257 F. 659 | 6th Cir. | 1919
By law, street railways in Tennessee are required to separate tire races by placing white passengers in one end, of a car and colored passengers in the other, passengers of either race being compelled to remain within the half of the car reserved to them, unless it should happen that it had been filled and seats remained in that part of the car set off to passengers of the other race. The result of the regulation is that vacant seats, if any, in either half of the car will be those nearest the center. The car which figures in this case had a side door; it was a trailer in charge of Conductor Bullock, the motorcar being in charge of Conductor Bright. The plaintiff, Pierce, was a colored man seated towards the rear, that being the half assigned to colored passengers. As the car left the center of the city of Memphis, there were many vacant seats in each half, but a white passenger, one Barker, instead of turning to the right and seating himself among the whites, insisted) on taking the first seat to the left of the door in the colored section. The car began to fill with, a preponderance of colored passengers until there was but one seat remaining in the negro end, that beside Barker. A colored woman entered and- undertook to sit beside him; her action being met by his strong objection. Thereupon a negro passenger named Knox came up from the rear, giving his seat to the colored woman, and engaged in an altercation with Barker, in which some profanity was used, and which Conductor Bullock could not quell. The latter thereupon gave the ordinary stopping signal for the street which the cars were approaching and opened the door, to order both Knox and Barker from the car. When the train stopped, Conductor Bright came from the front car, and firing began between him and the negro Knox, who was killed. One of Bright’s shots hit Pierce, who had no part in the transaction, and it is for injuries by him sustained that this action was brought against the defendant, plaintiff in error here, which seeks to reverse the judgment against it following the verdict.
The assignments in error, four in number, are predicated upon alleged errors of the court relating -to the charge to the jury. The first, third, and fourth may be grouped together and thus disposed of, having been argued in that collocation by plaintiff in error’s counsel. It is first urged that what the court said to the jury on the subject of self-defense was erroneous under the circumstances of the case, and that the court erred in refusing to give certain requests upon this subject which are the subjects of the third and fourth assignments. The court’s charge on self-defense excepted to was as follows:
“In. order for you to determine the rights of the parties, it is necessary for the court to instruct you upon the law of justifiable homicide as applicable to the facts in this case. In the first place, the conductor, Bright, would be justified in shooting the negro, John Knox, if he did so in self-defense, and on that subject I charge you as follows:
*661 “If the conductor, Bright, was in real or apparent danger of death of great bodily harm,' or honestly believed himself to be in such danger, as evidenced by the facts and circumstances justifying such a belief as they appeared to him, and in acting in good faith under such an apprehension he shot and killed the negro, John Knox, and at this time accidentally wounded John Bierce, tho court charges you that this is justifiable homicide; and if you believe that the conductor, Bright, acted in the honest belief and was justified by the circumstances, then you must find for the defendant.
“Considering the self-defense theory, which is relied upon by the defendant, you will first look to all the facts and circumstances in the case, and if from that you believe that the conductor, Bright, came to the trailer car door, and, without more, the passenger, Knox, fired at him, or drew his pistol to fire at him, and the conductor shot at him in self-defense under such circumstances, and the ball missed and struck the plaintiff, then the company would not he liable.
“But, on the other hand, if you believe that there was some controversy between Knox and a white man who was sitting on the seat with him, and that when the car stopped, and the conductor, Bright, came to the door with his pistol, or drew it as he got to the door, and threw it on the negro and told him, ‘Hands up,’ and the negro arose and drew Ms pistol and fired, then he was acting in self-defense; the company would be liable, and under such circumstances it would be immaterial whether Knox fired first or tho conductor first, because under such conditions he would be the aggressor and could not avail himself of the plea of self-defense.”
“That is what this trouble seems to have arisen from, blit what was its condition, what was the intensity of it at the time the conductor on the front car came back? There is no evidence in that case that explains why he came back, or what induced him to come back. The car bell was rung to stop in the ordinary way for a stop, as the conductor testified there was no call made for any help; and you must apply your good common sense and judgment in determining just what was going on at the time this shot was fired that struck this plaintiff.”
It is argued that this was extremely prejudicial, “for the reason that the court, in substance, told the jury that it is a proven or admitted fact that Conductor Bright came back from the motorcar without any reason and deliberately started a fight with the negro John Knox.” This criticism does not appeal to the court as valid, nor do we see error in this charge, viewed in relation to all the facts and circumstances of the case, and especially when considered with a subsequent discussion of this subject between counsel for defendant below and the court in the presence of the jury and which was, in fact, part of the instructions. This discussion was as follows:
. “Mr. Walker: I except because tbe court stated that there was no evidence in tbe case to cause Bright to return to the trailer car. I submit that there was a question as to whether or not there was sufficient evidence in the case to warrant Bright’s return to the trailer car.
“The Court: I don’t recall any direct evidence that showed what moved him 10 leave. It may be inferred from all the evidence in the case. There may be reasonable inference as to why he went back, and the jury may look to all the evidence in determining what caused him to go back. He is not here to speak on that subject.”
The judgment of the court below, therefore, must be affirmed. Evanston v. Gunn, 99 U. S. 660, 25 L. Ed. 306; Walbrun v. Babbitt, 16 Wall. 577, 21 L. Ed. 489.