The plaintiff was a passenger of the defendant street-railway company. She brought suit for damages^ on account of her alleged unlawful arrest by the conductor of the defendant company. The company entered a plea of justification, based on the ground that the plaintiff had violated the regulations pertaining to the separation of the races. No objection was made as to the sufficiency of the plea of justification, but the case was tried upon the theory set up by a defense of that character. The jury found a verdict in favor of the plaintiff in the sum of $537, and the defendant company brought its exceptions to this court.
Section 2717 of the Civil Code (1910) provides that “all railways doing business in this State shall furnish equal accommodations, in separate ears, or compartments of cars, for white and colored passengers; but this section shall not apply to sleeping-cars.” This section manifestly does not apply, however, to streetcars. These are dealt with in the next section (§ 2718), which provides: “ All conductors or other employees in charge of such *354cars shall be required to assign all passengers to their respective cars or compartments of cars, provided by the said companies under the provisions of the preceding section; and all conductors of dummy, electric, and street-cars shall be required, and are hereby empowered, to assign all passengers to seats on the cars under their charge, SO as to separate the white and colored races as much as practicable; and all conductors and other employees of railroads and all conductors of dummy, electric, and street-ears shall have, and are hereby invested with, police powers to carry out said provisions.” For a failure to obey the requirements of this section passengers are penalized by section 2719, as follows : “ Any passenger remaining in any car, or compartment, or seat, other thap that to which he may have been assigned, shall be guilty of a misdemeanor.” The court on the trial gave in charge to the jury these two latter sections of the code, and also the rule of the railroad commission of Georgia quoted in the 4th headnote, to the effect that conductors of the Savannah Electric Company should require “ colored passengers, beginning with the first seat in the rear, to occupy such seat to its capacity before taking the next seat in front, and so on.” The plaintiff in her petition pleaded certain municipal ordinances of Savannah, the provisions of which she contended had been violated by the defendant company. These ordinances were read in the presence of 'the jury, without objection, and were treated in the' charge of the court as indicated in the syllabus. They read as follows: “ All companies, persons, firms, and associations operating street-cars in the city of Savannah are hereby required to furnish separate accommodations for white and colored passengers, and all white and colored passengers occupying seats in street-cars in the City of Savannah are hereby required to occupy the respective cars or divisions of cars provided for them, so- that the white passengers shall occupy only the cars or division of cars provided for white passengers, and the colored passengers shall occupy only the cars or division of cars provided for the accommodation of colored passengers. All companies, firms, persons, and associations operating street-cars, in the City of Savannah shall furnish such separate accommodations, at their option, by the' operation together of two or more cars, providing separate cars for white passengers and separate cars for colored passengers, or by furnishing separate *355accommodations for white and colored passengers in the same car. When separate accommodation is furnished for white and colored passengers in the same car, the front part of the ear shall be designated for white passengers, and the rear part of the ear for colored passengers. When two or more cars are operated together, thus providing separate ear or cars for white passengers, and separate car or cars for colored passengers, the front ear or cars shall be designated for white passengers and the rear car or cars for colored passengers. The cars, or parts of cars, furnished for white and colored passengers respectively shall have placed conspicuously at each end of the car, or part of car, signs in plain letters, not less than two inches high, indicating by the words ‘ white ’ or ‘ colored/ as the case may be, that such car, or part of car, is provided for the use of white passengers or colored passengers, as the case may be; and when open cars to be entered from the side of the cars are provided for the accommodation of both white and colored passengers, additional such signs shall be provided and placed conspicuously on the side of the ears so as to indicate thereby the portion of the car to be used by white and colored passengers respectively.” “ Any officer, agent, or employee of any company, person, or firm, who shall as superintendent or other officer of such company, or as conductor, motorman, or other employee of such company, operate any ear not so provided with signs on the streets of the City of Savannah for the transportation of passengers, shall upon conviction thereof be fined not more than one hundred ($100) dollars, or by -imprisonment not more than thirty (30) days for each such offense; and any white person wilfully occupying as a passenger any car or part of ear not so set apart and provided for white passengers, and any colored person wilfully occupying as a passenger any car or part of car not so set apart and provided for colored passengers, shall be deemed guilty of disorderly conduct, and shall be punished by fine not exceeding one hundred ($100) dollars, or by imprisonment not exceeding thirty (30) days.”
It would seem from the record that the car was not divided into separate divisions or compartments, but that placards indicating the method of seating the races were placed in the front and rear of the car. There is a conflict in the testimony as to which particular seat the plaintiff occupied as a passenger upon *356the occasion in question. According to the conductor’s evidence it was the third seat from the rear. According to her own evidence (which, however, is not exactly clear on this point) it might seem that she occupied the second seat from the rear. Without going into the testimony of the conductor, but setting forth the transaction solely according to the version given by the plaintiff herself, the record shows that she testified as follows: “ The conductor came and touched me on the shoulder and asked me to move, that two white ladies were seated directly behind me. . . Why didn’t I move? Well, the ladies were pointed to two seats above. The two ladies were seated in the rear of me, and after they were seated I didn’t see any reason to move. . . I simply looked directly behind me to see the people who called my attention to it. I saw two white ladies directly behind me. . . Why did I undertake to tell them where to be seated, where they wanted to be seated? They were seated in the colored portion of the car. . . As to why I did not move back when my attention was called to it? Well, I would have moved back, but the ladies did not say anything, and they simply were able to move up.” Eeferring to a different and later incident, when all the seats in front of her were occupied and she'was again directed to change her seat, she testified: “I said, ‘Why should I move? You haven’t given me any reason.’ I didn’t look back to see whether there were any other white folks on the car. He said, ‘ There is a white man and a white boy.’ I said, ‘ Is that so ? I did not know that.’ After speaking to me like that, I saw the man and boy sitting down, I did not think of color any more. I sat there, and didn’t pay any more attention. . . It is not true that the conductor told me three times to move to the rear seat and I refused; he told me twice.” Q. “ But at this particular time he told you to move, and you saw the white man and white boy were forced to sit in the negro compartment, and the conductor asked you to move, now I ask you to tell the jury why you didn’t reply to the conductor?” A. “Well, this is the point that I looked at then. It was a man and boy. Had it been ladies I would have readily gotten up.” Q. “ So that, if it had been ladies, you. would have moved, but being a man and boy, you refused to move?” A. “Yes. sir.” Thus, from the testimony of the plaintiff herself, whatever question might suggest itself as to the reasonableness of *357the direction given her in the first instance by the conductor, it would seem clear and undisputed that on the second occasion the plaintiff refused to exchange her seat for another in her rear, although the car in the-front of her at that time was filled with white passengers, and white passengers were standing or sitting in her rear, and that the reason given by her for her refusal on this occasion was that the persons in her rear were not ladies. There was other testimony given for the defendant, which would afford plain and palpable justification for the arrest, but which, for the purposes of this decision, it is not thought necessary to incorporate.
As we understand the case, the question is solely whether the defendant was authorized in arresting the plaintiff on account of her violation of the statute law, as properly administered by the officers and servants of the defendant company. It is not whether she may have violated also the provisions of the valid civil rule of the railroad commission, or whether either she or the defendant violated or observed the provisions of the municipal ordinances.
Judgment reversed.
Stephens and Hill, JJ., concur.