O'Leary v. Illinois Cent. R. ( 1915 )

Stevens, J.,

delivered the opinion of the court.

Appellant, as plaintiff in the court below, brought this suit against the Illinois Central Railroad Company to recover damages for-the alleged wrongful acts of the defendant’s conductor and employees in forcing the plaintiff to give up his seat in a vestibule ear and to accept insufficient accomodations in an inferior coach or caboose, while plaintiff was a regular passenger on .an excursion from Kosciusko, Miss, to New Orleans, La. The Declaration charges that plaintiff, with several associates, boarded a well-advertised excursion train , being run by the defendant company from Aberdeen, Miss., io New Orleans, La.; that plaintiff and his companions secured comfortable revolving chairs in a handsome plush coach, equipped with good lights and supplied with drinking water and the other usual conveniences ■ of a first-class passenger coach; that he was well cared for in this car until the train reached Hammond, La., where the conductor of the train ordered plaintiff and the passengers of the coach in which plaintiff was seated to vacate this coach to make room for a large crowd of negro excursionists; that plaintiff and his friends protested, hut that, the conductor, with the aid of a policeman, armed with his “billy,” ordered plaintiff from this vestibule car, which had been assigned to white passengers, and attempted to move plaintiff with force ■and arms; that the conductor used violent and offensive language, and permitted the car to fill rapidly with negroes, before plaintiff and the other white people, both ladies and gentlemen, vacated; that plaintiff was forced and compelled against his consent and over his protest to leave his comfortable seat and surroundings, and do ride in a caboose or inferior coach, over which was written “For Colored People Only,” and which was packed and crowded with negroes and toughs, and where there were no seats or proper accommodations; that plantiff was compelled to ride the balance of his journey •on the arm of a seat filled with other passengers. There are other allegations in the declaration not necessary to detail. Issue was joined and much evidence introduced by both parties on the trial of the case below. A verdict was returned for the defendant, and from the .judgment based thereon plaintiff prosecutes this appeal.

The evidence on behalf of the plaintiff, briefly stated, is to the effect that, while plaintiff and his companions were enjoying the journey in a clean and expensive ■coach, well provided with seats, lights, and water, he was' forced by the conductor, with the assistance of an officer from Hammond, La., to surrender his seat and to betake himself and his baggage through several coaches, already crowded, to the rear coach of the train; that this rear coach was “just a dirty, filthy caboose, with just a dingy old oil lamp, with the chimney blacked; ’ ’ -.that the floor of this coach was littered with tobacco stubs and smeared with tobacco juice and dirt; that plaintiff could not obtain a seat, but was compelled to ride on the arm of the seat of other passengers; that this coach had a terribly bad odor and was not provided with drinking water.. The evidence on behalf of plaintiff is further to the effect that the conductor “grabbed hold of Mr. O’Leary” and pushed him out on the platform; that in this the conduct- or was assisted by the officer; that plaintiff was humiliated and wronged by the offensive and abusive treatment of the conductor, as well as the porter and the-officer, and that his contract of carriage was violated. The evidence for the plaintiff shows, also, that negroes began to file into the car before the plaintiff and his companions had time to move out. The evidence discloses additional details and circumstances in aggravation of the complaint. The testimony on behalf, of the defendant was in sharp and direct conflict with that on behalf of the plaintiff.

We are asked to reverse the case because of the granting of erroneous instructions in behalf of the defendant-instructions Nos. 3 and 5, complained of, are in the following language:

“No. 3. The court instructs the jury, for the defendant, that the laws of Louisana, as bearing upon separate coaches or compartments for the races, are as follows :

“That all railway companies carrying passengers in: their coaches in this state shall provide equal, but separate, accommodations for the white and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations: Provided, that this section shall not be construed to apply to street railroads. No person or persons shall he permitted to occupy seats in coaches other than the ones assigned to them on account of the race they belong to.

‘ ‘ That the officers of such passenger trains shall have the power and are hereby required to assign each pas•senger to the coach or compartment used for the race to which such passenger belongs; and any passenger insisting on going into a coach or compartment to which, by race, he does not belong, shall be liable to a fine of “twenty-five dollars, or in lieu thereof' to imprisonment for a period of not more than twenty days in the parish prison; and any officer of any railroad insisting on assigning a passenger to a coach or compartment other than the one set aside for the race to which said passenger belongs shall be liable to a fine of twenty-five dollars or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison; and should any passenger refuse to occupy the coach or compartment to which he or she is assigned by the officer of such railway, said officer shall have power to refuse to carry such passenger on his train, and for such refusal neither he nor the railway company which he represents shall be liable for damages in any of the courts of this state.

“And it was the duty of both passengers and railroad •officials to obey said laws.”

“No. 5. The court instructs the jury, for the defendant, that, in order for them to reach a conscientious and legal verdict in this case, they must arrive at it by relying upon the credible evidence in the case and upon the instructions given by the court. The unsworn statements and arguments of the attorneys for either side, and passion and race prejudice, if any, are not evidence ■or law, and under vour oaths you cannot consider them as evidence or law in reaching a verdict in this case.”

For the purposes of this case it is not necessary to set out in detail the evidence for the railroad company. It is conceded every complaint made by the plaintiff is contradicted by the proof on behalf of the defendant. The case was one for the jury to decide upon proper instructions.

Instruction No. 3 presents to the jury in haec verba the statute of Louisiana providing for and forcing separate accommodations for white and negro passengers. The' granting of this instruction in the present case was, in our judgment, error. This statute has been held by the' Louisana court to apply only to intrastate passengers, and had no direct bearing upon the rights of plaintiff, an interstate passenger. State ex rel. v. Hicks et al., 44 La. Ann. 770, 11 So. 74; Ex parte Plessy, 45 La. Ann. 80, 11 So. 948, 18 L. R. A. 639; State v. Pearson, 110 La. 387, 390, 34 So. 575; Plessy v. Ferguson, 163 U. S. 537, 16 Sup. Ct. 1138, 41 L. Ed. 256. Under the peculiar facts of the instant case, the giving of this instruction amounted in reality to the granting of a peremptory instruction. By the concluding paragraph of this instruction the jury are told that “it was the duty of both passengers and railroad company officials to obey said laws;” that is, to obey the requirements of this particular statute of Louisiana. The jury by this instruction are told that, if the conductor had not removed plaintiff from the coach in question, the conductor would have been liable to fine and imprisonment, and that, if the passenger refused to occupy the coach or compartment to which the officer had assigned him, the railway company might refuse to carry the passenger any further, and for such refusal the railroad company would not be liable for damages. The jury must have been imbued with the idea that plaintiff on the occasion in question was insisting upon the law being violated, while the conductor was simply obeying the law, and thereby avoiding the unpleasant experience of being cdst into a parish prison. The statute in question had nothing to do with this case. If it had no application to the case, then the giving of it is reversible error. We do not understand the gravamen of the complaint to rest upon the mere compulsory removal from one coach to another. The chief ground of plaintiff’s complaint lies in the fact, according to plaintiff’s evidence, that he was forced to surrender ample and comfortable accommodations, and to ride the balance of his journey without a seat and without decent accommodations, to which, under his contract of carriage, he was entitled. The consideration of this main issue by the jury must have been beclouded by instruction No. 3.

We must condemn, also, instruction No. 5 granted the defendant. Every litigant in a civil cause has a vested constitutional right to have his case presented to the jury by counsel, and to have the arguments of his counsel heard by the jury, untrammeled by any suggestions from the court that are calculated to minimize the force or cheapen the worth of a legitimate argument. It is true that this instruction simply tells the jury that unsworn statements and arguments of attorneys are not evidence or law in the case. As a technical proposition of law this might be true. There is in this instruction, however, a veiled suggestion that counsel in this case might indulge in “unsworn statements” — a warning that the attorneys, as sworn officers of the court, are liable to present to the jury statements not justified by the evidence. By it the jury is really in fact directed to disregard the arguments of the attorneys. The legitimate pleas and arguments of counsel are helpful.to a jury, and it is the duty of the jury to give respectful consideration to the arguments of counsel pro and con. If counsel so far forgets himself as to travel out of the record, then his adversary has the right to except, and the ■ court has the right to reprove counsel, and to condemn any illegitimate utterances.

It will not be necessary to consider the other instructions complained of. 'Let the judgment of the lower court be reversed, and the cause remanded.

Reversed and remanded.