
    Joseph Waldauer v. Vicksburg Railway and Light Company.
    [40 South. Rep., 751.]
    Carriers. Ejection of passenger. False imprisonment. Lotos 1904, ch. 99, p. 140. Separation of races. Jim Grow law. Evidence.
    
    In an action against a street railway company for ejecting a passenger and causing him to be arrested for a violation of Laws 1904, ch. 99, p. 140, relating to the division of cars into separate compartments for white and colored passengers:
    (a) Evidence is admissible to establish a custom of the company permitting passengers of both races to occupy the back platform of its cars, where the only evidence of a division of the inside of its cars between the two races consisted of testimony of a custom; and
    (5) To justify-the company in causing the arrest and ejection from its ears of a passenger for violating the statute it must have itself complied with the provisions of the law; and
    (c) The posting of a sign, neither a partition nor an adjustable screen, in a street car indicating that part of the ear was to be occupied by white and another part by colored persons, especially if the sign be too small to be seen from all parts of the car, is not a compliance with the statute.
    From the circuit court of Warren county.
    Hon. Oliver W. Catchings, Judge.
    Waldauer, the appellant, was plaintiff in’the court below; the railway and light company, the appellee, was defendant there. From a judgment in defendant’s favor, predicated of a peremptory instruction, the plaintiff appealed to the supreme court.
    Plaintiff boarded an open or summer car operated by the defendant, and stood on the rear platform; the conductor requested him to move to the front part of the car, stating that he was violating the “Jim Crow” law — referring-to Laws 1904, ch. 99, p. 140, which provides that street railways shall furnish “separate accommodations for the white and colored races by providing two or more cars or by dividing the cars by a partition or adjustable screen, . . . so as to secure separate accommodation for the white and colored races.” The car was well filled with passengers, and there were a number of ladies in the front part of it. A negro was seated on the rear end platform. The plaintiff told the conductor he did not care to sit down or go inside; that he preferred to stand on the rear platform, as he was using tobacco. The conductor called the attention of the plaintiff to a sign suspended in the car, indicating that the front part of the car was for white and the rear for colored passengers. The conductor collected plaintiff’s fare and insisted that he go inside to the front of the car. Plaintiff refused to do so, and the conductor stopped the car, got a policeman, and had plaintiff arrested for violating the “Jim Crow” law. Plaintiff brought suit, and on the trial offered to prove that it was the custom of the railroad company to allow passengers to ride on the rear platform regardless of race, but the trial court excluded the testimony.
    
      N. V. Robbins, for appellant.
    This is a case analogous to that of the Southern, etc., Oo. v. Oompton, 86 Miss., 296 (s.o., 38 South. Rep., 629).
    In the instant case, as in that cited above, the defendant in the court below signally failed to carry out the provisions of what is known as the “Jim Crow” law. A sign was used by defendant company to separate the white and colored races. This court, through Chief Justice Whiteield, held in the Oompton case, supray that the use of a sign, such as is shown in that case, or indeed of a sign at all, doés not carry out the provisions of the statute, which was enacted to effect the separation of the white and colored races, and that the defendant company cannot be heard to insist upon the observance of the minor features of the statute when it has violated the law itself.
    
      The arrest of tbe plaintiff was sucb an act as entitled tbe plaintiff to damages, was willful, unwarranted and unjustifiable, and the case should have been permitted to go to tbe jury witb proper instructions.
    
      Smith, Hirsh & Landau, for appellee.
    To bold tbat because tbe defendant bad violated tbe law in tbe past it bad no right to turn over a new leaf and commence to obey tbe law and require tbe plaintiff to obey tbe law would certainly be remarkable doctrine. Tbe testimony of plaintiff plainly shows tbat be was violating the “Jim Grow” law of 1904; and tbat after tbe conductor called bis attention to it, be refused to obey tbe law. Tbe plaintiff was guilty of a misdemeanor, and tbe conductor was right in refusing to carry him on tbe car.
    Tbe case is entirely unlike tbe case of Southern, etc., Go. v. Oompion, 68 Miss., 269 (s.c., 38 South. Rep., 629), since tbe evidence is insufficient to show tbat tbe act of 1904 bad not been complied witb by defendant.
    Argued orally by N. V. Robbins, for appellant.
   Truly, J.,

delivered tbe opinion of tbe court.

It was error to refuse to admit testimony to establish tbat it was tbe custom of tbe appellee to permit passengers of both races to occupy tbe back platforms of its street cars. So far as tbe proof discloses, it was only by an established custom tbat even tbe inside of tbe^cars was divided between tbe two races. Tbe proof of this custom was elicited by an inquiry of tbe trial judge propounded to tbe appellant, and to which interrogatory tbe reply ■was made tbat “tbe rear seats are reserved inside of tbe car for negroes, and for tbe white people tbe front seats, has been tbe custom.” Similar testimony to establish tbe custom in reference to tbe use of tbe platform was immediately théreafter excluded. This was clearly erroneous.

The appellee caused the public arrest and ejection from its cars of the appellant for an alleged violation of what is commonly called the “Jim Crow” law. Laws 1904, ch. 99, ji. 140. But that law does not deal with platforms at all. It deals with the cars in which passengers generally ride. Its provisions are confined in their operation to “cars and compartments,”, and requires the divisions of cars into compartments for the accommodation and separation of the races. In order to justify a street car company in directing the arrest of a passenger for a violation of this law, it must be manifest that the company has itself 'faithfully carried its provisions into effect. The law was enacted in pursuance of a wise public policy, and its mandate is obligatory on all street car companies. But in the instant case it does not appear that the appellee has complied with its requirements. The contrary fact is plainly deducible from the entire testimony in this record. It is very apparent from this record that this street car company, as in Traction Co. v. Compton, 86 Miss., 269 (38 South. Rep., 629), has resorted to the subterfuge of putting up “signs,” instead of providing screens or partitions, as required by the express terms and manifest intent of the statute. We again condemn as unavailing this attempt to evade the law. The testimony discloses that the sign intended to operate as a separation of the seats to be occupied by the two races was not visible from the platform where appellant stood. Assuredly, a sign so small as not to be visible from any portion of the car cannot be magnified into a partition or screen dividing a car into separate compartments.

It was error to take this ease from the jury. The appellee must first comply with the law before its protection can be invoked to avoid liability for an otherwise tortious act. If the appellee, while itself willfully violating or ignoring the law, still attempts to punish a passenger for refusing to obey the same law, and wrongfully ejects him from the car because of such refusal, the wronged passenger would be entitled to such damages as the .jury, under the circumstances attendant upon the expulsion and arrest, might feel justified in awarding.

Reversed and remanded.  