McPherson v. Tamiami Trail Tours, Inc. Brief for Appellant

    I n th e

Itutefr ©Hurt uf Appals
F ob th e  F if t h  C ircuit

No. 23,452

R ev. N egil L . M cP herson ,
Appellant,

— v .—

T a m ia m i T rail T ours, I n c ., and N ed C. B out w e ll ,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA

BRIEF FOR APPELLANT

H oward M oore, J r .
859% Hunter Street, N.W. 
Atlanta, Georgia 30314

J ack  G reenberg 
J ames M . N abrit , I I I  
M ichael  M eltsner 
C harles S teph en  R alston 

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellant



I N D E X

Statement of the Case ..................... -................................  1

Statutes and Administrative Regulations ....................... 8

Specifications of Error ....................................................... 10

A k g u m e n t

I. On the Basis of the Uncontradicted Evidence, 
the Appellees Failed to Exercise That Degree of 
Care Owed to a Passenger by a Common Car­
rier ........    11

II. As a Matter of Law on the Basis of the Un­
contradicted Evidence, Appellant Is Entitled to 
Recover Under Section 1983 of 42 United States 
C ode............................................................................ 15

Co n c l u s io n ......................................................................................... 20

Certificate of Service........................................................ -  21

T able oe Cases

Andrews Taxi & U-Drive It Co. v. McEver, 101 Ga.
App. 383, 114 S.E.2d 145 (1960) ................................ 12,13

Atlanta Transit System, Inc. v. Allen, 96 Ga. App. 622,
101 S.E.2d 134 (1957) ........ ............ -..............................  12

Baldwin v. Morgan, 287 F.2d 750 (5th Cir. 1961) ---------  17
Boman v. Birmingham Transit Co., 280 F.2d 531 (5th

Cir. 1960) .......................................................................... 16
Boynton v. Virginia, 364 U.S. 454 ......... — ...... ..... .... — 18
Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961) ........... 19

PAGE



ii

Brown v. Board of Ed., 347 U.S. 483 (1954) .............-  18
Brown v. State of Mississippi, 297 U.S. 278 (1935) .... 19 
Bullock v. Tamiami Trail Tours, Inc., 266 F.2d 326 

(5th Cir. 1959) .... ............ ........ .................... 13,15,17,19, 20

Catlette v. United States, 132 F.2d 932 (4th Cir. 1943) 16

Erie R. Co. v. Tompkins, 304 U.S. 64 (1937) ............   12

Flemming v. S. Car. Elec, and Gas Co., 224 F.2d 752 
(4th Cir. 1955), 239 F.2d 277 (4th Cir. 1956) ...........  16

Garner v. Louisiana, 368 U.S. 157 (1961) ...... ..... ......... - 16

Hillman v. Ga. R. and Banking Co., 126 Ga. 814, 56 
S.E. 68 (1906) ......... ........ ................................................ 12

Lynch v. United States, 189 F.2d 476 (5th Cir. 1951) 16

Marshall v. Sawyer, 301 F.2d 639 (9th Cir. 1962) .......  16
Monroe v. Pape, 365 U.S. 167 (1960) ............................16,17
Morgan v. Virginia, 328 U.S. 373 ..................................  18

Nesmith v. Alford, 318 F.2d 110 (5th Cir. 1963) ...... ...18, 20

Samuels v. State, 103 Ga. App. 66, 118 S.E.2d 231
(1961) ..... ....... - ....... - ....... -.............................------..........  13

Savannah Transit Co. v. Odum, 105 Ga. App. 740, 125
S.E.2d 538 (1962) ........................................... -...............  12

Sherrod v. The Pink Hat Cafe, 280 F. Supp. 516 (N.D. 
Miss. 1965) .......... .............. .......................... -...................  19

United States v. Guest, 383 U.S. 745 (1966) ...................  19
United States v. Simmons, 346 F.2d 213 (5th Cir. 

1965)

PAGE

11



Ill

United States v. Williams, 341 U.S. 97 (1950) .......... . 19
United States v. Wood, 295 F.2d 772 (5th Cir. 1961) 19
United States ex rel Goldsby v. Harpole, 263 F.2d 71 

(5th Cir. 1959) .............................. ................................... 13

Williams v. Wallace, 240 F. Supp. 100 (M.D. Ala. 
1965) .............. ...... ....................... ..................................... 16

Yellow Cab Co. of Atlanta v. Carmichael, 33 Ga. App.
364, 126 S.E. 269 (1925) ........ ...... ............................... 12

F ederal S tatutes

28 U.S.C. §1332(a) (2) ...................................... ...............  1

28 U.S.C. §1343 (3), (4) ....................................................  1

42 U.S.C. §1983 (1958) ....................... ...................1,2,15,16,
17,19, 20

42 U.S.C. §1988 (1958) .....................................................  19

State S tatutes and R ules

Ga. Code Ann. §18-204 (1963 Supp.) ........ ................ 8,12,19

Ga. Code Ann. §18-207 ...........................................8,16

Ga. Code Ann. §68-616 ........... .       9

Ga. Code Ann. §68-710 .     9

Ga. Code Ann. §105-202 ......... ................................9,13

O ther  A uthorities

2B Barron and Holtzoff (Wright, ed.) ..........................  11

6 Moore’s, Federal Practice ....... ..... ......... .......................  11

Wright, Federal Courts .... ...................... ........ ................  11

PAGE



I n  T H E

United States (&m xt nf Appeals
F or t h e  F if t h  C ircuit  

No. 23,452

R ev. N egil L. M cP herson ,
Appellant,

T am ia m i T rail T ours, I n c ., and N ed C. B outw ell ,

Appellees.

a p p e a l  f r o m  t h e  u n it e d  s t a t e s  d is t r ic t  c o u r t

FOR THE NORTHERN DISTRICT OF GEORGIA

BRIEF FOR APPELLANT

Statement of the Case

This is an appeal from a denial of motions for directed 
verdicts and for judgment notwithstanding the verdict or, 
in the alternative, for a new trial in a civil action for 
damages brought Sin the District Court for the Northern 
District of Georgia. The complaint was filed on April 19, 
1963, and invoked the jurisdiction of the court under 28 
U.S.C. §§1332(a) (2), 1343(3) and (4), and 42 U.S.C. §1983. 
The matter in controversy exceeds the sum of $10,000.00, 
damages in the amount of $80,000.00 having been sought 
against the defendants jointly and severally.

The plaintiff, appellant here, is a citizen of the Common­
wealth of Jamaica, residing in Springfield, Illinois. There



2

is diversity of citizenship between the parties since Tami- 
ami Trail Tours, the corporate defendant, is organized 
under the laws of the State of Florida and does business 
in the State of Georgia, while the individual defendant is 
a citizen of the State of Georgia. Jurisdiction was also 
based on the federal civil rights statutes, 42 U.S.C. §1983, 
in that the corporate defendant, acting by and through its 
agent and employee, Ned C. Boutwell, the individual de­
fendant, who, while acting under color of Georgia state 
statutes, regulations, customs, and usages, injured the 
plaintiff, and deprived him of rights and privileges under 
the Constitution and laws of the United States.

Under the first count of the complaint, based on diversity 
of citizenship, it was alleged that Tamiami Trail Tours, 
acting through the individual defendant as its agent, failed 
to exercise the degree of care legally owed to the plaintiff, 
with the result that the plaintiff suffered great bodily in­
jury and harm. Briefly, the complaint alleged that on 
September 22, 1961, the plaintiff got on a bus owned and 
operated by the corporate defendant, the driver of which 
was the individual defendant Boutwell. The plaintiff, who 
is a Negro, sat in the front part of the bus. Defendant 
Boutwell, although he had reason to believe that white 
persons who were also passengers in the bus were hostile 
towards the plaintiff because of where he was sitting, did 
not take reasonable steps to insure the safety of the plain­
tiff, as required under Georgia law. While the bus was 
proceeding along its route, one of the white passengers 
assaulted the plaintiff and beat him severely about the 
face, throat and head. Again, it was alleged, defendant 
Boutwell did not take reasonable steps to protect the 
plaintiff. Moreover, the defendant failed to report the 
incident to the police or to secure medical aid for the plain­
tiff. Because of this neglect and failure to act on the part 
of defendant Boutwell, the agent of the bus company, the



3

plaintiff suffered great bodily pain and injury and mental 
anguish, in addition he lost, and will in the future lose, 
great sums of money (R. 408, 414).

The defendants filed an answer in which they generally 
denied the factual allegations of the complaint and denied 
that they owed any duty to exercise a greater degree of 
care towards the plaintiff than they did exercise. Con­
tributory negligence was not pleaded as a defense (R. 417).

At the trial on July 6, 7, and 8, 1965, the following was 
adduced in evidence:

The appellant testified that on September 22, 1961, he 
went to the Trailways Station in Atlanta, Georgia, and 
purchased a ticket to Griffin, Georgia, on a bus leaving at 
5 :45 p.m. After buying the ticket, he went to the loading 
zone where the bus was expected. When he arrived at the 
zone, he stood behind the only other passenger waiting, a 
female (R. 51). During the twenty minutes before the bus 
arrived, a number of other passengers gathered. Appellee 
Ned C. Boutwell then drove his bus into the zone, went 
into the terminal, came out, and began collecting tickets 
(R. 52). After the driver took the ticket of the lady in 
front of the appellant, the Reverend McPherson extended 
his arm to sirrrender his ticket, but Mr. Boutwell reached 
over his arm and took tickets from a number of other 
persons before taking his (R. 53).

Reverend McPherson then got on the bus and sat in the 
fifth seat from the front on the side of the door. At the 
time, there were only four other persons on the bus, in­
cluding two white men sitting one seat behind the appel­
lant on the opposite side (R. 56). The bus driver then came 
into the bus and told McPherson, “Your seat is in the back” 
(R. 57). McPherson did not move. The driver went out­
side and collected more tickets. He then returned to the



4

bus and again told Reverend McPherson, “Your seat is in 
the back” (R. 57). The appellant again did not move. The 
driver then had a conversation with the two white men 
sitting behind the appellant on the opposite side of the bus 
(R. 57). After this conversation, the driver returned to 
the appellant and again said, “Your seat is in the back.” 
When Rev. McPherson asked, “Why?” the driver replied, 
“I don’t care if anyone jumps you” (R. 57).

The driver then left the bus. One of the men sitting to 
the rear of Reverend McPherson, with whom the driver 
had spoken, approached McPherson and asked, “Why don’t 
you do as the man said?” (R. 57, 58) and, “Where are you 
going?” (R. 58). When he did not answer, the man said, 
“ You may not reach where you are going” (R. 58).

Subsequently, the driver returned to the bus and the 
journey began. McPherson did not tell the driver of the 
threat he received because he felt, in view of the driver’s 
abusive treatment, that it was pointless (R. 115, 127). 
While the bus was traveling along the highway, the man 
who had previously threatened McPherson approached 
him and asked, “Why didn’t you do as the bus driver and 
I told you?” (R. 58). The Reverend replied that in his 
country people sat wherever there was a vacant seat, where­
upon the man said, “You are not in your country now and 
I am going to kill you” (R. 59). He began to beat the ap­
pellant on the head, face, and throat with an object which 
he had clenched in his fist. McPherson cried out and pulled 
the cord to stop the bus (R. 59). The driver stopped the 
bus, got out, and stood outside for several minutes. An­
other man, subsequently identified as Mr. Edward Augustus 
Hicks, came all the way from the rear of the vehicle and 
attempted to stop the beating (R. 60).

The bus driver then returned to the bus. Mr. Hicks took 
Reverend McPherson to the rear of the bus and the as­



5

sailant followed, telling him to sit down, and “ This is where 
[yon] belong” (R. 60). The driver then drove on, made 
a regularly scheduled stop in Jonesboro, and continued to­
ward Griffin. On the highway between Jonesboro and 
Griffin, the driver stopped the bus and handed out slips of 
paper to get the names of witnesses to the assault.

McPherson got off the bus at Griffin, his destination, 
and was taken by his wife, a school teacher whom he had 
recently married, to the Griffin Spalding Hospital for four 
hours of treatment for his injuries (R. 63, 64). McPherson 
testified that as a result of the injuries he received on the 
bus, his ability to continue theological study was severely 
impaired, as was his ability to work as a pastor (R. 70). 
The injuries resulted in permanent damage to his nasal 
passages with concomitant sore throat and hoarse voice. 
Appellant also suffers from recurrent headaches (R. 77).

The bus driver Boutwell testified that he had worked for 
the bus company as a driver for about 11 years, and that 
he did not take McPherson’s ticket when it was first pre­
sented because he believed that he had stepped in front of 
others ahead of him in line (R. 162). He further testified 
that he hard “ grumbling” among other people waiting in 
line. He interpreted this as indicating resentment against 
McPherson because he had tried to go ahead of persons in 
line. He also testified that he told appellant to move from 
his seat because of the grumbling that he heard (R. 182, 
183). Appellee Boutwell testified that he heard some per­
sons and waiting passengers make statements such as, “ I 
will take care of him,” or “ He should be taken care of,” 
but he did not inform McPherson of the remarks (R. 
183, 184). Nor did he attempt to find out who made the 
remarks (R. 184). Boutwell did not explain to the appel­
lant why he believed it would be better for him to move 
further towards the rear of the bus. He first told appel­



6

lant to move because: “Well, I asked you to” (R. 187). 
He also testified that he told the appellant to move for his 
own safety (R. 188).

Boutwell testified that he responded to the question of 
the two white men in the seat to the rear of McPherson 
when they asked if they could get off any place along the 
road (R. 191). He also said that he had no reason to 
believe these men had made remarks outside the bus, 
however, he made no investigation to determine whether 
those making the remarks had boarded the bus (R. 192). 
The driver admitted he drove the bus off from Atlanta 
without reporting the incident or remarks to the station 
superintendent or others in charge (R. 195).

The driver testified that at the time the incident oc­
curred he stopped the bus when someone rang the bell 
(R. 199). He further testified that although he heard the 
appellant cry out to him (R. 200), he did not immediately 
proceed back in the bus, but instead got off the bus to 
allow other passengers to unload first (R. 200, 201). He 
stated that, “ This lady and little girl wanted to get out­
side” (R, 201).

After the driver reentered the bus, he saw the assailant 
slapping McPherson. The assailant pushed him back down 
the aisle of the bus and out onto the ground (R. 203). 
In the confusion, according to the driver, the assailant 
disappeared (R. 203).

The bus driver then drove the bus to Jonesboro, his 
next regular stop (R. 173). He admitted that he did not 
notify the police at Jonesboro of the incident (R. 176), 
nor did he notify the police upon reaching his next reg­
ular stop at Griffin (R. 180). He did say that he stopped 
the bus between Jonesboro and Griffin and took the names 
of the passengers (R. 177), and that he did not stop



7

before then because he was not sure what he should do 
(R. 178). On direct examination, the bus driver denied 
that he made a statement to the effect that he did not 
care if anyone jumped the appellant, as the Reverend 
McPherson had testified (R. 225).

Other testimony was given by witnesses for the appel­
lant, primarily as to the extent and nature of his injuries 
(R. at 138, 238, 252). Regulations and laws pertaining to 
the seating of passengers in Georgia in effect at the time 
of the incident wore introduced in evidence. These reg­
ulations required segregation according to race on buses 
operating in Georgia (R. 283).

On rebuttal, the chief witness for the appellees was Mr. 
Edward Augustus Hicks, the passenger who intervened in 
the attack on McPherson. He testified that after he saw 
a white man hitting or threatening to hit the appellant, 
he went forward and tried to reason with him to leave 
McPherson alone (R. 308). He also saw that the driver 
was off the bus assisting passengers to get down. After 
the driver returned to the bus, he told the assailant he 
would have to leave the bus (R. 309). When the assailant 
pushed the driver toward the front of the bus, Hicks 
caught him by the shoulder and ordered him not to bother 
the driver (R. 309). The assailant pushed by Hicks and 
began beating McPherson. Hicks, together with the driver, 
managed to pull the assailant off, after which he took 
the appellant to the rear of the bus (R. 309). The as­
sailant followed them to the rear and Hicks said, “Now 
leave him alone. He is in the back of the bus.” There­
upon, the assailant brushed past the driver and left the 
bus through the open door (R. 310). As soon as the as­
sailant escaped, the driver started up the bus and drove off.

Another witness for the appellees, Miss Loretta Joyce 
Kelly, described the incident as follows: “ The boy kept



8

telling him to move back, and he didn’t move, and so 
then the boy just got u p ' and started beating him” (R. 
332). (The “boy” was a man between 28 and 35 years old 
(R. 336). She also testified that the driver initially left 
the bus, returned, and the assailant pushed by him and 
escaped (R. 333).

At the close of the evidence, the plaintiff requested 
directed verdicts from the Court, which were denied (R. 
525, 543). After the jury returned a verdict on the first 
claim for the appellee carrier and on the second claim 
for both appellees (R. 406, 526, 527), a motion for judg­
ment not withstanding the verdict or, in the alternative, 
for a new trial was likewise denied (R. 545, 547). A notice 
of appeal was timely filed on September 23, 1965 (R. 547).

Statutes and Administrative Regulations

This case involves the following statutes of the State 
of Georgia and regulations of the Public Service Commis­
sion of the State of Georgia :

18 Georgia Code A nnotated , S ection 204:

“Diligence required of carriers.—A carrier of pas­
sengers must exercise extraordinary diligence to pro­
tect the lives and persons of his passengers, but is not 
liable for injuries to them after having used such 
diligence.”

18 Georgia Code A nnotated , S ection 207:

“Duty to assign passengers to their cars; police 
powers of conductors.—All conductors or other em­
ployees in charge of passenger cars shall assign all 
passengers to their respective cars, or compartments 
of cars, provided by the said companies under the



9

provisions of section 18-206 and all conductors of 
street cars and busses shall 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 street cars and busses shall 
have, and are hereby invested with, police powers to 
carry out said provisions. (Acts 1890-1, p. 157 .)”

105 Georgia C ode A nnotated , S ection  202:

“Extraordinary diligence. Slight negligence.—In 
general, extraordinary diligence is that extreme care 
and caution which very prudent and thoughtful per­
sons exercise under the same or similar circumstances. 
Applied to the preservation of property, extraordinary 
diligence means that extreme care and caution which 
very prudent and thoughtful persons use in securing 
and preserving their own property. The absence of 
such diligence is termed slight negligence.”

68 Georgia C ode A nnotated , S ection  616:

“ Carriage of white or colored passengers or both.— 
Motor common carriers may confine themselves to 
carrying either white or colored passengers; or they 
may provide different motor vehicles for carrying 
white and colored passengers; and they may carry 
white and colored passengers in the same vehicle, but 
only under such conditions of separation of the races 
as the Commission may prescribe.” (Acts 1931, pp. 
199, 204.) (Georgia Public Service Commission Laws 
and Buies, issued January 1, 1963, p. 200.)

68 Georgia Code A nnotated , S ection 710:

“Proof of injury prima facie evidence of want of 
reasonable care and skill.—In all actions against per­



10

sons, firms or corporations operating busses for hire, 
for damages done to persons or property, proof of 
such injury inflicted by the running of busses of such 
person, firm or corporation, shall be prima facie evi­
dence of want of reasonable skill and care on the 
part of the servants of said person, firm, or corpora­
tion in reference to such injury.” (Acts 1929, pp. 315, 
316.) (Georgia Public Service Commission, Laws and 
Rules, issued January 1, 1963, p. 206.)

Specifications of Error

The Court below erred in denying the appellant’s mo­
tions for directed verdicts on the first and second claims 
of the complaint and likewise erred in denying and over­
ruling appellant’s motion for judgment notwithstanding 
the verdict or, in the alternative, for a new trial. Similarly, 
the jury erroneously returned verdicts for the appellees 
in view of the evidence adduced at trial and in light of 
Georgia law establishing the duty of care owed to a pas­
senger by a common carrier.



11

I.

On the Basis of the Uneonlradicted Evidence, the 
Appellees Failed to Exercise That Degree of Care Owed 
to a Passenger by a Common Carrier.

A. The court below erred in denying appellant’s mo­
tions for directed verdicts, for judgment notwithstanding 
the verdict or, the alternative, for a new trial.

It is settled law that a motion for judgment notwith­
standing the verdict renews an earlier motion for directed 
verdict, and that the applicable judicial standard is the 
same in each case. On such motions, the evidence must be 
construed in the light most favorable to the party against 
whom the motion is made. The court then determines 
whether, under the law, such evidence might render a 
verdict for the party against whom the motion is made, 
or if reasonable men could differ as to the conclusions of 
fact to be drawn. If either is the case, the motion should 
be denied. United States v. Simmons, 346 F.2d 213 (5th 
Cir. 1965); Wright, Federal Courts, §95 at p. 370; 2B 
Barron and Holtsoff, §1075; 6 Moore’s, Federal Practice, 
Section 59.08 at p. 3814.

In the instant case, for both the first and second claims, 
the undisputed and uncontradicted evidence, construed in 
any light, reveals that appellant’s motions should have 
been granted. The uncontradicted evidence shows no evi­
dence of actions on the part of the bus driver which 
meets the high standard of care required of carrier drivers. 
In addition, the uncontradicted evidence shows that the 
driver’s actions violated McPherson’s civil rights. It should 
be noted that contributory negligence is not at issue here, 
for it was neither pleaded nor charged, and any care



12

rendered by the carrier’s driver after the rights of the 
appellant had been violated is irrelevant.

B. Under Georgia law, which is applicable to the First 
Claim, brought on the basis of diversity of citizenship, 
a common carrier has the duty to exercise “extraordinary 
care and diligence” to protect its passengers. Erie R. Go. 
v. Tompkins, 304 U.S. 64 (1937); Atlanta Transit System, 
Inc. v. Allen, 96 Ga. App. 622, 101 S.E.2d 134 (1957). This 
protection extends to danger from known or reasonably 
observable outside sources. Savannah Transit Co. v. Odum, 
105 Ga. App. 740, 125 S.E.2d 538 (1962). Outside sources 
include third persons. Hillman v. Ga. R. and Banking 
Co., 56 S.E. 68 (1906). Perhaps the fullest statement of 
the duty of common carriers is found in Yellow Cab Co. 
of Atlanta v. Carmichael, 33 Ga. App. 364, 126 S.E. 269 
(1925) at 271:

A common carrier of passengers is bound to use 
extraordinary care and diligence to protect its pas­
sengers in transit from violence or injury by third 
persons; and whenever a carrier, through its agents 
and servants, knows, or has opportunity to know, of a 
threatened injury to a passenger from third persons, 
whether such persons are passengers or not, or when 
the circumstances are such that an injury to a pas­
senger from such a source might reasonably be an­
ticipated, and proper precautions are not taken to 
prevent the injury, the carrier is liable for damages 
resulting therefrom.

(See also Title 18, Ga. Code Ann. 204, supra, p. 8.)

Extraordinary care and diligence is defined as that 
extreme care and caution which very prudent and thought­
ful persons would exercise under the same or similar cir­
cumstances. Andrews Taxi & U-Drive-It Co. v. McEver,



13

101 Ga. App. 383, 114 S.E.2d 145 (I960), Title 105, Ga. 
Code Ami. 202, supra, p. 9.

C. That appellee Boutwell, agent of the bus company, 
failed to fulfill his duty towards the passenger McPherson 
is plain. It is undisputed that the driver spent his entire 
life in the South and was familiar with regional customs 
and folkways which included the long-established custom 
of segregation on carriers and violence towards the Negro 
who acted in violation thereof. Bullock v. Tamiami Trail 
Tours, Inc., 266 F.2d 326 (5th Cir. 1959); United States 
ex rel. Goldsby v. Harpole, 263 F.2d 71 (5th Cir. 1959); 
Samuels v. State, 103 Ga. App. 66, 118 S.E. 2d 231 (1961). 
The existence of such customs was sufficient to put the 
driver on notice that McPherson was in danger, especially 
in light of the passengers’ hostility to McPherson, when 
he sat in the front of the bus, Bullock, supra. It is un­
disputed that the driver did nothing to safeguard McPher­
son. It is true that the driver requested the appellant 
to go to the rear of the bus, but when the appellant, a 
foreigner obviously unfamiliar with the custom did not 
move,1 the appellee neither explained to him that he was 
in danger nor took any steps to safeguard him. Having 
told McPherson to move to the back, the driver did nothing 
more. This was clearly a flagrant lack of prudence and 
thoughtfulness.

The driver’s knowledge of the danger which his pas­
senger was in was not limited to the folkways of the 
South. It is undisputed that after the appellant boarded 
the bus, the driver heard grumbling among those standing 
outside it, including remarks that someone ought to “take

1 Appellant, a native o f Jamaiea, where there is no segregation, speaks 
with a noticeable accent. He first came to this country in 1954, but had 
lived in the deep south for less than a year prior to the incident.



14

care of” the appellant (R. 183). With this knowledge of 
the hostility in his passengers, the driver did nothing 
except tell McPherson to move to the rear, with no ex­
planation as to why.

The driver failed to report the threats he heard to 
the police or his superiors at the terminal. He made no 
attempt to discover who had made the threatening remarks. 
He made no announcement to the passengers that violence 
would not be tolerated. He made no effort to change the 
usual adjustment of his mirror, which would have enabled 
him to keep all the passengers in the bus under observation. 
All he did was tell the appellant to move to the rear, with 
no explanation as to why.

Merely telling the appellant to move, in the hearing 
of other passengers, any of whom might have uttered the 
threats heard outside the bus, was hardly the act of an 
extremely careful and cautious person. A  reasonable driver 
would have realized that his order, if disobeyed, as indeed 
it was, would further inflame a tense situation. Nor would 
an extremely prudent and careful person have readily 
advised an inquiring passenger that he could get off any­
where outside of town and encouragingly added “Just 
reach up and pull the cord anyplace” (R. 191).

The driver admitted that after the incident he drove the 
bus directly to his next regularly scheduled stop, let per­
sons on and off, and then proceeded along the highway 
for a mile before he pulled over and passed out slips of 
paper to take the names of witnesses to the incident. 
The driver admitted on cross-examination that it took him 
so long to do this was because he had to make up his mind 
as to what he should do (R. 178). This may explain the 
driver’s conduct during the entire sequence of events, but 
it does not amount to a defense, for the law demands that



15

he act as a very prudent and thoughtful person. The right 
of action on the first claim is against the carrier, appellee 
Tamiami Trial Tours, and it, therefore, cannot explain 
Boutwell’s deficiencies to lessen its responsibility. Simi­
larly, a very thoughtful person would hardly have let 
McPherson, at the conclusion of his journey, go off in the 
night without inquiring as to his condition or his need for 
aid as did the driver.

On the basis of the uncontradicted evidence, this Court 
should reverse the decision below and remand with direc­
tions to enter a judgment for the appellant, with a new 
trial to be upon the issue of reasonable compensatory dam­
ages, for physical injury and mental suffering and humilia­
tion. This case is controlled by the decision of this Court 
in Bulloch v. Tamiami Trail Tours, Inc., 266 F.2d 326 
(5th Cir. 1959), a case in which the facts are nearly iden­
tical to those shown by this record.

II.

As a Matter o f  Law on the Basis of the Uneontra- 
dicted Evidence. Appellant Is Entitled to Recover Un­
der Section 1983 o f  42 United States Code.

Section 1983 provides that:

Every person who, under color of any statute, ordi­
nance, regulation, custom, or usage . . . subjects or 
causes to be subjected any citizen of the United States 
or other person within the jurisdiction thereof to the 
deprivation of any rights, privileges, or immunities 
secured by the Constitution and laws, shall be liable 
to the person injured in an action at law. . . .

The elements of recovery under this section are that (a) 
the conduct complained of was engaged in under color of



16

state law, and (b) that such conduct subjected one to 
deprivation of rights, privileges, or immunities secured 
by the Constitution of the United States. Marshall v. 
Sawyer, 301 F.2d 639, 646 (9th Cir. 1962); Monroe v. 
Pape, 365 U.S. 167, 187 (1961).

The driver acted under the required color of law, both 
in requesting the appellant to move to the rear of the bus 
and in failing to protect him from violence. Section 207, 
18 G-a. Code Ann., supra, p. 8, commanded the driver to 
enforce the separation of the races upon the bus, and the 
state law was buttressed by administrative regulations to 
the same effect, supra, pp. 8-10. The driver was clothed with 
further authority to maintain order in case of disturbance 
and admitted the existence of that authority at trial 
(E. 193). It is beyond question that their enforcement 
of segregation laws renders a bus company and driver 
liable for damages under 42 U.S.C. §1983. Flemming v. 
South Carolina Electric and Gas Co., 224 F.2d 752 (4th 
Cir. 1955); id., at 239 F.2d 277 (4th Cir. 1956). Cf. Boman 
v. Birmingham Transit Co., 280 F.2d 531 (5th Cir. 1960).

The driver also took no precautions to prevent the as­
sault or to subsequently arrest and apprehend the assailant 
for whom he left the bus door open (E. 203, 310, 333). 
The withholding of the protection of the State because 
of race or color where the State is authorized to act is the 
deprivation of the constitutionally protected right. See 
Catlette v. United States, 132 F.2d 902 (4th Cir. 1943); 
Lynch v. United States, 189 F.2d 476 (5th Cir. 1951); 
Williams v. Wallace, 240 F. Supp. 100 (M.D. Ala. 1965). 
The failure of the driver, who was empowered by the 
State, to protect his Negro passenger comes under §1983 
because it is a “lassitude” engendered by custom. Cf. 
Mr. Justice Douglas, concurring in Garner v. Louisiana, 
368 U.S. 157 at 178-79: “ . . . state policy may be as effec­



17

tively expressed in customs as in formal legislative, execu­
tive, or judicial action.” And see Baldwin v. Morgan, 
287 F.2d 750 at 756 (5th Cir. 1961), granting an injunction 
against policemen who customarily arrest Negroes found 
in a white waiting room. Perhaps the most convincing 
evidence that the failure to protect occurs under the color 
of custom may he seen in Bulloch v. Tamiami Trail Tours, 
Inc., 266 F.2d 328 (5th Cir. 1959), involving similar events 
and the same corporate appellee.

Nor can the bus company and driver escape responsibility 
for the brutal beating of McPherson on the ground that 
it was done by an unidentified private person. Directly 
after asking the appellant to move to the rear of the bus, 
the driver spoke with two white men sitting behind Mc­
Pherson, one of whom later attacked him. To claim that 
there is no connection between the driver’s remarks to 
the appellant, within hearing of those on the bus, his 
failure to take preventive action to protect McPherson, 
and subsequent action by those on the bus, would be to 
define proximate cause with unnatural restrictiveness. It 
should be remembered that §1983 “ should be read against 
the background of tort liability that makes a man respon­
sible for the natural consequences of his actions,” Monroe 
v. Pape, 365 U.S. 167 at 187. Conditions in the South 
in 1961 with regard to the seating of the races render the 
connection between the driver’s speech and the passenger’s 
action far from tenuous.2

2 At trial, the appellee bus driver demonstrated his awareness o f these 
conditions:

“ Q. . . . ‘Why would moving to the other side of the bus pro­
tect him ? ’

“ Answer: ‘He would have been two or three seats farther back.’
“ Question: ‘And what effect would that have had on his alleged 

assailants ? ’
“Answer: ‘Well, you know, all o f this desegregation has just be­

gun to start a little after that, and you know how the people o f the



18

The right herein involved is the right to travel npon 
an intrastate bus without being segregated. Morgan v. 
Virginia, 328 U.S. 373; Boynton v. Virginia, 364 U.S. 454. 
Appellees deprived McPherson of the right to be free of 
discrimination or segregation because of his race or color 
while traveling upon an intrastate bus. The seat which 
appellant first selected was convenient, comfortable, and 
safe (R. 185, 186). The fact that this act of taking the 
first unoccupied and convenient seat was “ offensive and 
provocative” can in no way legally explain or justify the 
bus driver’s direction to move further to the rear. See 
Nesmith v. Alford, 318 F.2d 110, 121 (5th Cir. 1963). In 
the context of this case, the act of directing appellant to 
move to the rear to sate the racial preferences of white 
passengers is discrimination per se. Merely informing the 
appellant that his place was in the back of the bus sub­
jected him to the humiliation and degradation of segrega­
tion, whether or not he was actually forced to move, for 
the primary effect of segregation is not so much physical 
placement as it is the resulting state of mind of the person 
discriminated against. See Brown v. Board of Education, 
347 U.S. 483 (1954). The rear of the bus is the traditional 
place for the segregated Negro.3

South were still feeling about that time. I knew, you knew, and he 
knew. All precautions you could take to keep anything down I 
thought would be best.’ ”  (R. 208).

3 Compare the testimony in this record, supra, p. 17, fn. 2, and the 
following testimony of appellee Boutwell:

“ Q. Now, you didn’t tell the plaintiff that you overheard these 
men outside saying these words, ‘I ’ll take care of him,’ or ‘He 
should be taken care of’, did you? A. No.

“ Q. And so, Mr. Boutwell, when you heard this remark you de­
cided you would go in the bus and take care of the plaintiff, didn’t 
you? A. Not take care of him. As I stated before, I felt like it 
would be a good idea, if someone had said it, or the ones, had al­
ready gotten on the bus, it would be a good idea to get him out of 
the area.



19

Appellant was also deprived of the right to move freely 
upon highways and other instrumentalities of interstate 
commerce within the State of Georgia. See United States 
v. Guest, 383 U.S. 745 (1966), sustaining a criminal indict­
ment charging a conspiracy to obstruct the rights of Ne­
groes. Guest recognizes and protects “ the right to travel 
freely to and from the State of Georgia and to use high­
way facilities and other instrumentalities of interstate 
commerce within the State . . . ” 383 U.S. 747, footnote 1 
(emphasis added).

Not only was appellant subjected to the mental pains 
and anguish of discrimination, but he was also severely 
beaten for refusing to give up constitutional rights.4 Beat­
ing a person attempting to enforce his rights is the most 
obvious unlawful deprivation of those rights, for §1983 ex­
presses “a clear Congressional policy to protect the life of 
the living from the hazard of death caused by unconstitu­
tional deprivation of civil rights . . . ” Brazier v. Cherry, 
293 F.2d 401 (5th Cir. 1961); Sherrod v. The Pink Eat 
Cafe, 250 F. Supp. 516 (N.D. Miss. 1965). See also, United 
States v. Wood, 295 F.2d 772 (5th Cir. 1961); United States 
v. Williams, 347 U.S. 97 (1950); Brown v. State of Missis­
sippi, 297 U.S. 278 (1935).

Under §18-204 Ga. Code Ann., applicable to the federal 
cause of action pursuant to 42 U.S.C. §1988, the driver, 
acting as agent for the bus company, owed appellant a

“ Q. You asked him to move because of remarks you had heard 
outside; is that right? A. That’s correct.” (R. 184, 185).

See further the testimony of an assailant upon a Jamaican Negro who 
rode in the front of the bus:

“ A. . . .  he was out of place in my opinion in the front of the bus.
“ Q. Is it a practice that all colored people in Perry have to move 

back? A. Yes.”  Bullock v. Tamiami Trail Tours, Inc., supra, at 
328, 329, fn. 1.

4 Appellant required four hours of hospital treatment following the 
beating, and he continues to sutler complications (256, 259, 263).



20

duty to exercise extraordinary diligence to protect Mm 
from a known danger, liere the threats of racially hostile 
passengers, or from one reasonably to be anticipated. The 
driver did nothing and in fact fanned the flames of resent­
ment.

Uncontradicted evidence establishes that appellant is en­
titled to a directed verdict upon his §1893 claim. Cf. 
Bullock, supra, where this Court, on the same facts, re­
versed a decision in favor of the defendants and remanded 
with directions to enter a judgment for the plaintiffs and to 
award reasonable compensatory damages for physical in­
jury, mental suffering, and humiliation. See also, Nesmith, 
supra, at 124, where the Court held that appellants’ mo­
tions for an instructed verdict of a §1983 claim should 
have been granted at trial where there was no doubt that 
the appellees were acting under the color of state law and 
that their conduct violated the civil rights of the appel­
lants.

CONCLUSION

For the foregoing reasons, the judgment below should 
be reversed with directions.

Respectfully submitted,

H o w a r d  M o o re , J e .
859% Hunter Street, N.W. 
Atlanta, Georgia 30314

J a c k  G r e e n b e r g  
J a m e s  M . R a b b it , 111 
M ic h a e l  M e l t s n e r  
C h a r l e s  S t e p h e n  R a l s t o n  

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellant



21

Certificate of Service

I hereby certify that on the 19th day of August, 1966, I 
served a copy of the foregoing Brief for Appellant upon 
attorneys for appellees, by United States mail, air mail, 
postage prepaid, addressed to the following:

John S. Langford, Jr., Esq.
M. D. McLendon, Esq.
Bryan, Carter, Ansley & Smith
924 Citizens & Southern National Bank Bldg.
Atlanta, Georgia 30303

Attorney for Appellant



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