaintiff replied to the conductor that she had just helped to pack the car with Sunday-school children, and every other seat in the car she knew to be taken, and that she would sit where she had started to sit. The conductor then commanded plaintiff to get out from the seat where she was about to sit, and find a seat in the front end of the car. Plaintiff replied to the conductor, "If you will show me a seat, I will go to it, but otherwise I will sit here." The conductor thereupon took plaintiff by the arm, and attempted to push her from the seat where she was about to sit, and out of the car. Plaintiff took hold of the back of the seat, to keep from being pushed, and told the conductor to turn her loose and she would get out herself; but the conductor continued to push plaintiff, and at this moment was re-enforced by the motorman, who had run around from the front of the car and caught plaintiff by the ankle, and together they pushed and pulled her off the seat onto the running board, where she would have fallen to the ground, had she not been caught by Brown, the colored Sunday-school superintendent, who prevented her from falling. The plaintiff had her left leg severely bruised, and left ankle and knee sprained, by being pushed out of the car by the conductor, which injury resulted in a case of traumatic rheumatism in plaintiff's left leg, from which she long suffered, and was still suffering at the time of her trial of this case, and which is probably permanent. The defendant's testimony tended to show that the conductor did not use any more force than was reasonably necessary to eject the plaintiff from the seat which she was about to take, and that, although the motorman came around from the front of the car to where the plaintiff was, he did not put his hands on her or assist in her ejection, and that, while a portion of the car was occupied with a large crowd of Sunday-school children, there was ample and sufficient unoccupied space upon the extreme end seat at the front end of the car to comfortably seat other and more passengers, and that defendant's conductor and motorman both told plaintiff she could get a seat at this front end, and directed her to take such seat, and the conductor did not attempt to eject her from the car until she refused to change her seat. The defendant's testimony also showed, without contradiction, that upon its Eastlake car line there was a rule and custom, that had been practiced on said line ever since cars had been put on that line, that colored passengers would occupy the seats in the front end of the car, and that white passengers would occupy the seats in the rear end of the car; that this rule and custom was generally known; that both white and colored passengers, in taking seats in the car, conformed to this rule and custom; that the conductor required the passengers to conform to this rule and custom; that, six or eight months before the plaintiff was ejected for the car from refusing to comply with this rule, the general manager of the defendant had issued, posted, and published a bulletin order, directing and requiring conductors on its Eastlake line to seat colored passengers in the front end of the car, and white passengers in the rear end of the car; that such bulletin order was still in force at the time plaintiff was ejected, but said rule was not published by any notice posted in the cars, or along the car line, or in any pamphlet, newspaper, or otherwise than by said bulletin order to conductors issued by the general manager, and the dividing line between the white and colored passengers was not fixed by said rule, but was left entirely to the conductor to fix and enforce as, in his judgment, the circumstances and numbers of passengers of each color might require. It was shown that the car upon which the plaintiff took passage had no partition in it, and it was further shown that the defendant corporation at the time of the alleged injury also owned and operated several other lines of street cars in the city of Birmingham, and that upon these other lines the defendant corporation had no rule or requirement in regard to white and colored passengers sitting in separate portions of the cars, as was required by the rules of the Eastlake line, but upon their other car lines negroes were permitted to sit with the white passengers, according to their own choice of seats.

The court refused to give several charges requested by the plaintiff, but, as these charges are not insisted upon in argument, it is not necessary to set them out in detail. The court, at the request of the defendant, gave to the jury the following written charges. and to the giving of each of them the plaintiff separately excepted: "(1) If you believe from the evidence that the conductor used no more force than was reasonably necessary to enforce in a proper manner a rule requiring colored passengers to sit in the front part of the car, then I charge you that your verdict must be for the defendant. (2) The court charges the jury that a rule, if you believe from the evidence there was such rule, requiring white passengers to occupy seats provided in the rear of the car, and requiring colored...