Southern Ry. in Ky. v. Thurman

• Decision Date: 10 January 1906
• Citation: 121 Ky. 716
• Parties: Southern Ry. in Ky. v. Thurman.
• Court: Kentucky Court of Appeals

Page 716

121 Ky. 716

Southern Ry. in Ky. v. Thurman.

Court of Appeals of Kentucky.

January 10, 1906.

Appeal from Fayette Circuit Court.

WATTS PARKER, Circuit Judge.

Judgment for plaintiff. Defendant appeals. Reversed.

JOHN T. SHELBY and HUMPHREY, HINES & HUMPHREY for appellant.

MORTON, WEBB & WILSON for appellee.

COPYRIGHT MATERIAL OMITTED

OPINION BY CHIEF JUSTICE HOBSON — Reversing.

Mrs. Louella Thurman, in March, 1902, resided in Harrodsburg. On the morning of March 20th she came to Lexington to consult a physician, with the intention of returning home that evening on the Southern Railway. She went to the evening train in company with a friend, Mrs. Bess, and entered the ladies' coach and took a seat; Mrs. Bess sitting on the arm of the seat and talking with her. While they were talking, two other ladies sitting in the same car seemed to be under the impression that Mrs. Thurman was not a white person, and were saying in effect, "Why have we a separate coach law, if we have to ride in the car with a negro?" A brakeman, hearing this conversation, asked them where the negro was, or, as they say, asked them if Mrs. Thurman was a negro. He says that one of them answered him that she was. The lady says that she answered him that she did not know. The brakeman then went to Mrs. Thurman and asked her to go into the other car, touching her on the shoulder. She got up, Mrs. Bess going along with her, and went out of the car. When she got to the platform, Mrs. Bess told her "Good-bye," and Mrs. Thurman went into the car ahead, and, finding that she had been invited into the colored car, came back immediately and said to the brakeman: "What do you mean by sending me into the colored coach? I am not a colored person. You must be mistaken in your person. My name is Mrs. Thurman, and I live at Harrodsburg." She says he answered: "You can not come that on me. I know you of old. There are others who know you, and, madam, in this car you won't ride." He says he said to her: "I am only doing my duty. The white people were kicking about your being in there, and said you are a negro." He refused to allow her to return to the ladies coach. She then left the platform and went to her friend, Mrs. Bess, who was still at the station, and she and Mrs. Bess as they returned to the train met the conductor, to whom they explained the situation. The conductor told her to come on and get on the train, which she did, and went home. She brought this suit for damages against the railroad company, and recovered a judgment for $4,000, and from this judgment the railroad company appeals.

She introduced on the trial W. M. Turner, and proved by him, over the defendant's objection, that four or five minutes after Mrs. Thurman left the car he heard the brakeman then say she was a whore off of Dewees street. This took place after the expulsion from the car, and was in no way connected with it. It was not a statement by the agent while engaged in the transaction, but after the transaction was over. What the agent says while he is doing the business of his master is competent against the master; but what he says after the business is done, and when he is simply giving a narrative of what he has done, or justifying himself for what he has done, is not competent against the master. The statement was not so connected with the transaction as to be part of the res jestae, and should not have been admitted.

The brakeman testified that, after Mrs. Thurman and Mrs. Bess joined the conductor, he came up and took off his cap and apologized for what he had done. In this statement he is corroborated by several other witnesses. Mrs. Bess was allowed to state that as they went onto the car the brakeman said to her, after she told him who Mrs. Thurman was: "You can't fool me. There are three of them on Dewees street. I know them on Dewees street." What the brakeman said at this time to Mrs. Bess was like what he said to Turner after the transaction...