Brown v. Memphis & C. R. Co.

• Decision Date: 25 April 1881
• Citation: 7 F. 51
• Court: U.S. District Court — Western District of Tennessee
• Parties: BROWN v. MEMPHIS & C.R. CO.

7 F. 51

BROWN v. MEMPHIS & C.R. CO.

United States Circuit Court, W.D. Tennessee.

April 25, 1881

Inge &amp Chandler, for plaintiff.

Humes &amp Poston, for defendant.

The plaintiff, a colored woman, recovered a judgment against the defendant corporation for $3,000 for a wrongful exclusion from the 'ladies' car' of one of the defendant's passenger trains. A statement of the defences set up, and the rulings of the court on the demurrer, will be found reported in 4 F. 37, and a synopsis of the charge of the court on the main question involved is reported in 5 F 499. Besides the exception to the charge as there found, the defendant assigned four other grounds for a new trial, as follows:

(1) 'That the court, in its charge, substantially said to the jury: That such a regulation was unreasonable; for, that it makes the irresponsible conductors of passenger trains the censors of the virtue of the women of the country, as they would necessarily have to pass upon the chastity or unchastity of the mothers and wives and daughters of the country, and might exclude one and allow the other to pass, as it suited their caprices.

(2) 'The court erred in refusing to give the fifth instruction asked by defendant, in the following language: 'If the jury find, from the proofs, that the conductor, in excluding the plaintiff from the ladies' car, acted in good faith, in discharge of what he regarded as his duty, and not maliciously, or wantonly, or with unnecessary rudeness, although he may have been mistaken in his duty and violated the rights of the plaintiff, yet she would not be entitled to recover punitive, exemplary, or vindictive damages, but such as are purely compensatory.' But the court refused to give the instruction as requested, and charged 'that such facts should be taken in mitigation of such punitive, exemplary, or vindictive damages as you may think proper to give.'

(3) 'The court erred in refusing the sixth instruction of defendant, as follows: 'If the jury find, from the testimony, that the conductor was discharging his lawful duty in requiring plaintiff to leave the ladies' car, and, in attempting to overcome her resistance, injured her, then the burden of proof that he used unnecessary force and violence is on the plaintiff to satisfy the jury, by a clear preponderance of testimony, that the conductor did use such unnecessary force and violence; and if the counter-testimony of defendant, as detailed by Hall and Stone, preponderates over that of plaintiff and her witnesses, in the opinion of the jury, then they must find for the defendant.'

(4) 'Again, we insist that the new testimony discovered after the trial (the witness White) is sufficient to grant a new trial, as the court can easily see that another credible witness, supporting Governor Stone and Hall, as to the alleged choking of the plaintiff, would, in all probability, have limited the recovery to compensatory damage against the defendant. The testimony was discovered only accidentally after the trial, and by no human agency, or reasonable or extraordinary diligence, could it have been discovered earlier.'

The affidavits of newly-discovered testimony show that one White was in the car at the time, and he details the occurrences in a way tending to corroborate the defendant's witnesses. It is said the fact that this witness was present was not discovered until after the trial of the case. The facts not already shown by the previous reports of this case appear in the opinion of the court. It should be stated that the plea which justified the exclusion, on account of color, was withdrawn because this company makes no distinction on that account, and the reasonableness of any regulation based on color was, therefore, not passed upon by the court Vide 4 F. 37, 38.

HAMMOND, D.J.

This case is again before me on a motion for a new trial, and I have been aided by lengthy oral arguments, and an elaborate printed brief for defendant of unusual earnestness and exhaustive research. It is conceded by the learned counsel for defendant that 'in all cases of exclusion for any reason we have not found a single case of a woman, but that on account of color, in Railroad Co. v. Williams, 55 Ill. 185, and Railroad Co. v. Miles, 55 Pa.St. 209,' to which may be added Railroad Co. v. Brown, 17 Wall. 445, and other cases not necessary to cite. This statement accords with my own researches, for when this case was before me on demurrer I endeavored diligently to discover if the defence set up in the special plea in this case had ever before been made. The reason is plain. Thieves, rioters, gamblers, drunkards, or otherwise disorderly persons are not generally women, nor while traveling do women often misbehave, our own sex being substantially monopolists of these vices; nor are they generally engaged in any calling which can be used to the detriment of the carrier's business, by using his means of transportation to solicit patronage for a rival line, as in Jencks v. Coleman, 2 Sumn. 221, the leading case on this subject; and it is for this reason that carriers, acting upon the notions of chivalry that, with all its vices, characterize our sex, seek to protect women from the rude conduct of the disorderly by providing for them a special 'ladies' car,' in which, while traveling alone, they may be somewhat secluded. And, in my judgment, this case of Jencks v. Coleman has been often misapplied, as it has been in argument here, during which its language was repeatedly quoted with constant reiteration of emphasis. In delivering his opinion in the case, Mr. Justice Story uses language which, interpreted in the light of the facts he was considering, and of the facts of subsequent cases that have followed it properly in judgment, contains the enunciation of a principle that has become established law. But when he speaks of the character and conduct of passengers 'who are guilty of gross and vulgar habits of conduct, or who make disturbances on board, or whose characters are doubtful or dissolute or suspicious, and, a fortiori, whose characters are unequivocally bad,' he means character, habits, and conduct that are injurious to the other passengers in the sense that it subjects them to loss at the hands of the thief or gambler, to discomfort by reason of personal trespass and insult, or to annoyance by the exhibition of gross and vulgar habits. He does not mean that the common carrier, in the interest of the public, or its own supposed interest, shall become a censor of individual morals by assuming to classify his passengers according to his own idea, more or less fastidious, of their character or conduct, as established by their private lives. The carrier has nothing whatever to do with private character or conduct, except so far as it furnishes him with evidence of a probable injury about to be inflicted on his other passengers or his business. He must carry all who come properly dressed, and who behave genteelly, and cannot classify them according to their general moral reputations, though he may exclude those who are at the time inflicting injury and annoyance, or who have so unequivocally bad reputations for some vice that tends to injure and annoy the passengers, that he has reasonable grounds to assume that they will, if permitted to remain, put the vice in practice; nor need he wait for an overt act. It is easy enough to imagine the case of a dissolute man or woman so abandoned to habits of unchastity that either would, in a railroad car, give just offence by lascivious solicitations, the exhibition of indelicate manners, or the use of improper language; and a reputation for such conduct would justify exclusion. This is the issue made by the special plea here, and the one submitted to the jury, and found against the defendant corporation under a charge almost identical with the language of this opinion on that point.

The difficulty in this case arises from the fact that the defendant was not willing to confine the issue to that of the special plea, which alleged that the plaintiff was a notorious courtesan, addicted to the use of profane and indecent language in public places, and of gross and vulgar habits of conduct, (vide 4 FEDERAL REPORTER 38,) and which, if the jury had found to be true, would have been a good defence; but insists that, on the facts as proved, and under the general issue, it was entitled to a verdict, and should now have a new trial, because the court did not adopt that view. I cannot better present the principle upon which we were asked to try the case than by extracting it from the brief of defendant's counsel. 'We submit,' say they, 'that nothing could be more repulsive and annoying to ladies, and their fathers, husbands, and brothers, than to know that whores will be entitled to be seated by them in railroad cars;' and again. 'Why establish or maintain a 'ladies' car' at all, if whores, and all other classes of improper characters, can get admittance there, and their exclusion therefrom can only be justified from bad conduct at the time? ' This position was defended and illustrated by the argument ad hominem before the jury, and to the court, with great vehemence, and is not without some force. Passing the question whether the jury on the facts would so designate this plaintiff, the argument, in my opinion, is as wholly unsound as if applied to prevent the characters described from walking on the same street with 'ladies.' Nor do I see why it should not be applied to men as well as women, so as to exclude whoremongers, not only from the 'ladies" car, but from that in which 'gentlemen' ride. But the experience of every man who travels demonstrates that, as a fact, no such classification is attempted; and the proof was satisfactory that this company does...