Payne v. Stevens , 125 Miss. 582 ( 1921 )

HoodeN, J.

delivered the opinion Of the court.

This is a joint suit by the appellee Stevens and four others to recover damages from the appellant railroad company on account of having to ride, over their objection, in the same passenger coach with negroes, from Pascagoula to Biloxi. A recovery for four hundred dollars as damages was had by the appellee Stevens and two other plaintiffs. A nonsuit was taken by one of the original plaintiffs, and a peremptory instruction was granted by the court against another. The railroad appeals from the judgment of the louver court.

The appellees secured tickets- and boarded the train at Pascagoula for Biloxi. They entered a coach designated by a sign “for white passengers” and occupied seats therein. They observed a number of negroes riding as passengers in the same compartment of the coach with them. They requested the negroes to vacate the compartment and go into another part of the coach, which the negroes refused to do. Presently the conductor came in and collected the tickets. The appellees complained to the conductor and requested him to remove the negroes to another part of the coach or train, and the conductor replied that he was busy and would give the matter his attention later on, and said to one of the appellees, “Tell the negroes to move out of that compartment,” but the conductor made no effort to move the negroes from the seats they occupied. The appellees claim they were damaged by humiliation and embarrassment in being compelled to ride in the same car with the negroes, and the recovery was based upon a violation of the statute with reference to the separation of races on passenger trains. Section 4059, Code of 1906, section 6687, Hemingway’s Code.

The appellant railroad company introduced evidence showing that the sign “for white passengers” on the coach in which the appellees rode had two sides to it, one of which read “for colored passengers;” that in some way, without the consent or knowledge of the railroad company, this sign had been turned round so as to designate the car for white passengers when it should have been designated for color passengers; that the car was for colored passengers instead of white; and that there were other coaches on the train occupied solely by white people.

The appellant contends for a reversal upon several grounds, namely: First, that there was a misjoinder of plaintiffs in the suit; second, that the court erred in granting a peremptory instruction against one of the original plaintiffs and in permitting a nonsuit by another, because it was a joint action; third, that it was not the fault of the railroad company that the sign designating the car for white passengers had been changed from one designating it for colored passengers, and that the appellees voluntarily entered this negro coach and brought upon themselves the humiliation they complained of.

The two first contentions presented by the appellant deserve but scant consideration. There was no notice of misjoinder .given by the appellant, nor was there even an objection to the joining of the plaintiffs in the suit, and, of course, misjoinder cannot be urged at this time.

As to the peremptory instruction putting one of the plaintiffs out of the case, and the nonsuit' taken by another plaintiff, we know of no rule of law which prohibits the granting of a peremptory instruction against a party when the proof in the case justifies it; nor do we know of any legal reason why a party plaintiff may not take a non suit at any time before verdict. One of the long-established privileges of a plaintiff is to “quit complaining” and withdraw his suit.

As to the third point made by appellant, we think there would be considerable merit in it if it were not that the record in this case discloses that the appellees entered the coach designated for white passengers and took their seats, acting in the reasonable belief that they were riding in the coach provided for white people; and, more than this, they complained to the conductor about the presence of the negro passengers in the same compartment with them, and requested the conductor to assign the negroes to a different compartment. The conductor did not inform the. appellees that they were in the wrong compartment, but, on the other hand, tacitly or impliedly agreed that they were in the right part of the coach, and promised to give the matter his attention later; but this he failed to do, and the result was the appellees and the negro passengers rode together in the same compartment in violation of the statute on that, subject.

The judgment of the loiver court is affirmed.

Affirmed.