(After stating the facts.)
According to the evidence for the plaintiff, a passenger-car set apart for colored passengers, as provided by law, was invaded by a drunken person, who was guilty of violent conduct, terrorizing the occupants of the car, and compelling the plaintiff to leave his seat and ride on the platform, while the conductor remained idly by and neither prоtected the passengers nor arrested or ejected the offender. The evidence of the conductor, which is partly copied in the statement of facts, shows how mildly he dеalt with the boisterous passenger. A railroad company is bound to use extraordinary care and diligence to protect its passengers, while in transit, from violence, injury, or outragе and humiliation by third persons. Brunswick & Western R. Co. v. Ponder, 117 Ga. 63. This duty applies whether the passenger is white or colored. “This protection must be afforded by the conductor to the extent of all the power with which he is clothed by the company or by the law, and his failure to afford it, when he has knowledge that there is occasion for his interference, will subject the company to liability in damages.” Richmond & Danville R. Co. v. Jefferson, 89 Ga. 554. Conductors are clothed with police powers, and authorized to stop the train where the offense-is committed, or at the next stopping-place, and eject a passеnger who is guilty of disorderly conduct, or of using obscene, profane, or vulgar language, or gaming on the train; he may cause the offender to be detained and delivered to the prоper authorities, for trial, as soon as practicable. Penal Code, § 902. “With or without a ticket, a passenger has no right to remain on a train and be carried when he is disorderly, or usеs any
The presiding judge did not present the issues in this case with his usual ability and clearness. If, in the charge to the effect that a conductor would not be justified in expelling from the train a passenger of known bad and turbulent character, “so long as such person was not guilty of conduct seriously annoying or dangerous to other passengеrs,” the word “seriously” is to be construed as qualifying both the words “annoying” and “dangerous,” the charge w'as clearly erroneous. A passenger does not have to be in serious danger beforе the duty of the conductor to protect him arises. If that word is to be considered as qualifying the word “annoying” only, it is still of doubtful propriety. In Pittsburg, Cincinnati and St. Louis R. Co. v. Vandyne,
Eailroads doing business in this State are required by its statutes to furnish “equal accommodations, in separate cars, or comрartments of cars, for white and colored passengers;” and it is also declared, that “the officers or employees having charge of such railroad-cars shall not permit white and colored passengers to occupy the same car or compartment, and a violation of this section shall be a misdemeanor.” Penal Code, §§ 526, 529. “The conductоr and any and all employees on such cars have power to eject from the train or car any passenger who refuses to remain in such car or compartment or seat as may be assigned to him.” Penal Code, § 528. See also Civil Code, § 2270 et seq. The plaintiff expressly alleged that Scruggs, a white passenger, was drunk and disorderly, that he went into the car set aрart for colored people, where he had no right to be, and where the plaintiff was rightfully and quietly seated, and without any cause or provocation began a violent assault upon the plaintiff, threatening and cursing him; that he drew a pistol, threatened to shoot the plaintiff, and drove the latter out of his seat and out of the car; and that all of this was in the prеsence of the conductor, whom the plaintiff continued to ask to protect him, but who failed and refused to do so. This was denied by the defendant in its answer. In his charge to the jury the presiding judgе made no reference whatever to the very material issue as to the place where the alleged assault took place, or whether Scruggs
It is contended on behalf of the defendant in error, that the only damages claimed are based on the assault or threatened assault, and not upon a violation of the statute in reference to separation of races, the reference to the fact that Scruggs was in the car set apart for colored people being merely incidental. A reading of the allegations on this subject, which are in effect stated above, will show that they were not incidental, but material and substantial. In a later portion of the declaration, in setting out the alleged negligence of the defendant, it is stated, among other things, “that the defendant, in all the particulars aforesaid, failed to exercise еxtraordinary care to protect the person of the plaintiff, who was its passenger on its train; but exposed the person of the passenger to danger by its negligence.”
The сharge that “if a passenger is. guilty of boisterous and improper conduct, but desists from it after request or remonstrance or command of the conductor, the conductor would not be justified in expelling him from the train after he had so desisted,” is not an accurate, concrete statement of the law applicable to the facts disclosed by the evidence in this case. • It omits entirely any consideration of the question as to whether the conductor made a request or remonstrance or command in due time and in proper manner, for the protection of other passengers. Savannah, Florida & Western Ry. Co. v. Boyle, 115 Ga. 836. Moreover, if Scruggs was in a place where he had no lawful right to be, and the conductor permitted him to remain there, with а pistol in his hand, to the exclusion of the passengers who had a right to be there, this could hardly be called a desistance from the improper conduct. In Pittsburg, Fort Wayne & Chicago Ry. Co. v. Hinds,
Judgment reversed.