filed the following concurring opinion:—
While I concur in the judgment in this case I do not agree to that portion of the opinion in which it is asserted that there was ample evidence to go' to the jury of the exclusion of Mrs. Green *426from the car on account of color. The sufficiency of the evidence upon this point was really not before us, as no such question was made in the court below. Its discussion here might well have been omitted,
The Act of 22d March 1867, Pamph. L. 88, should receive a a reasonable construction. It was manifestly intended to prevent railroad companies making distinctions between passengers on account of race or color. In other words, to secure to colored persons the same rights in travelling as are enjoyed by others. All fair-minded people must concede that this is entirely proper. But I do not think it was intended by said act to give them superior privileges, or to so interfere with the reasonable police arrangement of railroad companies in operating their road and moving their cars as to enable a colored man to force himself into a car where, by reason of such police regulations, a white man may not enter. An ordinary traveller takes his seat in such car as may be pointed out to him by those in charge of the train. In doing so he recognises the undoubted right -of the company to designate the car which he shall enter. He has a right to a seat, but not to a seat in any particular car. There are sufficient reasons why this should be so. Trains are often made up of way cars and through cars. Sometimes there are one or more cars attached occupied by private parties, excursions, &ci Of necessity those in charge of the train must have the right to assign a particular car to the passenger when he gets on the train. Nor do I think they are obliged to give any reason for- the selection, otherwise needless discussions might arise in seating the passengers to the delay of the train and the annoyance of all reasonably disposed travellers. I am unable to see that the mere fact of Mrs. Green’s exclusion from a particular car was evidence that such exclusion was on account of race or color. She was directed to enter a car in which white persons were seated, and which was the -equal in every respect of the car from which she was excluded. One was a New York car and the other was a Philadelphia car. There was no other point of difference. Had she been forced to enter a smoking car, or a car set apart for colored persons, there, would have been a clear violation of the Act of 1867, and this verdict would have.been entirely proper. As no such indignity was offered her, I am of opinion that the case is wholly devoid of evidence to show her exclusion on account of race or color. As, however, this point was not raised, the judgment must be affirmed. I refer to it merely to avoid the appearance of concurring in views which I regard as not only unsound, but as unnecessary to the decision of the case.