Court of Sessions.
Before Judges Ulshoeffer, Inglis and Lynch, and Aldermen Ferris and Smith.
Colored People Excluded from Public Vehicles. William W. Skirving, agent, and Lucius Deleber, driver, of Rail Road car No. 7, were tried for an assault and battery on Thomas Downing, colored man, and a celebrated oyster vender, of No. 5 Broad street, on the 30th December last. Mr. Downing rode up to 14th street inside the car, without opposition; and on returning got on the car near 14th street, went inside and sat down, only two persons (white females) being there. Downing was ordered out—refused to go; was ordered out again, and again refused—when the agent said, then they would tear him out, and the agent seizing him by the collar, the driver struck him under the ear, and with two others beat and kicked him, broke his hat, and forced him violently out of the car. The cartilage of one ear was divided for half an inch, and both eats cut, and the skin torn down under one of them. His leg was badly bruised and swollen, until it was 3 1-2 inches larger than the other, as Dr. Bliss deposed. It was proved that there was a general regulation, that no colored persons were to ride inside of the car, but on the top in accordance with the tone of public opinion, though some rode inside almost every day. The agent and driver were discharged for their violence. No violence was ever allowed by the company used by any person. Downing deposed that he was not aware of any rule to exclude colored persons from an inside seat.
Judge Lynch charged the jury, in order to make out the justification of the accused, it must appear that a reasonable and proper regulation had been made by the Company to exclude colored people from their cars. This Company was a corporation which had been created for the public convenience as well as their own private benefit, and their regulations must therefore be proper and consistent with the convenience of travellers. In order to be so, as regarded the present case, it must be shown that such due notice had been given of the regulation, that those interested in it could have known, and might conform to it. And it must also appear that the defendants had used no greater force than was necessary to carry the regulation into effect. As to the regulation being proper, in the abstract, counsel at both sides had conceded that it was so, and therefore the court felt it unnecessary to make any remarks on that part of the subject. It appeared that such a notice had been publicly given by the Company, and continued to be given for so considerable time, as they thought sufficient to apprize the public. The jury were at liberty to draw inferences, as to whether their notice was known to the complainant, from the fact of those regulations having been last spring enforced against part of Mr. Downing’s family, at which time his son told his mother of the occurrence, but did not tell it to his father.
From this circumstance the Jury were at liberty to infer, whether or not it was probable that it reached the complainant. The Jury should also take into consideration the fact of the complainant having gone up on the car without being questioned or refused, and that it was when returning, the difficulty occurred; and consider whether that circumstance might not have thrown him off his guard. But it must also be borne in mind, that he was called on to leave the car by the agent who, it did not appear, had any knowledge of his having gone up in the car. This agent desired him to leave the car, and perhaps not in such civil terms as he ought to have done, but no violence was offered to the complainant until the order was repeated to him to leave the car. The complainant then defied an agent by saying that they could not put him out, and recourse was tehn had to the assistance of two or three other persons to effect it. The question then comes, was the blow he received necessary to remove him or did he receive any blow? Of this the jury were to judge. Two witnesses who saw the transaction testify that he received no blow, and the jury would say whether the blow was given him, or he received the hurt from being pushed against the railing or door post. The jury would therefore determine whether the complainant had due notice of the regulation to exclude colored people, and whether a greater degree of violence was used towards him than was necessary to put him out, and give a verdict accordingly. Verdict, not guilty;–which caused loud applause from the audience, but which was immediately suppressed by order of the Court.
