CLARK, C. J., dissenting. *Page 271 Action to recover a penalty for violation of what is commonly called the Jim Crow car law, embodied in Revisal of 1905, secs. 2619 to 2622, inclusive. The following is the evidence of the plaintiff:
"On Wednesday morning, 29 December, 1908, we went to Ivanhoe, a station on defendant's railroad. There were four of us, all white, and we bought tickets at Ivanhoe for Tomahawk, the nearest station to our homes. We paid 25 cents for each ticket, and the distance was about ten miles. When the train came we started towards the steps of the white war. We got on steps of white car and started to go in white coach, and the conductor told us to go into the other car. We went in and found a few colored folks, and they told us we were in the wrong car. We then went out and started to go into the white coach, but the conductor told us to go back into the colored car. There was ample room for us in the white coach, but when the conductor told us to go into the other car we went. He didn't use any threats or do anything to make us go in, except to say, `Go in that car,' pointing to the car for colored people with his hand. He did not use any force."
J. H. Boney testified for plaintiff: "I was with Merrit. All of us had tickets. We started to go up white steps, and conductor said, `Go on in the other car.' We then went into the colored car, and some negroes in there told us we were in the wrong car, and we started (282) out to go into the white coach, when the conductor waved his hand and said, `Go on back in the other car.' We went back. When the conductor came to take up our tickets I asked him why he put us in the colored car, and he said, `You want to keep your baggage with you, don't you?' I said I usually kept it. My baggage was rafting gear, axe, etc., in a tow sack. There was plenty of room in the white car, and there was plenty of room in the colored car. The railroad had provided separate cars for the two races, but we are white men, and the conductor ordered us to go into the colored car. He did not cuss or abuse us, and did nothing except to tell us to go into the car for the colored race. There was a coach for the whites with plenty of room, but the conductor told us to ride in the colored car."
The plaintiff here rested, and the defendant moved for judgment as of nonsuit, under the Hinsdale Act. Motion overruled, and defendant excepted.
From a verdict and judgment for the plaintiff the defendant appealed. We are of opinion that the plaintiff is not entitled to recover the penalty denounced by section 2622 of the Revisal for failure to provide separate cars.
Where the carrier has obeyed the law and provided separate cars for the white and colored passengers which afford equal accommodations, no statutory penalty is incurred if the individual passenger is directed by a train hand or conductor into the wrong car.
This is manifest from the language of the statutes. Omitting superfluities, section 2619 reads as follows: "All railroad companies shall provide separate but equal accommodations for the white and colored races on all trains carrying passengers.
"Such accommodations may be furnished by railroad companies either by separate passenger cars or by compartments in passenger cars, which shall be provided by the railroad under the supervision and direction of the Corporation Commission."
Section 2320 provides that the commission may exempt certain roads and trains. Section 2321 provides when the two races may be put in the same coach, and section 2622 imposes a penalty for failing to provide separate cars.
Upon the testimony of the plaintiff it appears that the defendant (283) had complied fully and in good faith with the statutes cited, and furnished equal and separate accommodations on its train for the white and colored races.
Assuming, as contended by plaintiff, that the conductor erred in showing plaintiff into the colored car, because he had his rafting gear with him, that does not alter the admitted fact that so far as the carrier is concerned it had complied in good faith with the law and provided separate cars and equal accommodations for the two races. That being so, no statutory penalty is incurred.
That our construction is right is manifest from that portion of the law which provides that the separate cars and accommodations, for failure to supply which the penalty is given, must be furnished by the carrier under the direction and supervision of the Corporation Commission.
As said by the Federal Court, the equipment is the required thing, the failure to furnish which brings on the penalty, and not the management of the equipment by the employees. U.S. v. R. R., 156 Fed., 183. That was an action brought by the Government for the penalty imposed by the safety-appliance act of 2 March, 1893. The Circuit Court held that the penalties were incurred by a failure to furnish the appliances, and not because improperly managed by the company's employees after being furnished.
The motion to nonsuit is sustained.
Reversed and dismissed. *Page 273