Whiteside v. Southern Bus Lines, Inc. Brief for Appellee

    / t ^ - c

l\ m :n  S T M S  M E T  HP APPEALS
FOR THE SIXTH CIRCUIT.

Civil Action No. 10,799.

E LIZAB ETH  W H ITE SID E, - - - Appellant,

versus

SOUTHERN BUS LINES, INC., - - Appellee.

A P P E A L  FR O M  TH E D ISTR ICT COURT OF TH E U N IT E D  STATES 
FO R TH E W E STE R N  D ISTR ICT OF K E N TU C K Y.

BRIEF FOR APPELLEE.

DAVIS, BOEHL, VISER & MARCUS,
1006 Citizens Savings Bank Building, 
Paducah, Kentucky,

WALLER, THRELKELD & WHITLOW,
501-6 Citizens Savings Bank Building, 
Paducah, Kentucky,

Attorneys for Appellee.

W E S T E R F IE L D -B O N T E  C O . ,  IN C O R P O R A T E D , L O U IS V IL L E . K Y .



COUNTER-STATEM ENT OF QUESTIONS INVOLVED.

1. Did appellee, as a common carrier of passen­
gers by motor bus in interstate commerce, have the 
right and duty to establish reasonable rules for the 
safety, comfort and convenience of its passengers'?

2. Was the rule of appellee at Wiekliffe in West­
ern Kentucky, providing for the loading of white 
passengers from the front and colored passengers from 
the rear of the bus, reasonable for the safety, com­
fort and convenience of the passengers'?



I N D E X

PAGE
Counter-Statement of F a c ts ................................................... 1

Argument:

1. Did appellee, as a common carrier of passengers
by motor bus in interstate commerce, have the 
right and duty to establish reasonable rules for 
the safety, comfort, and convenience of its pas­
sengers ? ...............................................................  3

2. Was the rule of appellee at Wickliffe in Western 
Kentucky, providing for the loading of white 
passengers from the front and colored passengers 
from the rear of the bus, reasonable for the 
safety, comfort, and convenience of the passen­
gers ? ....................................................................  9

3. Appellant’s Argument and Authorities are not 
Applicable..............................................................  12

Conclusion 17



TABLE OF CASES.

PAGE
Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28,

92 L. Ed. 455.......................................................  14
Brumfield v. Consolidated Coach Corp., 240 Ky. 1,

40 S. W. 2d 356...................................................  6,10
Chiles v. Chesapeake & Ohio R. Co., 218 U. S. 71,

54 L. Ed. 936.................................................. 5,10,15
Hall v. DeCuir, 95 U. S. 485, 24 L. Ed. 547. .5, 7, 9,14,15,16
Henderson v. Interstate Commerce Commission, 80

Fed. Supp. 32..........................................   14
Hurd v. Hodge, 334 U. S. 24, 92 L. Ed. 1187...............  14
Morgan v. Virginia, 328 U. S. 373, 90 L. Ed.

1317............................................................ 7, 12, 14, 16
Plessy v. Ferguson, 163 U. S. 537, 41 L. Ed. 256.........  9
Shelley v. Kraemer, 334 U. S. 1, 92 L. Ed. 1161...........13,15
Simmons v. Atlantic Greyhound Corp., 75 Fed. Supp.

166............................................. ...................... 7, 12, 16

Table of Statutes.

Federal Constitution Art. 1, Sec. 8.............................. 5
49 USCA Sec. 316 (a).................................................. 7



UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT.

Civil Action No. 10,799.

E lizabeth W hiteside, - Appellant,

v.

Southern B us L ines, I nc., - - - Appellee.

BRIEF FOR APPELLEE.

COUNTER-STATEM ENT OF FACTS.

This action was initially instituted as a civil action 
for damages arising out of the eviction of appellant, 
an interstate passenger, from a motor bus of the ap­
pellee at Wickliffe in Western Kentucky. In this ac­
tion, recovery was sought for personal injury and 
property damage. On the trial of the case before 
the Judge of the District Court, appellant, by the 
direct evidence of a local colored physician (R. 56) 
and the deposition of two colored doctors of St. Louis, 
Missouri (R. 22), failed to connect any substantial



2

physical injury to the alleged eviction. In fact, ap­
pellant testified that after completing her trip to 
Paducah, Kentucky, on the day of the incident com­
plained of, she saw her lawyer long before she saw 
her doctor (R. 104). The cause was submitted in the 
District Court principally upon the alleged technical 
invasion of appellant’s rights, there being no sub­
stantial proof that excessive force was used or that 
there was malice or improper conduct on the part of 
any of the agents or servants of the appellee.

The proof of appellee before the District Court 
was to the effect that there was in force at Wick- 
iiffe in Western Kentucky a rule of appellee that 
colored passengers would be loaded from the rear of 
the bus and white passengers from the front. The 
reasonableness and necessity for this rule were proved 
by Mr. Martin Robinson (R. 157-162), the Town 
Marshall of the City of Wickliffe; Mr. Jesse Sullivan 
(R. 171-173), Sheriff of Ballard County, Kentucky, 
of which county Wickliffe is the county seat; Mr. 
L. E. Carter (R. 178-180), County Judge of Ballard 
County, Kentucky; Mr. J. B. Martin (R. 125-130), 
driver of appellee’s bus; and by Mr. F. S. Keaton (R. 
151), vice-president and general manager of all of 
appellee’s operations east of the Mississippi River. 
There was no proof to the effect that this rule was not 
reasonable or necessary for the safety, comfort and 
convenience of the general traveling public at W ick­
liffe, Kentucky.

There appears to be a typographical error in the 
statement of facts in appellant’s brief in that it is



3

stated on page 1 that appellant’s motion in the Dis­
trict Court to set aside its decision and judgment was 
overruled on June 28, 1949, when, in fact, said motion 
was overruled on June 28, 1948.

There being no proof clearly connecting any sub­
stantial injury with the eviction complained of, but 
little proof of excessive force or malice in. connection 
with the eviction, and no proof to counter appellee’s 
proof that the rule of appellee was reasonable and 
necessary for the safety, comfort and convenience of 
the general traveling public, this cause was submitted 
to the District Court, as can be readily seen from the 
entire context o f appellant’s brief, on the mere claim 
that any rule providing for the separate seating of 
white and colored passengers is per se invalid.

ARGUMENT.

Did Appellee, As a Common Carrier of Passengers by 
Motor Bus In Interstate Commerce, Have the Right 
and Duty to Establish Reasonable Rules for the 
Safety* Comfort and Convenience of Its Passengers?

THE D ISTRICT COURT CORRECTLY AN­
SW ERED—YES.

When appellee dedicated its property as a common 
carrier to the service of the general traveling public, 
it assumed one of the most rigid obligations known to 
the law. Common carriers of passengers for hire have 
always been required to exercise the highest degree of 
care for the safety, comfort and convenience of their



4

passengers. Pursuant to this duty, it is, and was at 
the time of the incident complained of by appellant, 
incumbent upon all carriers—including appellee—to 
inform themselves of their duties under the laws then 
in force and to inform themselves as to all facts which 
affected the performance of their high duty of care 
to their passengers and to adopt such measures, con­
sistent with the laws and facts, as would he reason­
ably expedient in carrying out their duties to the gen­
eral traveling public. So long as appellee remained a 
common carrier, it had no choice in this matter, but 
was required at its peril to faithfully and capably 
carry out these duties.

This high duty to the general traveling public was 
of primary concern to appellee and it could have had 
no other interest in the seating of its passengers. The 
seating arrangement, as well as all other matters re­
lating to the conduct o f  its business, was not a matter 
to be determined according to some whim or fancy 
of appellant (it being far easier to pay no attention 
to the seating of passengers than to make an effort to 
supervise some orderly arrangement), and any action 
which appellee may have taken in this connection 
could have been no more than its sincere judgment as 
to what, in its opinion, was reasonably necessary to 
discharge its exacting duties. Under the proof in this 
cause, appellant cannot claim, and, in fact, she does 
not claim in her brief, that appellee had any personal 
or malicious motive in the promulgation and enforce­
ment of its rule relative to the seating of white and 
colored passengers.



5

The foregoing principles are abundantly sup­
ported by current authorities in Kentucky and in 
Federal Jurisdictions. Under the Constitution (Art. 
1, Sec. 8), the regulation of interstate commerce is 
vested exclusively in Congress and it has long been 
settled that the failure o f Congress to act within this 
exclusive area is equivalent to a declaration that com­
merce shall be free from legislative regulation and 
that, in the absence of regulation by Congress, car­
riers are free to, and are required to, adopt reasonable 
rules for the conduct of their business, and to insure 
the safety, comfort and convenience of their passen­
gers. In the case of Chiles v. C. & O. Railroad Com­
pany, 218 U. S. 71, 54 L. Ed. 936, the Court discussed 
and quoted from the earlier case of Hall v. DeCuir, 
95 U. S. 485, 24 L. Ed. 547, as follows:

“ In Hall v. DeCuir, 95 U. S. 485, 24 L. Ed. 
547, the court passed on an act of the State of 
Louisiana, which required those engaged in the 
transportation of passengers among the States 
to give all passengers traveling within that State, 
upon vessels employed in such business, equal 
rights and privileges in all parts of the vessel, 
without distinction on account of race or color, 
and subjected to an action for damages the owner 
of such vessel who excluded colored passengers on 
account of their color from the cabin set apart 
for whites during the passage. It was held that 
the act was a regulation of interstate commerce 
and was void. The court said, by Chief Justice 
Waite, after stating that the power of regulating 
interstate commerce was exclusively in Congress, 
‘ This power of regulation may be exercised with­



6

out legislation as well as with it.’ And that, ‘ by 
refraining from action, Congress, in effect, adopts 
as its own regulations those which the common 
law or the civil law, where that prevails, has pro­
vided for the government of such business.’ The 
court further said, quoting from Welton v. Mis­
souri, 91 U. S. 282, 23 L. Ed. 350, that ‘ inaction 
[by Congress] . . .  is equivalent to a declara­
tion that interstate commerce shall remain free 
and untrammeled.’ And added: ‘Applying that 
principle to the circumstances of this case, con­
gressional inaction left Beason [the shipowner] 
at liberty to adopt such reasonable rules and 
regulations for the disposition of passengers upon 
his boat while pursuing her voyage within 
Louisiana or without as seemed to him most for 
the interest of all concerned. ’ This language is 
pertinent to the case at bar, and demonstrates 
that the contention of the plaintiff in error is 
untenable. In other words, demonstrates that the 
interstate commerce clause of the Constitution 
does not constrain the action of carriers, but, on 
the contrary, leaves them to adopt rules and regu­
lations for the government of their business, free 
from any interference except by Congress.”

The power and duty of common carriers to adopt 
reasonable rules is also well-settled in Kentucky. In 
the case of Brumfield v. Consolidated Coach Corpora­
tion, 240 Ky. 1, 40 S. W. 2d 356, the Court stated:

“ A  carrier of passengers not only has the 
power, but it is its duty, to adopt such rules and 
regulations as will enable it to perform its duties 
to the traveling public with the highest degree of



efficiency, and to secure to its passengers all pos­
sible convenience, comfort and safety.”  (Citing 
numerous authorities.)

In the more recent Supreme Court case of Morgan 
v. Virginia, 328 U. S. 373, 90 L. Ed. 1317, the case of 
Hall v. DeCuir was cited and reaffirmed.

The only regulation of the seating of interstate 
passengers which has been undertaken by an Act of 
Congress appears in 49 U. S. C. A., Section 316(a). 
This subsection provides in part as follows:

“ It shall be the duty o f every common carrier 
of passengers by motor vehicle to establish rea­
sonable through routes with other such common 
carriers and to provide safe and adequate serv­
ice, equipment, and facilities for the transporta­
tion of passengers in interstate or foreign com­
merce; to establish, observe, and enforce just and 
reasonable individual and joint rates, fares, and 
charges, and just and reasonable regulations and 
practices relating thereto, and to the issuance, 
form, and substance of tickets, the carrying of 
personal, sample, and excess baggage, the facil­
ities for transportation, and all other matters re­
lating to or connected with the transportation of 
passengers in interstate or foreign commerce;

The recent case of Simmons v. Atlantic Greyhound 
Corporation, 75 Fed. Sup. 166 (Dec; 30, 1947), in­
volved facts almost identical with those in the present 
case, and the Court upheld the enforcement by a motor 
bus carrier of a rule providing for the seating of white



passengers from the front and the colored passengers 
from the rear. The Court recognized that the legis­
lative regulation of the seating of interstate passen­
gers was exclusively within the control of Congress 
and that no regulation had been enacted by Congress 
except the above-mentioned statute which required car­
riers to adopt reasonable rules on the subject, and the 
Court stated:

“ The fact remains that neither Congress nor 
any agency created by it has sought to impose 
any regulation dealing with the separation of 
passengers in interstate commerce. The fact that 
such separation has long been enforced in a num­
ber of States by custom and by the rules of com­
mon carriers operating in such States is a matter 
of public knowledge of which the members of 
Congress are fully aware. In fact, although 
efforts have been made over some years to induce 
Congress to enact legislation on this subject, it 
has consistently refused to attempt such regula­
tion. There can be no other inference than that 
Congress has thought it wise and proper that the 
matter should be left for determination to such 
reasonable rules as the carriers might themselves 
adopt and that it considered that rules providing 
for the segregation of passengers in those sections 
where they were applied were reasonable ones. 
By its refusal to nullify the practices and regu­
lations of these carriers in respect to the separa­
tion of passengers, Congress has by the strongest 
implication given its approval to them. This is 
a field of Congressional duty and responsibility. 
This court cannot invade it and, by usurping the 
powers of Congress, lay down rules by which this



9

defendant must guide the operation of its busi­
ness—rules which Congress, in, the exercise of 
power specifically and solely entrusted to it, has 
refused to lay down.”

From the foregoing, it is evident that appellee, as 
a common carrier of passengers by motor bus in inter­
state commerce, has not only the right but the positive 
duty to establish reasonable rules for the safety, com­
fort and convenience of its passengers.

W as the Rule of Appellee At Wiekliffe in Western Ken­
tucky, Providing for the Loading of White Passen­
gers From the Front and Colored Passengers From 
the Rear of the Bus Reasonable in Order to Promote 
the Safety, Comfort and Convenience of the Passen­
gers?

THE D ISTRICT COURT CORRECTLY AN­
SW ERED—YES.

Appellee, on the occasion complained of by appel­
lant—on May 6, 1946—was operating under the prin­
ciples of law announced in the early case of Hall v. 
DeCuir, supra. These principles have been reaffirmed 
many times. In fact, appellant in her brief (pp. 28- 
35) does not contend that these principles have been 
overruled by any decision of any Court, or any Fed­
eral statute regulating interstate commerce, but 
appellant complains merely of, “ the synical sophistry 
of Justice Brown,”  the Supreme Court Justice who 
delivered the opinion in the case of Plessy v. Ferger- 
son, 163 U. S. 537, 41 L. Ed. 256, which case reaffirmed



10

the principle that separate seating of white and 
colored passengers was not a violation of any con­
stitutional right. Furthermore, in the above cited 
Chiles case, the Court stated:

“ We have seen that it was decided in Hall v. 
DeCuir that the inaction of Congress was equiva­
lent to the declaration that a carrier could, by 
regulations, separate colored and white interstate 
passengers. ’ ’

The Court further stated:
“ The opinion, of the court, which was by Mr. 

Justice Brown, reviewed prior eases, and not only 
sustained the law, but justified as reasonable the 
distinction between the races on account of which 
the statute was passed and enforced. It is true 
the power of the legislature to recognize a racial 
distinction was the subject considered, but if the 
test of reasonableness in legislation be, as it was 
declared to be, The established usages, customs, 
and traditions of the people,’ and the ‘ promotion 
of their comfort and the preservation of the pub­
lic peace and good order,’ this must also be the 
test of the reasonableness of the regulations of a 
carrier, made for like purpose and to secure like 
results. Regulations which are induced by the 
general sentiment of the community for whom 
they are made and upon whom they operate can­
not be said to be unreasonable.”

Also in the Kentucky ease o f Brumfield v. Consoli­
dated Coach Corporation, supra, the Court stated:

“ We know of no rule that requires a common 
carrier of passengers for hire to yield to the dis­



11

position of passengers, arbitrarily to determine 
for themselves as to the coach or vehicle in which 
they may take passage. They are entitled to be 
transported within a reasonable time without dis­
crimination and without favoritism or partiality, 
but are without right to select the coach or vehicle 
or the seat thereon which they wTill occupy.”

On the trial, appellee produced abundant proof by 
leading citizens and public officials of Wickliffe, Ken­
tucky, who testified as to the reasonableness of, and 
necessity for, the separate seating of white and colored 
passengers at Wiekliffe, Kentucky. The proof was 
based upon their observations and experiences in this 
community. It was also proved by the driver, and 
the vice-president and general manager of all opera­
tions of appellee east of the Mississippi River that 
such a rule was reasonably necessary to promote the 
safety, comfort and convenience of the passengers. 
Kone of this proof was contradicted. Appellee was 
presumed to, and did, know the customs and general 
sentiment of the people at Wiekliffe, Kentucky, and, 
as a common carrier, it was required to make some 
decision relative to the seating of its passengers. I f  it 
had failed to make or enforce any regulation and had 
been faced with an action for damages as a result of 
this failure, it would have been met with the same 
proof which it produced upon the trial of this ease, 
and, in such event, could it have been heard to say 
that it was diligent in promoting the safety, comfort 
and convenience of its passengers?



12

The separate seating of white and colored passen­
gers having been repeatedly upheld by the Courts as 
being reasonable and the proof of the necessity of such 
seating arrangements at Wicklitfe, Kentucky, being 
uncontradicted, the rule o f appellee was clearly rea­
sonable.

Appellant’s Argument and Authorities Are Not 
Applicable.

Appellee is here defending an action which was in­
stituted as a civil suit for damages arising under facts 
where appellee was discharging its duties as required 
by the laws in force at the time complained of by ap­
pellant. A  reading of appellant’s entire brief evi­
dences appellant’s conviction that the controlling 
cases sustain appellee’s position, but after complain­
ing of, “ the synical sophistry of Justice Brown”  
(p. 28), appellant argues that the prior eases (which, 
incidentally, are reaffirmed as late as Morgan v. V ir­
ginia (1946); and Simmons v. Atlantic Greyhound 
Corporation, supra (1947)) are outmoded by present- 
day thinking. Appellant has apparently converted 
this action from a civil suit for damages to a vehicle 
by which she hopes to obtain some ex post facto judi­
cial legislation at the expense of appellee. It is un­
fortunate that appellee, having diligently followed all 
reasonable requirements of which it could have been 
apprised at the time complained of by appellant, 
should be required to participate in this crusade. In 
the Congress appellant has the only forum to which 
she can direct her complaint.



13

In the learned brief for appellant, a great number 
of propositions are advanced and a great many au­
thorities are cited and discussed which we feel are not 
applicable, and we shall not undertake to discuss all 
of them in detail.

It is contended that the ejection from appellee’s 
bus and the upholding of the rule of appellee by the 
Federal Court was action of the State and Federal 
governments and not the act of a private party (pp. 
6-11). I f  such ejection should be held to be not the 
individual action o f appellee, we do not understand 
how or why appellee should be here defending a claim 
for damages in this litigation, or why appellant filed 
this suit. We have always understood that judicial 
issues should be limited to conduct complained of 
against parties to the litigation, and it would seem that 
appellant’s claim that the eviction was the result of 
State and Federal action would per se relieve appellee 
of any responsibility in this connection and entitle ap­
pellee to an affirmance of the judgment dismissing the 
cause as to appellee.

There is also a scholarly, but we think irrelevant, 
treatment of the effect of judicial decisions as govern­
mental action within the prohibitions of the Fifth and 
Fourteenth Amendments (pp. 11-20). The author­
ities referred to in support of these propositions, how­
ever, deal with situations where judicially recognized 
constitutional rights were involved. In the leading 
case on restrictive covenants, Shelley v. Kraemer, 334 
U. S. 1, 68 Sup. Ct. 836 (1948), and the other cases of 
this type, the Court was dealing with the fundamental



14

rights relating to the ownership and occupancy of real 
property and the basis for the decisions was that this 
was one o f the constitutional rights which could not be 
violated. Appellant recognizes this in her brief (p. 
11) when she refers to the case of Hurd v. Hodge as 
holding that a “ discriminatory”  regulation or cove­
nant could not be enforced by an agency of the Fed­
eral Government.

In attempting to establish an analogy to the pres­
ent case, appellant has failed to recognize that the 
courts have uniformly, since the DeCuir case in 1878, 
held that a passenger has no vested right to any par­
ticular seat on a common carrier, but that his only 
right is that he shall have equal accommodations with 
others and that there shall be no discrimination and, 
further, that providing for separate seating of white 
and colored passengers is not discrimination. In the 
present case, there can be no question of denial of the 
service of a common carrier for, if the rule as to 
separate seating was valid, then refusal of a passen­
ger to abide by the rule would automatically terminate 
his right to remain on the bus. Appellant’s argu­
ments and authorities in this connection, therefore, are 
not applicable here since there has been no discrimina­
tion and no invasion of appellant’s constitutional 
rights.

In the recent case of Henderson v. Interstate Com­
merce Commission, 80 Fed. Sup. 32 (Sept. 1948), the 
Court reviewed the leading cases cited in appellant’s 
brief, such as Morgan v. Virginia, 328 H. S. 373, 
66 Sup. Ct. 1050, 90 L. Ed. 1317; Bob-Lo Excursion



15

Company v. Michigan, 333 XL S. 28, 68 Sup. Ct. 358; 
and Shelley v. Kraemer, together with the prior cases 
of Chiles v. C. & O. Railroad Company and Hall v. 
DeCuir, and stated:

. “ To summarize and conclude: (1) Racial
segregation of interstate passengers is not for­
bidden by any provision of the Federal Constitu­
tion, the Interstate Commerce Act or any other 
Act of Congress as long as there is no real in­
equality of treatment of those of different races. 
(2) Allotment of seats in interstate dining cars 
does not per se spell such inequality as long as 
such allotment, accompanied by equality of meal 
service is made and is kept proportionately fair. ’ ’

The dissenting opinion in this case was based on 
the theory that the segregation rule upheld by the 
majority of the Court would, in some instances, re­
sult in denial of accommodations to colored people 
when there were vacant seats, but even in this dis­
senting opinion, the Judge stated:

“ Segregation in railroad traffic may be main­
tained if there are sufficient accommodations for 
all; but a vacant seat may not be denied to a pas­
senger simply because of his race. The decisions 
of the Supreme Court support this view.”

The rule of the appellee in the present case could 
never deny accommodations when there were any va­
cant seats, since it merely provides for the loading of 
white passengers from the front and colored passen­
gers from the rear. Under this rule, it would be



16

entirely possible that the majority, or even all, of the 
bus could be occupied by colored people, and there 
could be no question of denial of accommodations or 
the invasion of any constitutional rights.

Reference is also made to the rule of appellee as 
constituting a “ burden”  on interstate commerce (pp. 
36-49), and the case of Morgan v. Virginia is discussed 
at length. It is true that the Supreme Court in that 
case held that a State statute requiring segregation 
was a burden placed on interstate commerce by the 
State of Virginia, but it must not be overlooked that 
this same case is based upon and reaffirms the holding 
in the case of Hall v. DeCuir where a State statute was 
declared invalid which prohibited the separate seat­
ing of white or colored passengers. These cases, 
then, cannot be construed to hold that separate seat­
ing is a burden on interstate commerce, but only that 
legislation by the State on the subject in either direc­
tion is an invasion of the exclusive power of Congress.

This argument was made in the case of Simmons v. 
Atlantic Greyhound Corporation, supra, and the Court 
stated:

“ It is argued that the defendant is merely at­
tempting to accomplish by a rule of its own the 
same result which the State of Virginia sought to 
accomplish by Statute; and that the defendant 
cannot, by a company rule, do something which 
the State could not lawfully do. This argument 
misses the point. It assumes that the separation 
of passengers on racial grounds has been held to 
be unlawful under any circumstances. And it



17

fails to recognize the distinction between the ac­
tion of a State in attempting to regulate the busi­
ness o f a carrier in respect to matters which are 
the sole concern of Congress, and the right of the 
carrier to operate its own business subject to such 
regulations as Congress may impose.”

CONCLUSION.

The plaint ill' and her counsel complain of and seek 
to avoid a legal principle that has been unfailingly 
and repeatedly upheld by the Courts since the DeCuir 
case in 1878, and are evidently dissatisfied with the 
idea that Congress through the years, could have, if it 
would have, changed the rule and made it imperative 
that the colored and white passengers be intermingled. 
Whether Congress should have taken action in the 
matter is not a part of this litigation. The fact is that 
Congress has not taken any part in the matter and, 
therefore, there is left upon this carrier, and all other 
carriers, the obligation or duty in certain sections of 
America to see that white patrons and colored patrons 
are seated separately. The law still imposes upon the 
carrier the duty of safe carriage of its white patrons 
and the safe carriage of its colored patrons, and all its 
patrons, as its primary duty. Neither white nor 
colored patrons can he heard to complain of their 
separation if their transportation is across a section 
where fights and discord would occur by reason of 
their intermingling for, after all, the principal duty 
is to the great traveling public and that duty is safe



18

transportation, safe from discord; safe from bicker­
ings, safe from fights and safe from fears that such 
discord, bickering and strife will endanger the other 
patrons.

The indisputable proof is that safe passage for 
passengers at Wickliffe, Kentucky, requires their 
separation and that requirement is upon this carrier 
and placed upon it by the law of the land, written re­
peatedly by its highest courts for nearly seventy-five 
years. It is the appellee’s insistent plea that, since 
it is charged with the responsibility of safely con­
ducting its white and colored passengers in an area 
such as Western Kentucky, that this Court protect 
appellee against the individual suits of white or 
colored passengers who may be unwilling, in their in­
dividual cases, to a harmonious and orderly seating 
arrangement as required of common carriers under 
long-settled law, and that the judgment of the District 
Court be affirmed.

Respectfully submitted,

D avis, B oehl, V iser & M arcus,
By George R. E ffinger,

1006 Citizens Savings Bank Building, 
Paducah, Kentucky,

W aller, T hrelkeld & W hitlow , 
By T. S. W aller,

501-6 Citizens Savings Bank Building, 
Paducah, Kentucky,

Attorneys for Appellee.



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