The judgment of the Supreme Court was entered

— It is very clear from the whole evidence on both sides that Mrs. Green, the plaintiff, was excluded from the rear car of the train. Her husband made repeated and ineffectual attempts to put her in. The brakeman pushed her off the step as she attempted to enter, gave no reason, but said, “ Go into that car,” pointing to,the car ahead. She stepped upon the rear platform of the forward car, and attempted to cross to the platform of the rear car. The brakeman put up the chain. Her husband took down the chain, and as he attempted to get his wife across, the brakeman locked the door. During all this time a contrversy was going on. These facts are not controverted or disproved. In all these facts Green and his wife are distinctly corroborated. The judge below recited them and said, “ The fact that the company did exclude her is not enough to entitle the plaintiff to recover. That she was excluded there can be no doubt, if this testimony be true; and that she was excluded from the car is conceded, even by the testimony that has been produced here on the part of the defence. Did they exclude her because of her color ?” This statement is strictly true. Then on what principle can it be said that the judge took the facts from the jury? The defendant did not controvert the exclusion, but put it on the ground that Green had a cigar in his mouth, and was smoking. The testimony is clear that this was the only reason. The fact of smoking was denied stoutly, and Mr. and Mrs. Green’s testimony on this point was thoroughly corroborated. It was the contested fact of the case, and was fully and fairly submitted to the jury, including the credibility of the witnessess, and especially *425of Green. The case went to the jury on the pivotal question of the case, whether the exclusion of Mrs. Green was on account of her race or color.

Here, too, we find ample evidence to go to the jury. Indeed the point put to the court by the defendants, concedes the sufficiency of the evidence, by requesting the court to charge the jury that the exclusion must have been because she was a colored woman, or because of race or color. No point was made and no error assigned as to the sufficiency of the evidence on this ground.

Green had tickets for himself and wife. They started to go into the rear car, where other passengers were entering. Two white ladies immediately in front of them entered, and as Mrs. Green stepped up, the brakeman pushed her back and pointed to the front car. She was in advance, her husband following. The brakeman did not ask them to show their tickets, and said nothing, except that she should not go into that car; told her to go to the next car. She then got on to the platform of the front car to step on to that of the rear, and the brakeman put up the chain. The husband took it down and tried to get his wife on. The brakeman locked the door. While the controversy was going on two white ladies came and were let into the rear car. One of these passengers lived at Parsons, the same place where the Greens lived, and got off there. Shortly afterwards, Judge Handley and other white persons were permitted to enter the rear car. These facts were fully corroborated by James Thomas, Mrs. Thomas and Miss Thomas, all white. Now, in the absence of all other reason than their color, and in view of the permission to white persons to enter, and the very determined and effectual means used by the brakeman to prevent entrance, what other probable inference could be drawn than that it was because of their color they were prevented. The only ground set up was that Green was smoking. But this was fairly submitted to the jury as a sufficient ground to exclude Green himself, and found against the defendants. The verdict of the jury and perhaps the weight of the evidence is against this excuse, so that it was clearly a question for the jury, what was the cause of exclusion. The evidence is clear that these persons were respectable, decent persons, and it is scarcely possible to conceive of any ground of exclusion on the evidence except their color, the smoking being negatived.

' We perceive no error in the record, and therefore the judgment is affirmed.

filed the following concurring opinion:—

While I concur in the judgment in this case I do not agree to that portion of the opinion in which it is asserted that there was ample evidence to go' to the jury of the exclusion of Mrs. Green *426from the car on account of color. The sufficiency of the evidence upon this point was really not before us, as no such question was made in the court below. Its discussion here might well have been omitted,

The Act of 22d March 1867, Pamph. L. 88, should receive a a reasonable construction. It was manifestly intended to prevent railroad companies making distinctions between passengers on account of race or color. In other words, to secure to colored persons the same rights in travelling as are enjoyed by others. All fair-minded people must concede that this is entirely proper. But I do not think it was intended by said act to give them superior privileges, or to so interfere with the reasonable police arrangement of railroad companies in operating their road and moving their cars as to enable a colored man to force himself into a car where, by reason of such police regulations, a white man may not enter. An ordinary traveller takes his seat in such car as may be pointed out to him by those in charge of the train. In doing so he recognises the undoubted right -of the company to designate the car which he shall enter. He has a right to a seat, but not to a seat in any particular car. There are sufficient reasons why this should be so. Trains are often made up of way cars and through cars. Sometimes there are one or more cars attached occupied by private parties, excursions, &ci Of necessity those in charge of the train must have the right to assign a particular car to the passenger when he gets on the train. Nor do I think they are obliged to give any reason for- the selection, otherwise needless discussions might arise in seating the passengers to the delay of the train and the annoyance of all reasonably disposed travellers. I am unable to see that the mere fact of Mrs. Green’s exclusion from a particular car was evidence that such exclusion was on account of race or color. She was directed to enter a car in which white persons were seated, and which was the -equal in every respect of the car from which she was excluded. One was a New York car and the other was a Philadelphia car. There was no other point of difference. Had she been forced to enter a smoking car, or a car set apart for colored persons, there, would have been a clear violation of the Act of 1867, and this verdict would have.been entirely proper. As no such indignity was offered her, I am of opinion that the case is wholly devoid of evidence to show her exclusion on account of race or color. As, however, this point was not raised, the judgment must be affirmed. I refer to it merely to avoid the appearance of concurring in views which I regard as not only unsound, but as unnecessary to the decision of the case.