Day v. Atlantic Greyhound Corporation Joint Appendix to Briefs of Appellant and Appellee

    JOINT APPENDIX TO BRIEFS OF APPELLANT AND
APPELLEE.

IN THE

United States Court of Appeals
FOURTH CIRCUIT.

CASE NO. 5803.

ADELINE A . DAT, A ppe llan t ,

versus

ATLANTIC GREYHOUND CORPORATION,
A ppellee .

A ppeal from  t h e  D istrict  C ourt of t h e  U nited  S tates 
for t h e  E astern- D istrict  of V irgin ia , 

R ich m o n d  D ivisio n .

H il l , M artin  & R obinson , 
M artin  A . M artin ,
623 North Third Street, 

Richmond, Virginia, 
Attorneys for Appellant.

O scar L, S h e w m a k b ,
J o h n  C. G oddin,
State Planters Bank Bldg., 

Richmond, Virginia. 
J o h n  G. M ay , J r .,
R obert L ew is  Y oung ,

Mutual Building, 
Richmond, Virginia. 

Attorneys for Appellee.

R IC H M O N D  P R E S S , IN C ., P R IN T E R S



INDEX TO APPENDIX

Complaint.....................................................
Answer . . .  .................................................
Plaintiffs Eeqnests for Charges.............
Defendant’s Bequest for Charge .............
Judgment......................................................
Evidence and Other Incidents of Trial. ..

Adeline Atwell D ay.............................
Charles Crawley..................................
Cephus Macklin...................................
G\ N. Nicholson....................................
J. H. B eck .............................................
J. A. Keeton.........................................
Judge Lester Hooker..........................
D. D. M cA fee.......................................
W. F. Geoghan.....................................
Adeline A. Day (recalled) .................
Charles Crawley (recalled)................

Defendant’s Motion for Directed Verdict 
Plaintiff’s Motion for Directed Verdict..
District Court’s Charge to J u r y .............
Verdict of J u ry ...........................................
Plaintiff’s Motion to Set Aside Verdict. .

Page 
.. 1 
. . 6 
. . 8 
. . 9 
. . 11 
. .  12 
. . 12 
.. 22 
.. 25 
.. 33 
. . 46 
.. 51

60
65
77
78
78
79
80
87
88



IN THE

United States Court of Appeals
FOURTH CIRCUIT.

CASE NO. 5803.

ADELINE A. D A Y , A ppe llan t , 

versus

ATLANTIC GREYHOUND CORPORATION, 
A ppellee .

A ppeal  prom  th e , D istrict  Cou rt  of th e , U nited  S tates 
fob, th e , E astern  D istrict  of V irgin ia , 

R ich m o n d  D ivisio n .

J oint  A ppen d ix  to B riefs of A ppellan t  and A ppellee .

THE COMPLAINT.
1. (a) The jurisdiction of this Court is invoked Un­

der Section 24(1) of the Judicial Code (28 U. S. C. A.) 
Section 41(1), plaintiff being a citizen of the State of



2

New York, and defendant being a corporation incor­
porated under the laws of the State of Virginia, a resi­
dent thereof, and having its principal office in the City 
of Richmond, Virginia, in which the matter in contro­
versy exceeds, exclusive of interest and costs, the sum 
of Three Thousand ($3,000.00) Dollars.

(b) The jurisdiction of this Court is also invoked 
under Section 24(1) of the Judicial Code (28 U. S. C. 
A., Section 41(1)), this being a suit which arises under 
the Constitution of the United States, viz., the Four­
teenth Amendment to said Constitution and Section 8 of 
Article 1 of said Constitution, and laws of the United 
States, viz., Section 316d of Title 49 of the United States 
Code, wherein the matter in controversy exceeds, ex­
clusive of interest and costs, the sum of Three Thousand 
($3,000.00) Dollars.

(c) The jurisdiction of this Court is also invoked 
under Section 24(14) of the Judicial Code (28 U. S. C. 
A. Section 41(14)), this being a suit authorized by law 
to be brought to redress the deprivation under color of 
law, statute, regulation and usage of a State of rights, 
privileges and immunities secured by the United States 
Constitution, and of rights secured by the laws of the 
United States, viz., Sections 41 and 43 of Title 8 of the 
United States Code.

(d) The jurisdiction of this Court is also invoked 
under Section 24(8) of the Judicial Code (28 U. S. C. 
A. Section 41(8)), this being a suit arising under a law 
regulating commerce, viz., Section 22(b) of the Trans­
portation Act of 1940 (49 U. S. C. A. Section 316d).

2. Plaintiff is a citizen of the State of New York. 
Defendant Atlantic Greyhound Corporation is incorpo­
rated under the laws of the State of Virginia, its prin-



a
eipal office being located in the City of Richmond, Vir­
ginia, and within the jurisdiction of this Court.

3. On December 22, 1946, and for a long time prior 
thereto, and at all times material herein, defendant was 
engaged as a common carrier in the business of trans­
porting passengers for hire in interstate commerce to 
various points throughout the United States, including 
the City of Syracuse, New York, Washington, D. C., 
Richmond, Virginia, and Winter Haven, Florida.

4. On or about December-^, 1946, plaintiff left her 
home in Syracuse, New York, by bus, to travel to Winter 
Haven, Florida. She purchased a round-trip ticket from 
defendant to travel on the bus lines of defendant cor­
poration, from her home in New York to Florida and 
return. Upon arriving in Richmond, Virginia, on Janu­
ary 22, 1947, she boarded Bus No. 720, one of the busses 
owned and operated by defendant corporation and occu­
pied, without protest, the second seat from the front in 
said bus. She was not molested in any way or requested 
to change her seat, and peacefully occupied said seat 
until after the bus arrived at South Hill, Virginia, at 
about 7:00 o ’clock P. M. on said day. After the bus 
had arrived at South Hill, Virginia, she was unlawfully 
requested by the operator of the bus, and agent of the 
defendant, to move to the rear of said bus.

5. Plaintiff well knew that the rear portion of the 
bus lacked the accommodations, comforts and conveni­
ences of the other portions of the bus, and particularly, 
that the extreme rear seat had very few of the comforts 
of the other seats; that the large motor of the bus was 
directly under the rear seat; that the exhaust ventilator 
was over the rear portion of the bus and that it drew all 
the foul odors, smoke and hot air from other portions of 
the bus to the rear; that the rear seat was not adjust-



4

able; had no adjustable window and that passengers 
seated thereon were constantly being bounced, jostled 
and thrown around, therefore plaintiff refused to move 
to said rear portion of the bus.

6. Upon advising defendant’s agent of these facts, 
and he well knowing the same, and that plaintiff was 
traveling in interstate commerce and going to the State 
of Florida, plaintiff stated to defendant’s agent that she 
understood that she was not obligated nor required by 
law to ride in the rear of the bus.

7. Whereupon, said agent of defendant stated that 
he knew that was the law, but plaintiff had to do what 
he said. Upon plaintiff’s further refusal to move to 
the rear of said bus as requested, and notwithstanding 
defendant’s duty to safely carry plaintiff to her desti­
nation, defendant’s agent called two police officers and 
demanded that they remove plaintiff from the bus and 
incarcerated her.

8. Whereupon, said police officers, acting at the in­
stance and request of defendant’s agent, did violently 
assault plaintiff, seized her about her arms and body, 
and wilfully and violently pulled, dragged and ejected 
her from said bus, causing her great pain and serious 
injuries, humiliation, embarrassment, mortification and 
shock; and they did further unlawfully arrest and de­
tain plaintiff and imprison her in the common jail of 
said town for a long period of time, to-wit, three hours.

9. All of which said acts were wilful and malicious, 
and were perpetrated upon plaintiff because of her race 
and color and because she was a Negro. And as a fur­
ther result of the aforesaid wilful, malicious and unlaw­
ful acts of defendant’s agent, and others acting at his 
instance and request, plaintiff lost the bracelet from her



5

wrist of tlie value of Ten ($10.00) Dollars; lier liat of 
tlie value of Eleven ($11.00) Dollars; was forced to pay 
Twenty ($20.00) Dollars in South Hill, Virginia, to be 
released from custody; and was forced to travel to Ra­
leigh, North Carolina, in an effort to recover her bag­
gage.

10. At all times material herein the operator of the 
bus was the agent and servant of defendant company, 
acting within the scope of his authority.

11. As a result of the aforesaid wilful and malicious 
acts of the agent and servant of defendant, and others 
acting at his instance and request, plaintiff was unlaw­
fully assaulted, ejected from the bus, arrested, impris­
oned, injured and damaged as aforesaid, in the sum pf 
Fifteen Thousand ($15,000.00) Dollars.

WHEREFORE, plaintiff demands judgment against 
defendant in the sum of Fifteen Thousand ($15,000.00) 
Dollars as compensatory damages for the said injuries, 
wrongs, losses and expenses herein set out and, in addi­
tion thereto, Ten Thousand ($10,000.00) Dollars as ex­
emplary damages, and her costs and reasonable attor­
neys’ fees.

ADELINE ATWELL DAY, Plaintiff.
By MARTIN A. MARTIN, Of Counsel.

MARTIN A. MARTIN,
623 North Third Street,
Richmond, Virginia.
OLIVER W. HILL,
623 North Third Street,
Richmond, Virginia.
SPOTTSWOOD W. ROBINSON, III,
623 North Third Street,
Richmond, Virginia.

Counsel for Plaintiff.

(Title of Court and Style of Case Omitted.)



6

ANSWER OF ATLANTIC GREYHOUND 
CORPORATION.

Tlie answer of the defendant, Atlantic Greyhound 
Corporation:

(1) That it admits the allegation that it is a resi­
dent of the State of Virginia as alleged in paragraphs 
1 and 2 of the complaint. It is without knowledge or 
information to sufficiently form a belief as to the truth 
of the other allegations of fact and conclusions of law 
in the said paragraphs.

(2) That it admits the allegations of paragraph 3 
of the complaint except that it does not transport pas­
sengers to or from Syracuse, New York, or Winter Ha­
ven, Florida, which allegations it denies.

(3) That it denies that the plaintiff was unlawfully 
requested to move to the rear of the bus and is without 
knowledge or information to sufficiently form a belief 
as to the truth of the other allegations in paragraph 4 
of the complaint.

(4) (a) That it admits the motor is located under 
the rear seat and that the plaintiff refused to move to 
the rear of the bus when properly requested and denies 
the other allegations of paragraph 5 of the complaint.

(b) That the plaintiff has pursued no remedy before 
the Interstate Commerce Commission based upon an al­
leged discrimination against her on account of unequal 
seating facilities.

(c) That, if paragraphs 4 and 5 of the complaint be 
construed to allege that the driver requested the plain­
tiff to move to the rear or last seat of the bus, such al­
legation is denied. There were other vacant seats in 
the rear of the bus the plaintiff could have taken had 
she wished.



7

(5) That it admits that the plaintiff told its driver 
that she was an interstate passenger and denies the 
other allegations of paragraph 6 of the complaint.

(6) That it, admits its driver called a policeman 
when the plaintiff failed to move to the rear when prop­
erly and often requested and denies the other allegations 
of paragraph 7 of the complaint. Later, that officer 
called another.

(7) That it admits the officers did eject the plaintiff 
from the bus but used no more force than was reason­
ably necessary for that purpose. That it further ad­
mits the plaintiff was arrested by the officers, hut it is 
without knowledge or information to sufficiently form a 
belief as to whether she was placed in jail or for how long 
and denies the other allegations of paragraph 8 of the 
complaint.

(8) That the plaintiff was requested to move to the 
rear because of her race and its valid and effective rule 
properly brought to her attention by its driver that Ne­
gro passengers were to be seated in the bus from the 
rear forward and white passengers from the front to­
ward the rear. It denies the other allegations of para­
graph 9 of the complaint except as to the actual losses 
claimed, and, as to these allegations, it is without knowl­
edge or information sufficiently to form a belief as to 
their truth.

(9) That it admits the allegations of paragraph 10 
of the complaint.

(10) That it denies the allegations of paragraph 11 
of the complaint.

(11) That its driver did not observe the race of the 
plaintiff until he reached South Hill, Virginia, at which 
time and place he politely and repeatedly requested her



8

to move to the rear, stating tlie reasons therefor, and 
only called the officer as a last resort when he under­
stood further entreaty with her would he useless.

A  copy of the within answer was mailed to Hill, 
Martin and Robinson, Esqs., counsel for the plaintiff, 
on the 22nd day of April, 1947.

ATLANTIC GREYHOUND CORPORATION, 
By OSCAR L. SHEWMAKE,

JOHN C. GODDIN,
JOHN G. MAY, JR.,

Counsel.

OSCAR L. SHEWMAKE,
JOHN C. GODDIN,
JOHN G. MAY, JR.,
State-Planters Bank Building,
Richmond 19, Virginia.

PLAINTIFF’S REQUEST FOR CHARGE WHICH 
WERE REFUSED.

P rayer for I n struction  No. 2.

The Court instructs the jury that under the United 
States Constitution, Congress may legislate specifically 
with respect to segregation in interstate travel, but Con­
gress has not done so. However, the Interstate Com­
merce Act makes it unlawful for any common carrier to 
subject any person traveling in Interstate Commerce to 
any undue or unreasonable prejudice or disadvantage in 
any respect whatsoever.

The Court therefore instructs the jury that the At­
lantic Greyhound Corporation, as a common carrier of 
passengers, was bound to exercise the utmost degree  ̂of 
diligence and care in safely transporting Mrs. Adeline 
A. Day while on its bus upon its journey, and if they



9

failed in this duty and illegally caused her arrest in 
South Hill, Virginia, while on said journey, said bus com­
pany is liable in damages to the plaintiff.

P rayer for I n struction  No. 4.

The Court further instructs the jury that on De­
cember 22,1946, the day upon which the plaintiff, Adeline 
A. Day was arrested there was no law in the State of 
Virginia requiring* her to sit in the rear of the bus upon 
which she was riding, or to move to another seat when 
requested by the bus driver to do so because of her race 
or color.

The Court further instructs the jury that if they 
believe from the evidence that the bus driver requested 
the plaintiff Adeline A. Day to move from the seat in 
which she was sitting to another seat because of her race 
or color and the plaintiff refused to do so, and that there­
upon the bus driver called police officers and caused the 
arrest and imprisonment of Adeline A. Day, if you tur- 
ther believe that the bus driver was an agent of the bus 
company at said time and that the police officers acted 
at his instance, then you should find your verdict for the 
plaintiff regardless of whether you believe that the bus 
driver was acting upon advice of counsel or not, and 
regardless of whether or not he acted in good faith.

DEFENDANT’S REQUEST FOR CHARGE NOT 
GRANTED IN ALL RESPECTS.

The Court instructs the jury that the burden of proof 
in this case is upon the plaintiff to establish every ele­
ment by a preponderance of the testimony. A verdict 
either upon the question of liability or amount of dam­
ages should not rest upon speculation, surmise, conjec­
ture or sympathy but should he based entirely upon the 
evidence in the case and the instructions of the Court. 
If, upon the evidence as a whole, you are undecided



whether such a case has been made out,, you should find
in favor of the defendant.

The Court instructs the jury that a carrier such as 
the defendant had the right to establish and enforce rea­
sonable rules for the conduction of its business. On 
January 22, 1947, the defendant had on file with the In­
terstate Commerce Commission its tariffs, which, in­
cluded under the heading “ Reservations”  the follow­
ing:

10

“ (2) The carriers reserve to themselves full 
control and discretion as to seating of passengers 
and reserve the right to change such seating at any 
time during the trip.”

Pursuant to the reservation of the defendant of the 
right as to the seating of passengers, the defendant un­
der date of August 15, 1946, instructed its drivers in 
part as follows:

“ Where such has been the accepted usage, cus­
tom and tradition, it is suggested that, as far as 
practicable and pursuant to the authority of the 
rule above quoted, colored passengers be seated 
from the rear forward, and white passengers from 
the front toward the rear.”

The Court instructs the jury that the reservation 
and instruction as a matter of law, that is, a matter over 
which reasonably fair-minded men cannot differ, were 
reasonable and that the defendant had the right to en­
force them.

The driver of the defendant’s bus had the right to 
designate the seat to be occupied by the various pas­
sengers, including the plaintiff, under the tariff on file 
with the Interstate Commerce Commission, and under 
the rules of the Company.

If you believe from the evidence that the driver of 
the bus requested the plaintiff to change to a different 
seat, either identical or of substantially equal facilities



11

as the one In which she was sitting, while the bus was 
standing at South Hill, Virginia, and that the plaintiff 
refused to do so, and that thereafter the defendant’s bus 
driver or police officers used no more force than was 
necessary for the purpose of ejecting the plaintiff, then 
you should find for the defendant.

A minor or trifling inconvenience or difference in 
seating is inevitable under the most favorable conditions 
and minor disadvantages in travel do not necessarily in­
dicate discrimination as to the facilities furnished.

You are further instructed that if the driver of the 
bus of his own notion, undertakes to set in motion the 
machinery of the criminal law to avenge a real or 
imagined wrong against his employer, such act does not 
impose liability upon the employer, unless such employer 
authorized or ratified the conduct of the employee.

JUDGMENT.

(Filed by Court and Style of Case Omitted.)

July 2, 1948, Judgment entered in accordance with 
jury verdict (for defendant) July 2, 1948. (Notice 
mailed counsel 7/2/48.)



EVIDENCE AND OTHER INCIDENTS OF TRIAL.

ADELINE ATWELL DAY, a witness in her own 
behalf, being first duly sworn, testified as follows:

D irect  E x a m in a t io n .

By Mr. M artin  :
Q. Mrs. Day what is your full name! A. Adeline 

Atwell Day.
Q. Where do you live, Mrs. Day! A. Syracuse, 

New York.
Q. Syracuse, New York! A. Yes.
Q. How long have you lived there? A. For over 

fifty-two years.
Q. By the way how old are you? A. Sixty-seven 

this fall.
Q. Mrs. Day you filed a complaint here against the 

Atlantic Greyhound Corporation, involving an incident 
that happened while you were on a trip from Syracuse, 
New York, to Winter Haven, Florida, a year or so ago. 
Did you leave Syracuse, New York, in December, 1946? 
A. I did.

Q. Where were you going? A. I was going to Win­
ter Haven, Florida, and I got a stop-over in Richmond 
for two or three weeks before I continued my trip.

Q. By what transportation were you going to 
Florida? A. Greyhound Bus Lines.

Q. I believe you purchased your ticket from the Cen­
tral Greyhound Bus line in New York is that correct? 
A. In Syracuse. I got a round trip ticket.

Q. I show you identification check issued by the Cen­
tral Greyhound lines at Syracuse, New York, dated De­
cember 18, 1946, and ask if that is the identification 
check you got as part of your ticket? A. Yes.

Mr. M artin  : We offer that in evidence as Plaintiff’s 
Exhibit #1.

12



13

Q. Did you actually leave Syracuse on or about De­
cember 22, 1946! A. I did.

Q. By Greyhound Bus? A. Yes.
Q. Now will you tell the Court and Jury first where 

was the first point you transferred from one bus to an­
other f A. Scranton.

Q. Scranton, Pa.? A. Yes.
Q. Where did you next transfer? A. The next was 

in Washington and the next in Richmond.
Q. You had a stop-over in Richmond? A. Yes.
Q. For how long? A. The ticket was good for six 

months, but I stayed I believe three weeks.
Q. l rou left Richmond, 1 believe, some time in Janu­

ary? A. The 22nd of January to go to Florida.
Q. About what time of day was it the 22nd of Janu­

ary that you left Richmond? A. I think the bus left 
around 4 o ’clock.

Q. You got on at the Greyhound Bus Station in 
Richmond? A. Yes.

Q. What part of the bus did yon have a seat in? A. 
I sat on the second seat on the right-hand side of the 
bus.

Q. The second seat from the front? A. From the 
front.

Q. That is the side opposite the driver? A. Yes.
Q. Did anybody else on the bus, first was there any­

body else on the bus when you occupied that seat? A. 
No I was the first person on.

Q. The bus loaded in Richmond, did it not? A. Yes.
Q. Did anybody while the bus was in Richmond ask 

you to change your seat? A. No.
Q. Did the bus get completely loaded here in Rich­

mond? A. No, it was not all filled.
Q. Did anybody else oceupy the seat beside you? 

A. Yes, a lady sat by me, she was from Canada, and 
we visited all the way down.

Q. Was that a colored or white lady? A. A white 
lady.



14

Q. You say you visited with her, what do you mean? 
A. She started talking to me and we were talking.

Q. You just had a conversation? A. Yes.
Q. Was any objection made by her or any other pas­

senger to your sitting there? A. No.
Q. She remained in that seat all the way to South 

Hill, did she ? A. No not all the way. Somebody got off 
some place, she was with her friend and she went and 
got with her friend.

Q. You then had the seat by yourself to South Hill? 
A. Yes.

Q. When the bus arrived at South Hill did the other 
people get off the bus? A. Yes everyone got off.

Q. Did you get off? A. No I didn’t get off.
< Q. You were the only one left on the bus? A. Yes.

Q. Did you have any conversation at that time with 
the bus driver? A. Not until he come back on the bus 
and asked me if I would take a rear seat. I told him 
no, that I was riding interstate and didn’t have to, and it 
was not comfortable any way. When he asked me to get 
on the rear seat and I told him I was riding interstate 
and didn’t have to sit on the rear seat, and that it was 
not comfortable riding such a long distance.

Q. Let’s go back a minute. Why were you going to 
Florida? A. I was going to work.

Q. How long had you been working down there? 
A. I had been wintering there twenty years.

Q. You go down each winter? A. And come back.
Q. Had you been going down by bus or train? A. 

Well I had made three trips, I think by bus, but before 
that I had gone by train pullman.

Q. Why did you go by train the other times rather 
than by bus ?

Mr. May: We submit that that is immaterial. Why 
she chose a certain route or method of transportation.

Mr. M artin  : The purpose of that question is that I 
believe the facts will show that she had been going by 
bus, but found that she had to change and to go by train,



15

because that rear seat was much less comfortable than 
the other parts of the bus, and she had been going by 
train until she read in the paper about the Supreme 
Court’s decision in the Morgan case, regardless of 
whether her interpretation of that decision is right or 
not.

Mr. May: It is our position, if your Honor please, 
that all that testimony he has stated to your Honor, in 
our opinion is not properly admissible in this case.

The C o u r t : I think it would be proper to describe 
the seating accommodations, any difference in the quality 
which she may show to exist—

Mr. M ays We note an exception, if your Honor 
please.

The Co u r t : But I am doubtful that she should be 
permitted to show what she did as a result of the con­
dition, which she alleges existed. If I make myself clear. 
That is a conclusion of the witness it rather seems to 
me. She may describe the seating conditions on the bus.

By Mr. M artin  :
Q. Mrs. Day you testified you had ridden the bus 

down to Florida before this at some previous times! A. 
That is to Richmond.

Q. Had you ever ridden on the back seat of any of 
these busses before! A. To Richmond from Washing­
ton I did, and from Richmond to Amelia.

Q. You have relatives in Amelia, I believe! A.
Yes.

Q. Was there any difference in the seat, riding in 
the rear on that long rear seat of this bus, than in riding 
on this seat you have referred to! A. Certainly—a big 
difference.

Q. Tell the Court and Jury what the difference is. 
A. The other seats are more comfortable, that back seat 
is very hard and rough and hot, just like sitting* on a 
stove.

Q. Is that motor under the rear seat! A. I imagine 
so, that is what makes it so hot.



16

Q. Is the back seat adjustable? A. No.
Q. Can you move the back of the other seats, say the 

one in which you were seated on this occasion? A. Yes.
Q. Is there any odor back there on that back seat? 

A. Sure.
Q. You said that after the other people had gotten 

off the bus in South Hill, the bus driver came back on. 
You were the only person on there then? A. Yes.

Q. And he asked you to get on the back seat? A.
Yes.

Q. Did he say get on the back seat or in the back 
of the bus ? A. He said get on the back seat.

Q. And you told him— A. I told him I didn’t have 
to now that the law had been passed that you didn’t have 
to get back there if you were riding interstate.

Q. At the time were you talking loud or not? A. 
No I never do that, that is not my nature.

Q. After you refused to get on the back seat, what 
did the bus driver do? A. He went and got one police­
man and he tried to pull me off, I was holding the seat 
and he hit my arm trying to make me turn lose. He 
couldn’t get me or didn’t get me off and so he went out 
and got another policeman and the two of them took 
me up bodily.

Q. And took you off? A. Yes.
Q. Who went and got the first policeman? A. The 

driver.
Q. When this bus driver was hitting you on the 

arm— A. No it was the policeman, that hit my arm.
Q. Where was the bus driver then? A. He was 

standing there.
Q. Did he see it? A. Yes.
Q. The first policeman Avent out and got another 

polieeman, is that right? A. Yes.
Q. And they bodily took you off the bus? A. Yes.
Q. Did you have a hat? A. My hat Avas swinging 

on the back of the seat Avhere I sat and I never did see 
my hat again.



17

Q. How much was that hat worth? A. $11.00 is 
what I paid for it.

Q. Did you have a bracelet? A. I had a bracelet, 
I lost my bracelet, and didn’t find that.

Q. You lost it during that incident! A. Yes, when 
they pulled me off, they pulled my bracelet off and 1 
never did find it.

Q. How much was that worth! A. $10.00 is what 
I paid for it.

Q. Did you have any baggage on that bus ? A. Iliad 
a suitcase and a lunch box, and the police officer when 
they put me in the lock-up had called ahead to Raleigh 
and asked that they put my suitcase off there.

Q. Did they put a suitcase off for you at Raleigh? 
A. Yes, I caught a later bus and got off there and got it.

Q. Did you get your ticket back? A. Yes, he gave 
me a ticket to go from South Hill down to Raleigh,

Q. After you were taken off the bus, what did they 
do with you then, the policemen? A. They Walked me 
down to the lock-up.

Q. Did they actually put you in the lock-up at South 
Hill? A. Yes, I was in there three hours.

Q. How did you get out? A. Someone on the out­
side, I don’t know who it was, but they were talking to 
me through the window and I asked them to get a higher 
officer to come down that night so I could get out, so 
after a time they did get someone down there and I 
got out.

Q. Did have to pay any money to get out ? A. Yes, 
he fined me $25.00, then he cut it down to $20.00, so 1 
paid the $20.00.

Q. Then how long was it before you could get an­
other bus? A. I think after I got out it was over an hour 
before another bus came.

Q. When you caught this other bus where did you 
go then? A. I went to Jacksonville, changed there and 
went on to Winter Haven.

Q. Did yon stop in Raleigh to get your baggage? 
A. I got off the bus and got my baggage and got back on.



18

■Q. Let me ask you one other question, you said you 
were put in the lock-up down in South Hill, have you ever 
been arrested before for anything? A. No, indeed.

Q. You have never been arrested before? A. This 
is the first time I was ever in a court-room.

C ross E x a m in a tio n .

By Mr. May :
Q. What became of the trial on the arrest that was 

made? Do you know what happened at the trial that 
was had on the arrest which wras made ? A. Didn’t have 
any trial, that night he charged me $20.00 he told me 
my trial would come back up the following Monday, but 
they never did have any trial.

Q. You didn’t come back, did you? A. It was set­
tled.by my paying the fine.

Q. That was bail that you put up, wasn’t it? A. I 
don’t know what he called it, he told me he charged 
me $20.00.

Q. Did you know with what offense you were being 
charged with? Did you know what you were being 
charged with? A. I hadn’t done anything, I don’t know 
what I was charged with.

Q. Do you know whether you were convicted of dis­
orderly conduct? A. Wasn’t anything said, the officer 
came there and they unlocked the door and let me out 
and he said it would be $25.00.

Q. Did you ever endeavor to find out what happened 
at the trial? A. No, I didn’t know what the trial was.

Q. You haven’t been told what happened by anyone, 
have you? A. No.

Q. Now in leaving Richmond, did you say that the 
seats were not all filled? A. I was the first person on 
the bus when the bus started loading.

Q. After it got through loading and started off were 
the seats all filled? A. They were not all filled, there 
were some vacant seats in the back of me somewhere.

Q. Were the vacancies all through the coach or do



19

you know where the vacancies were? A. No, I didn’t 
look back to see, I was not interested.

Q. You say there were vacancies, now I am asking 
you where were these vacancies ? A. I know that people 
got on the bus going down and they were seated.

Q. When you got to South Hill were there as many 
folks on it then as when you left Richmond? A. No, 
someone had gotten off that sat beside the lady friend of 
the lady that sat with me, she had moved before we got 
to South Hill.

Q. Folks were getting on and off of the bus at the 
various little stops between here and South Hill, weren’t 
they? A. Yes.

Q. When you got to South Hill how full wmuld you 
say the bus then was? Was it half full? A. It was 
more than half full. There was not anyone sitting in 
the seat with me.

Q. Can you give us some idea how full it wTa,s ? Did 
it lack a fourth from being full? A. I couldn’t say as 
to that because I didn’t look around.

Q. Do you know whether there were any vacant seats 
to the rear? A. I couldn’t say because some people got 
off at South Hill that didn’t get back on.

Q. Did I understand you to testify when you were 
examined by Mr. Martin that there were a number of 
vacant seats in the bus? A. Yes.

Q. How did you know that? A. When the people 
got back on the bus and it loaded up in South Hill—

Q. There were vacant seats? A. Yes.
Q. With those vacant seats to the rear you could 

go to the rear without going to this long seat that you 
have been talking about, you just jumped to the con­
clusion that he was talking about that seat, when he was 
not talking about any particular seat, isn’t that right? 
A. No, sir, because he said the back seat.

Q. Was there any reason for him to say the back 
seat when there were vaacncies in the rear part of the 
bus ? A. I don’t know, he said the back seat.



20

Q. You know of no reason for that, do you? Well 
now the driver first started talking with you, you were 
alone with him in the bus I believe? A. Yes.

Q. And you were alone in the bus quite awhile! A. 
Yes, sir, because I didn’t get off the bus there.

Q. And when he told you to be seated in the rear or 
wherever he told you, at that time you could have sat 
anywhere in the rear portion of the bus, could you not 
have? A. That might be.

Q. Why didn’t you ? A. Because I didn’t like to set 
in the back, there is so much smoke and it always makes 
me sick.

Q. You were against riding as it were in any part 
of the rear? A. Yes, I don’t ride up home in the rear—

Q. How was that? A. The smoke makes me sick 
when I ride back there.

Q. Don’t you know the ventilation is the same all 
over that bus? A. I can’t help it if it is, it is worse 
in the back than it is in the front.

Q. How far from the front can you go without being- 
disturbed by this bad ventilation ? A. I always find that 
the nearer the front I am the less I get of it.

Q. Were you endeavoring to stay in the front then, 
for the reason that you thought it would be more com­
fortable, or because you thought from some case you 
read about you had a right to sit there or both? A. Both.

Mr. May: Very well we have no further questions.
R e-D irect E x a m in a tio n .

Questions by Mr. M artin  :
Q. I believe you stated that you were the first per­

son on this bus at Richmond? A. Yes.
Q. And you occupied that seat here? A. Yes.
Q. And nobody asked you to move at all? A. No, 

sir.
Q. Until you got to South Hill? A. Yes.
Q. I believe you are a colored person, a member of 

the Negro race? A. Yes.



21

R e-C ross E x a m in a tio n .

By Mr. M at :
Q. The woman who was riding with you, the white 

woman, where was she from! A. Canada.
Q. It is a custom in Canada for both races to ride to­

gether, is it not! A. I don’t know, I have never been to 
Canada.

Q. Is it the custom in your State of New York for 
the white and colored races to sit anywhere they want in 
the bus? A. Yes.

Q. Do you know what the custom in Virginia is or 
has been for many years on that subject? A. Well, I 
have read about it.

Q. What do you understand the custom here is? 
A. I understand they couldn’t sit together, but since this 
law was passed people riding interstate didn’t have to 
sit on the rear seat when going a long distance.

Q. You don’t understand that all the colored people 
riding a bus have to get on the one seat, you don’t under­
stand that to l>e a fact, clo you? A. The rear seat of 
the bus is the way I understand it.

Q. You mean the second half of it by rear, don’t you? 
Tell us what you mean by rear of the bus! A. Weil, I 
understood the last seat and the next two seats and if 
there is more they have to stand up, and I have seen them 
make colored people get off those first seats for others to 
sit down and make them stand up.

Q. If you knew what the custom was here in Vir­
ginia, why didn’t you follow it? A. Because of that 
law being passed.

Q. So you were sticking to your rights that you 
thought you had on some law being passed? A. Yes, 
because it is right.

R e-D irect E x a m in a tio n .

By Mr. M artin  :
Q. Mrs. Day, 1 have one other question. I under­

stand that for some years before this incident you had 
been riding the train down to Florida? A. Yes.



22

Q. Why did you ride those trains instead of the bus 
before this? A. I guess it was because I could get a 
pullman and not be bothered.

Q. Why did you take this bus on this particular oc­
casion? A. I took it because things had been changed 
interstate, and it was so much cheaper, and I had a right 
to save money as well as anybody else.

R e-C ross E x a m in a tio n .

By Mr. May:
Q. Did the driver tell you that the rule of the company 

was for the colored people to fill in from the rear for­
ward? A. No, he didn’t he just came to me and asked 
me to take the back seat.

Q. Just one more thing, after you got outside did the 
officers endeavor to put you into the automobile they 
had? A. After I got outside, yes.

Q. And it was because you fought them off and 
wouldn’t get in that you didn’t ride? A. I told them 
I didn’t want to get in because I hadn’t done anything 
to get in there for.

Q. And the reason you walked to jail was because 
you refused to ride, wasn’t it? A. Yes.

The witness stood aside.

CHARLES CRAWLEY, another witness for the 
plaintiff, being first duly sworn, testified as follows:

D irect  E x a m in a t io n .

By M r. M artin  :
Q. Mr. Crawley, where do you live? A. I live in 

South Hill.
Q. H o w  long have you lived there? A. Thirty-seven 

years.
Q. By the way how old are you? A. I am 65 years

old.



23

Q. Were you in South Hill in January of last year! 
A. Yes, sir.

Q. Did you see the incident when Mrs. Day was taken 
off that bus? A. Yes, sir.

Q. About what time of day was that, do you recall? 
A. About 7 o ’clock at night, I was going to work.

Q. Where did you work at that time ? A. South Hill 
Training School.

Q. That is the colored high school there? A. Yes, 
sir.

Q. What kind of work did you do? A. Black- 
smithing, repairing farming tools for the farmers.

Q. About how far is that school from the bus station? 
A. Well, I reckon it is about between three and four 
hundred yards, as near as I could get at it.

Q. Will you tell the Court, tell the Judge and the 
gentlemen of the Jury just what you saw from the time 
you arrived there until after they had taken Mrs. Day 
off the bus? A. I was passing on by there and some­
one called my attention to it and asked me was I in a 
hurry and I told them I was due to open the school at 7 
o ’clock, and he said wait a few minutes they are going to 
take a lady off the bus and I want you to see it, and 
so I stopped there and saw it.

Q. What did you see? A. She was sitting as near 
as I can remember, not thinking it would ever come up 
and that I would have to repeat it again, about the second 
seat, as near as I can remember, on the opposite side 
from the driver.

Q. Do you mean the second seat from the front? 
A. Yes, sir.

Q. All right just tell us just what you saw there at 
that time? A. I saw the driver talking to her, what he 
said I don’t know, but after he couldn’t get her to move 
lie went out and got an officer and came back with him.

Q. Did both of them get on the bus? A. Yes.
Q. Then what happened? A. He talked to her a 

while and tried to get her to move, but she wouldn’t



24

move, and after several minutes—it might have been five 
minutes—he couldn’t get her to move and he went out 
and got another officer.

Q. Then what did they do! A. They forced her 
from the bus.

Q. How! A. They taken her up and brought her
out.

Q. Then what happened? A. They tried to put her 
in the car and she wouldn’t get in the car, and so they 
carried her on around to the street that goes to number 
one highway, the way to the lock-up, and that was the 
last I saw of them.

Q. When you first saw the bus driver talking with 
her you couldn’t tell what he was saying? A. No.

Q. Was she sitting down at that time? A. Yes.
Q. Did you see her do anything at that time? A. 

No, sir, she was sitting perfectly still when I saw her.

C ross E x a m in a tio n .

Questions by Mr. May:
Q. Did she put up any resistance in being taken off? 

A. I didn’t see any resistance, it didn’t seem like she 
wanted to move.

Q. She tried to hold on to everything she could to 
keep from being taken off, didn’t she?

A. I didn’t see her. A woman couldn’t resist two 
men but so much.

Q. But she was doing everything she could to keep 
them from taking her off, wasn’t she? A. I don’t know, 
I heard her say what are you all going to do with me, 
and they said they were going to lock her up, and she 
said what for, and they told her because she wouldn’t 
move, and then she said you will have to lock me up then 
because I bought my ticket to ride on the bus.

Q. Why did the two have to take her out, why 
couldn’t one do it? A. I don’t know.

Q. Did you see the incident? A. Yes, sir.



25

Q. Well, why couldn’t he take her off by himself? A. 
He didn’t assist her but so much, the one man.

Q. Isn’t the reason he had to get another one be­
cause she didn’t want to get off and was resisting his 
efforts to take her off? A. I supposed he could have 
moved her if he had doubled his determination, it seemed 
that he didn’t want to double them on a woman to move 
her, I took it to be the reason he didn’t do any more 
than he did.

Q. Who asked you to come up and watch this inch 
dent? A. I was not watching, I was passing on by go­
ing to work.

Q. I understood that somebody hailed you, is that 
right? A. Somebody called and asked me to stop and 
see what was going on, I said what is up and they said 
they are taking a lady off the bus. I couldn’t say who 
it was, there was so many standing around at that time.

The witness stood aside.
CEPHUS MACKLIN, another witness for the plain­

tiff, being first duly sworn, testified as follows:
D irect E x a m in a tio n .

By Mr. M a r t in :
Q. Your name is Cephus Macklin? A. That is right.
Q. Do you live in South Hill, Virginia? A. Yes, I 

live in South Hill.
Q. How long have you lived there? A. About 27 

years.
Q. Were you there near the bus station or anywhere 

around there on the evening of January 22nd of last year, 
when Mrs. Day was taken off the bus and arrested? A. 
Yes, I was.

Q. Will you tell these gentlemen of the Jury just 
what you saw? A. The part I saw they had taken her 
off the bus when I seen the officers with the lady, he 
was coming through the bus station to the entrance go­
ing to number one highway, I walked on behind them, 
because I pass right by the jail on the way home. They



26

carried her on down to the jail and locked her up, and 
I went on by the jail right behind them. I saw the offi­
cer take the lady and lock her up; they had taken her off 
the bus.

Q. When you saw them they were on the ground off 
the bus, is that right? A. Yes.

Q. How many officers were there at that time? A. 
Two of them.

Q. Did you see them actually carry her in the jail 
and close the door? A. Yes.

Question b y  the C o u r t :
Q. Where is the Jail in South Hill, back of Mr. 

Daniel’s store? A. Yes.
Q. On that next street? A. Yes.
Q. The street that runs parallel to Number 1 High­

way? A. Yes.
Q. That is the same place it has been all along? A. 

That is right.

Cross E x a m in a tio n .

Questions by Mr. May:
Q. How long have you been living in that community? 

A. I say about 27 years.
Q. And busses have been going through there how 

much of your life? A. Oh, they have been going through 
there ever since I have been living in South Hill.

Q. What is the custom and tradition in the vicinity 
of South Hill as to how white and negro passengers fill 
in on a bus? A. To be frank, deed I don’t know. I know 
Erode a bus from New York to South Hill—

Q. I am not asking that, I respectfully suggest that 
you confine your answer to the question I ask you. A. 
Deed I don’t know.

Mr. Martin: If your Honor please, I ask that the 
witness be permitted to complete his answer. As I un­



27

tier stand the question was what the witness knows about 
the customs and traditions in that community. The wit­
ness started to state that one time he rode a bus from 
New York to South Hill, and I think he should be per­
mitted to complete his answer.

T he C o u r t : All right, com plete  the answ er, w hat 
w ere y o u  g o in g  to  s a y !

A. And didn’t no-one ask me to sit on the back seat. 
I was riding about six seats from the front.

By Mr. M ay :
Q. Did you ever ride the bus—Have you been riding 

the bus any since you have been living down there! A. 
Sure I have rode the bus.

Q. Do you know what has been the custom, I am not 
asking a single instance now, what has been the custom 
in that vicinity with reference to how the races fill up 
the bus? A. I believe it is mostly in the driver, some 
will ask you to get back and some don’t.

Q. Do you know what the custom is! A. No, sir.

The witness stood aside.

Mr. M a r t in : The plaintiff rests.
Mr. M a y : If your Honor please, we would like to 

see you in chambers.

(In Chambers.)
Mr. M a y : If your Honor please at this stage I de­

sire to move the Court for a directed verdict on behalf 
of the defendant, on the ground that the undisputed tes­
timony as to the facts are that the officers have done 
everything on which the complainant’s claim is based. 
There is no testimony that the bus driver took any part 
in ejecting, in arresting or in any other phase of the 
case, and for that reason we think that under that North 
Carolina case the motion should be well received.



28

The C ourt : I will reserve action on the motion until 
a later stage of the case.

Mr. M a y : All right, sir.
Mr. M artin  : I might be able to save a little time. I 

don’t know whether it is proper to raise the point now 
or not. I assume it is going to be raised. The same 
question was asked by counsel for the defendant this 
morning, that is relating to the custom in that community, 
South Hill, so far as segregating the races on these pub­
lic carriers, and I want to call to the Court’s attention 
our position. We take the position that testimony re­
lating to the customs in the community, so far as passen­
gers on these common carriers is irrelevant, so far as 
this case is concerned, regardless of the custom of segre­
gating passengers on these busses. Our position is that 
they might have segregated the passengers in local trans­
portation, but after the decision in the Irene Morgan 
case—as a matter of fact that custom was based upon 
the segregation laAV, but after the decision in the case 
of Irene Morgan v. Commonwealth had been decided this 
particular plaintiff had a right to sit anywhere she 
pleased on that bus, regardless of the custom, even if 
the custom was still in effect at time, it is still irrele­
vant. This suit is not for unlawful ejection, if she had 
been merely ejected from the bus, if she had been merely 
unlawfully ejected from the bus, this suit wouldn t be 
here today, but she was ejected and then at the instance 
and request of the agent of the bus company he called a 
police officer or police officers and they took her into 
custody and arrested her and imprisoned her and charged 
her with violating the law. That is the gist of our case 
the unlawful arrest and imprisonment and not merely 
the ejection, we don’t concede that she wasn’t unlawfully 
ejected from the bus, but we do say that the custom had 
nothing to do with her unlawful arrest and imprison­
ment in this case. The custom couldn’t say that every 
colored person that sits in the front of the bus will be 
arrested and imprisoned.



29

The Court : Do you contend that the Morgan case 
condemns segregation on a common carrier as violative 
of the right per sef

Mr. M artin  : No, sir. Our position is that the Mor­
gan case merely held that the State segregation law, re­
quiring segregation on these passenger carriers was in­
valid as to passengers in interstate commerce. It left 
in abeyance the question of whether the bus company, 
itself had a right to establish rules segregating the 
passengers. Going forward with that theory our Su­
preme Court held that while the bus company had the 
right to establish segregation rules and regulations they 
couldn’t, if a person violated those rules, they couldn’t 
take them off the bus and charge them with a crime. 
That is why we say we have to object to the rules and 
regulations being introduced in evidence, regardless of 
whether they had these regulations. We contend that 
both the custom and the rules and regulations are irrele­
vant.

The Court: Is it your contention at this time that 
the evidence shows that the arrest and imprisonment 
was caused by the defendant company?

Mr. M artin  : I  claim that under the Mathews case, 
where the Court of Appeals for the District of Colum­
bia held that a police officer doesn’t have to be an agent 
of the defendant carrier, if the police officer is acting 
at the behest of the carrier that then the company is 
responsible. This driver tried to get her to move and 
was unable to do so, then, the driver acting as the agent 
of the carrier, we will assume he had a right to put her 
off the bus, but instead of doing that he goes and calls 
a police officer or officers and they come and put her 
off the bus. He goes out and gets the police officers and 
brings the police officers on the bus and is right in the 
presence of the police officers when they go back in the 
bus, and the police officers acting at the instance and 
behest of the bus driver take her off the bus. I don’t say 
the bus driver told him in so many words to take her



30

off and arrest and imprison her, but acting at his behest 
that , is what they did.

: The C ourt : Now the Mathews case also said the ac­
tion of the employees of the company in calling to the 
attention of law enforcement officers, or what I conceive 
to be the holding of that case, was not necessarily acting 
as agent of the company.

Mr. M artian : Yes, if he merely calls their attention 
to a circumstance which he considers a violation of the 
law that alone wouldn’t make the company liable, but 
where he goes further and brings them on the bus as he 
did in the Mathews case, the facts here are identical 
with that case, they stopped that train in Lynchburg and 
went and got the police officers and pointed out this 
situation and the police officer arrested the passenger. 
The conductor didn’t specifically ask the officer to ar­
rest the passenger as I understand the facts of that case, 
but the Court held that the company was liable.

The C o u r t : There is this exception of the general 
rule. This exception covers an agent of the carrier in 
pointing out to the law enforcement officer the person 
suspected of violating the law. Some cases holding that 
doctrine seem to contemplate factual knowledge, but un­
der the exception the railroad wms not liable for the ac­
tions of the agent in notifying a police officer of a viola­
tion of the law or suspected violation. It also covers the 
primary duty of the carrier to protect its passengers. 
The exception goes no further than that.

Mr. M artin  : As I understand it there is one addi­
tional fact in this case. As I recall her testimony she 
told this man about this new law and he said something 
to the effect that he knew that was the law, but she would 
have to sit where he told her.

The C ourt : There was some statement to that ef­
fect in her testimony.

Mr. Martin : He told her that he knew she was not 
violating the law.

Mr. May: If Your Honor please, it seems to us that



31

if we take counsel’s statement to the effect that the case 
of his complainant is not the ejection, which he seems 
to concede, but the later arrest and jailing, it seems our 
issues are narrowed considerably. That being the fact, 
I don’t want your Honor to think that we are being per­
sistent, but if that is where they put their case, we think 
we could call your Honor’s attention to our motion for 
a directed verdict and say there is not the slightest evi­
dence that these officers were acting insofar as the ar­
rest at anyone’s behest but their own—

Mr. M a r t in : We are not conceding that, but let’s 
assume they did have a right to eject her.

Mr. M ay : Then I withdraw my remarks.
The Co u r t : Y ou are discussing the question of the 

reasonableness of the regulations of the bus company?
Mr. Martin: Yes, sir.
The Co u r t : Well, if that is an issue, wouldn’t the 

testimony with respect to customs and usage be compe­
tent evidence?

Mr. M artin  : We object to the rules themselves 
whether reasonable or unreasonable, because they are in­
applicable to this arrest and imprisonment.

The C o u r t : They would be applicable so far as the 
ejection is concerned, wouldn’t they?

Mr. M a r t in : Yes, then we say they are unreason­
able.

The C o u r t : You do not disclaim the act of ejecting 
the plaintiff as one of your grounds of recovery?

Mr. M artin  : No, sir.
The Co u r t : I rather think I should permit the de­

fendant to show the custom in view of the references to 
custom, which appears to run through these cases. I 
rather think, gentlemen, that it is competent evidence, 
it may have some bearing and may not upon the final 
windup of the case. Have the record, if you gentlemen 
approve, show that your objection runs to the admissi­
bility of that line of evidence all the way through.



32

Mr. M a r t in : Yes, sir, and it won’t be necessary f o r  
ns to make that objection in open Court.

Mr. M a r t in : Mr. May has just handed us a com­
munication from the Greyhound Corporation to their 
drivers regarding the seating’ of passengers. We want 
to object to the introduction of this on the additional 
ground that this is merely a private communication be­
tween the company and its employees, that was never filed 
with the Interstate Commerce Commission and so far as 
I know was not posted in the bus stations and never 
brought to the attention of this plaintiff at all.

The C o u r t : Is this the communication quoted from 
in Judge Paul’s opinion in that Simmons case?

Mr. M artin  : Here is what happened in the Simmons 
case. Counsel who drew the complaint in the Simmons 
case set that out in full in their complaint and alleged 
fhe operator was operating under that particular letter 
and Judge Paul held we couldn’t object to it that we 
had knowledge of it, and he stated that Simmons was 
put off the bus by reason of that rule.

Mr. May : Under the tariffs all we did was reserve 
the right to seat the passengers according to our discre­
tion, in that letter we set out the rules with reference 
to the colored passengers to the drivers. How they 
should be handled, that is where the rules of the company 
actually come in, having been passed under the privilege 
given under the tariffs.

The C o u r t : I haven’t read this, I didn’t read it 
through in Judge Paul’s opinion, but from the form in 
just glancing at it., I assumed that it was the same. This 
I understand to be a direction from the bus company, 
the defendant, to sit employees, the drivers, in respect 
to how they, the drivers, shall conduct themselves and 
what they shall do with respect to handling passengers. 
Suppose the driver acted contrary to the orders, which 
he had received, would the defendant be liable then?

Mr. Martin: Yes, sir, I think so. For instance in this



33

case suppose this driver had gotten hot-headed and hit 
this woman over the head, when she refused to move. I 
don’t assume he had authority to do that, but the bus 
company would he liable.

Mr. G oddin : I think under your Lottie Taylor case 
he has the right to use as much force to eject her as 
was reasonable and proper. That is the case you brought 
in yourself, for violating the rules she couldn’t be con­
victed of a criminal offense, but the driver can eject a 
passenger.

M r. M a r t in : I was assuming that if he picked up 
a pipe hammer and hit her over the head then the com­
pany would be liable. The rules you have on file with 
the Interstate Commerce Commission says that the car- 
rir reserves the right to rearrange the seating of passen­
gers. The Court has ruled that is admissible, then when 
you bring in a private letter, which we know nothing 
about, which has never been filed with the Commission, 
never been posted, and you come in at the time of trial 
and want to bring in a private communication that the 
president of the company had with the drivers. I think 
that it is clearly inadmissible.

Mr. May: Regulations which are adopted for the 
convenience and comfort of the passengers cannot be 
said to be unreasonable, so certainly it is evidence. I 
believe it is the duty of the Court to determine in this 
case whether these rules are reasonable or not.

The C o u r t : I think, gentlemen, that I should ad­
mit it.

Mr. M artin  : We will, of course, take the same ob­
jection to that and except.

(In open Court.)

MR. G-. N. NICHOLSON, the first witness for the 
defendant, being first duly sworn, testified as follows:



34

D irect  E x a m in a tio n .

By Mr. M at  :
Q. What is your name! A. G. N. Nicholson.
Q. And your age is! A. Thirty-eight.
Q. Mr. Nicholson what is your occupation now and 

how long have you been so employed! A. I am a driver 
and have been for eleven years for the Atlantic Grey­
hound Corporation.

Q. What occasion have you had to drive the Ra- 
leigh-Richmond route! A. I have driven it off and on 
for 11 years and for the past five years straight.

Q. What southern states have you operated in be­
sides Virginia and North Carolina! A. South Carolina.

Q. Any others besides those three! A. No, sir.
Q. As one of the drivers of the Atlantic Greyhound 

Corporation, did you receive the instructions from Mr. 
Engle under date of August 15, 1946! A. Yes, sir, I did.

Q. Do you recall it by that date! A. Yes, sir.

Mr. May: I will file this in evidence and ask that 
the reporter mark it defendant’s,Exhibit “ A ” .

I desire, sir, to read not the entire letter, but sev­
eral portions of it at this time, the whole is available, 
sir, for the Court and Jury, in the event you care to see 
it all.

“ To: All Drivers:
“ Subject: Seating of Passengers in Coaches.
“ As a common carrier of passengers this com­

pany is under a duty to operate its coaches in such 
manner as will promote the comfort, security and 
safety of all of its passengers, and will preserve the 
public peace and good order on its coaches.

“ This company several years ago adopted a 
rule concerning the seating of passengers which 
read as follows:



35

“  ‘ The carriers reserve to themselves full con- 
tiol and discretion as to seating* of passeng’ers and 
reserved the right to change such seating at any 
time during the trip.’

“ This rule is published in the present effective 
tariffs of the company and in its time tables, printed 
notices to the public, and is on file with the Inter­
state Commerce Commission, as required by law, 
and has the force and effect of law, and as such is 
binding* upon both the company and its passengers. 
This rule was required because of the many well 
known factual situations which arise out of the pres­
ence upon the coaches of intoxicated persons whose 
conduct becomes objectionable to others, the illness 
of passengers, particularly children, while en route, 
differences in the attire or clealiness of passengers 
and the established usages, customs and traditions 
o f the people in the various states and areas served 
by the company. In some states, which we serve, 
it is the established usage, custom and tradition in­
duced by the general sentiment of the community 
that passengers of different races be not seated in 
adjoining seats or in the same part of a public con­
veyance. In many states this custom, usage and 
tradition has been embodied in statute or ordinance.

“ Where such has been the accepted usage, cus­
tom and tradition, it is suggested that, as far as 
practicable and pursuant to the authority of the rule 
above quoted, colored passengers be seated from 
the rear forward, and white passengers from the 
front toward the rear. This rule is based upon es­
tablished usage induced by general sentiment of the 
community, and is designed not only to promote the 
comfort, safety and security of all the passengers, 
but to preserve peace and good order and avoid un­
due discrimination. This will also serve the pur­
pose of accomplishing uniformity, and will avoid



36

requiring passengers from repeatedly shifting seats
to meet the seating requirements of a changing pas­
senger group.”

Q. Were you familiar with that part of the direc­
tion, which I have read on January 22, 1947? A. Yes, 
sir.

Q. Do you remember when you first received those 
instructions! A. In August, 1946.

Q. Was it your endeavour after you received those 
instructions, so long* as they were in force, to enforce 
them as best you could? A. That is right.

Q. Were you the operator of the bus, Mr. Nichol­
son, on which this incident occurred, which we have been 
discussing this morning! A. Yes, sir.

Q. And you had been operating that route continu­
ously for how long? A. About three and a half years 
at that time.

Q. Do you know yourself, what is the custom in .Vir­
ginia and North Carolina, the custom, the usage and the 
tradition with reference to separating the white and 
negro races on busses? A. Yes, I do.

Q. What has been that custom and tradition? A. 
Well, the colored people take the seats in the rear of the 
bus and load from the rear forward; the white people 
load from the front of the bus toward the rear.

Q. How long, do you know, has that custom been in 
effect? A. Ever since I can remember riding a bus.

Q. And that was how long ago, approximately? A. 
Well, twenty-eight or thirty years ago.

Q. Is that also the custom at South Hill, Virginia? 
A. Yes, sir.

Q. When you left Richmond on that day, state the 
capacity to which your bus was filled? A. Well, all the 
seats were taken and the aisle was pretty well filled up 
too. I had about eighteen or twenty passengers standing 
and the schedule was very heavy all the way to South



37

Hill. People were on and off all the way down, and the 
aisle was filled all the way.

Q. Do you know where you were when the passen­
gers started seating themselves? A. I think there were 
a few standing when I got to South Hill.

Q. Where were you when the passengers got on at 
Richmond? A. At the door of the bus.

Q. Did you know that any passengers of the Negro 
race had stopped in the forward portion of the bus? A. 
No, I did not.

Q. Did you have occasion to make an inspection be­
tween Richmond and South Hill as to whether such was 
the case? A. No, I had no occasion to go back in the 
bus, one reason I didn’t was that the aisle was full of 
people. I usually look from the front to the rear to 
see if everything was all right and I saw no colored and 
white passengers sitting together.

Q. What time did you leave Richmond? A. About 
4 o ’clock.

Q. What time did you arrive in South Hill? A.
6:30.

Q. Do you know to what capacity your bus was filled 
when you reached South Hill? A. It was just about 
full, in fact I think there were some standing.

Q. There were some standing then? A. Yes.
Q. What sort of bus stop is that? A. That is a regu­

lar meal stop, thirty minutes there to eat supper.
Q. Where with reference to the restaurant is your 

station? A. We have a platform in the rear of the 
restaurant for the bus to stop.

Q. When did you first know the plaintiff was seated 
forward in the bus? After everyone had gotten off for 
the meal stop at South Hill.

Q. Did you have any conversation with her? A. 
Yes, sir.

Q. Where was she sitting? A. The second seat 
from the front on the right.



38

Q. Tell us, as best you can, just what conversation 
passed between you and her and what was done by either 
of you? A. Well, after I unloaded there, the bus was 
empty and I noticed she was the only passenger left on 
the bus and that she was sitting on the second seat on 
the right from the front. I realized she must have come 
all the way from Richmond and so I asked her where 
she got on and she said Richmond, and I said, well 
Auntie, we will be here thirty minutes and when we leave 
I want you to take a seat in the rear of the bus, she said, 
why, and I said it is the rule of the company and also 
the custom in this part of the country for colored pas­
sengers to ride in the rear; then she stated that she was 
an interstate passenger and could sit anywhere she 
wanted, I said, that may be, but the company also has a 
rule that according to the country you are riding through 
colored people will take their seats in the rear of the bus, 
and when we get ready to leave I want you to take a 
seat in the rear of the bus. So I didn’t say any more 
to her at that time and went on in the station and had 
supper. Thirty minutes later on, my passengers going 
beyond South Hill, I think I had about 22 before taking 
on any new ones at South Hill and after they finished eat­
ing they started to reload the bus, I went back to the bus 
at that time and found this passenger was still sitting 
in the seat I left her, so I leaned over and said in a low 
tone, Auntie, come on and let’s move back to the rear of 
the bus, like I asked you the first time, she said, no I am 
not going back. I talked to her a few minutes and tried 
to persuade her, as best I could, to go back because that 
was the custom of this part of the country, she still re­
fused and kept stating she was an interstate passenger 
and did not have to move. I kept reminding her several 
times that the company had a rule and that it was the 
custom in this part of the country for colored passengers 
to sit in the rear. She kept on refusing, and I said either 
move back or get off the bus and she said she was not 
going to move back or get off, so I told her I would have



39

to get a policeman to take her off if she didn’t move hack 
or get off, and she told me to go ahead and get the police­
man, then I went out and got a police officer, who hap­
pened to be at the station—

Q. Do you remember his name? A. Mr. Beck, so 1 
told Mr. Beck I want you to come on the bus with me and 
I will ask her again in your presence and give her an­
other chance to move. We came on the bus and I asked 
her before the police officer and all the other passengers, 
I said, Auntie, I want to give you one more chance to 
move without any trouble, if you don’t this man is going 
to take you off the bus. She said she wouldn’t move and 
Mr. Beck also asked her to move that it was the rule of 
the company and it was up to the driver to see that the 
rule was carried out. She told him she wouldn’t move 
anywhere nor get off either, so he caught her by the arm 
and tried to pull her a little bit and saw that he couldn’t 
do it by himself so he went out and got Mr. Keeton, an­
other officer, and the two of them carried her out with­
out any more force than was necessary. That is about all 
it was.

Q. What was the extent of the resistance she made to 
Mr. Beck, when he was there along before Mr. Keeton 
came on the scene ? A. She clung to the back of the seat, 
the arm rest and anything she could get her hands on.
I don’t think he wanted to hurt her, he wanted to pull her 
out of the seat, but she offered too much resistance.

Q. What was the extent of her resistance when the 
two officers tried to take her off the bus? A. She kept 
clinging to the seat and bracing her feet against the seat 
in front of her, she was clinging to the arm rests, seat 
back and anything else she could get her hands on.

Q. Did they strike her or take any action that was 
not necessary to remove her, so far as you could tell? A. 
No, sir, I didn’t see either one hit her at all.

Q. What became of them after they had taken her off 
the bus? A. Well they had the car parked by the bus, 
the door was open and they tried to get her to go in the



40

ear, and she offered the same resistance she had before, 
so then they walked her down the alley and out in the 
street.

Q. Where was she when you left! A. The last I 
saw of her she was going out the alley with the two police 
officers.

Q. Did you have her arrested! A. No, sir.
Q. Did you request the officers to do anything except 

take her off the bus! A. That is all, just take her off.
Q. What seats were vacant, if any, when you were 

ready to start! A. Well, after she got off there were 
about five or six passengers waiting to get on. I, of 
course, let them on, and before they got on there were a 
number of seats, I would say ten or twelve seats between 
the rear portion of the bus and the white people sitting 
in front.

Q, Did you ask her to take any particular seat! A. 
No, sir, I told her to take a seat in the rear of the bus.

Cross E x a m in a tio n .

By Mr. M artin  :
Q. Mr. Nicholson, you said the police officers took 

her off the bus and you saw them trying to get her in the 
car! A. That is right.

Q. Did you actually see them trying to put her in the 
car! A. That is right.

Q. And the last time you saw her, they were taking 
her down the alley! A. That is right.

Q. Where were they taking her, or where did you 
think they -were taking her! A. I didn’t know, I 
imagined the police station.

Q. You asked them to take her off the bus? A. I 
did.

Q. After they had taken her off the bus and were trying 
to put her in the police car, did you tell them that you 
just wanted them to take her off the. bus ? A. After they 
took her off I didn’t say any more to them, I just told 
them I wanted her taken off.



41

Q. How did you think they were going to take her 
off without arresting her? A. I suppose they did.

Q. At your request? A. That is right.
Q. I think you stated that your home is in Raleigh, 

North Carolina, is that right? A. Yes, sir.
Q. And you have driven busses in Virginia, North 

Carolina and South Carolina? A. Yes.
Q. And that the custom in every one of the places 

you have driven and in South Hill is to segregate pas­
sengers on account of race? A. Yes.

Q. Is that also the custom in South Carolina? A.
Yes.

Q. Do you know what the custom relative to that is 
in West Virginia, the home office of your company? A. 
No, I don’t for sure.

Q. Have you ever been in West Virginia? A. One 
little corner.

Q- You have never ridden a bus in West Virginia? 
A. Never have.

Q. Do you know what the custom about segregating 
passengers on your lines is north of Washington? A. 
Well, I don’t think there is any—

Q. You don’t think there is any segregation rules or 
regulations up there ? A. No, sir.

Q. Do you know what the custom is now relative to 
segregating passengers on busses from Richmond or be­
tween Richmond and Washington? A. Yes.

Q. What is that custom! A. That the colored peo­
ple shall occupy the seats from the rear forward.

Q. When was the last time you rode a bus from Rich­
mond to Washington or operated them? A. It has been 
about nine years.

Q. Then you don’t, of your own knowledge, know 
what the custom is in seating the passengers at the 
present time? A. Only from hearsay.

Q. Then it is your interpretation of this letter you 
got from Mr. Engle that it is left up to the bus driver 
as to what he believes is the custom in the community, as



42

to whether he shall segregate the passengers or not! A. 
Well, it is not exactly left up to the driver, the bulletin 
states that the company has a rule about separating the 
races and I know that is the custom.

Q. The drivers have to decide whether that is the 
custom or not, do they not ? A. It is their duty to carry 
out the instructions.

Q. So far as he is able, and as he knows or under­
stands the customs? A. That is right.

Q. You thought you were carrying out the rules and 
regulations at the time you asked Mrs. Day to move back 
and at the time you called the officers to remove her from 
the bus, is that right? A. Yes, sir.

Q. Did you know Mrs. Day at that time ? A. I  never 
saw her before.

Q. How old did you say you are? A. Thirty-eight.
Q. You heard her testify this morning that she is 

67? A. Yes.
Q. Was it your custom to call all old colored people 

“ aunty” ? A. As a rule, if I speak to them, that is right, 
if they are real old.

Q. There is nothing in the regulations about that 
is there? A. No.

Q. If they are young what do you call them? A. I 
don’t know that I call them anything.

Q. Now you stated that when the bus loaded here in 
Richmond you were standing right at the door of the bus? 
A. Yes.

Q. Of course, you took up the tickets of passengers as 
they got on the bus ? A. That is right.

Q. Is it your general custom, after the bus gets ap­
proximately loaded, to get on the bus and make an in­
spection? A. Yes, sir, we usually look back or walk back 
if I can, and see that everything is all right, and that 
things are in the rack overhead all right.

Q. Did you do that on this day? A. Well, I looked 
back there, I think, I don’t remember walking back.

Q. You testified, I believe that when you got to South



43

Hill tins passenger was sitting on the second seat from 
the front as you came in the bus? A. Yes.

Q. Was there anything in the bus to keep you from 
seeing her if she was sitting on the second seat from the 
front? A. I think that was because she is rather short 
and her head didn’t stick up above the seat back; that 
is probably the reason I didn’t notice her in Richmond.

Q. You believe that while she was sitting in the seat 
you didn’t see her because she was so short? A. Yes.

Q. By looking at her you can tell she is a colored 
woman, can’t you? A. Yes.

Q. And so far as you know she occupied that seat 
from Richmond to South Hill? A. I don’t know, except 
that she said she did.

Q. Did she tell you where she was going? A. I don’t 
think I asked her where she was going, I asked her where 
she started from.

Q. Did you give her a transfer? A. I left a ticket 
in the station for her to continue on to Raleigh, she had 
her ticket from Raleigh on.

Q. After you had the officer put her off the bus, did 
you ever see her hat pinned to the back of the seat? A. 
I don’t remember.

Q. Did you make any effort to locate her baggage? 
A. Yes, I did, while she was standing by the police car I 
asked her where her things were and she said you are 
so smart you figure where they are yourself.

Q. Where was that? A. In South Hill.
Q. Have you ever told that to anybody else? A. I 

made it in my official statement.
Q. Did you tell Mr. May about that? A. I made it 

in my statement.
Q. When he was asking you questions about what 

happened at South Hill, why did you leave that out? A.
I don’t know.

Q. It wasn’t because you happened to think of that 
for the first time just now, was it? A. No, I knew about 
it all the time.



44

Q. How did you find out about that baggage, which 
baggage to put off after you got to Raleigh, North Caro­
lina! A. When I got to Norlina, that is a rest station, 
the agent in South Hill called me and sent out a descrip­
tion of her baggage and where it was and requested me 
to put it off in Raleigh, Which I did.

Q. Speaking about customs in certain areas here 
in Virginia, what is the custom at the present time rela­
tive to seating colored and white persons traveling from 
Richmond to North Carolina or to Raleigh? A. The 
colored people, who get on, take seats starting from the 
rear-seat and fill them up forward, and the white peo­
ple in reverse, take the Seats from the front and fill them 
toward the rear.

Q. That means that the first colored person on the 
bus is supposed to sit on that long seat in the back, doesn’t 
it? A. Well, I don’t know whether you would interpret 
the rule that way or not, they are supposed to fill up the 
back whether the first one who gets on has to take the 
back seat or not, I don’t know about that.

Q. I thought your interpretation of this rule and 
regulation was that white persons are supposed to start 
filling up from the front and the colored from the rear? 
A. That is what it says.

Q. How many people does that long seat hold? A. 
Five.

Q. Then the first five colored people, according to 
your rules and regulations, are supposed to sit on that 
tong seat in the rear? A. That is the way it reads.

Q. Now if at the present time, a colored person 
doesn’t sit On that long seat in the rear he is violating 
your rules and regulations, that is the first five colored 
people on there have to fill up that long seat in the rear, 
isn’t it that right! A. I guess it could be interpreted 
that way.

Q. And if he refuses to sit on that long seat in the rear, 
and he is the only person on that bus, then under this rule 
and regulation, you are supposed to put him off that bus? 
A. Yes.



45

Q. And, of course, you carry out the rules and regu­
lations to the best of your ability, don’t you? A. Yes.

Q. Just one other question, where is the motor on 
that bus located ? A. In the rear.

Q. Under that long rear seat? A. No, it is not 
under that seat, it is behind.

Q. Isn’t that long seat the last thing in the bust 
There is nothing behind the hack window is there? A. 
That is right.

Q. Do you mean the motor sticks out behind that? 
A. The seat back slants a little forward.

Q. Does the rear of the bus come approximately 
straight down from the top to the fender? A. There is 
some little space behind the seat, probably a foot,

Q. blow many horsepower does that motor havet 
A. 175.

Q. Does that bus have a ventilating system? A.
Yes.

Q. Is that an exhaust Ventilator that draws air out 
of the bus? A. Yes.

Q. Where is that ventilator located? A. There is 
an air duct the whole length of the bus at the top on both 
sides.

Q. I am speaking about that exhaust Ventilator, 
doesn’t that bus have an exhaust ventilator under the 
rear seat of that bits ? A. I think so.

Q. Is that long seat in the rear, is the back of that 
seat adjustable? A. No.

Q. Isn’t every other seat adjustable on this bus, ex­
cept that one? A. Yes.

R e -D irect E x a m in a tio n .

By Mr. M ay  :
Q. Is there -any difference in the seats, that is the long 

one and any o f 'the other Seats, except in the one par­
ticular, that the long one is not adjustable, as are the 
short ones? A. That is the only difference.

the witness stood aside.



46

MR. J. H. BECK, another witness for the defendant, 
being first duly sworn, testified as follows:

D irect  E x a m in a tio n .

By Mr. May:
Q. Mr. Beck, where are you living now? A. Sara­

sota, Florida.
Q. And on January 22nd of last year, where were 

you living? A. South Hill, Virginia.
Q. And what was your occupation there ? A. Police 

officer.
Q. How long have you been living in South Hill? 

A. All my life.
Q. Do you know, sir, the custom at South Hill and 

in Virginia with reference to the seating of colored and 
white passengers on busses? A. Well, all my life it has 
always been that the colored passengers load in the back 
and white passengers in the front as I have always 
noticed.

Q. Did Mr. Nicholson, the driver of the bus, get in 
touch with you the night of this incident, we have been 
talking about? A. Yes, sir.

Q. What did he tell you? A. He asked me to come 
on the bus, he said he had a passenger on there that he 
had asked to move and couldn’t get her to move and she 
was sitting near the front of the bus, and asked me to go 
up there, to go to her and see if I could get her to move. 
So I went up in the bus—he told me I will ask her in 
your presence to move and we will see if she will move, 
maybe she will if we both ask her or I ask her in your 
presence. So he asked her to move back in the rear of 
the bus in a nice friendly way, he said, Auntie, that is 
what he called her, I have to ask you to move back to the 
rear of the bus, it is the company’s regulations and rules, 
and it is my duty to load the bus like that, to load the 
colored people in the rear and white people in the front



47

and I will have to ask yon to move. So she said she 
wasn’t going to move, and so I asked her and told her that 
it was the company’s rules, like Mr. Nicholson did, and 
she told me she wasn’t going to move any place.

Q. Did she tell you why she wasn’t going to move?. 
A. No, sir, she didn’t at that time.

Q. All right, sir, go ahead. A. And so after I asked 
her to move and Mr. Nicholson asked her to move, I told 
her I was going to have to take her off the bus if you 
won’t move back or move, and she said well go ahead.

Q. Let me ask you at this point, do you remember 
what vacancies there were in the seats at that time? A. 
At the time I was in the bus I am sure I don’t, not at that 
time; and so I caught hold of her arm to take her off the 
bus and she wouldn’t move, so I caught hold of her arm 
and tried to get her to get back, and she wouldn’t, and 
with that she slipped over in the other corner of the seat 
and propped her feet in the left hand seat, next to the 
aisle, and I tried to get her lose, but after a few minutes 1 
saw I couldn’t do anything with her, without hurting her, 
and so I went in the bus station and asked for Mr. Keeton, 
the Deputy Sheriff, and he came out and helped me. I got 
behind her and got her by the arms and pulled her out 
from the window, she had her feet propped in the left- 
hand seat and was wedged in there as tight as she could 
be, and Mr. Keeton caught hold of her feet and I got her 
arms and we picked her up out of the seat and carried 
her off the bus, when we got her down on the ground 
she dropped her hat and I reached down and picked it up. 
We carried her over to the car and tried to get her in the 
car, but she wTas kicking and fighting so we couldn’t get 
her in the car. I thought I might get her straightened out 
on whatever her question was about all this. When we 
got her to the car, she drew her foot and braced herself 
against the car, and there wasn’t any way to get her in 
the car without using terrific force, so we led her on 
down the alley to the jail, where we locked her up. On



48

the way down she kept mumbling, and said there was 
certainly some daffin nice policemen in the town. I asked, 
her what her name was and she wouldn’t even answer, 
I never could find out who she was until some time after 
we locked her up, when Mr. Smith, the Chief of Police and 
myself went back and questioned her, and got her name 
and found out where she was going and everything.

Q. And do you know on whose advice she was 
arrested or the warrant gotten out for her! A. Yes, sir.

Q. Whose advice ? A. I issued the warrant for her 
myself.

Q. You issued the Warrant yourself or had it issued? 
A. Yes.

%  What did you charge her with? A. Disorderly 
conduct.

Q. Was she told the day her trial could come up ? 
A. Yes-, sir.

Q. Was she there? A. No, sir.
'Q. Do you know the result of the trial? A . I be­

lieve she Was found guilty, they tried her in her absence. 
She Was bonded at $20.00, and tried in her absence and 
fined* I  believe $15.00 and costs:, which was $20.00.

Q. What was the extent that she resisted both of 
you officers as you were taking her out? A. Well, she 
kept catching hold of everything she could, propping her 
feet against first one thing and -another, she would catch 
hold of something and I would take her arms and pull 
them lose*, and then she Would prop her feet against 
something else.

Q. Did she appear to resist as much as anyone could 
Of her age? A. Yes, sir.

Q. Did you all Use any more force than was neces­
sary 10 accomplish the purpose of taking her off the bus? 
A. No, sir-, that is the reason I got the other Officer.

Q. Did she ask for medical attention at ahy time? 
A. No.

Q. Did she complain at any time while at South Hill 
that she had been injured in any way? A. No.



49

Mr- May: If your tlQijor please, we file in  evidence 
and ask that it be marked Defendant’s Exhibit “ B ”  a 
certified copy of the records of the Trial Justice of Meck­
lenburg- County in connection with this case, which shows 
that it is a charge of disordereiy conduct, that the ac­
cused did not appear, and that she was tried in her ab­
sence and fined $10.00 and costs, and that the costs 
amounted to $4.25.

Cross E x a m in a tio n .

By Mr. M artin  :
Q. Mr. Beck, tell us again, I didn’t understand it, 

why did you get out this warrant charging her with dis­
orderly conduct? A. Well, the way she acted after that 
I got her olf the bus, I wanted to take her and talk to her 
and maybe get her straightened out about all this stuff, 
but she wouldn’t listen. We led her over to the car, hut 
she wouldn’t get in.

Q. Why did you carry her over to the cart A- I 
wanted to talk to her.

Q. Why did you have to take her over to the car to 
talk with her, why couldn’t you talk to her right there? 
A. The platform was full of people, busses were loading, 
it was about 6 or 6 :30 in the afternoon and about 7 o ’clock, 
eight or ten busses come in at one time.

Q. What did you want to talk about? A. 3 wanted 
to talk to her to see what she was crossed up about, what 
her misunderstanding was about riding on the bus.

Q. Apparently she didn’t want to go to the car? ' A. 
She didn’t want to go to the car.

Q. And that is the reason you got a warrant that 
she was holding back to keep from going to the car? A. 
That is right.

Q. You got a warrant for disorderly conduct? A. 
That is right.

Q. At that time you didn’t have any warrant for her 
did you ? A. That is right.



50

Q. And until you tried to take tier off the bus sbe 
was peaceful and quiet? A. So far as I know.

Q. Why did you try to take her off then? A. The 
driver had asked me to.

Q. You took it upon yourself to carry out his orders 
or request? A. That is right.

Q. And after you got her on the ground you went 
further and tried to take her to the car and talk to her? 
A. Yes.

Q. And she resisted your right to take her off the 
bus, but you and the other officer finally got her off the 
bus? A. That is right.

Q. And in your opinion that constitutes disorderly 
conduct? A. That is right.

Q. And you did this—you took her off the bus at the 
request of the bus driver? A. Yes, sir.

Q. At that time you were a police officer of the Town 
of South Hill? A. That is right.

Q. And Mr. Smith was ivas Chief of Police? A. B. 
L. Smithson.

Q. You are no longer a police officer and not living 
in South Hilll are you? A. No, sir.

Q. You live in Sarasota, Florida? A. That is right.

R e-D ibbct E x a m in a tio n .

By Mr. May:
Q. Do you know where Mr. Smithson is now! A. 

Mr. Smithson is in the Medical College with a broken 
back.

Q. He was hurt when? A. He was hurt Monday at 
2 o ’clock.

Mr. May: That is all.

The witness stood aside.



51

J. A. KEETON, another witness for the defendant, 
being first duly sworn, testified as follows:

D irect E x a m in a tio n .

By Mr. May :
Q. Mr. Keeton, you are still a young man, do you 

mind, or may I ask how old are you? A. Why I don’t 
mind telling.

Q. What is your age? A. Seventy-seven.
Q. What is your occupation? A. Deputy Sheriff of 

Mecklenburg County.
Q. How long have you been living there? A. I have 

been living in Mecklenburg practically all my life.
Q. Do you know since your boyhood what the custom 

and tradition has been in Mecklenburg and Virginia with 
reference to separating the races on busses or common 
carriers ? A. I have been in the bus station lots of times 
and they arrange to the seating of passengers on busses, 
colored people in the rear, white people in front. That 
is the custom.

Q. In connection with this case -what is the first time 
you knew anything unusual was going on? A. In this 
case?

Q. Yes. A. I was inside the bus station and Mr. 
Beck came inside and called me and told me to come out 
and help get a woman off the bus, that he didn’t want to 
handle her rough, and I walked out and went up on the 
bus where she was sitting, and took her by the arm and 
told her to come on off, and she said she wasn’t going to 
move. I asked her why, and she said she wasn’t going 
to move on the back seat and she wasn’t going to get off 
the bus. I told her we would have to take her off, that 
the bus driver had instructed him to do so, and so we got 
her by the arm, and she braced her feet over against the 
other seat, I caught her by the arm and Mr. Beck caught 
her by the legs, she was raring all the time, and we car­
ried her down the steps. We tried to handle her as care­



52

ful as we could not to hurt her. We got her down the 
steps and she was kicking, kicked me in the leg once or 
twice, and we carried her over to the car and tried to put 
her in the car, she threw her feet on the car and said she 
wasn’t going to get in the car. We didn’t want to handle 
her roughly and didn’t use a bit more force than was 
necessary, so we decided that rather than put her in the 
car, that we might hurt her, we would walk her over to 
the jail. On the way over to the jail she talked right 
much, and just before we got to the jail she said, you all 
think you are some damned smart, police officers. We 
carried her on and put her in jail. After that I didu t 
know what they done with her.

Q. Mr. Keeton from your short life in the community 
down there at South Hill, what is your opinion of the 
indiscriminate co-mingling of the races in that section. 
What would be the result of it? A. I think it would cause 
a lot of disturbance, it might bring on fights, and could 
go as far as death, you cannot ever tell.

C ross E x a m in a tio n .

By Mr. M artin  :
Q. Mr. Keeton the only reason you took her off that 

bus was because she was sitting up in front and the bus 
driver had asked you to take her off, is that correct ? 
A. I was called on by police officer Beck, he couldn’t get 
her off.

Q. Do you know why he was trying to take her off ? 
A. He'said the bus driver asked him to take her off.

Q. Both of you were acting at the request of the bus 
driver? A. That is right.

The witness stood aside.

At this point Court recessed until 2:30 P. M.

JUDGE LESTER HOOKER, another witness for 
the defendant, being first duly sworn, testified as fol­
lows :



53

Questions by Mr. May :
Q. For the record purposes, I believe you are Judge 

Lester Hooker, Chairman our State Corporation Com­
mission? A. I am not chairman, I am a member.

Q. lo u  have been both,, I believe ? A. Several times, 
yes, sir.

Q. You have the rotating system there I believe? 
A. Yes, every three years one member is chairman.

Q. How long have you been on the commission? A. 
Since November 25, 1924.

Q. And as is now done most everywhere else, do von 
endeavour to divide the work up according to the nature 
of it? A. We do. We divide the work up between the 
three members of the commission for immediate super­
vision.

Q. W7ko draws that work with regard to the regula­
tion or complaints as to bus companies? A. I have that 
supervision.

Q. You have had that supervision for how long? A. 
Since I became a member of the Commission. The mo­
tor vehicle law was passed by the General Assembly in 
1923, it went into effect June 28, 1923, and I became a 
member of the Commission in November, 1924.

Q. Prior to that you lived where? A. At Stuart, 
Bedford County.

Q. That county, I believe, is on the North Carolina 
line ? A. The County is. Stuart is eight miles from the 
line.

Q. Have you had occasion to sit on joint committees 
between North Carolina and Virginia with reference to 
regulation of busses? A. Quite frequently. I have sat 
on joint board hearings representing the Interstate Com­
merce Commission with members from Carolina.

Q. May I ask you whether you have had occasion td 
see the reservation in the tariff by the bus companies, 
one of which is a defendant in this case, which provide

D irect E xam ination .



54

that: “ The carriers reserve to themselves full control
arid discretion as to the seating of passengers^ and re­
serve the right to change such seating* at any time dur­
ing the trip. ’ ’ A. That tariff is on file with the State 
Corporation Commission.

Q. Do you know also whether they are required to 
have it on file with the Interstate Commerce Commis­
sion? A. I understand that they are.

Q. Have you also a letter of instructions to drivers, 
under date of'August 16, 1946, which set up the rules as 
to how white and colored people, white and colored pas­
sengers should be seated on the busses ? A. I don t think 
I have personally read that letter, but I know what it is.

Q. From your experience, that you have described, 
do you know what is the established usage, custom and 
tradition with reference to white and colored passengers 
riding in the same or different portions of the busses in 
Virginia and North Carolina? A. I think it is the same 
in. both States, that is the separation of the races.

Q. Does this rule in your opinion promote the com­
fort, safety and security of the passengers and the pres­
ervation of the public peace and good order? A. In my 
opinion it does promote public peace and good order and 
do not think there is any discrimination as far as the 
comfort of the passengers are concerned.

Q. What in your opinion would be the result of in­
discriminate co-mingling of the races on busses in Vir­
ginia and North Carolina? A. I think it would have a 
tendency to promote bad feeling and possibly might 
cause serious difficulty.

Q. And would you say might go so far as to create 
physical violence ox* even death? A. I think it might go 
that far, in some cases certainly.

Q. Does the rule make for uniformity with refer­
ence to the seating of passengers in the south? A. It 
does.

Q. And in that connection, if I may ask you, do you 
think it practicable or even possible to separate the races

I



55

as to interstate and intrastate passengers on the same 
bus! A. I think it would be impracticable, and almost 
impossible. If you couldn’t have separation of pas­
sengers as to interstate commerce, you couldn’t have 
separation of intrastate passengers, you couldn’t keep 
one separated without the other.

C ross E x a m in a tio n .

Questions by Mr. M artin  :
Q. Judge Hooker, your belief in that regard to the 

practicability or feasability or propriety of segregating 
the races in Virginia was carried out or was assisted 
by the segregation law, that is section 4097 in the motor 
vehicle code, that is the State law, and, of course, you 
have read the opinion in the new case of Irene Morgan 
v. The Commonwealth- of Virginia, that was decided in 
the Supreme Court of the United States in June., 1946, 
which held that the State law was invalid insofar as it 
applied to passengers in interstate commerce! A. I 
haven’t read that opinion, but saw comment on it in the 
newspapers.

Q. So far as you know now, is there any reason or 
any law, State Law or National Law, which requires a 
bus company to segregate colored and white people 
travelling in interstate commerce! A. In my opinion the 
Virginia law requires it.

Q. Counsel for the defendant asked you what in 
your opinion would be the effect of indiscriminate co­
mingling of the races on busses. I don’t know that I 
exactly get that question. What do you mean by indis­
criminate co-mingling of the races! A. That is sitting 
both colored and white passengers in the busses any­
where they wish to sit, beside one another in front of 
one another or behind one another.

Q. It is your opinion that the law and the regulations 
permitting all passengers to sit anywhere they want to 
sit, that that would create disturbances and fights and



56

possibly death is that correct? A. In my opinion between 
the colored and white races.

Q. If that is your opinion, who do you think would 
start those fights, the colored or the white people? A. I 
don’t know. I don’t know that anybody here would.

Q. Don’t you have any opinion on that? A. Both 
would be guilty in some instances, and I don’t know, 
which one would be more guilty than the other.

Q. Is it your opinion that if persons were permitted 
to sit anywhere they wanted on a bus, that if a white 
person wanted to sit beside a colored person and did so, 
that just permitting them to sit wherever they wanted 
to sit, whether in front of the bus or in the back of the 
bus that that would create disturbances, fights or even 
death? A. It would he calculated to cause breaches of 
the peace quite frequently.

Q. If that is your opinion will you tell the Court 
and Jury on what your opinion is based? A. It is based 
on the history of what has happened. You find fre­
quently disturbances when these colored people try to get 
on busses and they are crowded with white people.

Q. This case is the suit of such an incident, where 
the plaintiff was sitting peacefully, and quietly on the 
second seat from the front of the bus, and the bus driver 
directed her, at least that is her testimony, to that long- 
seat in the rear and she refused to move to that long seat, 
and the bus driver called a police officer, who took her 
off the bus and arrested her and put her in jail. So far 
as the evidence here shows no wrhite person had objected 
to her sitting in that seat, she had ridden that bus from 
Richmond to South Hill. Do you think that incident is 
consistent with your opinion, and the evidence shows 
further that one white woman sat beside her for most 
of the distance from Richmond to South Hill. Do you 
think that incident is consistent with your opinion? A. 
I don’t think it is inconsistent, and I think that fact might 
be a very remote instance and might have been a pre­
meditated one.



57

Q. Of course, Judge Hooker, I know you have been 
to Washington, which is approximately the same distance 
as from here to South Hill, so far as you know they don’t 
have any segregation on busses now in Washington, do 
they! A. I don’t think they have.

Q. Do you have any knowledge that they have any 
more violence there than we do here! A. I am not fa­
miliar with it.

Q. Yon are not familiar with the rules and regula­
tions in West Virginia on the same carrier are you? A. 
1 can’t say that I am, I have not seen them, I don’t think 
they have the same rules, hut I am not certain.

Q. So far as you know they don’t have any segrega­
tion on busses now in West Virginia do they! A. 1 don’t 
know.

Q. Do you know whether they have any more vio­
lence in West Virginia than we do here? A. I couldn’t 
say.

Q. I believe you stated that these tariffs, which were 
mentioned by counsel for the defendant, which I under­
stand has not been introduced in evidence—

Mr. May: I rvould be glad to do it, if you care to 
use it at this time.

Mr. M artin  : Of course, if the Court please, our ob­
jection goes to this entire line of testimony.

Mr. May: We desire to file in evidence a certain 
certificate from the Secretary of the Interstate Com­
merce Commission. I may say, sir, that counsel have 
agreed that there is a typographical error in the last 
line of the first page above the diagonal line, the date of 
July 25, 1946, should be 1947, and we ask the reporter to 
mark that as Defendant’s Exhibit “ C” .

By Mr. M artin  :
Q. Judge Hooker, I believe you testified that this 

same tariff is on file with the State Corporation Com­
mission, with the exception of the certificate of the Inter­
state Commerce Commission ? A. Yes.



58

Q. Now, Judge Hooker do you think that promotes 
the comfort and convenience and safety of the pas­
sengers, that is this reservation Number 2 under Rule 5, 
which says: “ The carriers reserve to themselves full
control and discretion as to the seating of passengers and 
reserve the right to change such seating at any time dur­
ing the trip.”  Do you think that would promote the 
comfort, safety and convenience of the passenger! A. I 
think it does. It gives the operator the privilege to 
change the seats of passengers, not only of different 
races, but if people are disorderly or intoxicated.

Q. Do you think it would promote transportation in 
Virginia to give the operator the privilege to re-arrange 
all the passengers on the bus every 10 feet or every 10 
minutes? A. That is a ridiculous question and calls for 
a ridiculous answer.

Q. The reservation says: 1 ‘ The carriers reserve to 
themselves full control and discretion as to seating of 
passengers and reserve the right to change such seating 
at any time during the trip.”  A. That means they must 
use some common sense, as you well know.

Q. Who is to be the judge of the common sense of 
the bus driver? A. That would be the driver in charge 
of the bus, if he doesn’t use common sense he would 
probably violate the law.

Q. It is your opinion that this rule that gives the 
bus driver the right at any time in his opinion to change 
the seats or rearrange the seating of all the passengers 
on the bus, would promote the comfort, safety and con­
venience of the passengers? A. That is the purpose of 
that rule; that rule has been filed with the State Corpo­
ration Commission and has our approval.

Q. And also I believe you stated you had not read 
the letter to all drivers, as promulgated by the Atlantic 
Greyhound Corporation on August 15, 1946, if you will 
read the next to the last paragraph on the page where is 
says: “ Where such has been the accepted usage, cus­
tom and tradition, it is suggested that, as far as prac­



59

ticable and pursuant to the authority of the rule above 
quoted, colored passengers be seated from the rear for* 
ward, and white passengers from the front toward the 
rear.”  In your opinion does that promote the safety, 
comfort and convenience of the passengers? A. I think 
it promotes the safety and I don't see anything adverse 
to the comfort or convenience.

Q. Have you ever ridden that long seat in the rear 
of those busses? A. Quite frequently.

Q. On the bus on which you rode was that back on 
that long seat adjustable? A. No, it is not adjustable, 
I have never been on one that was.

Q. Was that 175 horse power motor under the rear 
seat? A. I have ridden with them both ways.

Q. Was that exhaust ventilator under the rear? A. 
I don’t recall about the exhaust being in the rear. I have 
ridden on the side seat when the exhaust was on the side.

Q. A personal travelling from Syracuse, New York 
to Winter Haven, Florida, is it your opinion that pas­
senger on that bus with those conditions that I have just 
described, is it your opinion that that person would be 
as comfortable on that long seat in the rear, over that 
175 horse power motor, on that seat, which is not adjust­
able, when all the other seats are adjustable and with 
that exhaust ventilator in the rear? A. Of course, under 
the conditions you describe, you put that engine right 
under the back seat and have the exhaust pipe right un­
der the seat, my answer would be no. But assuming that 
the equipment was in good condition, then I assume it 
would be just as comfortable. I know quite a number 
of people who select that long seat because they have 
more leg room to move around.

Q. On the Atlantic Greyhound Corporation busses, 
aren’t colored people the only ones permitted to ride on 
that long seat? A. I have seen white people riding it, and 
I have ridden on it myself, when there were no colored 
people on the bus, and I have gotten up and given them 
my seat quite frequently.



60

Q. Did I understand you to say that in your opinion 
they have more room, more space on that long seat, I 
believe that long seat holds five passengers, do you say 
that five passengers have more room, more space to move 
around than-the Other passengers ? A. A certain number 
of them are between the aisles they have got the aisle 
space for their feet; some of the others are. behind the 
seats, they sit eater-cornered and have more room, it 
would be something* similar to the side seat when you sit 
on the side of the bus.

Q, This notice to drivers provides: That drivers
have the duty to arrange the seating* according to local 
custom and sentiment. Is it your idea that it promotes 
the comfort, safety and convenience, of passengers on 
the bus. to require the bus driver to re-arrange the seat­
ing of passengers on these busses, according to local p u b ­
lic sentiment, rather than on a National plan? A. I think 
so. Undoubtedly.

M r. M artin  : That is all.

The witness stood aside.

MR. D. D. McAEEE, another witness for the de­
fendant, being first duly sworn, testified as follows:

D irect  E x a m in a tio n .

By M r. M ay :
Q. How old are you, Mr. McAfee? A. Fifty-eight.
Q. How long have yon been in the bus business? 

A. In North Carolina about eighteen and a half years, 
prior to that in Georgia, four years.

Q. Are you employed now by the Atlantic Grey­
hound Corporation? A. Yes.

Q. What is your present connection with that com­
pany? A. Division Manager.



61

Q. Have you also worked in the Maintenance De­
partment f A. Not with the Atlantic Greyhound Corpo­
ration. I worked with the East Coast Stages prior to 
the time Atlantic Greyhound Corporation acquired the 
East Coast Stages.

Q. Do you know, sir, the construction of the seats in 
this bus in question, that we have been talking about all 
day? A. Yes.

Q. Are there any seats in that bus pointed side wise 
as Judge Hooker just testified about in some busses? 
A. No,, the seats in this bus are all arranged, two on 
each side of the aisle, except the rear seat extends all 
the way across the back of the bus.

Q. You have no seats in this bus as it were facing 
the aisle? A. No.

Q. Is the construction the same, is the material out 
of which these seats are made the same as between the 
short seats and the long seats? Tell us about those, as 
to their construction? A. Well the seats that are on each 
side of the aisle are reclining, and they are individual 
seats, that is there are two together on each side of the 
aisle. There are thirty-two of those seats, then the back 
seat is not a reclining seat and extends across the rear of 
the bus and seats five.

Q. Now as to the construction of those seats, will 
you tell us about that? A. The upholstery and every- 
thing else, the springs and everything is the same.

Q. As to the construction is there any difference in 
those seats at all, except the one in the rear is not ad­
justable, as are the others, that is adjustable in the sense 
that they can be made reclining to some extent? A. Yes.

Q. Is there any other difference? A. No other dif­
ference.

Q. Counsel has spoken or there has been some men­
tion of an exhaust in the hack of the bus to carry off 
foul odors and smoke. I am going to ask you to tell us 
about the ventilation of the bus as it applies to all parts 
of the vehicle? A. The fresh air is brought in from the



62

front of the bus over the seats, and distributed down 
through the seating area of the bus by a perforated 
board in the ceiling, that is all overhead. The exhaust 
that you speak of, is that the motor exhaust?

Q. I understood it to mean the taking of the air 
that ventilated the bus. A. There is an outlet on the 
roof for the air to circulate, otherwise there is no way to 
get air in the bus. You have the air entering in the 
front of the bus and you must have an outlet, the outlet 
is placed in the rear.

Q. Does any exhaust or anything of that kind in 
the rear that would accumulate an unusual portion of 
foul air as compared with any other part of the bus? A. 
X wouldn’t think so, no.

Q. Is the back rear seat close to or above or next 
to the motor of the engine? A. It is located over a part 
of the motor.

Q. Does that make any difference in the comfort of 
the seat ?

Mr. M artin  : I object to that question, it calls for
a conclusion of the witness.

Mr. May: I think in the light of the fact that we 
have to resort to expert testimony to prove these con­
ditions, that it is proper that he should express his opin­
ions.

Mr. M artin  : That is a fact for the jury to determine 
if the motor is under the seat, whether it affects the com­
fort of that seat.

The C ourt : I  think the testimony should be limited 
to what the physical facts are.

Mr. May : Yes, sir, I will try to word my questions 
so as to limit it to those.

By Mr. May :
Q. Is the seat on account of the motor being next to



63

it rendered materially warmer than the others! A. We 
have never had any complaints to that effect and I have 
never noticed it in riding* in busses myself.

Q. Now, Mr. McAfee, do you know what the estab­
lished usage, custom and traditions are with reference 
to the white and colored passengers being separated on 
busses in Virginia and North Carolina? A. Yes, sir.

Q. What is that custom, sir? A. The colored pas- 
sengers are seated from the rear toward the front of 
the bus and white passengers are seated from the front 
toward the rear.

Q. Are you familiar with the letter of instructions 
gotten out by your company to its drivers setting forth 
that rule? A. Yes.

Q. Was that rule induced by the general sentiment 
of the people of Virginia and North Carolina? A. Yes.

Q. Does the rule promote the comfort, safety and 
security of the passengers and preservation of the pub­
lic peace and good order? A. In my opinion it would.

Q. What in your opinion would be the result of the 
indiscriminate co-mingling of the white and negro races 
in Virginia and North Carolina on busses? A. I think it 
would cause a lot of confusion and perhaps might result 
in some serious trouble.

Q. Does the rule in your opinion make for uniformity 
of seating in the southern states? A. Yes.

Q. And do you think it is practicable or possible to 
separate the races as to intra-state and interstate passen­
gers on the same bus? A. No.

Q. Why do you say that, sir? A. Well to give you 
an illustration, two colored passengers might board the 
bus at the same time, one in intra-state and one an in­
terstate passenger, and the driver requested one to go to 
the rear and the other one to the front, there would be 
trouble there, and it would be rather difficult after col­
lecting their tickets to remember which is interstate 
and which was an intrastate passenger.



Cross E xamination-.

By Mr. M artin  :
Q. Mr. McAfee, I am not clear, but I believe you 

testified that you are Division Manager of the Atlantic 
Greyhound Corporation? A. Yes.

Q. Do you mean you are the Division Manager here 
in Richmond? A. No, I am located in Raleigh, my head­
quarters is in Raleigh. My division is from Richmond 
to Charleston, South Carolina.

Q. Your division includes from Richmond to 
Charleston, South Carolina, that is part of Virginia, 
North Carolina and part of South Carolina? A. Yes, 
the drivers are under my supervision operating into 
Richmond, I have nothing to do with the Richmond Di­
vision other than the operation of our schedule into 
Richmond.

Q. Does your division include all or part of Ten­
nessee, or Kentucky or Alabama? A. None of them.

Q. In your opinion it is necessary to have the same 
separation and segregation rule according to races in 
Richmond, Virginia, and South Hill, Virginia, as it is 
in Georgia and South Carolina? A. Yes.

Q. Now you also stated that if you didn’t have this 
rule, separation or segregation rule, in your opinion, it 
would cause fights or disturbances, do you have any­
thing upon which to base that belief or know of any 
place where they didn’t have the segregation rule and 
it didn’t cause fights or disturbances? A. No, I have 
never been where they haven’t had the segregation rule.

Q. You don’t know whether or not if you abolished 
these segregation rules that would promote the comfort 
or convenience of your passengers? A. I think I do.

Q. You said you never had the occasion to be any­
where where they didn’t have these rules? A. That is 
correct, but I know what the customs are in the south 
and in my opinion it would create a lot of trouble.



65

Q. I believe you also stated that the requirement 
of your rules is that the bus driver is required to seat 
the colored passengers from the rear forward and the 
white passengers from the front! A. That is correct.

Q- That is where the local custom requires it! A.
Yes.

Q. Of course, that wouldn’t apply in places where 
they have no such custom! A. No.

Q. Mr. McAfee, don’t you have some express 
busses going from your division straight on through to 
Washington and New York? A. No.

Q. Don’t you have any “ All Reservation Busses” ? 
A. Yes, we have reserved seats, called limited schedule 
express busses, but they do not operate through my ter­
ritory.

Q. On your reserved seat busses, if a colored person 
were to reserve a seat on one of those busses, where do 
you reserve it? A. We do not have seat rservation any­
where in my territory. The busses operate from New 
York or Florida, they fill the bus at either end, and no 
passengers are taken on through my territory at all, 
either for white or colored.

Q. Do you mean you don’t have any reserved seat 
busses going to New York at all? A. The reserved seat 
busses that pass through my territory operate on a lim­
ited schedule between Miami and New York, and there 
are no seats allocated to my territory for reservations 
on those coaches, either for white or colored.

M r. M artin  : T h at is all.

The witness stood aside.

MR. W. F. GEOGIHAN, another witness for the De­
fendant, being first duly sworn, testified as follows:



(Questions.fey Mr. M a y : , , ■ ,
Q. What is your present occupation, Mr. Geoghan? 

A. Division Manager Atlantic Greyhound Corporation, 
Richmond, Virginia.

Q. What other capacity have you been with that 
company over the years? A. Assistant General Man-

(  V Vager.
Q. And what States did your management, as the 

system goes, cover? A. Ten States and the District.
Q. "Would you mention those States? A. Ohio, Ken. 

lucky, Tennessee, Virginia, North and South Carolina, 
Georgia and Florida. Is that ten? And the District of 
Columbia.

Q. Do you know, sir, the construction of the seats 
involved on this particular bus? A. Yes, sir. ,

Q. I wish you would describe that to us? A. There 
are 37. seats it is a 37-passenger bus. 32 of the seats are 
what we term aisle seats, those seats are on either side 
of the aisle, and the rear there is one long seat that 
seats five passengers. The aisle seats are reclining, 
and the rear seat is not a reclining seat. The construc­
tion, the springs the upholstery, etc., are of the same 
construction.

Q. Is there any difference, sir, as . to the construc­
tion, except that some are reclining and the one is not ? 
A. That is right, the back seat is not reclining and the 
rest are.

Q. With reference to the back seat, where is that 
located as to the motor? A. It is partially over the mo­
tor. ^

Q. Is that seat rendered more noisy or hotter or 
warmer than the other portions of the bus by virtue of 
that circumstance? A. No, sir, it is insulated through­
out.

Q. What is the effect of the insulation ? A. It keeps 
the heat and noise, etc., out. In other words you would

66

D irect E xam ination .



67

riot hear any more noise than you would live or six seats 
further up, or anywhere else in the coach.

Q. Will you describe the interior of the bus with 
reference to ventilation? A. Yes. The air comes in the 
front end of the bus and goes into the ceiling of the bus, 
there are little perforated holes all through the ceiling, 
I suppose some of you have noticed those arid didn’t 
know what they were, the blowers blow the air down in 
the coach, and in the back there is a vent the air goes 
out, that is the ventilator system.

Q. Is there any exhaust, such as lias been described 
here, in the back that accumulates foul air or smoke or 
anything of that kind? A. There is an exhaust pipe 
from the engine, there is none in the engine, but there 
is an exhaust from the engine of the bus, the sairie as 
an automobile exhaust.

Q. In the construction of this bus, is it possible for 
one section of the bus to get a. greater amount of foul 
air than the other portions? A. No, sir.

Q. That is distributed how? A. Through the venti­
lating system.

Q. And is equal throughout? A. Yes, sir.
Q. Mr. Geoghan, do you know what are the estab­

lished usages, customs and traditions of the people in 
the States you have mentioned with reference to the 
white and colored passengers riding in the same section 
of the bus or not in the same section? A. Yes. In Ohio 
and West Virginia and the District there isn’t any seg­
regation, and the balance of the States, Kentucky, Ten­
nessee, The Caroli nas, Virginia and Florida, the cristofn 
is to load the white passengers starting at the front to­
ward the rear, arid the colored passengers from the rear 
toward the front.

Q. That rule is established over all those states, ex­
cept the ones you mentioned? A. Yes, except wdiat you 
might call the Northern end of our system.

Q. Those states where there is segregation on the 
busses, was your regulations induced by the sentiment



68

of the community which the busses serve! A. Yes, sir, 
the sentiment and the traditions and customs over many, 
many years.

Q. Do you know when it started yourself, sir? A. 
No, I don’t. I know it has been in force for at least 
twenty years to my own personal knowledge.

Q. And it has been in force on public carriers, so 
far as you know since you were a boy, as long ago as 
you can remember ? A, Yes.

Q. And I don’t believe you would mind telling your 
age? A. Fifty-four.

Q. Would the rule in your opinion promote the com­
fort, safety and convenience of the passengers and pre­
serve the public peace and good order ? A. Yes, sir.

Q. What in your opinion would be the result of the 
indiscriminate co-mingling of the races on busses in 
Virginia and North Carolina? A. Well, it would be a 
very difficult situation if you didn’t have it, there would 
bo so many arguments, and no doubt personal violence 
and general dissatisfaction.

Q. Does the rule make for uniformity in seating in 
all States, which you have mentioned, where there is 
segregation of the races? A. Yes.

Q. Do you think it is practicable or possible to sepa­
rate the races as to intrastate passengers and interstate 
passengers upon the same vehicle? A. I do not.

Q. Why do you say that, Mr. Geoghan? A. Well, 
I don’t know how you could keep account of them, and 
if you tried to put the intrastate colored passengers in 
the rear and in the front the interstate colored, so to 
speak intermingling with the others, jmu would have 
friction between the colored passengers. The intrastate 
colored passengers would say that he was as good as the 
others and why couldn’t he sit in the front, and it would 
just be a lot of trouble.

Q. Would it be worse than no segregation at all, in 
your opinion? A. In the south, I think it would be.



Cross E xamination '.

By M r. M a r t in :
Q. Mr. G-eoghan, you stated that your method of 

segregation according to the customs of these local com­
munities promoted uniformity, did I understand you to 
say that, uniformity of seating? A. It would promote 
uniformity of seating, yes.

Q. Did I also understand you to say that in Wash­
ington, D. C., you have no segregation rule or you en­
force no segregation on seating? A. I would probably 
have to explain this to you. We start in Washington on 
the Atlantic Greyhound, we run five miles and we are in- 
Alexandria, Virginia. When our passengers get on in 
Washington we try to tell them what is going to happen 
and request them to take seats in the rear that it is less 
likely to cause embarrassment, when we have to ask 
them to move, and in every case, except a few, they go 
ahead and comply. We don’t operate in Washington, 
we just connect there with the Penn Greyhound out of 
New York.

Q. You don’t operate north of Washington? A. No.
Q. If a colored passengers gets on your bus in Wash­

ington, and if he refuses to sit in the back on that long 
seat or any other place, what is your practice then? A. 
We tell him that when we get over in Virginia we will 
have to require him to go in the back.

Q. If he still remains what is your practice when 
you get over in Virginia? A. We still request him to get 
in the back, if he doesn’t we call the law.

Q. And have him taken off the bus and possibly ar­
rested? A. We try to get them all in the back.

Q. Does your bus company operate in West Vir­
ginia? A. That is right.

Q. Do you have any segregation in West Virginia? 
A. No.

Q. If a passenger gets on your bus say in Charles­
ton, West Virginia, I believe that is your home office?



70

A. That is the General Office, we are a Virginia cor­
poration, our main office is in Richmond.

Q. If a passenger gets on your bus in Charleston, 
West Virginia, coming to Richmond, what is your prac­
tice f A. The same identical practice as we use out of 
Washington.

Q. He is permitted to ride anywhere in your bus 
from Charleston until he gets in Virginia? A. Yes.

Q. When he crosses the line, then you require him 
to move? A. When he gets to the next stop. We will 
tell him when he gets on, here is what the law is in Vir­
ginia, and when they get over into Covington they re­
quest them again to move.

Q, If that passengers gets on in Columbus, Ohio, 
he is permitted to sit anywhere in the bus he wants in 
Ohio, isn’t he? A. Yes.

Q. Do your busses come through Kentucky from 
Ohio? A. Yes, it comes down into Kentucky.

Q. Do you have segregation in Kentucky? A. Yes.
Q. Assuming that a passenger is coming from Co­

lumbus, Ohio, to Richmond, Virginia, through Ashland, 
Kentucky, that negro passenger may be seated in front 
of that bus when he gets on at Columbus, Ohio, and ride 
that bus to Ashland, Kentucky, what does your rule re­
quire your bus operator to do in that case? A. Just 
affcwe Ironton is Coal Grove, and there is a bridge from 
Coal Grove over into the City of Ashland, where we 
have a bus terminal. We pull into the terminal, unload 
and load and then go hack across to the Ohio side and 
follow the Ohio side to Chesapeake and then we cross 
over into Huntington.

Q. AVhat do you require the colored passenger to 
i© when you get into Ashland f A. Nothing.

Q. Then you don’t segregate them in Kentucky? A. 
‘Not for those few miles,, no.

Q. Then that colored passenger could ride 'from 
Ohio into Kentucky and on into West Virginia and then 
through West Virginia in the f  ront of the bus and the



71

first station you get to after you cross the Virginia line 
you require that passenger to move and ride in the rear 
of the bust A. That is right. I don’t want to leave the 
impression that we don’t segregate in Kentucky, but we 
don’t require a passenger, wThen we go over into Ash­
land, to move for just those few miles. We just don’t 
do that.

Q. What is your practice for colored passengers 
getting on in Richmond and going to Washington? A. 
We don’t operate that, that is the Richmond Greyhound.

Q. Do you know the practice of the Richmond Grey­
hound in going- from Richmond to Washington? A. Mo, 
I don’t know that, not just absolutely, no. I think I 
knew it and it is the same as ours.

Q. Do you operate those all reservation busses com­
ing from Florida? A. The Atlantic Greyhound oper­
ates them from Jacksonville to Richmond, and then the 
Richmond Greyhound takes them over and operates them 
to Washington, and the Penn Greyhound from Washing­
ton on into New York,

Q. You make reservations for colored persons on 
that bus don’t you? A. Yes we do.

Q. Now if a colored person makes a reservation, 
what reservation do you give him? A. To the rear of 
the coach.

Q. Are you sure that happens! A. Yes, I am posi­
tive o f that. I do know that there has been some finagling 
on the thing; white persons will buy the tickets and 
give them to a colored person, then you arrive at some 
difficulty, but the company has tried to keep those people 
to the rear of the coach.

Q. If one colored person made a reservation on one 
of those busses and all the other passengers are white, 
where would you sit that colored passenger! A. On the 
rear seat, if all the other 35 or 36 passengers are white 
we put him on the rear seat with four white passengers.

;Q. Is it your opinion or do you know if that has 
caused any undue commotion or disturbance on that



72

bus? A. I haven’t heard of any particular instance. I  
don’t say there haven’t been, but I just haven’t heard 
of any. TJusually it works out very nicely, the colored 
people sit in the back and the whites sit in the front. 
We have had other difficulties on coaches that are not 
reserved, but I don’t remember any specific instance 
on that type bus.

Q. If a. colored person can sit peaceably, comfort­
ably and well with four other white persons on that long' 
seat in the rear without disturbance why is it that in 
your opinion that colored persons couldn’t sit with one 
other person in the front of the bus without causing' dis­
turbances? A. Well, we have tried it, and it has been 
tried. The white people have pushed them out in the 
aisle and they have gotten in fights and all sorts of dif­
ficulties, and in some instances the colored people have 
objected to sitting with the whites.

Q. If the white person and colored person want to 
sit together, what is your policy then? A. I don’t think 
that particular instance would come up. The custom 
has been in the south for a period of years to try to 
keep the people happy and segregated to the extent that 
there won’t be any trouble. In most instances, I must 
say, the colored people don’t seem to want to sit with 
the white, they would rather sit with each other.

Q. Speaking of the seats do the double seats have 
arm rests? A. They have arm rests on the aisle and over 
against the window, but not in the middle. We had them, 
at one time, but they kept breaking off, so the answer is 
no.

Q. All the seats of each person sitting on your bus, 
except the person sitting on the long seat in the rear, 
have at least one arm rest, is that right? A. That is 
right. In the rear there is an arm rest on that side and 
one on that side, which leaves the passengers in the 
middle with no arm rests.

Q. That is one other distinction between that long 
seat and the other seats? A. That is right.



73

Q. On the seats running up and down the side, don’t 
you have a type of light, an individual light that people 
can turn on if they wish? A. On the later coaches we 
do.

Q. Do you have that same type of light on the rear 
seat? A, Yes.

Q. Where is that located! A. Just overhead.
Q, Over behind the passenger! A. Yes.
Q. Is that an individual light for each of the five 

persons on that seat ! A. Yes individual.
Q. You say there is not any more vibration on that 

rear seat just over that 175 horse power motor, yon say 
there is no more vibration there than in other seats in 
the bus? A. I don’t remember that I said anything about 
vibration, I don’t think I did.

Q. What do you sav about it? A. I don’t think 
there is any more vibration in the rear seat than in the 
front seat. I don’t know why it should be, it is all equal­
ized, it has spring* equalization.

Q. Notwithstanding the fact that it is over that 175 
horse power motor? A. The tendency would be for it 
to be more vibration in the front, the front end would 
have a tendency to go up and the weight would be in the 
back end and hold that down. I have ridden busses all 
my life and I have never noticed that there was any dif­
ference.

Q. Then it is different from the ordinary passenger 
automobile. You realize the rear seat vibrates mor# 
than the front seat on a passenger automobile, don’t 
you? A. No, I don’t.

Q. You spoke about the air being all the same, but !  
understood you to say the fresh air comes in the front, 
is that correct? A. Yes.

Q. And the stale air goes out through the back? A. 
That is true, there is a vent in the rear.

Q. You still say that although the fresh air com.es 
in the front and stale air goes out through the rear that 
the air is all the same? A. I probably didn’t make it



74

clear. The air from the front back doesn’t go down one 
single vent, there are different vents that go in different 
directions. The vents are on the top of the bus and it 
is full of little holes, there is one section in front and on 
behind there are some more and on back some more, and 
the air comes out through those holes into the coach.

Q. That ventilator system is an exhaust ventilator 
that kind of sucks the air out of the rear of the bus,, is 
that correct? A. It is not an exhaust it is a vent.

Q. It draws the air up through the bus, is that right? 
A. Yes.

Q. And it gets that air, regardless of whether it is 
foul, stale or what not, it brings it in from the front? 
A. Yes.

Q. And draws it out through the rear? A. Yes.
Q. And do you still say that air is as good in the 

rear of the bus as it is in the front? A. Yes.
Q. Those windows on the side of the bus are they 

adjustable? Can you open them? A. Yes.
Q. How about the window by that long seat in the 

back? A. You mean at the emergency door?
Q. Ho they have windows bv that long seat? A.

Yes.
Q. Can you open those windows? A. Yes.
Q. Have you examined this particular bus to see if 

they can be opened? A. That is bus 743. You can open 
it at the emergency door, in fact all the windows all the 
way back you can open them, from the front door all the 
way back.

Q. This is bus 720, I believe? A. It is what we call 
the 742 series. "We have about 150 of them.

Mr. M artin  : That is all.
R e-D irect E x a m in a tio n .

Questions by Mr. May:
Q. Mr. Geoghan, of course, in coming from a State 

that doesn’t have segregation to one that does have,



75

when you do that, there has to be a readjustment and 
reseating of the passengers! A. Yes, sir.

Q. That just necessarily follows! A. You have to 
do it.

Q. Now, sir, you say you do not run into Washing­
ton, I believe from Richmond, but you gave an illustra­
tion of a passenger from West Virginia and possibly Ohio 
coming into Virginia from the western direction. How 
far does your line run to the south! A. Florida.

Q. Under this rule of seating passengers that you 
have promulgated is it possible to transfer a passenger 
from Richmond to Jacksonville without causing him a 
single change in the seating arrangement! A. Yes.

R e-C ross E x am in atio n .

By Mr. M a r t in :
Q. That is assuming the same number of white per­

sons and same number of colored persons are on that 
bus from Richmond, Virginia to Florida, the bus seats, 
I believe you said 87 passengers? A. That is right.

Q. Suppose 30 Negro passengers get on that bus in 
Richmond and they are required to separate them, those 
30 passengers wmuld have to sit to the rear? A. That is 
right.

Q. And the 7 white passengers would be seated in 
the front. Now suppose when you get to South Hill, 
Virginia, say five passengers or ten passengers on the 
rear of that bus, Negro passengers, get off' and ten white 
passengers get on, what would your regulations require 
you to do then, these passengers are going to Florida, 
all of them. A. I don’t understand the question. You 
are asking I assume about the limited coaches. Is that 
what you mean? If you are talking about local coaches 
then you are not correct.

Q. Your ordinary bus that you run from here to 
Florida, it is impossible for a white or colored person to 
occupy any seat on that bus and be assured he will be



76

permitted to continue to occupy that seat, unless that 
white person was sitting on that front seat, and the 
colored person was sitting on that rear seat, isn’t that 
correct? A. No it wouldn’t work out that way, that is 
an isolated case, there would probably be 500 people, be­
tween here and Jacksonville, who were on and off the bus. 
Ususually when you get on down south you have more 
colored people they always go to the back, and colored 
persons on the last five seats, they don’t have to move.

Q. Suppose some other white passengers get on, 
what do you do then? A. They sit in front.

Q. Suppose there are no seats in front you require 
the Negro passengers to get up and move to the back, 
don’t you? A. That is right.

Q. And if it were Negro passengers that got on you 
would require that white passengers get up and move to 
the front,, is that right? A. Yes.

Q. If the colored passenger got on and there were 
no seats in the rear, but there were vacant seats in front, 
you would require the white passenger to get up and 
move to the front so the colored passenger could have a 
seat? A. Yes, sir.

Q. Then there is no assurance at all if a person is 
going from Richmond to Florida that he will be per­
mitted to occupy that seat all the way is there? A. Yes, 
it is. It is customary that he does and it happens every 
day. They start out every day and occupy a seat and 
when they get to a rest stop they will leave their hat or 
something in the seat, and then they get back on and 
occupy the same seat. It is possible where white per­
sons would have to move or colored person would have 
to move, it is possible, but to say it is impossible to keep 
a seat from here to Jacksonville that is not the way it 
works at all.

Mr. Martin : That is all.

The witness stood aside.



77

Mr. May: May it please your Honor that is the
defendant’s case.

The C ourt : Do you have any further testimony for 
the plaintiff?

Mr. Martin: Yes, sir.

MRS. ADELINE ATWELL DAY, recalled as a 
witness in her own behalf, in rebuttal, testified as fol­
lows :

D irect E x a m in a tio n .

By Mr. M artin  :
Q. Mrs. Day some question was asked this morning 

or I understood one of the witnesses, the first young 
police officer, testified that after he got you off the bus 
he wanted to take yon over to the car to talk with you.- 
Just what did he say to you after he got you off the bus? 
A. He didn’t say anything to me.

Q. Did he say anything about whether or not he 
was going to arrest you? A. No.

Q. He also testified that you were doing some curs­
ing down there, did you do anything* like that? A. No 
that is something I never done in my life. All the way 
down to the station that younger policeman was swear­
ing, and I said to him, you are a gentleman to talk like 
that.

Q. You say he was swearing? A. Yes. It is not 
my make-up to swear, I don’t use that language.

Q. When the bus driver came to you while you were 
on the bus and asked you to move back on the back seat, 
why did you tell him you wouldn’t move to the back ? A . 
Well I told him that I understood there was a law passed 
now that riding interstate you didn’t have to sit on the 
rear seat. I said that rear seat is very uncomfortable.

Q. What did he say? A. He said to me, he knew 
that, that is speaking of the law, but I had to do as he said 
to do.



78

Mr. Martin : That is ail.
Mr. May: No questions.

The witness stood aside.

CHARLES CRAWLEY, recalled as a witness for 
the Plaintiff in rebuttal, testified as follows:

D irect  E x a m in a t io n .

By Mr. M artin  :
Q. Mr. Crawley, I believe this morning when you 

testified, you stated that while Mrs. Day and the bus 
driver were on the bus you could see him saying some­
thing to her, but couldn’t hear what it was, is that right? 
A. That is right.

Q. And you saw the police officers take her off the 
bus? A. Yes, sir.

Q. Did you hear the police officers say anything to 
her while going from the bus? A. I didn’t hear any foul 
language.

Q. Did you hear the police officer say anything to 
her? A. She asked what are you all going to do with 
me and he said we are going to lock you up, she said, for 
what, and he said you will find out when we lock you 
up.

Q. Was that before they got to the car? A. That was 
before they got to the car, they was carrying her to the 
car.

Mr. M artin  : That is  all.
Mr. May: No questions.
Mr. M a r t in : That is our case.
Mr. May: And our ease too.

(In Chambers.)

Mr. M ay  : We would like to renew and add to our mo­
tion for a directed verdict at whatever time your Honor
feels it is proper.



79

The C ourt : All right sir.
Mr. M ay  : The defendant moves the Court to direct 

a verdict in its behalf on the same grounds as when this 
motion was made at the close of the Plaintiff’s case, and 
in addition thereto, from the evidence that has since 
developed, we now submit to the Court that the Court 
will determine whether our rules were reasonable or not, 
and if the Court is of the opinion that these rules were 
reasonable, we had a right to enforce them, and the evi­
dence discloses, we submit, as a matter of law, that we 
have gone no further than to have the passenger ejected 
without any more force than was necessary and proper 
for that purpose. On the other wing* of the case we say 
that the arrest and. the confinement in jail of this plain­
tiff was done by the officers of their own accord, and un­
der such circumstances that this defendant would not 
be liable for their acts. I don’t believe we have anything* 
further to add to it.

The C o u r t : 1 shall withhold action on the motion 
until after the verdict.

Mr. M artin  : I  would like to also move the Court 
to direct a verdict for the Plaintiff. As your Honor 
realizes this case was brought for a tort against the 
plaintiff by the defendant and its agents and also for 
breach of contract. The complaint is in contract by rea­
son of the fact that they unlawfully ejected her from the 
bus and called the police officers, who subsequently ar­
rested her and imprisoned her.

In the first place it appears to us that the rules and 
regulations, themselves, are inadmissible in evidence, be­
cause, on the first ground that regardless of whether or 
not they had these rules they had no right to have this 
woman arrested by the police officers and imprisoned, 
and in the second place, if we assume the rules and regu­
lations are admissible, that the evidence shows they are 
unreasonable. They specifically require that all colored 
passengers shall sit in the rear and shall fill the seats 
from the rear forward, and that all white passengers



80

shall fill the seats from the front. The testimony is that 
the first passenger on that bus, that the only way she 
could comply with that regulation was to sit on the long, 
seat in the rear. The long seat has no adjustable back, 
the 175 horse power motor is right under that seat; it 
has that ventilator over the seat; it has no arm rests, 
and the plaintiff has testified that she has ridden on that 
long seat and it was much less comfortable than the other 
seats. Based on that evidence, their rules and regula­
tions travelling from here at least to Raleigh, those rules 
were discriminatory as to her, and the testimony gives 
no ground as defense to this suit, for that reason the di­
rection should be in favor of the plaintiff, because they 
had no right to even eject her.

The C o u r t : There is evidence in conflict with h er 
evidence with respect to the comfort of that long ,seat. 
I will reserve action on both motions until after the ver­
dict.

(At the conclusion of the arguments of counsel to 
the Jury, the Court charged the Jury as follows:)

The C ourt : Gentlemen of the Jury at this point it 
becomes my responsibility to undertake to outline to you 
the principles of law applicable to the facts of this case 
and which should guide you in arriving at your verdict. 
As you were told this morning and has been mentioned 
more than once since, the Plaintiff, Adeline Atwell Day, 
contends that she was unlawfully ejected from a bus of 
the Atlantic Greyhound Corporation at South Hill, Vir­
ginia, January 22, 1946;, on account of her race and color 
that she was discriminated against by reason of her race. 
This action is to recover damages for such action on the 
part of the bus company.

Now, Gentlemen, this case—and the Defendant, At­
lantic Greyhound Corporation in turn denies that there 
was any discrimination, and point to the rules or regu­
lations, which I shall mention more fully just a little 
later.



81

In this case, as in all civil cases, the burden of proof, 
that is of proving the case, rests upon the plaintiff. The 
plaintiff has the burden of proof by what is known as 
the preponderance or greater weight of the evidence the 
claim the plaintiff has asserted against the defendant 
The greater weight of the evidence doesn’t mean proof 
beyond a reasonable doubt, as in a criminal case, ii 
doesn’t necessary mean the the great number of wit­
nesses, or greater length of time in introducing evidence, 
but it means just wbat it says the greater weight or pre­
ponderance of evidence, as measured by the common 
sense rule of reason, which your own good judgment, 
gentlemen, will dictate to you better than I can supply, 
if I undertook to define the term further. I am sure all 
of yon will understand the greater weight of evidence. 
If that burden has not carried in a civil case the verdict 
should be for the defendant. If it is carried the verdict 
should be for the plaintiff.

Now, Gentlemen, in considering this case von are 
the judges of the facts and in applying the rule with re-: 
spect to the burden of proof, you are the judges of the 
credibility of the witnesses. You may take into consid­
eration their demeanor, manner of testifying upon the 
stand, and their interest or lack of interest, their bias, or: 
lack of bias, and any other circumstances with respect to 
the testimony of these witnesses, which you may take 
into consideration in transacting your ordinary affairs 
of life. You have had the opportunity to observe them 
on the witness stand, and you are the judges of the 
weight to be attached to the testimony of the various 
witnesses. You may accept the testimony of a witness 
in part, you may accept all of his testimony or you may 
reject all of his testimony.

Now, Gentlemen, the contention of the parties is 
substantially as follows:

It has been testified and introduced in evidence the 
fact that the defendant company has adopted certain



82

rules and regulations, which are on file with the Inter­
state Commerce Commission and with the State Corpo­
ration Commission of Virginia and there is some evidence 
that they are on file in North Carolina, respecting the 
seating arrangements of passengers. Yonr verdict will 
he, concerned with those rules. There is no law of the 
State involved, which applies to this case, but the ques­
tion involved is around the rules or regulations. If you 
believe that those rules and regulations adopted by the 
Defendant, Atlantic Greyhound Corporation, are reason­
able and fair in their application > that under the 
rules substantially equal facilities and accommodations 
are extended members of both the white and colored race, 
then the rules and regulations are reasonable and en­
forceable. Of course, minor or trifling differences may 
appear, the accommodations do not have to he abso­
lutely identical, but if they are substantially equal then 
the regulation and rules are valid and proper. If upon 
the other hand, in your opinion the facilities offered the 
plaintiff and members of her race were so unequal or 
were unequal, not so unequal, or were not substantially 
equal to those furnished white passengers, then the rules 
and regulations result in discrimination against mem­
bers of the colored race, and should be declared invalid 
and unenforceable.

Now, if you believe from the evidence that the rules 
and regulations result in discrimination against the 
plaintiff by reason of her race or color, your verdict 
should be for the plaintiff. If upon the other hand you 
believe that the rules and regulations shown in evidence 
are not discriminatory and that the plaintiff was af­
forded substantially equal facilities with those furnished 
other passengers, then you are told, gentlemen, if you 
believe that to be the case the bus driver under the cir­
cumstances here related had the right and he was re­
quired to enforce or carry out the rules and regulations 
and to designate the seat to be occupied by the various 
passengers, which included the plaintiff. You have heard



83

the rules and regulations read, I will not take your time 
to review them, but if  you believe that they were non* 
discriminatory, the driver has the right to change pas­
sengers within reason, and under reasonable conditions 
designate their seats and to apply those rules in a rea­
sonable common sense way and if a passenger refuses 
to conform with the requirements of the bus driver then 
it was the right of the bus driver and his responsibility 
to eject that passenger from the bus. He had the right 
to call to his assistance, if necessary, a police officer, one 
or more, for the purpose of ejecting the passenger, the 
plaintiff in this ease, but he was not permitted to use 
more force than was reasonable and proper under all 
the circumstances, in ejecting the passenger. Before 
ejecting the passenger he should acquaint such pas­
senger with the existence or terms of the rules and regu­
lations and request conformity therewith, if, after hav­
ing done so, the passenger refuses to comply as I said, 
then he has the right to have the passenger removed. 
He has no right to use any greater force than is reason­
able and proper under all the circumstances existing.

So gentlemen, to briefly review what I have said, 
you are called upon to determine first whether in your 
opinion the rules and regulations, as introduced in the 
case, result in discrimination against the plaintiff by rea­
son of her race. If under those rules and regulations 
she is deprived of substantially equal accommodations 
as compared with those afforded other white passengers, 
the rules are discriminatory. If under the rules the ac­
commodations afforded her are substantially equal with 
those afforded white passengers the rules are not dis­
criminatory, that is the first question. The second ques­
tions is, if you believe the rules are non-discriminatory 
the question is did the busd river use or cause to be used 
more force than was necessary to have the plaintiff re­
moved from the bus. If you find that he did use more 
force than necessary you should find for the plaintiff. If 
you find he didn’t use more force than necessary, you



84

should find for the defendant, assuming that you have 
answered the first question in substance that the rules 
are non-discrirninatory. If you find the rules discrimina­
tory you will find for her and do not have to reach the 
second question.

Gentlemen, in the event you find for the plaintiff, 
you should allow her reasonable compensation for the 
injuries received. In estimating* damages you have the 
right to take into consideration the indignity put upon 
the plaintiff by being arrested and placed in jail, any 
reasonable expenses incurred by her, if any, in attempt­
ing to be released from her custody; such damages as she 
suffered, if any, from her inability to attend to business, 
the mental and bodily pain, if any, suffered resulting 
from her arrest and imprisonment. You are not con­
fined to actual pecuniary losses in terms of money sus­
tained by the plaintiff, but may take into consideration 
and return such verdict as you gentlemen feel will be 
fair and just compensation.

Is there any formal matters, which I have over­
looked, gentlemen?

Mr. May: No, sir, anything we might say would be 
of substance.

(At this point the Jury retired to consider of its 
verdict.)

The C o u r t : Gentlemen, I suggest that you state
your exceptions in the record at this time.

Mr. M ay  : May it please your Honor, there are sev­
eral objections we would like to offer to the Charge as 
given by the Court.

The first of these is that under the Simmons case, 
decided by Judge Paul, and the other cases mentioned by 
Judge Paul in his opinion in that case, a copy of which 
we have given your Honor, the duty is on the Court to 
determine whether the rule is reasonable or not. Your 
Honor, if we understood the charge correctly, submitted



85

the reasonableness of the rule, as to seating the colored 
and white races, one from the back and one from the 
front, to the Jury. We think that the Court should have 
also stated to the Jury as a matter of law that the reser­
vation made in the tariffs was reasonable and enforce­
able on this feature. We submitted a charge and we 
ask that your Honor make that a part of the papers in 
this case, so that you could later readily see, if neces­
sary, what our view of the law is on that situation.

The C o u r t : I have before me the charges or the 
requests for charges submitted by counsel, and I think 
they can be identified. I rather think I should apply this 
to filing the entire requests with the Clerk. Do you have 
any other objections?

Mr. M ay  : The second exception we have is that un­
der the recent case decided by the Supreme Court of 
Appeals of Virginia, we believe the Court should have 
gone further with reference to the substantial equality 
of facilities, that a minor or trifling difference in seating 
arrangements is not sufficient, and that minor differences 
in travelling comfort do not necessarily mean that there 
is a substantial inequality as to facilities furnished.

Now on the question of damages, we submit that the 
Court should have kept the question of damages solely 
as to the ejection, and that for the reasons already 
pointed out in our request for a directed verdict, damages 
should not be considered in any event for the arrest and 
incarceration of the plaintiff. And, finally, your Honor 
in instructing the Jury instructed as to only one verdict 
how the verdict should be returned in the event one was 
found for the plaintiff. We think the Court should have 
added that if the Jury should find for the defendant they 
should say thus and so, or whatever it is proper to say 
in such event. We do not believe we have any further 
objections to the charge.

If the last objection be regarded as one as to form 
and not substance and the Court agrees with us, we 
would ask the Court even now to charge the jury on that 
subject.



86

The C ourt : I think the last suggestion goes to form 
rather than to substance. I think, however, the Jury 
is sufficiently experience not to be guided by that. If 
it had been brought to my attention at the time,, I think 
I would have added that, but I don’t think it will result 
in confusion of the jury.

Mr. Marxist : If the Court please we take exception 
to the Court granting any instruction or even submitting 
to the Jury the question of the reasonableness of the 
rules. As stated in our motion for a directed verdict, 
we believe the uncontradicted evidence here shows, be­
yond question, and as a matter of law that the rule as 
applied in this case was unreasonable, and that the Jury 
should have been so instructed.

We further believe that the Jury should have been 
instructed on the question of unlawful arrest, if they be­
lieved that this arrest grew out of or was at the instance 
of the bus driver, and that he called the police officer, 
then the defendant company would be liable for that un­
lawful arrest, even though they believe that she was not 
creating any disorder at the time she was on the bus. 
An unlawful arrest, as set out in our prayer numbers 2 
and 4; that they were under an obligation to treat and 
carry and transport her safely to Florida, that if they 
failed in this duty and illegally caused her arrest they 
are responsible for it.

We also feel and take exception to the failure of the 
Court to charge that there is no law in the State of Vir­
ginia requiring the Defendant, company to segregate 
colored and white passengers on these interstate vehicles, 
that is interstate passengers; that they were acting 
solely under their rules and regulations.

The C ourt : I think I told the Jury that there was 
no law of the State involved, and that the case entirely 
involved the regulations.

Mr. M a r t in : We think the Jury should have been 
told that there was no law requiring the defendant com­
pany to segregate the white and colored passengers, the



Court told the Jury that there was no law involved in 
this case.

We also take exception to the Court’s charge to the 
Jury that the defendant company must furnish substan­
tially equal facilities to members of both races. We take 
the diametrically opposite view, that under the facts the 
law here that they are not required to segregate at all, 
and if they take the prerogative of segregating the pas­
sengers on their own initiative then they must furnish 
absolute equality; that substantial equality, in the first 
place, might tend to confuse the Jury as to what is or 
is not substantial. A trifling inequality here and another 
there might not be substantial, but a number of those in­
equalities might have been substantial. We believe the 
Court should have told the Jury that they had a rule re­
quiring segregation and that then under such rule they 
must furnish absolute equality between the races, that 
unless they did that, the rule is no defense to this ac­
tion.

87

(Upon the return of the verdict.)

The Clerk  : Gentlemen of the Jury have you agreed 
upon a verdict1?

The F o r e m a n : We have. (The verdict is handed 
up to the Clerk.)

The Cl e r k : “ June 30, 1948. We the Jury on the 
issue joined find for the defendant. W. D. Barr, Fore­
man.”  That is your verdict and so say you all, gentle­
men 1

The Jury responded in the affirmative.

The C ourt : Gentlemen of counsel are there any
motions you desire to make before the Jury is excused? 

M r. M artin  : No, sir.
Mr. May: No, sir.
The C o u r t : Gentlemen of the Jury you are excused 

from further consideration of this case.



88

Mr. H i l l : May it please the Court we make a mo­
tion to enter a verdict for the plaintiff, notwithstanding 
the verdict, of the Jury, and in the alternative to set 
aside the verdict of the Jury and grant a new trial on 
the ground that it is contrary to the law and evidence.

The Cou rt : I ) o you desire to argue the motion!
Mr. H il l  : If the Court desires to bear us we would 

like to have an opportunity to argue it.
The C o u r t : I don’t know, gentlemen, anything that 

hasn’t been covered already. I am reluctant in any case 
to tell counsel that I do not want to hear the argument of 
counsel, as I always find them very helpful. I believe the 
ease stands in this situation, that I reserved action on 
the motion by the defendant for a directed verdict at 
the conclusions of all the evidence and a motion by the 
plaintiff for a directed verdict. Unless there is some 
particular reason pointed out to me at this time, you have 
ten days in which to file a motion under the rules, I shall 
overrule the motion of the plaintiff made at the conclu­
sion of the evidence. The case has been submitted to 
the Jury what is the situation with respect to your mo­
tion, Mr. May! I think I should overrule that motion 
too, I suppose!

Mr. M ay : I should certainly think so since the case 
has been submitted to the Jury.

The C o u r t : And direct that judgment be entered. 
I believe you have ten days in which to file any motion 
you may desire to make and I will hear you if you decide 
you want to be heard. The case is fresh in my mind at 
the moment and I don’t know of anything that I think it 
necessary to hear further argument on at this time.

I certify that the foregoing is a correct transcript 
of my notes.

S. A. CUNNINGHAM, 
Acting Official Reporter.