19 Ky.L.Rptr. 1346, 102 Ky. 323
Court of Appeals of Kentucky.
Dec. 1, 1897.
ACTION: Reversed.

Appeal from circuit court, Knox county.
"To be officially reported."
Action by John H. Catron against the Louisville & Nashville Railroad Company Judgment was rendered for plaintiff, and defendant appeals.

This action was begun in the Knox circuit court by the appellee against appellant for damages. The cause of complaint and damages alleged by plaintiff are that in June, 1894, appellee was the sheriff of Knox county; that, as such officer, he at that time had a prisoner in his charge,-a negro lunatic; that the appellee had, by proper orders and judgment of a court of competent jurisdiction, been directed to take the negro lunatic to the asylum at Lexington, Ky.; that, while executing this order and judgment, appellee bought two first-class tickets (one for himself, and one for the lunatic) from Barboursville to Winchester, over appellant's road; that, from Barboursville to Livingston, appellee and his prisoner occupied the smoking car for white persons, but that from Livingston, where he changed trains, to Richmond, appellee was compelled by the conductor in charge of the train to ride with the prisoner in the coach set apart for colored persons exclusively, as, by the laws of Kentucky, he was required to do. For this alleged injury and insult he claimed judgment in damages. To this petition the appellant answered after a demurrer to same had been overruled. This answer is a general and special denial of all the facts alleged, except that appellee was the sheriff in charge of a prisoner, and bought the two tickets, as alleged. It denied that appellee was compelled to ride in the colored coach, or requested so to do, by any officer or agent of appellant. The issue thus presented was tried before a jury, and they returned a verdict for appellee for $1,250, and judgment was rendered thereon; and, after appellant's motion for new trial had been overruled, it appealed to this court.

The decision of this case requires a construction of the separate coach law; being the act of May 24, 1892. "Any railroad or corporation are hereby required to furnish separate coaches or cars for the travel or transportation of the white and colored passengers on their respective lines of railroad. Each compartment of a coach divided by a good and substantial wooden partition, with a door therein, shall be deemed a separate coach, within the meaning of this act, and each separate coach or compartment shall bear in some conspicuous place appropriate words, in plain letters, indicating the race for which it is set apart." Railroad companies shall make no difference or discrimination in the coaches set apart for white and colored passengers. A penalty against railroads, in the sum of from $500 to $1,500, for each failure. "The conductors or managers on all railroads shall have power and are hereby required to assign to each white or colored passenger his or her respective car or coach or compartment, or should any passenger refuse to occupy the car, coach or compartment, to which he or she may be assigned by the conductor or manager, said conductor or manager shall have the right to refuse to carry such passenger on his train, and may put such passenger off the train. And for such refusal and putting off the train neither the manager, conductor, nor railroad company shall be liable for damages in any court." "That any conductor or manager on any railroad who shall fail or refuse to carry out the provisions shall upon conviction be fined not less than fifty nor more than one hundred dollars for each offense." "The provisions of this act shall not apply to employes of railroads or persons employed as nurses, or officers in charge of prisoners."

The precise question to be here determined is the effect of the clause, "The provisions of this act shall not apply to officers in charge of prisoners." The evident intention of the legislature in the enactment of this law was to separate the two races in their travel on the railroads throughout the state, as is likewise the policy in the schools, and at the same time providing that colored passengers should have equal rights. But it was recognized that to make this separation of the races absolute, and in all cases, would be impracticable, as to the railroad employes. If the white man must keep out of the colored coach, and the colored man keep out of the white coach, in all cases, there would be two sets of trainmen on one train. So the exception was made in behalf of the employes. They may, of course, go in either coach. Again, recognizing the necessity in a great many cases that persons traveling should be accompanied by a nurse, this nurse was included in the excepting clause. The law not applying to the nurse, she may go with her charge. This was, of course, done in order that the child or invalid might have the services of the nurse on the journey. This nurse can occupy the car assigned to her race, or to the one of the child or invalid. But there is a third class of persons who are also excepted from the provisions of the act, viz. "officers in charge of prisoners." The exception is not to the prisoner, but to the officer; and being connected in the same sentence with the exception in favor of the employes and of nurses, we conclude that the same rule applies to the officer in charge of a prisoner. He may occupy either car. He may occupy the car assigned to his race, or he may occupy the car of the race of the prisoner, but the prisoner must in all cases occupy the car assigned to his race. The exception is not made to the prisoner, or for his benefit, but to the officer, that he may accompany the prisoner and detain him. The testimony of the appellee himself on the trial, as presented by this record, shows that there was no indignity offered him, except that he was told that the negro lunatic must ride in the colored coach, and that the conductor told appellee that he could leave the negro lunatic in the colored car, and sit himself in the white car, and leave the door between the two compartments open, so that he could guard the prisoner. This the appellee declined to do, for the reason that he feared that the negro would jump out of the window, and appellee refused to be separated from his prisoner. We are of opinion that under the law the conductor was compelled to assign the negro lunatic to the car set apart for colored persons, and, if appellee refused to separate from his prisoner, he had a right to ride in that car, or he had a right to occupy the other car, as the conductor informed him he could do. It seems to us that the conductor did only as the law provided that he should do, and, in our opinion, these acts did not render appellant liable; and it therefore follows that, as by appellee's own showing he was not entitled to recover, the peremptory instruction should have been given, to find for defendant. Wherefore the judgment is reversed and cause remanded, with directions to award appellant a new trial, and for further proceedings consistent with this opinion.

Ky.App. 1897.
43 S.W. 443, 19 Ky.L.Rptr. 1346, 102 Ky. 323

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