Royston v. Illinois Central R. R. Co.

• Decision Date: 17 February 1890
• Citation: 7 So. 320,67 Miss. 376
• Court: Mississippi Supreme Court
• Parties: AARON ROYSTON v. ILLINOIS CENTRAL R. R. CO

7 So. 320

67 Miss. 376

AARON ROYSTON v. ILLINOIS CENTRAL R. R. CO

Supreme Court of Mississippi

February 17, 1890

FROM the circuit court of Benton county, HON. W. M. ROGERS, Judge.

Action by appellant against the appellee for damages.

On the evening of December 12, 1888, appellant, Aaron Royston, a colored man, purchased of the agent of the Illinois Central R. R. Co. at Holly Springs, Miss., a ticket, entitling him to transportation over the line of its road to Water Valley Miss. He and a companion, another negro, boarded the south bound passenger train and seated themselves in the first-class coach. Besides the express, mail and sleeping cars, the train carried only one first-class passenger coach and a smoking car. There were no separate accommodations for white and colored passengers as required by the act of March 2, 1888, and the car in which plaintiff was seated was occupied by other passengers, white and colored. While on the train, after dark and some time after starting, appellant being on the platform between the first-class coach and the smoking car, was assaulted by some one who severely injured him by striking him with a pistol. For such injuries this suit was brought against the railroad company. The declaration is upon the contract, alleging in one count that the conductor did the beating. The defendant pleaded the general denial.

On the trial the testimony for plaintiff tended to show that the conductor, without cause, directed him to go out of the first-class coach and into the smoking car, and that he started to comply, but finding the other car full of tobacco smoke, which was nauseating to him, he remained on the platform; that the conductor spoke to him several times while there, and endeavored to compel him to enter the smoking car and, failing in this, finally cursed and beat him.

Defendant's testimony tended to show that the plaintiff was drinking and boisterous; that two lady passengers, on account of this asked the conductor to provide them with other seats; that the conductor informed plaintiff that he must behave or go into the other car, whereupon he went on the platform and stubbornly remained there, in the way of other passengers getting on and off; that it was dangerous and a violation of the rules to ride on the platform, but that plaintiff could not be induced to go into either car; that while there a white passenger, having observed the conduct of plaintiff got into an altercation with and assaulted him; that the conductor at the time was in another part of the train, and knew nothing of the beating until afterwards, and could not have prevented it. Plaintiff denied drinking on the train but stated that he had taken a drink of whisky at a bar-room in Holly Springs shortly before leaving. It was shown that none of the other colored passengers in the ear were molested by the conductor. The question of fact mainly controverted was whether the conductor did the beating. As to this there was a direct, and positive conflict between the witnesses for the respective sides. Plaintiff asked the court, among other things, to instruct the jury that the defendant, being a carrier for hire, was bound to provide for plaintiff safe and comfortable cars, and, for a failure to do this, plaintiff was entitled to recover; that proof of injury was prima, facie evidence of negligence; that if plaintiff was forced to ride on the platform, defendant was liable, and it was immaterial who did the beating; that the failure to provide separate accommodations for white and colored passengers was negligence, and, if it was the proximate cause of the injury, plaintiff was entitled to recover. These instructions were refused.

The court gave instructions for the plaintiff and defendant respectively, submitting to the jury the questions of fact as to whether the plaintiff was improperly and without cause excluded from the coach in which he was seated; and as to whether he was assaulted by the conductor or a stranger; and whether the injury was caused by the fault or negligence of the defendant's servants. Eleven instructions were given on behalf of plaintiff, defining his rights as a passenger and the duties of the defendant as a common carrier, and among other things the jury was instructed that the defendant as such carrier was "required to do all that human care, vigilance, and foresight can reasonably do, in view of the character and mode of conveyance adopted, to prevent accidents or injury to passengers."

By the first instruction granted for defendant it was announced that there could be no verdict for plaintiff on the preponderance of evidence, unless the evidence was sufficient to satisfy the jury of the truth of all of the facts on which plaintiff's right to recover depended.

The second instruction announced that the plaintiff could not recover if his own wrong proximately contributed to the injury. And the jury was also told that it was the right and duty of the conductor to eject the plaintiff from, the coach if his conduct was boisterous and offensive to other passengers.

The court also instructed the jury for defendant that the plaintiff could not recover if the injury was inflicted by a fellow-passenger, and the conductor could not have prevented or mitigated it; also that it was the duty of the conductor to protect other passengers, even to the extent, by reasonable force, of expelling plaintiff from the car, if his conduct was improper and offensive; and that it was not incumbent on the conductor to neglect his other duties and stand on the platform to protect plaintiff, but that if the plaintiff improperly remained on the platform and was assaulted by another passenger, without the knowledge or concurrence Of the conductor, who at the time was attending to his duties in another part of the train, the verdict should be for defendant. There was also an instruction for defendant as to exemplary damages; but, in view of the decision of this court, it is unnecessary to set it out. The instructions which were given and refused are lengthy and numerous, and it is not considered necessary to insert them here.

The opinion of the court contains a further statement of the ease.

Verdict and judgment for defendant. Motion for new trial overruled. Plaintiff appeals.

Affirmed.

Calhoon & Green, for appellant.

1. It was error to grant instructions for defendant, over objection of plaintiff, that were not applicable to the issue joined. Justification for the breach of contract could not be set up under the plea of non assumpsit. Therefore it was error to instruct the jury as to any boisterous conduct of plaintiff.

2. It was error for the court to withdraw the affidavit for continuance from the jury and allow the witness Milan to testify after the case had passed from the field of presentation into that of deliberation. This was such an interference with the management of defendant's side of the case as to indicate to the jury that the court leaned that way. It is unlike Offit v. Sick, Walker [Miss. R.], 103, where the jury desired to have the testimony of a witness repeated. We find no precedent for the action of the court. After a case has been closed and submitted to the jury, the utmost the court can do is to recall a witness, in case of dispute as to his testimony. "Even this power should be sparingly exercised." Duff v. Snider, 54 Miss. 253.

3. The court erred in refusing plaintiff's instructions as to the duty of defendant to provide separate accommodations for white and colored passengers. The law requires separate first-class coaches for negroes. Here the difficulty was, that plaintiff, a negro, was loud-mouthed, as was characteristic of the race, and this was objectionable to the white passengers. Recognizing just such difficulties, the law provides for separate cars. Plaintiff having a first-class ticket, was entitled to transportation in a first-class coach occupied only by those of his own race. It was a breach of the contract not to furnish such. As requested, the court should have instructed the jury, flint if the failure of defendant to provide separate accomodations was the proximate cause of the occurrence of the injury, the verdict should have been for plaintiff. It seems clear from the evidence that the real cause of the trouble was that the negro would not obey the command or wish of the whites for him to go out of the coach into the second-class car. If there had been separate first-class accommodations, no trouble would have arisen.

4. The other instructions for plaintiff were improperly refused. They merely told the jury that on the facts recited therein the plaintiff was entitled to recover. No directions as to...