LEE et al. v. NEW ORLEANS GREAT NORTHERN R. Co. (Supreme Court of Louisiana, Jan. 3, 1910. 31, 1910.) [51 So. Rep. 182.] Rehearing Denied Jan. Carriers-Appeal and Error-Separate Accommodations-"Colored. Race"-Evidence Review.-Act No. 111, p. 152, of 1890, requires railroad companies to provide equal, but separate, accommodations for "the white and colored races," and makes it a misdemeanor for any train officer to assign a passenger to a coach or compartment other than the one set aside for persons of his race. Where plaintiff sued for damages on the ground that two of his children, born of white parents, had been unlawfully assigned by the conductor of defendant's train to a coach set apart for colored persons, held, that the burden of proof was on the plaintiff to establish that his children belonged to the white race, and that, under the statute, any person who has any applicable mixture of negro blood belongs to the "colored" race; and held, further, that a judgment rendered in favor of the defendant on conflicting evidence as to the status of plaintiff's children would not be disturbed, when not clearly against the preponderance of the evidence. (Syllabus by the Court.) Appeal from Twenty-Sixth Judicial District Court, Parish of St. Tammany; Thomas M. Burns, Judge. Action by Sam Lee and others against the New Orleans Great Northern Railroad Company. Judgment for defendant, and plaintiffs appeal. Affirmed. Thos. M. Bankston, Hypolite Mixon, and Prentiss B. Carter, for appellants. Benj. M. Miller and Lindsay McDougall, for appellee. LAND, J. Sam Lee and his wife sued for $15,000 damages, in behalf of themselves and their minor daughters, Edith and Belle, aged, respectively, 16 and 14 years. The cause of action, briefly stated, is that said minors, being white children born of white parents, while passengers on one of defendant's trains and seated in a coach set apart exclusively for white people, were illegally and wrongfully ordered by the conductor of said train to leave said coach and go into the coach set apart exclusively for negroes, and that on their refusal so to do the said conductor ejected them from said train at a station some eight miles distant from their destination, to the great mortification and humiliation of the peti tioners. The defendant, first excepting that the said Edith and Belle are not the legitimate children of the plaintiff, answered that they were colored persons, and that the conductor, so believing, re Lee v. New Orleans Great Northern R. Co quested them to leave the white coach and to go into the car reserved for negro passengers, which the said girls did without objection, and that they voluntarily left the train at Ramsey, without being required or requested to do so by the said conductor or any other employee of defendant. On the prayer of the plaintiffs the case was first tried before a .jury, which failing to agree, a mistrial was entered. Thereupon counsel for plaintiffs waived trial by jury, and by consent the case was tried before the court. Plaintiffs have appealed from a judgment in favor of the defendant. The trial judge found as a matter of fact that the two girls were "colored," or, in other words, of African descent, on the maternal side. Act No. 111, p. 152, of 1890, requires railway companies to provide equal, but separate, accommodations for the "white and colored races," and train officers to assign each passenger to the coach or compartment used for the race to which such passenger belongs. The same statute makes it a misdemeanor for any passenger to insist on going into a coach or compartment to which by race he does not belong, and for any train officer to insist on assigning a passenger to a coach or compartment other than the one set aside for the race to which said passenger belongs, and further provides that, should any passenger refuse to occupy the coach or compartment to which he is assigned, the railway officer shall have power to refuse to carry such passenger on his train. The word "colored," as used in the statute, is a term specifically applied in the United States to negroes or persons having an admixture of negro blood. See Webster's Int. Dict. verb. The same word is often applied to black people, Africans or their decendants, mixed or unmixed, and to persons who have any applicable mixture of African blood. 7 Cyc. 400, 401. One hundred years ago, in the territory of Orleans, the term "persons of color" was used to designate people who were neither white nor black. In Adelle v. Beauregard, 1 Mart. (La.) 184, decided in 1810, the Superior Court of the said territory said: "Persons of color may have descended from Indians on both sides, from a white parent, or mulatto parents in possession of freedom." In that case the court held that the plaintiff, being a person of color, was presumed to be free, and that in case of blacks the presumption was that they were slaves. During the regime of slavery all free persons of African descent were styled "free people of color" or "free colored persons." Civ. Code 1825, arts. 95, 2261; Act No. 308 of 1855. Article 95 of the Code of 1825 interdicted marriage between free persons and slaves, and between free white persons and free people of color. The first restriction fell with Lee v. New Orleans Great Northern R. Co the abolition of slavery, and the second was repealed by the Civil Code of 1870. But by Act No. 54, p. 63, of 1894, marriages between white persons and persons of color were again prohibited. By Act No. 87 of 1908 concubinage between a person of the Caucasian or white race and a person of the negro or black race was made a felony. Act No. 111 of 1890 draws a sharp line of distinction, without a margin, between the white and colored races in the matter of separate accommodations on railroad trains. Ever since the first settlement of Louisiana all persons with any applicable degree of negro blood have been considered as colored; that is to say, as belonging to the African race. Many free persons of color owned slaves and other property. But between that class of people, however light in color, and the whites, the color line was strictly drawn, both socially and politically. The lawmaker never applied the term "colored" to slaves, but since emancipation that term has been used as synonymous with negro. Among slaves the word "negro" or "nigger" was considered as a term of reproach, and they usually spoke of themselves as "colored." This nomenclature has survived, and has become a popular term, embracing all persons of negro blood. The plaintiff's cause of action is based on the allegation that his two daughters are white children born of white parents. The evidence adduced on the first trial failed to satisfy three-fourths of a jury of the vicinage of the truth of the allegation. The second trial before the court resulted in a judgment that plaintiff's children were colored persons. The plaintiff. Sam Lee, is undoubtedly a white man. He was married to Adaline Baham before a justice of the peace in February, 1889. At that time marriage between whites and persons. of color were lawful, and it results that, in any view of the case, the children of such marriage are legitimate. The solution of the question of color depends on the status of Norah, Nory, or Abraham Baham, the father of Mrs. Lee, who died some 20 or 25 years ago. It is admitted that Norah Baham was of mixed blood, but whether he was of Indian or African descent is the contested issue of fact in the case. No useful purpose would be subserved by recapitulating the conflicting evidence adduced on this issue in the court below. Suffice it to say that the finding of the trial judge is sustained by the testimony of a number of witnesses who knew Norah Baham before and after the late Civil War. It is true that there is much counter testimony; but it is not sufficient to justify us in reversing the judgment as clearly erroneous on a pure question of fact. The petition charges the defendant company with the violation of a penal statute, and the burden of proof was on the plaintiff to establish the essential facts necessary for a recovery of the dam Atchison, etc., Ry. Co. v. Jandera ages claimed, to wit, that his children belonged to the white race, and were unlawfully assigned to a coach or compartment set apart for colored persons. One who charges another with a culpable breach of duty must prove the fact, though it involves a negative. 1 Hennen's Digest, pp. 495-497. On the question of race there is no legal presumption either way. The issue was one purely of fact, to be determined not only by evidence of the admixture of negro blood, but by evidence of reputation, of social reception, and of the exercise of the privileges of a white man. White v. Tax Collector, 3 Rich. Law (S. C.) 136. Judgment affirmed. ATCHISON, T. & S. F. Ry. Co. v. Jandera. (Supreme Court of Oklahoma, June 8, 1909.) Railroads Injuries to Persons at Stations-Implied Invitation.*One passing along a recognized way leading from a public street over the station grounds of a railroad company to its station plat-, form, for the purpose of mailing a letter on one of defendant's trains, is there by implied invitation of defendant. Railroads Injuries to Persons at Stations-Persons Mailing Letters on Trains. It is the duty of a railroad company which carries mail under contract with the United States, and by whose regulation postal clerks on mail trains are required to receive mail matter on the mail car while stopping at stations along its route, to use reasonable care to keep in a reasonably safe condition a recognized way over its grounds to its station platform, and a failure so to do, resulting in personal injury to one passing along said way for the purpose of mailing a letter on one of defendant's mail trains upon its arrival, is actionable negligence. (Syllabus by the Court.) Error from District Court, Noble County; Bayart F. Hainer, Judge. Action by Frank J. Jandera against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed. *See last foot-note of Arkansas & L. Ry. Co. v. Sain (Ark.), 32 R. R. R. 579, 55 Am. & Eng. R. Cas., N. S., 579; last foot-note of St. Louis, etc., R. Co. v. Lavendusky (Ark.), 32 R. R. R. 97, 55 Am. & Eng. R. Cas., N. S., 97. See last paragraph of first foot-note of Franey v. Union Stockyard & Transit Co. (Ill.), 31 R. R. R. 357, 54 Am. & Eng. R. Cas., N. S., Atchison, etc., Ry. Co. v. Jandera Henry E. Asp, Charles H. Woods, and George M. Green, for plaintiff in error. Henry S. Johnson, for defendant in error. TURNER, J. This is an action to recover damages for personal injuries brought by Frank J. Jandera, defendant in error, plaintiff below, on November 11, 1905, against the Atchison, Topeka & Santa Fé Railway Company, plaintiff in error, defendant below, in the district court of Noble county. The petition substantially states that defendant owns and operates a line of railway through the city of Perry in this state, with its main track, side tracks, and station grounds within said city; that said grounds are bounded on the north by C street and on the south by B street; that on September 28, 1905, upon said grounds, and a few feet north of B street and defendant's passenger depot, defendant did have, keep, and maintain a "dangerous" hole, about 6 feet wide, 6 feet long, and 7 feet deep, walled with stone; that several weeks prior to said date defendant negligently kept said hole open, exposed, and uncovered, and failed, neglected, and refused to guard or cover same, or place a light or other warning at or in its vicinity; that defendant being wholly unaware of its existence, and that the line of travel from B street to the depot grounds was in any manner obstructed, and desiring to go from B street to the depot grounds on business, did, about half past 10 o'clock at night, pass along B street and upon the premises of defendant, and fall headfirst into said hole, to his damage of $13,120, for which he prays judgment. For answer defendant filed a general denial; alleged that plaintiff's said entry upon its right of way was without license, permission, invitation, or knowledge of defendant; that at the time plaintiff was a trespasses, and was injured as a result of his own recklessness and want of due care, and without any negligence or want of due care on the part of defendant. There was trial to a jury, which resulted in a judgment for plaintiff for $820, and, after motion for a new trial filed and overruled, defendant brings the case here by petition in error and case-made for review. As the chief assignment of error is that the court erred in refusing to instruct the jury to return a verdict in favor of defendant, we will determine whether the evidence was sufficient to take the question of negligence to the jury. Resolving all controverted questions of fact in favor of plaintiff, the evidence discloses that defendant's railroad runs through Perry on a straight line northeast and southwest, crossing B and C streets running east and west. Sixth street, being the first running north and south, west of its trackage between B and C streets, consists of a main track and two side tracks a few feet east and a house track some 60 feet west of the main track. Between the main track and house track and near C street is its depot facing the main track, with a platform 16 feet wide, extending along said track from C street to |