The separation by the carrier of the white and colored races has also, in many states, been made the subject of statutory regulation.

The general rule, applicable alike to common carriers of passengers as well as of goods, requires, as to the service furnished, not only universality, but equality. The passenger carrier does not complete its full duty merely by serving all who apply, but it must serve them equally well, without unfair discrimination in favor of one or against another. This, too, arises out of the public nature of the carrier's calling, and his relation to the public that he professes to serve.

Discrimination by Carrier's Regulation Based on Sex, Kind of Ticket, or Length of Journey

The carrier's regulations frequently make differences in the accommodations furnished depend upon other classifications of the passengers save that of race or color. These regulations are valid, provided such classification be reasonable. Thus, a carrier may provide separate cars for ladies, or for ladies and their male escorts, and may exclude from these cars all other passengers. A carrier, too, may properly provide more luxurious accommodations for passengers traveling on first-class tickets than for others, or for persons bound for distant points.50

49

Again, carriers may provide specially equipped chair cars, besides the coaches for holders of first-class tickets, and charge an additional fee for the use of such cars."1 And many railroads have

47 Atwater v. Delaware, L. & W. R. Co., 48 N. J. Law, 55, 2 Atl. 803, 57 Am. Rep. 543; Indianapolis, P. & C. Ry. Co. v. Rinard, 46 Ind. 293; BENNETT v. DUTTON, 10 N. H. 481, Dobie Cas. Bailments and Carriers, 322; Zackery v. Mobile & O. R. Co., 75 Miss. 751, 23 South. 435, 65 Am. St. Rep. 617; Central R. Co. of New Jersey v. Green, 86 Pa. 427, 27 Am. Rep. 718; West Chester & P. R. Co. v. Miles, 55 Pa. 209, 93 Am. Dec. 744.

48 Chicago & N. W. Ry. Co. v. Williams, 55 Ill. 185, 8 Am. Rep. 641; Chilton v. St. Louis & I. M. Ry. Co., 114 Mo. 88, 21 S. W. 457, 19 L. R. A. 269; Peck v. New York Cent. & H. R. R. Co., 70 N. Y. 587; Bass v. Chicago & N. W. Ry. Co., 36 Wis. 450, 17 Am. Rep. 495; Id., 39 Wis. 636, and Id., 42 Wis. 654, 24 Am. Rep. 437; Memphis & C. R. Co. v. Benson, 85 Tenn. 627, 4 S. W. 5, 4 Am. St. Rep. 776; Brown v. Memphis & C. R. Co. (C. C.) 7 Fed. 51. And see Marquette v. Chicago & N. W. R. Co., 33 Iowa, 562. Sufficient accommodations for other passengers must be provided elsewhere. Bass v. Chicago & N. W. Ry. Co., supra.

49 Wright v. Central Ry. Co., 78 Cal. 360, 20 Pac. 740; St. Louis & A. T. Ry. Co. v. Hardy, 55 Ark. 134, 17 S. W. 711; Nolan v. New York, N. H. & P. R. Co., 41 N. Y. Super. Ct. 541.

50 St. Louis & A. T. Ry. Co. v. Hardy, 55 Ark. 134, 17 S. W. 711.

51 St. Louis & A. T. Ry. Co. v. Hardy, 55 Ark. 134, 17 S. W. 711; Wright v. Central Ry. Co., 78 Cal. 360, 20 Pac. 740.

put on trains of unusual speed and luxury, requiring passengers traveling on these trains to pay a special fee beyond the usual firstclass fare.

53

Discrimination Based on Race or Color by Regulation of the Carrier The carrier of passengers, as well as the carrier of goods,52 has the power to make proper regulations for the conduct of his business. And these regulations, when reasonable and uniform in their operation, are valid and binding. The general subject of the regulations of the passenger carrier will subsequently be discussed. It is introduced here merely as affecting the separation of the races.

54

Many carriers have adopted regulations under which separate accommodations are provided for white and colored passengers, each race being restricted to the accommodations provided for that race. Regulations making this discrimination have been very generally upheld as being entirely reasonable, being based, not on arbitrary caprice, but rather on principles which the law recognizes as just, equitable, and founded on good public policy. The accommodations provided for colored passengers, however, must be substantially equal to those provided for white passengers." The validity of such a regulation has recently been upheld by the United States Supreme Court, in the absence of a federal statute on the subject, even in the case of interstate passengers." 57

55

Statutes Concerning the Separation of the Races by the Carrier

A number of statutes have been passed both for and against such separation of the white and colored races. Probably the best known of these was the famous "Civil Rights Bill," passed by

52 Ante, § 124.

53 Coyle v. Southern Ry. Co., 112 Ga. 121, 37 S. E. 163; Gray v. Cincinnati & S. R. Co. (C. C.) 11 Fed. 683; Smith v. Chamberlain, 38 S. C 529, 17 S. E. 371, 19 L. R. A. 710. See post.

54 Armstrong v. Montgomery St. Ry. Co., 123 Ala. 233, 26 South. 349; McMillan v. Federal St P. V. Pass. Ry Co., 172 Pa. 523, 33 Atl. 560; Faber v. Chicago Great Western Ry. Co., 62 Minn. 433, 64 N W. 918, 36 L. R. A. 789. 55 Day v. Owen, 5 Mich. 520, 72 Am. Dec. 62; West Chester & P. R. Co. v. Miles, 55 Pa. 209, 93 Am. Dec. 744; Chicago & N W. Ry. v. Williams, 55 Ill. 185, 8 Am. Rep. 641; Chilton v. St. Louis & I. M. Ry Co., 114 Mo. 88, 21 S. W. 457, 19 L. R. A. 269; Houck v Southern Pac. Ry. Co (C. C) 38 Fed. 226; The Sue (D. C.) 22 Fed. 843; Logwood v. Memphis & C R. Co. (C. C.) 23 Fed. 318.

56 Murphy v. Western & A. R. R. (C. C.) 23 Fed. 637; Britton v. Atlanta & C. A. L. Ry. Co., 88 N. C. 536, 43 Am. Rep. 749; Chesapeake & O. & S. W. R. Co. v. Wells, 85 Tenn. 613, 4 S. W. 5. See, also, cases cited in preceding note.

57 Chiles v. Chesapeake & O. R. Co., 218 U. S. 71, 30 Sup. Ct. 667, 54 L Ed. 936, affirming 125 Ky. 299, 101 S. W. 386, 11 L. R. A. (N. S.) 268.

the federal Congress in 1875, substantially declaring that colored citizens should have the same accommodations at inns, public conveyances, etc., that are given to white people. This act, however, the federal Supreme Court, in the celebrated "Civil Rights Cases,' ,"58 held to be unconstitutional and void. Somewhat similar statutes have been passed by some of the states, both in the North and South, particularly during the years immediately following the Civil War.59 Such a statute of Louisiana was declared unconstitutional by the United States Supreme Court, when applied to a steamboat engaged in interstate commerce."0

In recent years, particularly in the South, many statutes have been passed by states requiring the separation of the races and the furnishing by the carrier of separate vehicles for white and colored passengers.1 These statutes have been sustained as to intrastate commerce.62 Their validity, though passed on by state courts," seems never to have been directly passed on by the United States Supreme Court, when applicable to interstate traffic.*

63

58 109 U. S. 3, 3 Sup. Ct. 18, 27 L. Ed. 835.

59 See 1 Fetter, Passenger Carriers, § 258.

60 Hall v. De Cuir, 95 U. S. 485, 24 L. Ed. 547.

61 See 1 Fetter, Passenger Carriers, § 257; 2 Hutch. Carr. § 972; Judson Interstate Commerce (2d Ed) § 30.

62 Louisville, N. O. & T. R. Co. v. Mississippi, 133 U. S. 587, 10 Sup. Ct. 348, 33 L. Ed. 784; Chesapeake & O. R. Co. v. Kentucky, 179 U. S. 388, 21 Sup. Ct. 101, 45 L. Ed. 244; Plessy v. Ferguson, 163 U. S. 537, 16 Sup. Ct. 1138, 41 L. Ed. 256; McCabe v. Atchison, T. & S. F. R. Co., 186 Fed. 966, 109 C. C. A. 110; Smith v. State, 100 Tenn. 494, 46 S. W. 566, 41 L. R. A. 432; Ohio Val. Ry's Receiver v. Lander, 104 Ky. 431, 47 S. W. 344, 882; Id., 48 S. W. 145, 20 Ky. Law Rep. 913.

63 Thus as to interstate commerce such statutes were held to be void in Carrey v. Spencer (Sup.) 36 N. Y. Supp. 886; State ex rel. Abbott v. Judge, 44 La. Ann. 770, 11 South. 74; Hart v State, 100 Md. 595, 60 Atl. 457. In Smith v. State, 100 Tenn. 494, 46 S. W. 566, 41 L. R. A. 432, the decision in Hall v. De Cuir, 95 U. S. 485, 24 L. Ed. 547, is reviewed, and the statute, though applicable both to intrastate and interstate passengers, is upheld. * Such a case seems now to be pending in the United States Supreme Court in McCabe et al. v. Atchison, T. & S. F. Ry. Co., being number 111 on the October Term, 1913. In the same case in the United States Circuit Court of Appeals for the Eighth Circuit it was held that such a statute, if construed as applicable to interstate commerce, would be unconstitutional; so the statute was construed as applicable solely to intrastate commerce and was therefore held to be valid. McCabe et al. v. Atchison, T. & S. F. Ry. Co. et al., 186 Fed. 966, 109 C. C. A. 110.

LIABILITY FOR DELAY IN TRANSPORTING PAS-
SENGERS

177. The common carrier of passengers is liable for damage proximately due to delay in transporting the passenger after the transportation has begun, when such delay is caused by the carrier's negligence, or failure to exercise reasonable

care.

The carrier is also liable for his failure to exercise reasonable diligence to transport passengers in accordance with his published time-table,

Delay in Transportation

Once the transportation is begun, the carrier must use due diligence to complete it within a reasonable time. What is due diligence here, and what is a reasonable time, are, of course, relative questions, depending for their solution on varying facts and circumstances, among which the method of conveyance is highly important. For delays due to other causes than the carrier's negligence, which is here the failure of the carrier to use reasonable or due care, the carrier is not liable, in the absence of a special contract to that effect. The carrier may, if he wishes, bind himself by special contract to carry absolutely within a certain time. In such cases (which are rare) the carrier is liable according to the tenor of his contract, so that even the act of God will not excuse him."7 Conforming to Published Time-Table

66

The carrier, by publishing his time-tables, informs the public of the time at which his conveyances may be reasonably expected to

64 Weed v. Panama R. Co., 17 N. Y. 362, 72 Am. Dec. 474; Williams v. Vanderbilt, 28 N. Y. 217, 84 Am. Dec. 333; Hamlin v. Railway Co., 1 Hurl. & N. (Eng.) 408; Eddy v. Harris, 78 Tex. 661, 15 S. W. 107, 22 Am. St. Rep. 88; Wilsey v. Louisville & N. R. Co., 83 Ky. 511; Milwaukee & M. R. Co. v. Finney, 10 Wis. 388; Latour v. Southern Ry., 71 S. C. 532, 51 S. E. 265. 65 See cases cited in notes 64 and 66.

66 Quimby v. Vanderbilt, 17 N. Y. 306, 72 Am. Dec. 469; Van Buskirk v. Roberts, 31 N. Y. 661; Alabama & V. Ry. Co. v. Purnell, 69 Miss. 652, 13 South. 472; Cobb v. Howard, 3 Blatchf. 524, Fed. Cas. No. 2,924; Hobbs v. Railway Co., L. R. 10 Q. B. (Eng.) 111; Van Horn v. Templeton, 11 La. Ann. 52; Houston, E. & W. T. Ry. Co. v. Rogers, 16 Tex. Civ. App. 19, 40 S. W. 201.

67 Walsh v. Chicago, M. & St. P. Ry. Co., 42 Wis. 23, 24 Am. Rep. 376. And see, for other instances of special contract, Williams v. Vanderbilt, 28 N. Y. 217, 84 Am. Dec. 333; Ward v. Vanderbilt, 4 Abb. Dec. (N. Y.) 521; Watson v. Duykinck, 3 Johns. (N. Y.) 335; Dennison v. The Wataga, 1 Phila. (Pa.) 468, Fed. Cas. No. 3,799; Brown v. Harris, 2 Gray (Mass.) 359; Porter v. The New England No. 2, 17 Mo. 290; West v. The Uncle Sam, 1 McAll. 505, Fed. Cas. No. 17,427.

68

arrive at, and depart from, the various places on his line. Upon this information the public necessarily acts. This, however, does not constitute a contract between the carrier and passenger that the carrier will live up to the schedule. Nor is the carrier a warrantor as to compliance with his time-table." He must, however, at least use reasonable diligence to comply with such schedule, which he has published and on which the public must rely." The law on this point is thus admirably stated in the headnote to a leading case: " "The publication of a time-table, in common form, imposes upon the railroad company the obligation to use due care and skill to have the trains arrive and depart at the precise moments indicated in the table; but it does not import an absolute and unconditional engagement for such arrival and departure, and does not make the company liable for want of punctuality which is not attributable to their negligence."

71

When changes are made in a time-table, the same publicity should be given to these changes as to the original publication.72 If the regular time-table was published in a newspaper, and no notice of a change is given except through the posting of a notice in the carrier's office, this would not be sufficient to excuse the carrier. If the scheduled time is varied, and a train is detained after the appointed time, for the mere convenience of the carrier or a portion of his expected passengers, a person who presents himself at the advertised hour, and demands a passage, is not bound by the change, unless he has had reasonable notice of it. But, even after the sale of a ticket, the carrier has a right, by giving reasonable notice, to vary the time of running his trains or other vehicles."

68 SEARS v. EASTERN R. CO., 14 Allen (Mass.) 433, 92 Am. Dec. 780, Dobie Cas. Bailments and Carriers, 324; Gordon v. Manchester & L. R. R. Co., 52 N. H. 596, 13 Am. Rep. 97; Houston, E & W. T. Ry. Co. v. Rogers, 16 Tex. Civ. App. 19, 40 S. W. 201.

69 Gordon v. Manchester & L. R. R. Co., 52 N. H. 596, 13 Am. Rep. 97. See, also, Hurst v. Railway Co., 19 C. B. N. S. (Eng.) 310, 34 L. J. C. P. 264. 70 SEARS v. EASTERN R. CO., 14 Allen (Mass.) 433, 92 Am. Dec. 780, Dobie Cas. Bailments and Carriers, 324; Savannah, S. & S. R. Co. v. Bonaud, 58 Ga. 180; Heirn v. McCaughan, 32 Miss. 17, 66 Am. Dec. 588; Coleman v. Southern R. Co., 138 N. C. 351, 50 S. E. 690. See, also, Miller v. Southern R. Co., 69 S. C. 116, 48 S. E. 99.

71 Gordon v. Manchester & L. R. R. Co., 32 N. H. 596, 13 Am. Rep. 97. 72 Denton v. Railway Co., 5 El. & Bl. (Eng.) 860; Van Camp v. Michigan Cent. R. Co., 137 Mich. 467, 100 N. W. 771.

73 SEARS v. EASTERN R. CO., 14 Allen (Mass.) 433, 92 Am. Dec. 780, Dobie Cas. Bailments and Carriers, 324.

74 SEARS v. EASTERN R. CO., 14 Allen (Mass.) 433, 92 Am. Dec. 780, Dobie Cas. Bailments and Carriers, 324.