Southern Ry. Co. v. Lee

• Decision Date: 19 May 1910
• Citation: 167 Ala. 268,52 So. 648
• Parties: SOUTHERN RY. CO. v. LEE.
• Court: Alabama Supreme Court

52 So. 648

167 Ala. 268

SOUTHERN RY. CO. v. LEE.

Supreme Court of Alabama

May 19, 1910

Appeal from Circuit Court, Wilcox County; B. M. Miller, Judge.

Action by Lillian C. Lee against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The substance of the complaint is sufficiently set out in the opinion. The third plea interposed by defendant is as follows: "For further answer to plaintiff's complaint, and each count thereof, severally and separately this defendant says: Actio non; for it says that, at the time of the alleged grievances and happenings on said train, the plaintiff was riding, and had with her on the first-class coach reserved for white passengers a negro boy or young man that the other passengers on said train objected to the said negro riding in the coach so reserved for white passengers as they had a right to do, and on account of plaintiff's wrongful failure or refusal to have the said negro moved out of said coach and into the coach or compartment reserved for colored passengers, the said white passengers indulged in conduct and language to induce the said negro to get out of said car and go into the car for colored people. And defendant avers that by reason of the breach of her duty as a passenger by plaintiff, in bringing or keeping the said negro in said car, the said language and conduct was indulged in by said alleged male passengers." Plea 5 alleges the same state of facts, with the additional allegation that under and by virtue of the laws of Tennessee it is provided in substance and legal effect that negroes and white passengers shall ride in separate coaches and compartments, and not in the same compartments or coaches.

Pettus Jeffries, Pettus & Fuller, for appellant.

Daniel Partridge, Jr., and N. D. Godbold, for appellee.

SIMPSON J.

This action was brought by the appellee against the appellant, on the contract between the appellee, as a passenger, and the appellant. The case was submitted to the jury on the first and second counts of the amended complaint. The first count sets out the contract, by which the defendant undertook to carry the plaintiff from Pine Hill, in Wilcox county, Ala., to Lenoir, in North Carolina, and return, and alleges that, on the return trip, at a point between Knoxville and Chattanooga, in the state of Tennessee, the servants or agents of the defendant failed "to use ordinary diligence to preserve order among certain male passengers who were then and there engaged in disorderly conduct on said train, but, to the contrary, did negligently allow or permit said male passengers * * * to engage in disorderly conduct, to use obscene, indecent, threatening, profane, and insulting language in the presence and hearing of plaintiff and in close priximity to her"; that said conduct was known to said servants, or by the use of proper care could have been ascertained and prevented; that plaintiff is a woman and was in a weak and debilitated condition, which was known to said servants, or could have been seen by them by the use of ordinary powers of observation; that said language and conduct was reasonably calculated to, and did, greatly terrify, alarm, frighten, and injure plaintiff, and as a proximate consequence thereof she suffered a complete physical collapse, fainted, etc., and suffered serious consequences, which are set out. The gravamen of the second count is that the car was greatly crowded, that it was impossible for the servants and agents, by reason of the inadequate number of the same, to perform the duties of caring for and protecting the passengers, and to meet the needs of ordinary conditions of travel; but it goes on to allege that said servants, by the use of due diligence, could have learned of the disorderly conduct, etc., and prevented the injury, but that defendant failed or neglected to provide an adequate number of servants to meet the needs of ordinary conditions of travel.

There was no error in sustaining the demurrer to plea 3 interposed by the defendant. Said plea does not allege or show that there was any law or rule prohibiting colored passengers from riding on the same coach with white passengers, and, if there was such a law or rule, that would not justify the employés of defendant, in charge of said coach, to permit passengers to use profane, obscene, and indecent language in the presence of female passengers. That is not the way to enforce such a rule,

There was no error in sustaining the demurrer to plea 5. While it is sometimes stated that a carrier is not liable for mere rudeness of one passenger, to another, which does not amount to a breach of the peace, and the illustrations generally given are such as rudeness, by passengers, in passing out of a car by pushing others, etc. (2 Hutchinson on Carriers [3d Ed.] § 983, and notes), yet liability for the mere rudeness of a passenger, and liability for the negligence of the servants of the carrier, in permitting the continuance of said rudeness, are two entirely different propositions. The laws of the different states, and the respect which public opinion demands for females in this country, show that it is an offense, sometimes punishable criminally, for a man to use profane, indecent, obscene, and insulting language in the presence of females, and it is the duty of the carrier, as far as possible, to...