61

§ 3116. Custom or Usage Created by Course of Conduct.-A close analogy to the question under consideration is found in that other question, What course of conduct will create a custom, as between the passenger and the carrier, varying the common-law rights of the passenger against the carrier,-in other words, varying the implications annexed by the common law to the contract of carriage? Let us take, for example, the case where a passenger upon a railroad train insists upon the right to carry with him in the car and upon his journey, small packages of merchandise. This right, it must be conceded, does not spring out of the contract by which the carrier undertakes to transport the passenger's baggage to a stated destination; for, as we shall see hereafter, the general rule is that merchandise is not baggage, but that the carrier is entitled to extra compensation for transporting it. But the right of the carrier to refuse to allow the passenger to take it with him into the carrier's train may, like many other rights arising at common law or under the interpretation of contracts, be waived or varied by the custom of the carrier. But here, as in other cases where a custom is invoked to change the ordinary interpretation of a contract, the rule obtains that the custom must be general, certain, uniform and notorious, and that it must be clearly proved, so that it can be concluded that the officers and agents. of the carrier had knowledge of the custom and acquiesced in it, in such manner as to make it a part of the contract of carriage.62 Such evidence, it has been well reasoned, must not only be clear and explicit, but it must also be distinguished from mere acts of accommodation; hence the mere fact that such acts of accommodation have been constantly done, not in obedience to duty or contract, but as a mere

on the apparent authority of the conductor to permit him to ride on the freight train; and hence, that the admission of such evidence generally, and without instructing the jury to consider it only as tending to furnish such excuse, was error: San Antonio &c. R. Co. v. Lynch, supra. But how the conduct of the railroad company, subsequently to the date at which the person was killed, could furnish him with an excuse for, violating a rule of the company, is a proposition which is hard to understand. It appeared that the defendant railway company had, six months before the accident complained of, posted notices, forbidding conductors of freight trains to carry passengers, under penalty of discharge, in most of its cabooses

and passenger depots, and in the caboose in which plaintiff's husband was killed. Defendant's superintendent of transportation testified that he had tried to detect violations, and two conductors had been discharged therefor. Its station agents were also charged with a similar duty, and one of them looked into the caboose in question, in compliance with such duty, but saw no one except those that were entitled to ride therein. On these facts, the Court of Appeals held that the rule had been abrogated by the company: San Antonio &c. R. Co. v. Lynch (Tex. Civ. App.), 55 S. W. Rep. 517.

61 Post. § 3417.

62 Runyan v. Central R. Co., 64 N. J. L. 67; s. c. 44 Atl. Rep. 985.

matter of indulgence to the passenger, can not compel their continuance. 63 And it was well decided that a habit of one particular passenger of carrying a package of merchandise into the passenger cars and with him on his journey, will not constitute a usage or custom tha: passengers are entitled to rely upon as a general regulation of the railroad company.* But it should be carefully kept in mind that, on principle, there may and must be, in this respect, a difference between compelling the carrier to continue such a custom, and punishing the passenger for acting upon it while it is in force.es

§ 3119. Regulation Releasing Carrier from the High Degree of Care Imposed on him by Law.-It is scarcely necessary to say that a regulation by which a carrier of passengers attempts to release himself from that high and exact degree of care and diligence imposed upon him by the principles of the law, will be nugatory." A rule requiring passengers to remain in the cars provided for them, and prohibiting them from riding in an express car or other place of increased danger set apart for another purpose, is reasonable.67

§ 3120. Separation of Passengers According to Sex.-It is a recognized rule that a carrier can not capriciously discriminate between passengers on account of their nativity, color, race, social position, or their political or religious beliefs. Classifications and discriminations may be made for the general convenience and security of the passengers; but such distinctions must be on some principle or for some reason which the law recognizes as just and equitable, and founded in sound public policy. The reservation of a car for the accommodation of ladies, and gentlemen in company with ladies, is a measure the reasonableness of which has always been conceded.68 The railway carrier has a right to enforce obedience to such a regulation, and, after notice to a passenger attempting to enter the "ladies' car," may exclude him with force if necessary, but, of course, using no greater amount than adequate to the circumstances of the case."9 If there be no sitting room for passengers excluded by the regulation from the ladies' car, but room to seat them there, they can not be left standing without a breach of the contract of carriage. But, in such case, it rests in the discretion of the proper officials of the train to select those to be admitted. Passengers aggrieved by the exercise of such discretion have their remedy in an action for breach of the contract of carriage.70

conductor liable to a penalty for failing properly to assign the passengers: Louisville &c. R. Co. v. Com., 99 Ky. 663; s. c. 18 Ky. L. Rep. 491; 5 Am. & Eng. Rail. Cas. (N. S.) 644; 37 S. W. Rep. 79.

6 Ante, § 3326; Randall v. New Orleans &c. R. Co., 45 La. An. 778; s. c. 13 South. Rep. 166.

67 Florida &c. R. Co. v. Hirst. 30 Fla. 1; s. c. 16 L. R. A. 631; 12 Rail. & Corp. L. J. 218; 11 South. Rep. 506; 52 Am. & Eng. Rail. Cas. 409.

68 Chicago &c. R. Co. v. Williams, 55 Ill. 185; Bass v. Chicago &c. R. Co., 36 Wis. 450; s. c. 39 Wis. 636; 42 Wis. 654; Thomp. Carr. Pass. 311; Peck v. New York &c. R. Co., 70 N.

69

Y. 587. See, also, State v. Overton, 24 N. J. L. 435, 441; Pittsburgh &c. R. Co. v. Hinds, 53 Pa. St. 572; s. c. Thomp. Carr. Pass. 295; Memphis &c. R. Co. v. Benson, 85 Tenn. 627; s. c. 7 Am. St. Rep. 776; 4 S. W. Rep.

5.

69 Peck v. New York &c. R. Co., supra; Bass v. Chicago &c. R. Co., 36 Wis. 450; s. c. 39 Wis. 636; 42 Wis. 654; Thomp. Carr. Pass. 311; McKinley v. Chicago &c. R. Co., 44 Iowa 314.

70 Bass v. Chicago &c. R. Co., supra. But see Thorpe v. New York &c. R. Co., 13 Hun (N. Y.) 70; s. c. aff'd 76 N. Y. 402.

§ 3121. Classification of Passengers According to Color-Although this has been a subject of bitter contention, involving political considerations with reference to the rights of the slaves emancipated as a result of the late Civil War, and although in the early stages of the discussion there were conflicting decisions upon the question.judicial opinion is now generally agreed upon the proposition that it is within the power of a common carrier of passengers to separate them into separate cars, or into separate portions of the same car, or other vehicle, according to color, provided each class of passengers obtain the kind of passage for which they contract and pay." According to one holding, there will, as in other cases of the regulations of carriers, arise the question whether a regulation making this classification is reasonable; and this holding is to the effect that it is a mixed question of law and fact, depending upon the circumstances of the case, and that it is accordingly a question for a jury." But, on principle, if not on the analogy of a decisive mass of judicial authority, it would seem to be a pure question of law. Statutes have been enacted in some of the States authorizing, or requiring, under penalties, railway carriers of passengers to assign white and colored passengers separate coaches, and, so far as the writer knows, these statutes have always been upheld. Under such a statute, if the conductor of a train assigns a passenger to a coach to which his race does not belong, the assignment is wrongful and he is not bound to accept it; and if the carrier refuses to carry him unless he does accept it, he has an action for damages.74

71 West Chester &c. R. Co. v. Miles, 55 Pa. St. 209; s. c. 93 Am. Dec. 744; Smith v. Chamberlain, 38 S. C. 529; s. c. 19 L. R. A. 710; 17 S. E. Rep. 371; Ohio Valley R. Co. v. Lander, 20 Ky. L. Rep. 913, 926; s. c. 47 S. W. Rep. 344, 882; rehearing denied in s. c. 20 Ky. L. Rep. 926; 48 S. W. Rep. 145; Britton v. Atlanta &c. R. Co., 88 N. C. 542; s. c. 43 Am. Rep. 749; Chesapeake &c. R. Co. v. Wells, 83 Tenn. 615; Day v. Owen, 5 Mich. 525; s. c. 72 Am. Dec. 62; Com. v. Power, 7 Metc. (Mass.) 596; s. c. 41 Am. Dec. 465; McGuinn v. Forbes; 37 Fed. Rep. 639; Houck v. Southern &c. R. Co., 38 Fed. Rep. 226. One court, an inferior court in Pennsylvania, has gone farther, and upheld discriminations against colored persons, which operate to deny them accommodations like white persons, such as a regulation of a street car company confining negroes to the

73

74 Anderson v. Louisville &c. R. Co.. 62 Fed. Rep. 43; Ex parte Plessy, 45 La. An. 80; s. c. 18 L. R. A. 639; 7 Am. Rail. & Corp. Rep. 383; 11 South. Rep. 948 (not contrary to the Thirteenth Amendment); Plessy v. Ferguson, 163 U. S. 537; s. c. 16 Sup. Ct. Rep. 1138 (not contrary to the Fourteenth Amendment). An o cer in charge of a negro prisoner can not bring such negro into a car set apart for white passengers, under Ky. Stat., § 795, requiring railroad companies to furnish separate coaches for white and colored passengers, and § 801, providing that

§ 3122. Whether Interstate Carriers may Make such Classification.-The Supreme Court of the United States decided that a statute of Louisiana which prohibited common carriers of passengers from making discriminations on account of color was unconstitutional and void as being a law in restraint of commerce; and that, too, although, under the facts of the case at bar, the passenger, who had been excluded from the cabin occupied by white people, was travelling up the river from New Orleans to a point within the State of Louisiana. Waite, C. J., said: "The river Mississippi passes through or along the borders of ten different States, and its tributaries reach many more. The commerce upon these waters is immense, and its regulation clearly a matter of national concern. If each State were at liberty to regulate the conduct of carriers while within its jurisdiction, the confusion likely to follow could not but be productive of great inconvenience and unnecessary hardship. Each State could provide for its own passengers and regulate the transportation of its own freight, regardless of the interests of others. Nay, more, it could prescribe rules by which the carrier must be governed within the State in respect to passengers and property brought from without. On one side of the river, or its tributaries, he might be required to observe one set of rules, and on the other another. Commerce can not flourish in the midst of such embarrassments. No carrier of passengers can conduct his business with satisfaction to himself, or comfort to those employing him, if on one side of a State line his passengers, both white and colored, must be permitted to occupy the same cabin, and on the other be kept separate. Uniformity in the regulations by which he is to be governed from one end to the other of his route is a necessity in his business, and to secure it, Congress, which is untrammeled by State lines, has been invested with the exclusive legislative power of determining what such regulations shall be."75 The foregoing opinion was delivered at the October term, 1877. It is to be noticed that the decision of this case was in no manner affected by the Supplemental Civil-Rights Law of March 1, 1875, as the cause of action accrued prior to that date; therefore this piece of congressional legislation was not discussed in this case.

§ 3123. This Question how Affected by the Late Civil-Rights Law. Soon after the close of the late Civil War, an Act of Congress,

the provisions of such act shall not apply to "officers in charge of prisoners:" Louisville &c. R. Co. v. Catron, 19 Ky. L. Rep. 1346; s. c. 43 S. W. Rep. 443.

75 Hall v. DeCuir, 95 U. S. 485, 489; reversing s. c. sub nom. DeCuir v. Benson, 27 La. An. 1.