New v. Atl. Greyhound Corp.

• Decision Date: 03 September 1947
• Citation: 43 S.E.2d 872,186 Va. 720
• Court: Virginia Supreme Court
• Parties: NEW. v. ATLANTIC GREYHOUND CORPORATION et al.

43 S.E.2d 872

186 Va. 720

NEW.

v.ATLANTIC GREYHOUND CORPORATION et al.

Supreme Court of Appeals of Virginia.

Sept. 3, 1947.

[COPYRIGHT MATERIAL OMITTED]

Error to Law and Equity Court of City of Richmond; Willis D. Miller, Judge.

Proceeding by notice of motion by Mrs. Ethel New against Atlantic Greyhound Corporation and W. N. Smith, for damages for assault and battery allegedly committed in forcibly evicting plaintiff from passenger motor vehicle of defendant corporation. To review a judgment for defendants, plaintiff brings error.

Judgment affirmed.

Before HUDGINS, GREGORY, EG-GLESTON, SPRATLEY, and BUCHANAN, JJ.

Hill, Martin & Robinson, of Richmond, for plaintiff in error.

Robert D. Morrison, of Lynchburg, and John C. Goddin, John G. May, Jr., and Robert Lewis Young, all of Richmond, for defendants in error.

SPRATLEY, Justice.

Mrs. Ethel New, a colored woman, instituted this proceeding by notice of motion to recover damages for wrongs and personal injuries, which she alleged were occasioned by reason of an assault and battery committed by the Atlantic Greyhound Corporation and W. N. Smith, in forcibly evicting her from a passenger motor vehicle of the defendant corporation, a common carrier, upon her refusal to occupy a seat assigned to her by the driver of the vehicle. The defendants pleaded not guilty.

The case was tried before a jury, which rendered a verdict in favor of the defendants. A motion for a new trial was overruled. From the judgment entered in accordance with the verdict of the jury, this appeal was taken.

Two questions are presented for our consideration, one, of law, that is, the validity of a statute; and, the other, of fact, that is, the sufficiency of the evidence to sustain the verdict.

The pertinent and material facts, stated in the light of the jury's verdict, are these:

On the night of June 11, 1944, Mrs. New, sometimes hereinafter referred to as the plaintiff, was travelling as an intrastate passenger on one of the motor buses of the Atlantic Greyhound Corporation, having purchased a ticket from Blackstone, Virginia, to Appalachia, Virginia. The Atlantic Greyhound bus line did not extend to Appalachia, and it was necessary for the plaintiff to travel from Bristol, Virginia, to Appalachia on the bus of another company. When she boarded the bus it was crowded, with passengers standing in the aisle, and she stood up from Blackstone to Lynchburg, Virginia. When the bus stopped at its terminal in Lynchburg to discharge and take on passengers, the bus driver's attention was called to the fact that the plaintiff was sitting on the front seat of the bus. The driver explained to her that there was a rule under which colored passengers were required to sit behind the white passengers, and asked her to move back of the white passengers. She moved to the last aisle seat, being the seat next to a long seat across the whole of the rear of the bus. The driver went into the terminal to check in. On returning to the bus, he again spoke to the plaintiff, asking her to move farther back and sit with three other colored passengers on the five-passenger rear seat, in order that two white passengers standing in the aisle might sit in the seat occupied by her. He explained to her the rule of the company requiring the seating of colored passengers behind white passengers, adding that there was a statute in Virginia to the same effect, and that ifshe did not exchange seats, he would have to call the police. She refused to move, and told the driver that she had no intention of moving. The driver then called the police, and W. N. Smith, a lieutenant of police of the city of Lynchburg, and Officer Bagby of the same police force responded and came to the bus. Smith talked to Mrs. New on two separate occasions, endeavoring to persuade her to move to the rear seat and make the seat next to the rear available for the two standing passengers. Smith, in a polite and patient manner, explained to her both the law and the rule of the company. One witness said he "explained the situation very gentlemanly." Unable to get her to exchange seats, she was forcibly led from the bus by Officer Bagby. The incident occupied a period estimated at from thirty minutes to an hour. Mrs. New said she was roughly pulled off the bus by Smith, assisted in part by the driver; but the great weight of the testimony sustained the statement of Smith and others that it was Officer Bagby alone who took her by the arm and led her off the bus, using little force and no more than was necessary under the circumstances of her passive resistance. The testimony of the plaintiff that she told the bus driver and officers that she was sick was contradicted by the police officers, the bus driver, and several of the passengers on the bus.

The quality and convenience of the long back seat to which the plaintiff was asked to move were stated to be equal to those of the seat she occupied. While the back of the long seat was not adjustable, it had the same springs and covering as the other seat. Its windows were not adjustable; but there was a ventilator over its top for the removal of hot air and odors, a device lacking over the other seats.

Mrs. New testified that she suffered some bruises and injuries as a result of her ejection from the bus. She said she was, at that time, three months pregnant. Upon her subsequent arrival at her home in Kentucky, she consulted her physician. On June 18, 1944, she had a miscarriage or abortion. Her physician said in his opinion, there was a causal connection between the injuries of Mrs. New, as related to him by her, and her subsequent abortion. Upon the completion of the evidence, after overruling a motion of the plaintiff to strike the evidence of the defendants, the court gave the jury five instructions. The plaintiff objected to instructions numbered one and two, on the grounds, first, that the bus company had shown no rule or regulation requiring the segregation of passengers on account of race nor informed her of such rule; and, second, that there was no valid statute requiring the separation of colored and white passengers on buses in Virginia. Since the instructions one and two go to the very heart of the case, both as to ascertained facts and the applicable law, we set them out at length:

Instruction No. 1. "The Court instructs the jury that any driver or operator of a motor vehicle engaged in the transportation of passengers wholly within this state as a common carrier is required by law when it may be necessary or proper for the comfort and convenience of passengers to change the seat designation of a passenger or passengers so as to increase or decrease the amount of the space or seats set apart for either race, but no contiguous seats on the same bench shall be occupied by white and colored passengers at the same time, and the driver or operator of any such vehicle may require any passenger to change his or her seat when it may be necessary and proper for such separation of the races, provided, however, that such driver or operator shall make no difference or discrimination in equality or convenience of accommodations provided for any member of the two races, —that is, no party shall be required to give up a seat for one of poorer quality or convenience in accommodation for such traveling passenger.

"But before any such segregation of passengers shall be had upon any bus operated in intrastate travel in Virginia it is required that there be a rule, regulation or custom of such transportation company in force to such effect, and that the passenger or passengers who are requested to vacate one seat for another shall be advised of the fact of such regulation, rule or custom and requested to conform thereto.

"You are therefore instructed if you believe from the evidence in this case thatthe plaintiff was seated upon the first cross seat in the rear next to the long seat across the extreme rear of the bus, and that there were vacant seats upon the extreme rear scat, and that there was in effect a rule, regulation or custom of the company with regard to the allotment of separate space in the bus to the different races, and that she was advised of such rule, regulation or custom and requested to change her seat to the long rear seat in the rear, and that such was necessary and proper for the comfort and convenience of the passengers upon said bus, and that the quality and convenience of the accommodations of the extreme rear seat was equal to that of the seat occupied by the plaintiff, then it was her duty to make such change of seats when being so requested. But if you believe from the evidence in this case that there was no such rule, regulation or custom in force by the defendant company, or that she was not advised of the same by the. operator of the bus upon his request to her to vacate her seat, or that the convenience and quality of the accommodation upon the rear seat was not equal to that of the seat she occupied, then she was under no obligation to make such change of seats. And if you further believe that she was ejected when no such obligation existed as herein set forth, then you should find your verdict for the plaintiff.

"However, if you believe from the evidence that she was advised of such rule, regulation or custom, and that the quality and convenience of the accommodation upon the extreme rear seat was equal to that that she then occupied and it was necessary for the comfort and convenience of the passengers upon said bus that such change be made, and she refused to make such change, and was ejected by the use of no more force than was necessary, then you should find your verdict for the defendants."

Instruction No. 2. "The Court instructs the jury that if you believe from the evidence in this case in the light of Instruction No. 1 heretofore read to you that the plaintiff was obligated to change her scat, but unreasonably and stubbornly refused to do so, then the police officers and the company...