Action by Sam Lee and others against the New Orleans Great Northern Railroad Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

Thos. M. Bankston, Hypolite Mixon, and Prentiss B. Carter, for appellants. Benj. M. Miller and Lindsay McDougall, for appellee.

LAND, J. Sam Lee and his wife sued for $15,000 damages, in behalf of themselves and their minor daughters, Edith and Belle, aged, respectively, 16 and 14 years. The cause of action, briefly stated, is that said minors, being white children born of white parents, while passengers on one of defendant's trains and seated in a coach set apart exclusively for white people, were illegally and wrongfully ordered by the conductor of said train to leave said coach and go into the coach set apart exclusively for negroes, and that on their refusal so to do the said conductor ejected them from said train at a station some eight miles distant from their destination, to the great mortification and humiliation of the petitioners.

The defendant, first excepting that the said Edith and Belle are not the legitimate children of the plaintiff, answered that they were colored persons, and that the conductor, so believing, requested them to leave the white coach and to go into the car reserved for negro passengers, which the said girls did without objection, and that they voluntarily left the train at Ramsey, without being required or requested to do so by the said conductor or any other employé of defendant.

On the prayer of the plaintiffs the case was first tried before a jury, which failing to agree, a mistrial was entered. Thereupon counsel for plaintiffs waived trial by jury, and by consent the case was tried before the court.

The word "colored," as used in the statute, is a term specifically applied in the United States to negroes or persons having an admixture of negro blood. See Webster's Int. Dict. verb. The same word is often applied to black people, Africans or their descendants, mixed or unmixed, and to persons who have any appreciable mixture of African blood. 7 Cyc. 400, 401.

One hundred years ago, in the territory of Orleans, the term "persons of color" was used to designate people who were neither white nor black. In Adelle v. Beauregard, 1 Mart. (La.) 184, decided in 1810, the Superior Court said:

"Persons of color may have descended from mulatto parents in possession of freedom." Indians on both sides, from a white parent, or

In that case the court held that the plaintiff, being a person of color, was presumed to be free, and that in case of blacks the presumption was that they were slaves. During the régime of slavery all free persons of African descent were styled "free people of color" or "free colored persons." Civ. Code 1825, arts. 95, 2261; Act No. 308 of 1855. Article 95 of the Code of 1825 interdicted marriage between free persons and slaves, and between free white persons and free people of color. The first restriction fell with the abolition of slavery, and the second was repealed by the Civil Code of 1870.

But by Act No. 54, p. 63, of 1894, marriages between white persons and persons of color were again prohibited.

By Act No. 87 of 1908 concubinage between a person of the Caucasian or white race and a person of the negro or black race was made a felony.

Act No. 111 of 1890 draws a sharp line of distinction, without a margin, between the white and colored races in the matter of separate accommodations on railroad trains.

The trial judge found as a matter of fact that the two girls were "colored," or, in other words, of African descent, on the maternal side.

Act No. 111, p. 152, of 1890, requires railway companies to provide equal, but separate, accommodations for the "white and colored races," and train officers to assign each passenger to the coach or compartment used for the race to which such passenger belongs. The same statute makes it a misdemeanor for any passenger to insist on going into a coach or compartment to which by race he does not belong, and for any train officer to insist on assigning a passenger to a coach or compartment other than the one set aside for the race to which said passenger belongs, and further provides that, should any passenger refuse to occupy the coach or compartment to which he is assigned, the railway officer shall have power to refuse to carry such

all persons with any appreciable degree of negro blood have been considered as colored; that is to say, as belonging to the African race. Many free persons of color owned slaves and other property. But between that class of people, however light in color, and the whites, the color line was strictly drawn, both socially and politically. The lawmaker never applied the term "colored" to slaves, but since emancipation that term has been used as synonymous with negro. Among slaves the word "negro" or "nigger" was considered as a term of reproach, and they usually spoke of themselves as "colored." This nomenclature has survived, and has become a popular term, embracing all persons of negro blood.

The plaintiff's cause of action is based on the allegation that his two daughters are white children born of white parents. The evidence adduced on the first trial failed to satisfy three-fourths of a jury of the vici

The plaintiff, Sam Lee, is undoubtedly a white man. He was married to Adaline Baham before a justice of the peace in February, 1889. At that time marriages between whites and persons of color were lawful, and it results that, in any view of the case, the children of such marriage are legitimate. The solution of the question of color depends on the status of Norah, Nory, or Abraham Baham, the father of Mrs. Lee, who died some 20 or 25 years ago. It is admitted that Norah Baham was of mixed blood, but whether he was of Indian or African descent is the contested issue of fact in the case.

No useful purpose would be subserved by recapitulating the conflicting evidence adduced on this issue in the court below. Suffice it to say that the finding of the trial judge is sustained by the testimony of a number of witnesses who knew Norah Baham before and after the late Civil War. It is true that there is much counter testimony; but it is not sufficient to justify us in reversing the judgment as clearly erroneous on a pure question of fact.

The petition charges the defendant company with the violation of a penal statute, and the burden of proof was on the plaintiff

to establish the essential facts necessary for a recovery of the damages claimed. to wit, that his children belonged to the white race, and were unlawfully assigned to a coach or compartment set apart for colored persons. One who charges another with a culpable breach of duty must prove the fact, though it involves a negative. 1 Hennen's Digest, pp. 495-497. On the question of race there is no legal presumption either way. The issue was one purely of fact, to be determined not only by evidence of the admixture of negro blood, but by evidence of reputation, of social reception, and of the exercise of the privileges of a white man. White v. Tax Collector, 3 Rich. Law (S. C.) 136. Judgment affirmed.

(125 La. 241)

No. 17,528.

BUSBEY V. HAMITER-BUSBEY MILL &
ELEVATOR CO., Limited.
(Supreme Court of Louisiana. Nov. 29, 1909.
Rehearing Denied Jan. 17, 1910.)

1. MASTER AND SERVANT (§ 247*)-INJURY TO SERVANT-NEGLIGENCE OF SERVANT-PROXIMATE CAUSE OF INJURY.

Failure on the part of the plaintiff to exercise due caution in removing an obstruction from dangerous machinery is the proximate cause of the accident; and, as the plaintiff thereby contributes to his misfortune by his own negligence and want of care, he is not entitled to damages.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 795-800; Dec. Dig. § 247.*]

The negligence of a defendant when it is not the proximate cause, or the concurrent cause, but is merely a remote cause, will not support an action for damages against him; for, in order to render a defendant liable, his negligence must be such as proximately contributed to the injury. In the instant case the absence of a shaker or screen was not the proximate cause of the accident, for the manner in which plaintiff performed his work was the proximate cause.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 795-800; Dec. Dig. 247.*]

(Syllabus by the Court.)

Appeal from First Judicial District Court, Parish of Caddo; A. J. Murff, Judge.

Action by Frank B. Busbey against the Hamiter-Busbey Mill & Elevator Company, Limited. Judgment for plaintiff, and defendant appeals. Reversed.

Wise, Randolph & Rendall, for appellant. Hall & Jack, for appellee.

Defendant runs a gristmill, and manufactures chops and corn meal.

On the day of the accident plaintiff had been in the employ of the defendant as miller about 10 days. He avers that he had had no previous experience, and that he was not aware of the defects and dangers in operating the mill in the absence of a shaker.

The defense sets out that its machinery in this mill was manufactured by a large and responsible factory, and that everything was in complete running order.

The defendant also sets out that plaintiff had experience as an operator of mills; that, if there were defects, they were apparent and he made no objection; that he thereby voluntarily assumed all risks; that the accident was caused by plaintiff's fault; that he undertook to remove the obstruction, and was not careful; that there were other and safer methods of removing it to which he should have resorted.

There was originally a "shaker" in the

After a few days plaintiff called on the assistant manager and stated that he felt competent to handle the plant.

The assistant manager then turned it over to him.

Plaintiff had been running the mill several nights when he met with the accident. The night service was easier for reasons stated, and for that reason he was given that work. When the accident happened, plaintiff was standing before the live rollers, with his left side next to the rollers.

The evidence informs us that there were three safe ways of removing the obstructionone by facing the machine and pulling the obstruction directly toward his body.

We will state here with regard to the first way of removing the obstruction. It appears that there was flexibility about the machine sufficient to enable the miller to pull out the obstruction.

Had the method before mentioned been followed, it would have been perfectly safe, as his hand would then have been protected by the trough before alluded to, which stands above the live rollers. This trough being at right angles in front of plaintiff, the hand would have been held up by the upper edge of the trough board, and would thereby have been protected. It could not then have been possible for the hand to fall (while snatched back) to the live rollers.

Another way of getting rid of the obstruction in the machine was by stopping the mill, which is seldom done, however.

Another way was to reach down for the obstruction from above; that is, from the opening.

No question but that there would have been less danger if a "shaker" or "screen" had been in use.

It is difficult to determine the extent of the diminution of the danger by the use of this device.

The plaintiff has it that the accident would have been almost impossible if such a "screen" had been in use, while, on the other hand, the defendant has it that the "shaker" or screen is not a safety device; that it is separate from the crushing mill itself, and is at some distance from it, about 20 feet, and only used to remove excessive trash, cobbs, and splinters which are mixed with the

such a character that it is referred to by witnesses as one that amounted at most to a hindrance in operating the mill, but did not add, as they thought, to the danger of the operation. It was not the proximate cause of the misfortune. The proximate cause was plaintiff's failure to be cautious in removing the obstruction.

Plaintiff quotes from decisions of this court in support of his claim, notably the case of Merritt v. Victoria Lumber Co., 111 La. 159, 35 South. 497.

Ir that case the workman was not negligent. He was performing his work when the misfortune arose because of defectiveness of the machinery. For that reason, judgment was in favor of the plaintiff in the suit.

The same is true of the other decisions cited by plaintiff. In no case, the court said, the plaintiff was at fault. On the contrary, it was said in the syllabus of the first-cited case (111 La. 159, 35 South. 497) in this action sounding in damages the workman killed was in no way at fault.

Actions in which the workman was careless and imprudent, and in which in consequence no damages could be allowed, have given rise to many discussions.

It began in England and resulted in a rule which has been accepted by nearly all the courts in this country.

The rule in part is, in substance, if the plaintiff had not contributed to the misfortune by his own negligence and want of ordinary care and caution, the misfortune would not have happened.

In such a case no damages are allowed. Only in one or two of the states the rule has not been accepted.

In Cooley on Torts (2d Ed.) p. 812, the courts of Louisiana are listed among the courts that have accepted the rule.

The case of Laicher v. New Orleans, 28 La. Ann. 320, and Johnson v. Canal Company, 27 La. Ann. 53, are cited as evidence of Louisiana's acceptance of the rule.

These decisions have not been overruled. The plaintiff had received instructions. He had expressed himself as satisfied that he had received sufficient instructions. He had been placed in charge as miller at his own instance.

The testimony is that the work of a miller is not difficult, and is not dangerous; that the machinery of defendant's mill is not complicated, and requires no great experience for operating it. Only the most ordinary skill was required, and that plaintiff had.

The negligence of defendant was not the proximate cause of the injury, nor was it the concurrent cause. It was remote, not directly connected with the misfortune.

The duty to remove the obstruction which found its way to the live rollers was a duty which the average miller was competent to perform. It was an ordinary obstruction.