LOUISVILLE & I. R. Co. v. GARR.
(Court of Appeals of Kentucky. June 19,
1925.)

1. Carriers 284(1) — Conductor's duty to
require white passenger to go into white
coach, and railway liable for assault on con-
ductor's failure to do so.

If conductor of interurban railway knew, or had opportunity for knowledge, that white passenger was in car set apart for colored passengers, it was his duty to require white passenger to go into white coach, or make reasonable effort to that end, and, if he failed to do so, railway is liable for assault on white passenger by colored passenger.

2. Carriers 318(1)—Evidence held to sustain verdict for white passenger against interurban railway for assault by colored pas

senger.

Grange, he publicly announced that the white passengers should take the front car and the colored passengers the rear car, and accordingly the front car was loaded with white passengers only, and he saw no one but colored passengers go into the rear car; that some white passengers started to enter the rear car, but he told them to take the front car, and they did so; that he did not know that any white passengers were in the rear car; that both cars were crowded; that before bringing the cars out he examined them to see if the proper signs were up, indicating a separation of the races, and that on the front car there was a placard reading, "White Passengers Only," and on the rear car a similar placard was displayed, bearing the words, "For Colored Passengers Only"; that these placards were up in both compartments of each car; that the entire front car was reserved for white passengers and the entire rear car for colored passengers; that he boarded the front car, as was his duty, and that he did not know of any trouble in the rear car, and did not know that appellee, Garr, was in that car, or that he was struck or injured, or that there was any likelihood of any trouble in that car either at the time the car left the station at Oldham Louisville or at any time thereafter until after the happening of the event of which appellant complains. There is, however, some evidence to show that the conductor in charge of the train had information that Garr was in the rear car with the colored people. It is also proven by appellee, Garr, and other witnesses, that the fight which occurred in which Garr was injured started very soon

In action against interurban railway by white passenger, assaulted by colored passenger, evidence as to how cars were marked, and as to whether conductor knew of presence of white passengers in car assigned to colored passengers, and made no attempt to separate them, held sufficient to go to jury, and to sustain verdict for plaintiff.

Appeal from Circuit Court, County.

Action by E. S. Garr against the Louisville & Interurban Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Willis, Tod & Willis, of Shelbyville, for appellant.

Robert T. Crowe and Wm. J. Crowe, both of La Grange, for appellee.

SAMPSON, C. J. About 12 o'clock on the night of Derby Day, 1922, appellee, Garr, boarded a car of appellant, Louisville & Interurban Railroad Company, at its station in the city of Louisville, to be carried as a passenger to La Grange, and while in the car, and only a short time after it left the station, he was struck and injured by a colored boy, also a passenger, and this suit against the company to recover damages resulted. A jury awarded a verdict against the company for $500 on which judgment was entered, and the company appeals, insisting (1) that the trial court should have given a directed verdict for it; (2) the damages are excessive and appear to have been given under prejudice and passion; and (3) the verdict is not sustained by the evidence, and is contrary thereto.

According to the evidence for the company there had been a mishap on the road and the cars were running late. This train consisted of two electric cars. Its conductor testified that when the cars pulled into the station preparatory for leaving for La

after the car left the station and before it had traveled more than three blocks; that it was soon over, and everything was quiet.

For the plaintiff, Garr, now appellee, there was evidence that the rear car in which he rode was marked, "For White Passengers Only," and that there were several white people in that car before and at the time it left the station in Louisville; that the conductor was at one time in the car, where he could see the conditions. One witness testified he saw the conductor in the car in which both races were riding. and the conductor says he saw a man like appellee, Garr, enter the rear car, where colored passengers were; but he does not say he removed him, or asked him to go into the front car, or informed him that the rear car was for colored passengers only. There was, therefore, evidence sufficient to carry the case to the jury on the question of how the cars were marked, and as to whether the conductor in charge of the train as it left the station in Louisville knew of the presence of appellee, Garr, and other white persons, in the rear car assigned to colored passengers, if it were so assigned.

It is generally held that a common carrier, like appellant company, is only liable

(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- duty to have compelled them to leave the comtwo white men in there it was undoubtedly his vent it. Its liability rests upon its negli-partment; but his failure to do this did not visgent omission, through its servants, to prevent the tort being committed. The failure to prevent the commission of the tort, to be a negligent failure or omission, must be a failure or omission to do something which could have been done by a servant, and therefore there is involved the essential ingredient that the servant of the company had knowledge, or with proper care could have had knowledge, that the tort was eminent, and that he had that knowledge. or had an opportunity to acquire it, sufficiently long in advance of its infliction to have prevented it with the force at his command. 4 R. C. L. 1185; Adams v. Louisville Railway Co., 134 Ky. 620, 121 S. W. 419, 135 Am. St. Rep. 425, 21 Ann. Cas. 321; Louisville, etc., R. Co. v. Brewer, 147 Ky. 166, 143 S. W. 1014, 39 L. R. A. (N. S.) 647, Ann. Cas. 1913D, 151; Bogard v. Ill. Central Railway Co., 144 Ky. 649, 139 S. W. 855, 36 L. R. A. (N. S.) 337; L. & N. R. R. Co. v. Renfro's Adm'r, 142 Ky. 590, 135 S. W. 266, 33 L. R. A. (N. S.) 133.

A railway company cannot be held liable, so it is held by some courts, for an assault by a fellow passenger unless it, through its conductor or other servant in charge, has knowledge of conditions or facts which would apprise a reasonably prudent person engaged in transporting passengers for hire that such an assault is to be anticipated, and has opportunity, after obtaining such knowledge, to prevent the assault. However, in the case of L. & N. R. R. Co. v. Renfros' Adm'r, supra, we in part said:

"Under the principles announced in these cases, which we approve, there could be no doubt that, if Jones had been assigned to or permitted to be or remain in the colored compartment by or with the consent of the conductor, the railroad company would be liable to a passenger in the colored compartment for any misconduct or violence of Jones. But there is no evidence that the conductor, who was in charge of the train, knew or had any information that Jones was in or intended to go in the colored compartment until after the difficulty. Jones was not in this compartment when the conductor passed through it, and at the time he went in the conductor was in another part of the train collecting tickets and fares. It therefore cannot be said that the conductor was in any respect neglectful of his duties under the statute. The fact that he failed or refused to remove from the colored compartment the two white men it was said were in there when he passed through taking up tickets, or failed to lock or station at the partition door the porter or brakeman to prevent white passengers from going into the colored compartment, did not constitute a violation of the statute, and evidence upon these points should not have been admitted. Nor was it competent or relevant to show how pas

it any civil or criminal liability upon the company or any civil liability upon the conductor, as these white men were not guilty of any misconduct while in the colored compartment. But their mere presence there, with the knowledge of the conductor, subjected him to the penalty denounced by the statute against any conductor sions of the statute. In other words, if a conwho fails or refuses to carry out the proviductor knows or has information that white or colored passengers are in coaches or compartments set apart for the other race, and he fails or refuses to expel them from the coach or compartment they are wrongfully in, as soon as practicable and within a reasonable time he may be punished for a violation of the statute; but, unless the passenger who is in the coach or compartment set apart for the other race commits some act of violence or is guilty of rude, insulting, or abusive conduct that is cal-. culated to humiliate or wound the feelings of passengers rightfully occupying the coach or compartment, no one of these passengers will have any cause of action against the company for the failure of the conductor to observe the

law."

Elliott on Railroads (2d Ed.) p. 555, lays down the rule in this wise:

"Although railroad companies are not, perhaps, bound to protect their passengers from injuries by third persons and other passengers to the same extent that they are bound to protect them from injuries by their employés, yet it is their duty to use proper care and vigilance to protect them from injuries by such persons that might reasonably have been foreseen and anticipated. As a railroad company is in duty bound to use care and vigilance to protect its passengers who have placed themselves under its control, and as it has the right

and power to eject disorderly persons, it is his part, is assaulted and injured by a stranger liable to a passenger who, without fault on charge of the train could reasonably have foreor a fellow passenger, if it or its employés in seen and prevented it."

In treating upon this subject, Michie on Carriers, vol. 3, p. 2022, says:

"To render a carrier of passengers liable for failure to protect a passenger or other person to whom it owes protection from insult or injury at the hands of the fellow passenger or third persons, where it has no knowledge that such injury is threatened, the circumstances must be such that those in charge of the train, using the utmost vigilance and care, or that extreme care and caution which very prudent persons exercise, should have foreseen that the injury is threatened. When such circumstances come to their knowledge, it is the duty of the employés to take all reasonable precautions to prevent the injury. If there is nothing to cause an extremely prudent person to apprehend such an injury, the carrier is not liable. Thus it is said that the duty of a carrier to provide accommodations sufficient for the safe transportation of its passengers

(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 its enactment of the Workmen's Compensation Law, can divest the federal courts of jurisdiction of a subject which is and was well established, well defined and about which there was no question in the courts until the enactment of this law in Kentucky and other states of the Union.

SAMPSON, J. Willis Lee, husband of appellant, Marie Lee, was drowned in the Ohio river, near the city of Cincinnati, Ohio, while in the line of duty as an employé of the Licking Valley Coal Digger Company, a corporation which, with all its employés, including the deceased, Lee, had accepted the terms of the Workmen's Compensation Laws (Ky. St. §§ 4880-4987) of this state, and was operating under it. Lee was working on coal barges which were being unloaded at the time by a coal digger, a kind of steam shovel.

In attempting to pass from one barge to another he, by accident, fell into the river and thus came to his death.

Appellant argues that, as our Compensation Law is elective and not compulsory, it is not in conflict with the admiralty laws, as only compulsory compensation laws have been held obnoxious to maritime laws by the Supreme Court of the United States. In this it appears to be in error, as we shall later see.

In making its award, the Board of Compensation, through its then chairman, Hon. Clyde Levy, delivered a written opinion which, because of its splendid diction and attractive reasoning, we would like to embrace in this opinion, but its length forbids, and we content ourselves with copying only the following paragraphs:

The digger was located on a boat or barge which operated only on water, and moved up, down, and across the river, at the pleasure of those in charge. Appellant, Marie Lee, the only dependent of the deceased, filed claim for compensation with the Board of Compensation of the state, and was 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 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 question presented is one of jurisdiction. Had the Board of Compensation jurisdiction to hear and determine and make an award in a case which admittedly before the passage of the act creating the Board was cognizable only in admiralty?

"Maritime," says Bouvier, "pertains to navigation or commercial intercourse upon the seas, Great Lakes, and rivers. A maritime cause is one arising from a maritime contract, whether made at sea or on land." Admiralty is a tribunal exercising jurisdiction over all maritime contracts, torts, injuries or offenses, and extends to navigable rivers, whether tidal or not, in the United States. The court of original admiralty jurisdiction in the United States is the Unit ed States District Court. From this court causes could formerly be removed, in certain cases, to the circuit and ultimately to the Supreme Court.

Appellee insists that appellant's remedy is confined to the admiralty jurisdiction as

was

"The digger was used to take coal, sand, and gravel from the barge to a hopper on the bank. The digger operated only on the river, and the only work required of deceased employé was such as to tie or untie a line, dig a hole for the

spar, and other similar work incident to his employment on the digger."

"An important question presented by the record is whether or not the Kentucky Workmen's Compensation Board has jurisdiction, or whether the facts bring the case under admiralty jurisdiction.

review of the admiralty jurisdiction. It is well "It is unnecessary to enter upon an extensive settled that the admiralty jurisdiction within its sphere is exclusive, and that state legislation affecting maritime rights is unconstitutional, because it destroys the uniformity established by the Constitution. So. Pac. Co. v. Jensen, 244 U. S. 205, 37 S. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900, 14 N. C. C. A. 597.

maritime work desire to be governed by the "If an employer and employé engaged in federal law, there is nothing in the Kentucky law that undertakes to prescribe a different liability. But there is nothing in the federal

The same principle is stated in 15 C. J. acts which compare in nature appear to set802, in these words: