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Grange, he publicly announced that the white LOUISVILLE & I. R. CO. V. GARR. passengers should take the front car and

the colored passengers the rear car, and ac(Court of Appeals of Kentucky. June 19, 1925.)

cordingly the front car was loaded with

white passengers only, and he saw no one 1. Carriers w284(1) - Conductor's duty to but colored passengers go into the rear car;

require white passenger to go into white that some white passengers started to enter coach, and railway liable for assault on con- | the rear car, but he told them to take the ductor's failure to do so.

front car, and they did so; that he did not If conductor of interurban railway knew, know that any white passengers were in the or had opportunity for knowledge, that white rear car; that both cars were crowded; passenger was in car set apart for colored that before bringing the cars out he expassengers, it was his duty to require white amined them to see if the proper signs were passenger to go into white coach, or make reasonable effort to that end, and, if he failed to up, indicating a separation of the races, and do so, railway is liable for assault on white that on the front car there was a placard passenger by colored passenger,

reading, “White Passengers Only,” and on

the rear car a similar placard was displayed, 2. Carriers ww318(1)-Evidence held to sus bearing the words, “For Colored Passengers

tain verdict for white passenger against in-Only"; that these placards were up in both terurban railway for assault by colored pas. compartments of each car; that the entire senger.

front car was reserved for white passengers In action against interurban railway by and the entire rear car for colored passenwhite passenger, assaulted by colored passenger, evidence as to how cars were marked, and gers; that he boarded the front car, as was as to whether conductor knew of presence of his duty, and that he did not know of any white passengers in car assigned to colored trouble in the rear car, and did not know passengers, and made no attempt to separate that appellee, Garr, was in that car, or that them, held sufficient to go to jury, and to sus- he was struck or injured, or that there was tain verdict for plaintiff.

any likelihood of any trouble in that car ei.

ther at the time the car left the station at Appeal from Circuit Court, Oldham Louisville or at any time thereafter until County.

after the happening of the event of which ap Action by E. S, Garr against the Louisville pellant complains. There is, however, some & Interurban Railroad Company. Judgment evidence to show that the conductor in for plaintiff, and defendant appeals. Af- charge of the train had information that Garr firmed.

was in the rear car with the colored people. Willis, Tod & Willis, of Shelbyville, for ap- witnesses, that the fight which occurred in

It is also proven by appellee, Garr, and other pellant. Robert T. Crowe and Wm. J. Crowe, both which Garr was injured started very soon

after the car left the station and before it of La Grange, for appellee.

had traveled more than three blocks; that it

was soon over, and everything was quiet. SAMPSON, C. J. About 12 o'clock on the

For the plaintiff', Garr, now appellee, there night of Derby Day, 1922, appellee, Garr, was evidence that the rear car in which he boarded a car of appellant, Louisville & In- rode was marked, "For White Passengers terurban Railroad Company, at its station Only,” and that there were several white peoin the city of Louisville, to be carried as a ple in that car before and at the time it left passenger to La Grange, and while in the the station in Louisville; that the conductor car, and only short time after it left the

was at one time in the car, where he could station, he was struck and injured by a see the conditions. One witness testified he colored boy, also a passenger, and this suit saw the conductor in the car in which both against the company to recover damages re- races were riding, and the conductor says he sulted. A jury awarded a verdict against saw a man like appellee, Garr, enter the rear the company for $500 on which judgment car, where colored passengers were; but he was entered, and the company appeals, in- does not say he removed him, or asked him sisting (1) that the trial court should have to go into the front car, or informed him given a directed verdiet for it; (2) the dam- that the rear car was for colored passengers ages are excessive and appear to have been only. There was, therefore, evidence suffigiven under prejudice and passion; and (3) cient to carry the case to the jury on the the verdict is not sustained by the evidence, question of how the cars were marked, and and is contrary thereto.

as to whether the conductor in charge of the According to the evidence for the com- train as it left the station in Louisville knew pany there had been a mishap on the road of the presence of appellee, Garr, and other and the cars were running late. This train white persons, in the rear car assigned to consisted of two electric cars. Its conductor colored passengers, if it were so assigned. testified that when the cars pulled into the It is generally held that a common carstation preparatory for leaving for La rier, like appellant company, is only liable

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(273 S.W.) for an assault on a passenger by a fellow | sengers in the white compartment were conpassenger when it has knowledge or rea- ducting themselves. When the conductor went sonable notice that such an assault is about through the colored compartment and saw the to take place and has opportunity to pre- two white men in there it was undoubtedly his vent it. Its liability rests upon its negli- duty to have compelled them to leave the com

partment; but his failure to do this did not visgent omission, through its servants, to pre- it any civil or criminal liability upon the comvent the tort being committed. The failure pany or any civil liability upon the conductor, to prevent the commission of the tort, to as these white men were not guilty of any misbe a negligent failure or omission, must be conduct while in the colored compartment. But a failure or omission to do something which their mere presence there, with the knowledge could have been done by a servant, and of the conductor, subjected him to the penalty therefore there is involved the essential in- denounced by the statute against any conductor gredient that the servant of the company sions of the statute. In other words, if a con

who fails or refuses to carry out the provihad knowledge, or with proper care could ductor knows or has information that white have had knowledge, that the tort was emi- or colored passengers are in coaches or comnent, and that he had that knowledge. or partments set apart for the other race, and he had an opportunity to acquire it, sufficient- fails or refuses to expel them from the coach ly long in advance of its infliction to have or compartment they are wrongfully in, as soon prevented it with the force at his command. as practicable and within a reasonable time he 4 R. C. L. 1185; Adams v. Louisville Rail- may be punished for a violation of the statute; way Co., 134 Ky. 620, 121 S. W. 419, 135 but, unless the passenger who is in the coach

or compartment set apart for the other race Am. St. Rep. 425, 21 Ann. Cas. 321; Louis-commits some act of violence or is guilty of ville, etc., R. Co. v. Brewer, 147 Ky. 166, rude, insulting, or abusive conduct that is cal-. 143 S. W. 1014, 39 L. R. A. (N. S.) 647, culated to humiliate or wound the feelings of Ann. Cas. 1913D, 151; Bogard v. Ill. Cen- passengers rightfully occupying the coach or tral Railway Co., 144 Ky. 649, 139 S. W. compartment, no one of these passengers will 855, 36 L. R. A. (N. S.) 337; L. & N. R. have any cause of action against the company R. Co. v. Renfro's Adm'r, 142 Ky. 590, 135 for the failure of the conductor to observe the

law." S. W. 266, 33 L. R. A. (N. S.) 133.

A railway company cannot be held liable, Elliott on Railroads (2d Ed.) p. 555, lays so it is held by some courts, for an assault down the rule in this wise: by a fellow passenger unless it, through its

“Although railroad companies are not, perconductor or other servant in charge, has haps, bound to protect their passengers from knowledge of conditions facts which injuries by third persons and other passengers would apprise a reasonably prudent person to the same extent that they are bound to proengaged in transporting passengers for hire tect them from injuries by their employés, yet that such an assault is to be anticipated, it is their duty to use proper care and vigiand has opportunity, after obtaining such lancę to protect them from injuries by such knowledge, to prevent the assault. However, persons that might reasonably bave been fore

seen and anticipated. As a railroad company in the case of L. & N. R. R. Co. v. Renfros' is in duty bound to use care and vigilance to Adm'r, supra, we in part said:

protect its passengers who have placed them

selves under its control, and as it has the right "Under the principles announced in these cases, which we approve, there could be no doubt! and power to eject disorderly persons, it is

liable to that, if Jones had been assigned to or per- his part, is assaulted and injured by a stranger

a passenger who, without fault on mitted to be or remain in the colored compart- or a fellow passenger, if it or its employés in ment by or with the consent of the conductor, charge of the train could reasonably have forethe railroad company would be liable to a pas- seen and prevented it.” senger in the colored compartment for any misconduct or violence of Jones. But there is no evidence that the conductor, who was in Carriers, vol. 3, p. 2022, says:

In treating upon this subject, Michie on charge of the train, knew or had any information that Jones was in or intended to go in "To render a carrier of passengers liable for the colored compartment until after the diffi- failure to protect a passenger or other perculty. Jones was not in this compartment son to whom it owes protection from insult when the conductor passed through it, and at or injury at the bands of the fellow passenger the time he went in the conductor was in an- or third persons, where it has no knowledge other part of the train collecting tickets and that such injury is threatened, the circumfares. It therefore cannot be said that the stances, must be such that those in charge of conductor was in any respect neglectful of the train, using the utmost vigilance and care, his duties under the statute. The fact that or that extreme care and caution which very he failed or refused to remove from the col- prudent persons exercise, should have foreseen ored compartment the two white men it was that the injury is threatened. When such cirsaid were in there when he passed through cumstances come to their knowledge, it is the taking up tickets, or failed to lock or station duty of the employés to take all reasonable at the partition door the porter or brakeman precautions to prevent the injury. If there to prevent wbite passengers from going into the is nothing to cause an extremely prudent percolored compartment, did not constitute a vio- son to apprehend such an injury, the carrier lation of the statute, and evidence upon these is not liable. Thus it is said that the duty of points should not have been admitted. Nor was a carrier to provide accommodations sufficient it competent or relevant to show how pas- for the safe transportation of its passengers


extends to taking extra precautions, when the fin a car marked in a conspicuous place "For carrier has reasonable grounds to anticipate un- White Passengers Only,” and therefore at a usual hazard to its passengers, and to the em- place he had a right to be and remain. The ployment of a sufficient force of employés to jury was instructed to find for the railroad protect innocent passengers from the assaults of other passengers, when it has reasonable company if it believed from the evidence that grounds to apprehend such assaults from pas- the car was marked, as contended by the apsengers in such numbers or force as to be be- pellant railroad company, “For Colored Pasyond the control of the ordinary train crew.” sengers Only." The verdict for Garr indi.

cates clearly the jury believed that the car "While a common carrier is not an insurer was not marked as claimed by the railroad of its passengers' safety," says 10 C. J. p. company, but was marked "For White Pas900,” and is perhaps not bound to protect sengers, Only," as claimed by appellee, Garr. its passengers from injuries by third persons As there was evidence tending to prove to the same extent and degree as from Jike that the appellant company's conductor in injuries by its own agents and employés, charge of the train knew the races were yet it is the duty of the employés to exer- mixed in the rear car, and did not attempt to cise great care and vigilance in preserving separate them, and that the sign on that order and in guarding passengers from an- car read "For White Passengers Only,” it noyance, violence, or insult threatened by cannot be said the verdict is against the evifellow passengers; and where the carrier, dence. Nor can we say, from the evidence through its agents or employés, knows, or has of the injuries inflicted on Dr. Garr, that the opportunity to know, of a threatened in- verdict for $500 is excessive. jury by a fellow passenger, or might reason- Judgment affirmed. ably anticipate the happening of such an injury, and fails or neglects to take the proper precautions, or to use proper means to prevent or mitigate such injury, it is liable therefor."

LEE v. LICKING VALLEY COAL DIG. [1] If the conductor knew, or had such op

GER CO. portunity for knowledge as would have ad

(Court of Appeals of Kentucky. June 19, vised a reasonably prudent person, that ap

1925.) pellee, Garr, was in the car set apart for colored passengers, it was his duty to require Admiralty Omw20—Workmen's Compensation Garr to pass into the white coach, or to Act, though elective, held impotent to take make a reasonable effort to that end, and, if

from "admiralty" and to confer upon Board he failed to do so, the company is liable un

of Workmen's Compensation and state courts der the rule announced in the case of L. &

jurisdiction of "maritime cause"; "mari.

time." N. R. R. Co. v. Renfro's Adm'r, supra, where we said:

Workmen's Compensation Act, though elec

tive, held impotent to take from "admiralty" "It will be noticed that under this statute and to confer upon Board of Workmen's Com. railroad companies are required to provide sep- pensation and state courts jurisdiction of arate compartments or coaches for white and “maritime cause," in view of Const. U. S. art. colored passengers, and that the conductors or 3, § 2, and laws enacted pursuant thereto; managers of trains are required to assign white "maritime” pertaining to navigation or commerand colored passengers to the respective cars cial intercourse upon the seas, Great Lakes and or compartments set apart for their use, and to rivers, a "maritime cause" being one arising compel them, upon pain of ejection from the from a maritime contract, whether made at train, to occupy such cars or compartments. sea or on land, and "admiralty" being tribunal There is no complaint that the railroad com- exercising jurisdiction over all maritime conpany did not provide compartments in accord-tracts, torts, injuries, or offenses, and extendance with the statute, and so part of the statute ing to navigable rivers, whether tidal or not, need not be further noticed. But under this in the United States. statute, if the conductor or manager of train permits white or colored passengers to be or and Phrases, First Series, Admiralty; First

[Ed. Note.-For other definitions, see Words remain in a coach or compartment set apart for and Second Series, Maritime.] the other race, after he knows or has information that they are in such coach or compartment, the company will be liable in damages if

Appeal from Circuit Court, Kenton County. any passenger rightfully occupying his coach

Proceedings under the Workmen's Comor compartment is humiliated, insulted, injured, pensation Act by Marie Lee, claimant, for or killed by a passenger who is permitted to remain in a coach or compartment set apart for compensation for the death of her husband, use and occupancy of the race of which he is against the Licking Valley Coal Digger Comnot a member."

pany, employer. The Board of Workmen's

Compensation awarded her compensation, [2] According to the testimony for the rail- but on appeal thereto the circuit court road company, appellee, Garr, was in the entered a judgment setting aside the award, wrong car; but appellee, Garr, says he was and claimant appeals Affirmed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(273 S.W.) Richard G. Williams, of Covington, and fixed by the federal Constitution and the John D. Carroll, of Frankfort, for appellant. laws making same effective as enacted by

Myers & Howard, of Covington, for ap- the federal Congress. This jurisdictional pellee.

question depends for its solution upon

whether or not the Kentucky Legislature, by SAMPSON, J. Willis Lee, husband of ap- its enactment of the Workmen's Compensapellant, Marie Lee, was drowned in the tion Law, can divest the federal courts of Ohio river, near the city of Cincinnati, Ohio, jurisdiction of a subject which is and was while in the line of duty as an employé of well established, well defined and about the Licking Valley Coal Digger Company, a which there was no question in the courts corporation which, with all its employés, until the enactment of this law in Kentucky including the deceased, Lee, had accepted and other states of the Union. the terms of the Workmen's Compensation Appellant argues that, as our CompenLaws (Ky. St. 88 4880–4987) of this state, sation Law is elective and not compulsory, and was operating under it. Lee was work- it is not in conflict with the admiralty laws, ing on coal barges which were being un- as only compulsory compensation laws have loaded at the time by a coal digger, a kind been held obnoxious to maritime laws by of steam shovel.

the Supreme Court of the United States. In In attempting to pass from one barge to this it appears to be in error, as we shall latanother he, by accident, fell into the river er see. and thus came to his death.

In making its award, the Board of ComThe digger was located on a boat or barge pensation, through its then chairman, Hon. which operated only on water, and moved Clyde Levy, delivered a written opinion up, down, and across the river, at the pleas- which, because of its splendid diction and ure of those in charge. Appellant, Marie attractive reasoning, we would like to emLee, the only dependent of the deceased, brace in this opinion, but its length forfiled claim for compensation with the Board bids, and we content ourselves with copying of Compensation of the state, and was only the following paragraphs: awarded the maximum, $4,000, allowed by

Willie Lee was drowned in the Ohio river law in such cases for death. From this

on April 5, 1922, while employed by defendant award the company appealed to the Kenton

as a laborer. Both he and defendant had electcircuit court, where it was held that the ed to accept and operate under the Workmen's employment in which deceased, Lee, was en Compensation Act, as required by law, and the gaged at the time of his death was maritime average weekly wage of deceased employé at the and not cognizable by the Board of Work-time was $18. He was survived by Mary Lee, men's Compensation, and any cause of ac-widow, claimant herein, who filed application tion arising out of his accidental death was

for adjustment of claim as total dependent of cognizable exclusively in admiralty, in ac- moving an empty barge below digger and while

deceased employé. Deceased employé was cordance with the provisions of section 2 going on to the barge from digger fell backof article 3 of the Constitution of the Unit- ward, striking his body on the end of the diged States, and laws enacted pursuant there- ger, and fell into the river between the digger to. From that judgment this appeal is prose- and barge and was drowned. cuted.

"The digger was used to take coal, sand, and The question presented is one of jurisdic- gravel from the barge to a hopper on the bank. tion. Had the Board of Compensation ju- The digger operated only on the river, and the risdiction to hear and determine and make such as to tie or untie a line, dig a hole for the

only work required of deceased employé was an award in a case which admittedly before spar, and other similar work incident to his the passage of the act creating the Board employment on the digger.” was cognizable only in admiralty?

“An iinportant question presented by the rec"Maritime," says Bouvier, “pertains to ord is whether or not the Kentucky Worknavigation or commercial intercourse upon men's Compensation Board has jurisdiction, or the seas, Great Lakes, and rivers. A mari- whether the facts bring the case under admiraltime cause is one arising from a maritime ty jurisdiction. contract, whether made at sea or on land.” review of the admiralty jurisdiction. It is well

"It is unnecessary to enter upon an extensive Admiralty is a tribunal exercising juris- settled that the admiralty jurisdiction within diction over all maritime contracts, torts, in- its sphere is exclusive, and that state legislajuries or offenses, and extends to navigabletion affecting maritime rights is unconstitutionrivers, whether tidal or not, in the United | al, because it destroys the uniformity estabStates. The court of original admiralty ju- lished by the Constitution. So. Pac. Co. v. Jenrisdiction in the United States is the Unit sen, 244 U. S. 205, 37 S. Ct. 524, 61 L. Ed. ed States District Court. From this court 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E,

causes could formerly be removed, in cer- 900, 14 N. C. C. A. 597. · tain cases, to the circuit and ultimately to

"If an employer and employé engaged in

maritime work desire to be governed by the the Supreme Court.

federal law, there is nothing in the Kentucky Appellee insists that appellant's remedy law that undertakes to prescribe a different is confined to the admiralty jurisdiction as liability. But there is nothing in the federal Constitution which precludes an employer and conferred on it by law, and accordingly it is employé engaged in maritime service from ac- well established as a general rule that, where cepting the Workmen's Compensation Law of the court has no jurisdiction of the cause of acKentucky, as a measure of their rights, if in- tion or subject-matter involved in a particular jury occurs. They are free to make a contract case, such jurisdiction cannot be conferred by fixing the relative rights of the parties in such consent, agreement, or waiver." event, which would be valid and enforceable, as a maritime contract. It is equally open to

Jurisdiction in matters exclusively marithem to agree for injuries to be compensated time was not in the power and grace of the under the terms of a Kentucky statute. There is nothing in such an agreement which affects commonwealth to give or confer at the time in the slightest particular the uniformity which of the enactment of the Workmen's Comis deemed essential to the harmony of maritime pensation Law. Such causes appertained to law. The federal Constitution establishes uni- admiralty alone. The parties could not formity and consistency on all subjects of a therefore by agreement confer jurisdiction commercial character affecting the intercourse upon the Board of Compensation by acceptof the states with each other or with foreign ing the terms, in writing, of the Compensastates, but such a result is not affected by an

tion Law. We do not think the cases of agreement between an individual employer and So. Pac. Co. v. Jensen, 244. U. S. 205, 37 his employé to surrender certain rights, respectively, in consideration of the rights and S. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, benefits conferred by the Kentucky law. The 451, Ann. Cas. 1917E, 900, and Knickerbockdistinction between the two cases is that the er Ice Co. v. Stewart, 253 U. S. 149, 40 S. state cannot compel employers and employés Ct. 438, 61 L. Ed. 834, 11 A. L. R. 1145, lay engaged in maritime service to be governed by down a different rule. In the first case, the Workmen's Compensation Law; but where the United States Supreme Court said: the compensation law is elective, as in Kentucky, persons engaged in maritime employment "And the same character of reasoning which are free to accept the Workmen's Compensa- supports this rule, we think, makes imperative tion system, and, when so accepted,' it becomes the stated limitation upon the power of the binding upon them as a contract, and super- states to interpose where maritime matters are sedes other measures of liability and compen- | involved. The work of a stevedore in which sation. This results, not from the force of law, the deceased was engaging is maritime in its but from the fact of a contract.”.

nature; his employment was a maritime con

tract; the injuries which he received were likeCould the parties, that is, Willis Lee, and wise maritime; and the rights and liabilities the Licking Valley Coal Digger Company, of the parties in connection therewith were each acting for himself and itself, by con

matters clearly within the admiralty jurisdic

tion." tract in conformity to the act of the Kentucky Legislature, commonly called and Nor do we think these cases support, in known as the Workmen's Compensation Law, principle, the contention of appellants. confer jurisdiction upon the Board and on It is now believed settled that a state state courts, which up to that time had no compensation act, even though elective, is jurisdiction to hear and determine the rights inapplicable if the person injured was emof parties under maritime employment, and ployed under a maritime contract, and was thus divest admiralty of the exclusive ju- injured on water within admiralty jurisrisdiction which it had up to that moment diction. The following cases appear to be enjoyed in matters of that character? We decisive of the question: Peters v. Veasey think not.

(1919) 251 U. S. 121, 40 S. Ct, 65, 64 L. Ed. In 7 R. C. L. p. 1039, it is said:

180; Barrett v. Macomber (D. C. 1918) 253 "It is a universal rule of law that parties F. 205; Duart v. Simmons (1918) 231 Mass. cannot by consent give, as such, jurisdiction in 313, 121 N. E. 10; Dorman's Case (1921) a matter which is excluded by the laws of the 236 Mass. 583, 129 N. E. 352; Thornton v. land. In such a case the question is, not wheth- Grand Trunk-Milwaukee Car Ferry Co. er a competent court has obtained jurisdiction (1918) 202 Mich. 609, 168 N. W. 410; Foppen of a party triable before it, but whether the v. Peter J. Fase & Co., 219 Mich. 136, 188 court itself is competent under any circum- N. W. 511; Soderstrom v. Curry & Whyte stances to adjudicate a claim against the de- (1919) 143 Minn. 154, 173 N. W. 619; O'Brien fendant. And, where there is want of jurisdiction of the subject-matter, a judgment is

v. Scandinavian-American Line (1920) 94 N. void as to all persons, and consent of parties J. Law, 244, 109 A. 517; Neff v. Industrial can never impart to it the vitality which a valid Commission (1917) 166 Wis. 126, 164 N. W. judgment derives from the sovereign state, the 845. court being constituted, by express provision of This great array of authority supporting law, as its agent to pronounce its decrees in the view that elective compensation acts are controversies between its people.”

equally as impotent to take jurisdiction of

maritime causes from admiralty as similar The same principle is stated in 15 C. J. acts which compare in nature appear to set802, in these words:

tle the question. Admittedly, the great "It is not within the power of litigants to in- weight of authority, especially as expounded vest a court with any jurisdiction or power not by recent cases, tends that way. The trial

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