Opinion
No. 32812.
October 4, 1937. Suggestion of Error Overruled October 18, 1937.
1. STATUTES.
Construction placed on prior statutes requiring separate compartments in streetcars for white and colored races, that signs with the word "white" on one side and the word "colored" on the other on the backs of seats in streetcars did not constitute a compliance with the statute, became a part thereof on re-enactment of statute by Legislature without change, since the original construction was thereby adopted (Code 1930, section 6132 et seq.; Laws 1932, chapter 332, section 9).
2. CARRIERS.
Colored passenger could recover against bus carrier for injuries sustained when assaulted by a white passenger, because she refused to give up her seat in a bus which, instead of having partitions to separate the white and colored races, contained a small sign with the word "white" on one side and the word "colored" on the other, on ground that carrier failed to comply with statute requiring separate compartments for the white and colored races, as against contention that failure to have separate compartments was not the proximate cause of the passenger's injury (Laws 1932, chapter 332, section 9).
ON SUGGESTION OF ERROR.3. APPEAL AND ERROR.
In colored passenger's action against bus company for injuries resulting from assault by white passenger for her refusal to yield to white person her seat, which was reserved for colored passengers, where carrier had failed to comply with statute requiring separate compartments for white and colored races, any error in admitting evidence of company's adjuster that other complaints of like occurrences had been made was harmless, in view of moderate damages awarded and the fact that verdict was not materially influenced by such evidence (Laws 1932, chapter 332, section 9).
APPEAL from circuit court of Hinds county. HON. J.P. ALEXANDER, Judge.
May Byrd, of Jackson, for appellant.
The main inquiry on this appeal is whether or not the Power Company is liable for an assault made on a passenger on one of its busses by another passenger when the Power Company is without any notice of the intention of the passenger to commit such assault, and without any warning being given sufficient to cause the Power Company to apprehend such assault, simply for the reason that the Power Company has not adopted a device for separating the races sufficient to prevent passengers from going from one compartment of the bus to the other.
The statute relied on here does not prescribe the particular method the bus company must use in designating the separate parts of the bus for the races, but provides that the bus shall be divided by a partition constructed of metal, wood, strong cloth, or other materials, so as to distinguish the separate sections for the separate accommodations for the races.
We submit that the failure to have a wood, cloth or metal screen was not the proximate cause of the assault.
Our court is committed to the doctrine that before a carrier is liable for an assault by one passenger upon another passenger it is necessary to bring home to the conductor or other person in charge of the vehicle the knowledge or opportunity to know that the injury was threatened, and to show that by his prompt intervention he could have prevented or mitigated it.
New Orleans, etc., R.R. Co. v. Burke, 53 Miss. 200; Royston v. I.C.R.R. Co., 67 Miss. 376; Spinks v. New Orleans, M. C.R. Co., 63 So. 190; 4 R.C.L. 1185.
It seems to be the general rule that no liability attaches to the carrier unless there was a negligent failure or omission to do something which could have been done by the servant to prevent the assault before the company is liable.
There is not a word of proof in the record anywhere to show that the assault would not have been made if instead of a small metal sign there had been tin, wood or cloth screens extended from the ceiling to the floor. Of course, no law requires the bus company to have two separate entrances and two compartments absolutely shut off one from the other.
City Bus Co. v. Thomas, 172 Miss. 424.
The admission of the testimony of witness Bean as to previous difficulties on busses between passengers was clearly erroneous, and particularly so when there was no proof as to the cause of the previous difficulties or the facts and conditions surrounding the same.
Tribette v. Railroad Co., 71 Miss. 212; Miss. Central R.R. Co. v. Miller, 40 Miss. 45; Yazoo M. Railroad v. Pittman, 169 Miss. 667.
Jaap Higgins and Louise Melton, all of Jackson, for appellee.
The plaintiff's declaration is sounded on the statutory duty of streetcar and bus companies to adequately separate the compartments occupied by negroes and white persons on their vehicles.
Section 6133, Code of 1930; Chapter 332, Laws of 1932.
Posting signs in streetcars indicating the part to be used by white and the part by colored persons, especially where sign was not visible from all parts of the car, is not a compliance with the statute.
Waldauer v. Ry. Co., 88 Miss. 200, 40 So. 751; Southern Light Co. v. Compton, 86 Miss. 269, 38 So. 629.
The appellant had due notice that its wilful failure to comply with the law passed for the protection of the public would lead to assaults such as happened in this case.
26 R.C.L. 758; Heywood v. Tillson, 75 Maine 225.
Appellee concedes that it is the general rule that a common carrier is not an insurer of a passenger's safety, and is perhaps not bound to protect its passengers from injuries by a third person to the same extent and degree as it would be from like injuries by its own agents or employees; but it is the duty of its employees to exercise great care and vigilance in preserving order and in guarding its passengers from annoyance, violence and insult, and where the carrier through its agents or employees knows or has opportunity to know of a threatened injury by a fellow passenger, or might reasonably anticipate the happening of such an injury, and fails or neglects to take the proper precaution or to use proper means to prevent or mitigate such injury, it is liable therefor.
10 C.J. 900, pars. 1332 and 1333 (b).
We submit that it was the positive duty under the Mississippi statutes in force at the time of this injury of the defendant, appellant here, to screen its coaches in such a manner that the white and colored races would be separated, and we submit that the evidence shows that the power company had reason to know and did know that a failure to comply with this statute would very probably result in injury to law-abiding, peaceable colored persons who were passengers on its busses, and that the proximate cause of the injury suffered by appellee was the failure of the power company to comply with the law, which directed them to separate the races.
Wood v. L. N.R.R. Co., 42 S.W. 349; Quinn v. R.R. Co., 32 S.W. 742; R.R. Co. v. Vincent, 96 S.W. 898.
Jessie Lee Garner, a colored woman, plaintiff in the court below, brought suit against the Mississippi Power Light Company, appellant, claiming damages from an assault made upon her by a white passenger of appellant, while appellee was also a passenger and occupying a rear seat in appellant's bus. The suit was based upon the violation of chapter 332, section 9, Laws of 1932, the last paragraph of which reads as follows: "All motor transportation companies or operators of vehicles carrying passengers for hire in this state, whether intrastate or interstate passengers, shall at all times provide equal but separate accommodations for the white and colored races by providing separate vehicles, or separate compartments on each vehicle, or by dividing the vehicle by a partition constructed of metal, wood, strong cloth or other material so as to distinguish the separate sections for the separate accommodation of the races. The conductor or agent of the motor transportation company in charge of any vehicle is authorized and required to assign each passenger to the division of the vehicle designated for the race to which such passenger belongs; and if the passenger refuses to occupy the division of the vehicle to which he is so assigned by the conductor or agent of such transportation company, such conductor or agent of such motor transportation company may refuse to carry such passenger on said vehicle, and for such refusal neither the conductor or agent of the motor transportation company, nor the motor transportation company shall be liable in damages."
The court below rendered a verdict awarding the appellee $1,000 damages, and the appellant files this appeal therefrom.
It was alleged in the declaration that it was the duty of the appellant to have a partition in said bus to separate the white and colored races, but that said appellant, instead of complying with the law, simply had a little tin sign attached to the top of a seat, four by eight inches wide, with the word "white" on one side, and the word "colored" on the other side; that appellee boarded the bus at the stop in front of Sutton's Ice Cream Parlor, and after paying her fare retired to the extreme rear thereof and took the very last seat in that section designated by this small sign as being reserved for the colored race, and that there was only one other colored person then on the bus; that a little later the bus began to fill up, and, when the bus reached the Edwards House, the white section was full and several white gentlemen were standing, and one of these walked back to where appellee was seated and ordered her to give him her seat. She stated to him that she was unable to stand, and that she would get off at Farish street, whereupon said white passenger struck appellee once about her left eye, and once over her mouth, knocking her violently to the floor of the bus, and throwing her against another seat; that, at that time, she was pregnant, and as a result of said assault she suffered great pain, and a miscarriage resulting therefrom, and she was greatly injured. That she was confined to her bed from said 31st day of August until about the middle of November of that year, when she was delivered of a dead child. Two physicians testified as to the time appellee was confined to bed; as to her bruised condition, and that she suffered a miscarriage.
The appellee introduced an adjuster of claims for the appellant, who testified that the busses were divided only with a little marker as described in the declaration, and that the appellant had notice of prior assaults on colored people by white men in the busses. This testimony was objected to, but the objection was by the court overruled.
Chapter 332, Laws of 1932, a portion of which is quoted above, is almost identical with the language used in Chapter 99, Laws of 1904. In 1905, this statute was construed in the case of Southern Light Traction Co. v. Compton, 86 Miss. 269, 38 So. 629, the court there holding that signs eight by twelve inches in size, with the word "White" on one side, and the word "Colored" on the other, on the backs of seats in streetcars are not in compliance with the statute thereon, and that "What was meant to be done in the case of street railroads was to so completely and effectually separate or screen passengers of one race from passengers of the other, on streetcars, that there would be no association in any way of one race with the other. And yet, with this being the clear purpose of the statute — the wise and wholesome intention of the lawmakers — we find a lot of unfortunate minor provisions in the statute calculated to overthrow the main purpose of the law. . . . The little piece of board, called a sign, stuck up on the back of a seat, with words painted on it, is no partition or screen within the meaning of this law. The very words `partition' or `screens' ex vi termini, import complete separation between the races in street cars, so that passengers in one compartment shall be shut out from passengers in the other. The object of the law was absolute, complete, and perfect separation, so that there should occur none of the outbreaks and conflicts marring the public peace, and ending, it may be, in bloodshed."
With this construction placed upon it, the statute was re-enacted in the Code of 1906, sec. 4059 et seq., and again in the Code of 1930, sec. 6132 et seq., and, however much we might be disposed to disagree therewith, we are bound thereby, because the Legislature re-enacted it without change and thereby adopted the original construction placed upon it. 13 Mississippi Anno. Digest, Statutes, sec. 225 3/4 and cases there cited. Under the present statute, it is the duty of a conductor or agent of transportation companies to place the passengers in separate compartments, and, if a passenger refuses to occupy same, the company may refuse to transport him, and no liability attaches to the company for such refusal.
This suit arose prior to the enactment of chapter 23, Laws of Extraordinary Session of 1936, hence it cannot be applied to the present controversy.
It is urged that the failure to have separate compartments was not the proximate cause of appellee's injury. Inasmuch as it was the duty of appellant to see to it that the passengers occupied separate compartments, it cannot be said that appellant complied with the law. The object of the law in requiring separation of the races, as stated in the case of Southern Light Traction Co. v. Compton, supra, is to avoid outbreaks and conflicts which mar the public peace.
The appellee proved by appellant's claim adjuster that there had been like complaints at other times, and, while this evidence was objected to, we think it was admissible.
We do not find any reversible error in the instructions given or refused, and the judgment of the court below will be affirmed.
Affirmed.
ON SUGGESTION OF ERROR.
In the former opinion the following paragraph was included: "The appellee proved by appellant's claim adjuster that there had been like complaints at other times, and while this evidence was objected to, we think it was admissible." Upon a consideration of the suggestion of error, we have determined to withdraw the quoted paragraph and to say instead thereof that if the said evidence was inadmissible, nevertheless it was not materially harmful, in view (1) of the moderate amount returned by the jury in the assessment of damages, and (2) that it could not be safely said that it was a substantial factor in causing the jury to find for plaintiff for some amount in damages.
Suggestion of error overruled.