ST. LOUIS SOUTHWESTERN RY. Co. v. BRADLEY.

(Supreme Court of Arkansas, June 5, 1911.)

[138 S. W. Rep. 478.]

Carriers Passengers-Injury Inflicted by Intoxicated Fellow Passenger-Negligence of Carrier-Evidence-Sufficiency.*-In an action for injury to a railway passenger, inflicted by an intoxicated fellow passenger, evidence held to support a finding that the trainmen were negligent in failing to protect the injured passenger.

Appeal from Circuit Court, Craighead County; Frank Smith, Judge.

Action by Theyer Ula Bradley against the St. Louis Southwestern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

S. H. West and J. C. Hawthorne, for appellant.
Basil Baker, for appellee.

MCCULLOCH, C. J. The plaintiff, Theyer Ula Bradley, is an infant of very tender years, and sues to recover damages for personal injuries inflicted by an intoxicated fellow passenger while she was riding on one of defendant's trains. She was a passenger with her parents on the train, and one Ellis, a fellow passenger, who sat immediately behind them in the coach, repeatedly placed his feet on the seats occupied by plaintiff and her parents. The evidence tended to show that he was intoxicated to a considerable extent, and disregarded the remonstrance of the other passengers as to his conduct. According to the testimony, after he had been required to remove his feet from the back of the chair a time or two, he threw them up again on the back of the chair, and one of them came down with great force and struck the plaintiff's head, inflicting personal injuries, which resulted in considerable suffering. The jury returned a verdict in favor of the plaintiff, fixing a small amount of damages, from which the defendant appealed.

The only contention, as ground for reversal, is that the evidence is insufficient to support a finding that the servants of the defendant in charge of the train were guilty of negligence in failing to give protection to the plaintiff. We are of the opinion, however, that there is evidence to sustain the verdict. It

*For the authorities in this series on the subject of the duty of a railroad company to protect its passengers against their fellow passengers, see first foot-note of Penny . Atlantic Ć. L. R. Co. (N. C.), 38 R. R. R. 535, 61 Am. & Eng. R. Cas., N. S., 535.

Wadley Southern Ry. Co. v. Kennedy

tends to establish the fact that the conductor knew that Ellis was intoxicated and was giving annoyance to plaintiff's parents, and that he failed to take proper steps to protect them against the drunken passenger.

The judgment is therefore affirmed.

WADLEY SOUTHERN RY. Co. v. KENNEDY.

(Supreme Court of Georgia, June 17, 1911.)

[71 S. E. Rep. 740.]

Appeal and Error-Harmless Error-Statement by Court.-An immaterial and unprejudicial misstatement of a party's contention in the court's summary will not require a new trial. Carriers Trial-Instructions-Expression

*

of Opinion-Duty of Carrier. The charge copied in the second division of the opinion was not open to the criticism that it contained an expression of opinion on the facts.

(a) The rule of law requiring railroad companies to exercise extraordinary diligence in protecting their passengers from injury applies as well to the construction and maintenance of tracks as to the operation of cars thereon.

Sufficiency of Evidence.-The verdict is supported by the evidence, and is not excessive in amount.

(Syllabus by the Court.)

Error from Superior Court, Johnson County; B. T. Rawlings, Judge.

Action by J. E. Kennedy against the Wadley Southern Railway Company. Judgment for plaintiff, and defendant brings Affirmed.

error.

R. L. Gamble, for plaintiff in error.

Oliver & Oliver, for defendant in error.

EVANS, P. J. The Wadley Southern Railway Company con

*For the authorities in this series on the subject of the degree of care required of a railroad as a carrier of passengers, see last paragraph of last foot-note of Sherman v. Southern Pac. Co. (Nev.), 38 R. R. R. 407, 61 Am. & Eng. R. Cas., N. S.. 407: last foot-note of St. Louis, etc., Ry. Co. v. Woods (Ark.), 38 R. R. R. 404, 61 Am. & Eng. R. Cas., N. S., 404; third head-note of Indiana Union Traction Co. v. Keiter (Ind.), 38 R. R. R. 545, 61 Am. & Eng. R. Cas.. N. S., 545; third foot-note of Florida Ry. Co. v. Dorsey (Fla.), 37 R. R. R. 556, 60 Am. & Eng. R. Cas.. N. S.. 556; last foot-note of Washington, etc., Ry. Co. v. Trimyer (Va.), 37 R. R. R. 114, 60 Am. & Eng. R. Cas., N. S., 114.

Wadley Southern Ry. Co. v. Kennedy

structed a side track upon its main line to serve the interests of a patron of the road, who was operating a sawmill. The railroad company delivered empty cars and received the loaded cars on this siding, which was protected by a switch. The keys to the switch were carried by the employees of the railroad company. The employees of the sawmill firm forced out a staple in shifting the cars on the side track, for their convenience, and left the switch in an unclosed condition; and a passenger train ran into the switch and collided with the freight cars, and the shock of the collision threw the plaintiff, a passenger, against a forward seat, loosening her teeth and otherwise injuring the jaw. The same train had passed along at this point at 2 o'clock, and was on its return trip at about 7 o'clock, after dark, when it ran into the open switch. The switch was not protected by any light or other device to warn the engineer or others upon the train whether it was open or closed. The plaintiff recovered a verdict for $1,500, which the court refused to set aside on motion.

[1] 1. It is complained that the court, in the summary of the railroad's contention, stated that the switch was left open by a party unknown. Error is assigned upon this statement of the contention, because the evidence showed that the switch was opened and left open by the employees of the lumber company, without authority of the defendant and without its knowledge. The erroneous statement by the court that the defendant contended that the switch was left open by an unknown person, when in fact the contention was that it was left open by an employee of the lumber company, could not have harmed the defendant. The carrier was insisting that it was not liable because of the act of an unauthorized person, and whether the name of that person was known or unknown was immaterial to the actual defense set up.

[2] 2. The court charged: "On the other hand, I charge you, if you find from all the facts and circumstances of the case that the defendant company constructed this side track used by certain parties for the purpose of loading cars along its line for the purpose of transportation over its railway, and such parties using said switch left said switch open negligently, and it was known to the defendant company, or could have been ascertained by them by the exercise of extraordinary care and diligence, and it was not ascertained, and they failed to exercise such care and diligence, and the wreck occurred in that way, then I charge you that that was negligence on the part of the defendant company." This instruction is alleged to be erroneous, because it was an expression of opinion that the enumerated facts and circumstances constituted negligence, and because it imposed upon the carrier the duty of exercising extraordinary care and diligence in the discovery of the open switch. It was but a concrete statement of the principle that the failure to ex

McCabe et al. v. Atchison, T. & S. F. Ry. Co. et al ercise due care constitutes negligence, and did not amount to an expression of opinion on the facts. With respect to the criticism that the charge imposed upon the carrier the duty of exercising extraordinary care and diligence in the discovery of the open switch, we do not think that the charge is erroneous for that reason. Extraordinary care is the measure of diligence required of a railroad company towards passengers, and this degree of care in the protection of passengers applies as well to the construction and maintenance of tracks as to the operation of cars thereon. Macon, etc., Ry. Co. v. Barnes, 113 Ga.

212, 38 S. E. 756.

[3] 3. The plaintiff in error asks that the verdict be set aside, because the recovery was excessive. The effect of the injury, as described by the plaintiff and her physician and dentists, was such that we are unable to say that the amount fixed by the jury was excessively large.

Judgment affirmed. All the Justices concur.

MCCABE et al. v. ATCHISON, T. & S. F. Ry. Co. et al. (Circuit Court of Appeals, Eighth Circuit, February 10, 1911.)

[186 Fed. Rep. 966.]

States-Formation-Enabling Acts-Construction. The authority conferred by the act (Act June 16, 1906, c. 3335, 34 Stat. 267) enabling the people of Oklahoma and Indian Territory to form a constitution, which provides that the delegates to the constitutional convention shall adopt the federal Constitution, and shall form a state constitution which shall be republican in form, and which shall make no distinction in civil and political rights on account of race or color, and which shall not be repugnant to the federal Constitution, is a working rule, addressed to the delegates forming a constitutional convention, and, where a constitution formed by the convention has been declared by the President of the United States as authorized by the enabling act to conform to the enabling act, the obligations of the character indicated imposed by the enabling act cease, and individuals may not invoke the act as a prohibition against state legislation, though the enabling act also requires that the constitutional convention shall accept its terms and adopt an ordinance to that effect.

Constitutional Law—Equal Protection of the Laws.*—The provision of Comp. Laws Okl. 1909, § 434 et seq., requiring every railway company doing business in the state to provide separate coaches for the accommodation of the white and negro races, equal in points of

*See foot-note of Hart v. State (Md.), 16 R. R. R. 622, 39 Am. & Eng. R. Cas.. N. S., 622.

McCabe et al. v. Atchison, T. & S. F. Ry. Co. et al comfort and convenience, and to maintain separate waiting rooms at their passenger depots for the accommodation of the races, does not abridge the privileges and immunities of the negro race, and deny to them the equal protection of the laws, in violation of the fourteenth amendment to the federal Constitution.

Constitutional Law-Equal Protection of the Laws.-The proviso in the statute that nothing contained therein shall be construed to prevent railway companies in the state from hauling sleeping cars, dining, or chair cars attached to their trains to be used exclusively by either white or negro passengers separately, imposes no obligation on carriers to haul such cars for either race, but permits them to haul such cars for the separate use of either of the races, and it is not discriminatory against either race, and does not deprive the negro race of the equal protection of the laws.

Constitutional Law-Equal Protection of the Laws.-Equality of service does not mean identity of service. It is only when conditions and circumstances are substantially alike, and when demand for luxuries like sleeping cars, dining cars, and chair cars is of a substantial character, that they must be furnished for one race, if furnished for the other.

Constitutional Law-Equal Protection of the Laws.-That carriers operating under Comp. Laws Okl. 1909, § 434 et seq., requiring carriers to provide separate coaches for the accommodation of the white and negro races, equal in all points of comfort and convenience, operate unevenly and oppressively to the negro race by their interpretation and execution of the statute, does not render the statute violative of the fourteenth amendment to the federal Constitution, as depriving the negro race of the equal protection of the laws.

Constitutional Law-Commerce Clause-Construction in Favor of Constitutionality.-Comp. Laws Okl. 1909, § 434 et seq., requiring every railway company doing business in the state to provide separate coaches for the accommodation of the white and negro races, equal in all points of comfort and convenience, must be construed to apply to intrastate commerce alone, and, when so construed, it is not violative of the commerce clause of the federal Constitution.

Injunction-Incidental Relief-Bill-Sufficiency.—The allegations of a bill in a suit to enjoin railroads from obeying Comp. Laws Okl. 1909, § 434 et seq., requiring every railway company to provide separate coaches for the accommodation of the white and negro races, brought before the statute became operative, that the railroads are making distinctions in the civil rights of the negro race and persons of the white race in the operation of its trains, in that equal comforts and accommodations will not be provided for the negro race, that passenger coaches maintained for the negro race are not provided with separate and equal toilet and waiting rooms for male and female passengers of the negro race, nor equal smoking accommodations, nor separate and equal chair cars, sleeping cars, and dining car accommodations, are too vague to constitute a cause of action,