Huff v. Norfolk-southern R. Co

• Decision Date: 22 March 1916
• Docket Number: (No. 170.)
• Citation: 88 S.E. 344
• Court: North Carolina Supreme Court
• Parties: HUFF. v. NORFOLK-SOUTHERN R. CO.

88 S.E. 344

HUFF.

v.NORFOLK-SOUTHERN R. CO.

(No. 170.)

Supreme Court of North Carolina.

March 22, 1916.

Appeal from Superior Court, Craven County; Bond, Judge.

Action by John W. Huff against the Norfolk-Southern Railroad Company. From a judgment for the defendant, the plaintiff appeals. Affirmed.

The action is to recover damages for alleged wrongful conduct of defendant and its employes in compelling plaintiff, a white man, to ride in the coach set apart for colored passengers. Among other things, the evidence tended to show that, on July 11, 1913, plaintiff, a white man and deputy sheriff of Craven county, having in charge a colored prisoner, handcuffed, bought tickets for himself and prisoner at Norfolk, Va., to Newbern, N. C, boarded defendant's train running between the two places, and started into the car assigned for white passengers; that he was directed by the conductor not to take the prisoner into the car assigned for the use of the white passengers. The plaintiff, testifying in his own behalf, said the conductor forced him to ride in the car for colored people, but, when asked what he meant by the use of that expression and to state just what occurred, the witness said:

"When I started into the white passenger with the prisoner, the conductor said: 'Hold on there you can't ride in here. You will have to go into the colored car." That the conductor acted very forcibly, and by saying that I mean only to say that he kept me from going into the white car by telling me to go into the colored car."

The evidence tended further to show that, when the train neared Plymouth, the prisoner jumped from the car and made a temporary escape; that the train was immediately stopped at the plaintiff's request, plaintiff, alighting, found and recaptured his prisoner, and took him to Newbern on a later train. There is no testimony or claim, however, that having the prisoner in the colored car was in any way the cause of his escape, nor is the suit brought for that reason, which is, as stated, for wrongfully refusing to allow plaintiff to enter the car for white passengers with his prisoner, and claimed to bein violation of section 2619, requiring carriers to provide separate accommodation for the different races. At the close of the evidence, on motion, there was judgment of nonsuit and plaintiff excepted and appealed.

Ernest M. Green, of Newbern, for appellant.

Moore & Dunn, of Newbern, for appellee.

HOKE, J. While there is learned and forcible decision to the contrary (Smith v. Tenn., 100 Tenn. 494, 46 S. W. 566, 41 L. R. A. 432), it seems to be the trend of opinion, and the decided intimation of the Supreme Court of the United States, on the subject that state legislation of this character may not extend to a case of interstate traffic. Chesapeake & Ohio R. R. v. Ky., 179 U. S. 388, 21 Sup. Ct. 101, 45 L. Ed. 244; Plessy v. Ferguson, 163 U. S. 537, 16 Sup. Ct. 1138, 41 L. Ed. 256; Hall v. De Cuir, 95 U. S. 485, 24 L, Ed. 547; Anderson v. Louisville & Nashville R. R. (C. C.) 62 Fed. 46; State ex rel. Abbott v. Hicks et al., 44 La. Ann. 770, 11 South. 74.

L1] We are not called on, however, to decide this question on the present appeal, nor to construe our statute in direct reference to it, for the reason that the law itself (Revisal, § 2619) after requiring all railroad and steamboat companies, engaged as common carriers in the transportation of passengers for hire, to provide separate and equal accommodations for white and colored passengers, contains provisos as follows:

"Provided, that this shall not apply to relief trains in cases of accident, to Pullman or sleeping cars, or through express trains that do not stop at all stations, * * * to negro servants in attendance on their employers, to officers or guards transporting prisoners, nor to prisoners so transported."

By the express terms of the statute, therefore, the present case is excluded from its operation, and must be determined as unaffected by direct statutory regulation. Considered, then, in that aspect, it is established by numerous decisions of our state courts that, in the absence of any statute, a common carrier may make and enforce reasonable regulations for governance and well-ordering of their trains and the power extends to a separation of the races on account of color, the carrier providing equal accommodation for all persons paying the same rate of fare. In an able, well-reasoned case from Pennsylvania, the principle and the basic reasons for it are stated by Justice Agnew, in part, as follows:

"The right of the carrier to separate his passengers is founded upon two grounds; his right of private property in the means of conveyance, and the public interest. The private means he uses belong wholly to himself, and imply the right of control for the protection of his own interest, as well as the performance of his public duty. He may use his property, therefore, in a reasonable manner. It is not an unreasonable regulation to seat passengers so as to preserve order and decorum, and to prevent contacts and collisions arising from natural or well known customary repugnancies, which are likely to breed disturbances by a promiscuous sitting. This is a proper use of the right of private property, because it tends to protect the interests of the carrier, as well as the interests of those he carries. If the ground of regulation be reasonable, courts of justice cannot interfere with his right of property. The right of the passenger is only that of being carried safely, and with a due regard to his personal comfort and convenience, which are promoted by a sound and well-regulated separation of passengers. An analogy and an illustration are found in the case of an innkeeper who,...