some one.

Coming to the testimony of the passengers, the master cannot disbelieve the statements of Mr. and Mrs. Ousley, and Mr. and Miss Collins, that Haynes repeatedly exhibited and flourished his revolver in the car, in the presence of the brakeman, although the brakeman denies that he saw the revolver at any other time than when the conductor took up Haynes' ticket, some miles east of Vincennes. Mr. and Mrs. Ousley also swear that before the shooting Mr. Ousley warned the conductor, or the brakeman, that Haynes was dangerous, and that unless put off the train or disarmed would kill or injure some one with his pistol. The conductor insists that no remark of that kind was made in his hearing until after the shooting, but the preponderance of the evidence is the other way

"Upon the whole case, the evidence shows, in the opinion of the master, that the passenger Haynes was not only dangerous, but that his conduct was such as to clearly indicate it in such a way that it became the duty of the employés of the receiver, in charge of the train, to keep him in close custody, and disarm him, or remove him from the train at the first station after they learned of his dangerous condition."

Damages assessed at $5,000.

The criticisms made by counsel upon the testimony of some of the witnesses are not without plausible force, but not of sufficient weight to disturb the master's finding upon any material question of fact; and in respect to the proposition of law, "that the receiver should be charged with notice of the facts that came to the knowledge of his employés, whether upon the east or west division of the road," I am not able to agree with counsel that the master fell into essential error. I think it must be true, in cases of change of men in charge of passenger trains, like the one made in this instance, that the new men should be informed of everything known to those retiring which ought reasonably to be deemed important to a proper discharge of the carrier's duty. But, while I do not think that the information given in this case by one brakeman to the other was sufficiently full and explicit, I do not deem it necessary so to decide. In my judgment upon the conduct of the conductor and brakeman who took charge of the train at Vincennes, as shown by their own testimony, the liability of the receiver is put beyond reasonable question. Their testimony shows that the man Haynes was excited, nervous, tremulous and laboring under the manifestly unfounded delusion of pursuit by enemies, on the train, who would rob or kill or harm him in some way, and that in a childish but real fear of these things he appealed to the conductor for protection. Whether from excessive drinking or from other cause, it is clear that for the time being the man was insane; and, possessed of a pistol, as he was known to be, the conductor, as a man of common understanding, knowledge and experience,

ought to have apprehended the danger that he might mistake some passenger for his supposed pursuer, and shoot him down in imaginary self-defence

*

*

That it was in the lawful power of the conductor, under the circumstances, to have arrested, disarmed, restrained, or removed from the train this man, goes without saying. By the common law, and especially by the statutes of this State, ample powers in these respects are conferred upon conductors and other railroad employés. Vinton v. Middlesex R. Co., 11 Allen, 304; Railroad Co. v. Anthony, 43 Ind. 183; Railroad Co. v. Van Houten, 48 Ind. 90; Railroad Co. v. Vandyne, 57 Ind. 576; Railroad Co. v. Griffin, 68 Ill. 506; Ind. Rev. St. 1881, Secs. 1702, 2091, 39223924. By these statutes it is provided that "the conductors of all trains carrying passengers within this State shall be invested with police powers while on duty on their respective trains, may arrest and detain any person found violating any law of this State," and, "when any passenger shall be guilty of disorderly conduct, the conductor is hereby authorized to stop his train at any place where such offence has been committed, and eject such passenger from the train, using only such force as may be necessary to accomplish such removal, and may command the assistance of the employés of the railroad company." "Whoever is found in a public place in a state of intoxication," and "whoever draws, or threatens to use, any pistol, * * shall be deemed guilty of misdemeanor." These powers, whether conferred by statute or deduced from the principles of law, are given for the safety of those who travel by railroad, and any failure in a proper case to exercise them, contributing to the injury of a passenger, is a breach of the carrier's contract, for which damages may be allowed. This conclusion is strongly supported by decisions made in analogous cases, cited in argument, of which see the following: Railroad Co. v. Hinds, 53 Pa. St. 512; s. c., 7 Amer. Law Reg. (N. S.) 14; Railroad Co. v. Pillow, 76 Pa. St. 510; Flint v. Transportation Co., 34 Conn. 554; Railroad Co. v. Burke, 53 Miss. 200; s. c., supra; Britton v. Railroad Co., 88 N. C. 536; Railroad Co. v. Flexman, 103 Ill. 546; s. c., 8 Am. & Eng. R. R. Cas. 354; Stewart v. Railroad Co., 90 N. Y. 588.

*

Exceptions overruled, and judgment upon the report.

Company Bound to Protect Passengers from Assaults of Fellow Passengers. A railroad company is bound to exercise a high degree of care to protect its passengers from the assaults and insults of fellow passengers. Flint v. Norwich, etc.. Transportation Co., 34 Conn. 554; Holly v. Atlanta St. R. Co., 7 Rep. 460; Pittsburgh, etc., R. Co. v. Pillow, 76 Pa. St. 510; Pittsburgh, Ft. W. & C. R. Co. v. Hinds, 53 Pa. St. 512; Putnam v. Broadway, etc., R. Co., 55 N. Y. 108; Shirley v. Billings, 8 Bush. 147; New Orleans, etc., R. Co. v. Burke, 53 Miss. 200; Weeks v. New York, etc., R. Co., 72 N. Y. 56; Goddard v. Grand Trunk R. Co. 57 Me. 202; Hendricks v. Sixth Ave. R. Co., 12 Jones & S. (N. Y.) 8; Britton v. Atlanta & Charlotte Air Line R. Co., infra.

BRITTON

v.

ATLANTA & CHARLOTTE AIR LINE RAILWAY COMPANY.

(88 North Carolina Reports, 536.)

A railroad company has a right, and it is its duty, to establish and enforce reasonable rules and regulations for the government and direction of trains; and of such, the passenger must inform himself and conform thereto.

The company cannot relieve itself of responsibility for injuries received by a passenger where it is shown that such rules were not enforced, but their observance left discretionary with the passenger.

The right of a railroad company to assign white and colored passengers to separate though not unequal accommodations, is recognized by the courts. The company owes to every passenger the duty of protecting him from the violence and assaults of his fellow passengers or intruders, and will be held responsible for its own or its servants' neglect in the premises, when the same might have been foreseen and prevented by the exercise of proper care. The plaintiff in this case was entitled to have the jury instructed that, taking the evidence to be true, the company is liable in damages for the injuries sustained.

CIVIL action tried at January Term, 1882, of Mecklenburg Superior Court, before Bennett, J.

The plaintiff in this action is a colored woman, and seeks to recover of the defendant company for injuries sustained by her while traveling on its train. The train was a special one for excursionists, running from Atlanta, Georgia, to Charlotte, North Carolina, on the 23d day of July, 1878. Handbills had been posted, advertising the time and terms of the excursion, and that separate cars would be provided for white and colored passengers. The injuries complained of consisted in her being assaulted by a stranger, and forcibly ejected from the car in which she had been seated-it being the "smoking car," which had been. provided for the white male passengers.

The case for the plaintiff is as follows: Having purchased a ticket at Greenville, South Carolina, she, in company with a man and woman belonging to her race, entered the defendant's train and occupied seats in the car in question. No one pointed out to them the cars intended to be occupied by the colored passengers, nor did she know that separate cars had been provided for the two races, or of the regulation of the company requiring it to be done. Before the train left Greenville, some one, a white person, not in authority, began to cast reflections upon the party, saying that "d-d niggers had no business in there," and when under way, others of the white passengers cursed them for being in the car, and declared that they didn't want "niggers" in that car;

and for the purpose of annoying them, sang vulgar songs and whooped and hallooed at the top of their voices. The man who accompanied the plaintiff, and whose name was Culp, spoke to the conductor in charge of the train about the conduct of the other passengers, and complained of it.

The conductor accepted the tickets of the three, and told them they might sit in that car, but as it was an excursion train, he could not control the conduct of the other passengers, and they might expect rudeness. Whenever the conductor was present, the misbehavior would cease, but as soon as he left the car, it was resumed. He was appealed to as many as four times to protect them from insult, but each time said he could not help it. While the train was stopped at King's Mountain station, a white man, whom none of the party knew, ordered them out of the car, when Culp asked to see the conductor. The man went out, soon others came in and said to Culp, "Get up and go out of here." He again asked to see the conductor and retained his seat, whereupon he was seized, beaten, and finally ejected from the car. The same persons then seized hold of the plaintiff, beat and badly bruised her, and finally put her and her companion out of the car, and threw their baggage upon the platform.

The plaintiff then went into another coach, which was filled with colored people, every seat being occupied, so that she had to stand for some time after the starting of the train, when some one got up and gave her a seat.

During the time the plaintiff and her companions were being ejected, neither the conductor nor any other employé of the defendant was present to protect them; nor did she see the conductor until after the train was in motion, when he came to where she was standing, and, when informed of what had taken place, said that he knew nothing about it, and that none of the other passengers knew anything about it. He gave her no seat, but went out, leaving her standing, and it was only through the kindness of another passenger that she got one at all, and then it was by an open window, and, being at night, she took violent cold.

The case shown by the defendant is as follows: The excursion had been extensively advertised by large handbills, in which it was announced that separate coaches would be provided for white and colored passengers. The train at Greenville was composed of six coaches, all substantially alike as to their conveniences and accommodations-the two next to the baggage car being reserved for colored passengers, the third as a smoking car for whites, and the others for whites generally. There was no notice on either the outside or inside of the coaches to indicate which were intended for whites or which for colored people, though at Greenville there was an announcement made to that effect by one of the brakemen in defendant's service. After leaving that station, the

conductor, in passing through the train, found the plaintiff and her party in the smoking car, and called for and accepted their tickets. He then said to them that the two forward coaches were intended for persons of their color, to which they replied that they were pleasantly situated, and preferred to remain where they

were.

The instructions given by the company to the conductor were to advise such colored passengers as he might find in the coaches set apart for whites to go to the others, but if they declined to do so, to allow them to remain where they were, so long as they conducted themselves properly.

At some point before reaching King's Mountain, the colored man, Culp, in the presence of the plaintiff, complained to the conductor of the rudeness of some of the white passengers towards himself and his companions, and of the indecent language used in their hearing, when he was again told that he would find a pleasanter seat if he would go into the forward coaches, in which, at that time, there was a number of vacant seats.

The white persons in the coach, who were known to the conductor to be wild young men from Atlanta on a spree," also complained of the presence of these colored persons in the coach, and inquired of that officer if he did not mean to put them off.

At another time the party complained to the conductor of being cursed and insulted by the others, when he said to them,. that while he would not require them to go into the other car, he would still advise them as a friend to do so, and expressed some surprise at their unwillingness to do so, whereupon Culp said he desired to go, but that the females under his charge were unwilling.

The behavior of the plaintiff and her companions while in the car was entirely becoming, and their dress and appearance decent. The train stopped at King's Mountain at eight o'clock P. M., and while there, one Ramseur, who was neither a passenger nor employé on the train, entered the smoking car, for the purpose of seating some white women who came in with him. The seats being filled, and seeing the two colored women there, he asked for their seats, which they declined to surrender. Some one in the crowd proposed to put them out, to which Ramseur assented and seized hold of the plaintiff. Thereupon Culp cried out, "Don't strike that lady," when Ramseur struck him over the head with a stick, and then, with the help of some of the white passengers, ejected all three from the car.

At the time of this occurrence, the conductor was in the baggage car, with the baggage-master, receiving and delivering baggage; and the other train hands, of whom there were three, had been sent for water to refill the coolers in the coaches. While · there, the conductor was told that a row was about to take place in