St. Louis Southwestern Ry. Co. v. Wainwright jury in finding that the plaintiff intended to take passage upon the defendant's train and presented himself in proper place, at the proper time, and in a proper manner to do so; that he was impliedly invited to enter the train as a passenger, and was impliedly assured that he would have a reasonable time in which to do so after those who were debarking had alighted; that he was acting upon this invitation and assurance and was proceeding with reasonable prudence and promptness when the train was started; that the defendant was negligent in the respects charged, and that its negligence was the proximate and sole cause of the plaintiff's injuries. And as, upon such a state of facts, he would plainly be entitled to recover, in like manner as if he had been expressly accepted as a passenger, the request for a directed verdict was rightly denied. Hutchinson on Carriers (3d Ed.) §§ 1005, 1111; 4 Elliott on Railroads, § 1628; 5 Am. and Eng. Enc. (2d Ed.) 488, 576; 6 Cyc. 538, 612; Cohen v. West Chicago St. Ry. Co., 9 C. C. A. 223, 60 Fed. 698; Texas & Pacific Ry. Co. v. Gardner, 52 C. C. A. 142, 114 Fed. 186; Washington, etc., Co. v. Patterson, 9 App. D. C. 423; Smith v. St. Paul City Ry. Co., 32 Minn. 1, 18 N. W. 827, 50 Am. Rep. 550; Curtis v. Detroit & Milwaukee R. R. Co., 27 Wis. 158, 168; Webster v. Fitchburg R. R. Co., 161 Mass. 298, 37 N. E. 165, 24 L. R. A. 521; Cleveland, etc., Co. v. Wade, 18 Ind. App. 346, 48 N. E. 12; Western & A. Ry. Co. v. Voils, 98 Ga. 446, 26 S. E. 483, 35 L. R. A. 655; St. Louis Southwestern Ry. Co. v. Cannon (Tex. Civ. App.), 81 S. W. 778; Hatch v. Ry. Co., 212 Pa. 29, 61 Atl. 480. Complaint is also made of the denial of a motion for a new trial, but it has long been settled that in the federal courts such a motion is addressed to the sound discretion of the court, and that the ruling thereon cannot be assigned as error. Southern Pacific Ry. Co. v. Maloney, 69 C. C. A. £3, 136 Fed. 171; City of Manning v. German Ins. Co., 46 C. C. A. 144, 107 Fed. 52; Van Stone v. Stilwell & Bierce Mfg. Co., 142 U. S. 128, 12 Sup. Ct. 181, 35 L. Ed. 961; Newcomb v. Wood, 97 U. S. 581, 24 L. Ed. 1085. No error being disclosed by the record, the judgment is affirmed. WALLACE V. BALTIMORE & O. R. Co. (Supreme Court of Pennsylvania, Jan. 7, 1907.) [65 Atl. Rep. 665.] Carriers-Lien for Demurrage.*-A railroad company has no lien for demurrage on property transported over its road. Injunction Remedy at Law.-A bill for injunction against a railroad company for refusal to deliver three cars loaded with freight belonging to plaintiffs, which the railroad company claimed to hold for demurrage charges, will not lie as plaintiff has an adequate remedy at law either in replevin or trespass. Bill by F. W. Wallace and M. L. Wallace against the Baltimore & Ohio Railroad Company. Decree for plaintiffs, and defendant appeals. Reversed. The court entered the following decree: "That the said defendants be, and they hereby are, severally perpetually enjoined and restrained from refusing, neglecting, or delaying to deliver to the plaintiffs the cars of lumber and freight consigned to the said plaintiffs upon the siding mentioned in the plaintiff's bill of complaint, upon payment or tender of the freight charges due on said cars, and that defendants be and they hereby are, severally specially required, ordered and directed to deliver to the plaintiffs, upon their siding mentioned in the bill of complaint, all cars of freight consigned to the plaintiffs, and now or hereafter to come into the possession or control of the defendant company, upon payment or tender of the freight charges thereon." . Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. Wylie McCaslin, and Arrel, Wilson & Harrington, for appellant. J. Norman Martin, for appellee. BROWN, J. The appellees are lumber dealers in the city of New Castle. They own a railroad siding or switch connected with the Baltimore & Ohio Company's line of railroad, on which that company has for many years been delivering to them car loads of lumber consigned to them. On September 11, 1904, the company sent an engine to the siding and took possession of three cars standing on it, loaded or partly loaded with lumber belonging to the appellees, and which had been delivered to them by the company on the said siding. These cars were taken away from the siding by the railroad company because the appellees had refused to pay demurrage charged for their alleged unreasonable detention. The claim of the company was that it had a lien for such demurrage. This bill was filed asking for an injunction *See extensive note, 22 R. R. R. 247, 45 Am. & Eng. R. Cas., N. S., Wallace v. Baltimore & O. R. Co to restrain the railroad company from refusing, neglecting, or delaying to deliver cars of lumber and freight consigned to the appellees upon the siding upon their payment or tender of the freight due, and that it be required to deliver to them, upon payment or tender of the freight charges, all cars or freight consigned to them which were then in or might come into its possession. In its answer the appellant denied the allegation in the seventh paragraph of the bill, which was that the appellees had other cars consigned to them which were held by the company in its yards and sidings, and that other car loads of lumber had been crdered. and purchased by them and would soon arrive in the yards of the defendant company, which was refusing, and continued to refuse, to deliver upon their siding car loads of lumber and freight consigned to them. The appellant had no lien upon the cars taken from the siding for demurrage (Nicolette Lumber Co. v. People's Coal Co., 213 Pa. 379, 62 Atl. 1060, 3 L. R. A. (N. S.) 327, 110 Am. St. Rep. 550), and it had, therefore, no right to refuse to allow the appellees to unload the cars because demurrage was not paid. There is nothing in the case to show that such lien existed in favor of the appellant. The only cars which the company refused to deliver to the appellees were the three taken from the siding. M. L. Wallace, one of the appellees, admits in his testimony that he had not demanded delivery of any other cars, and that the company had not refused to deliver them. In the court's findings of fact it does not appear that the company had refused, upon demand, to deliver to the plaintiffs any other cars than these three. The case as presented below was, therefore, not that of common carrier refusing to perform its duty generally to the appellees, resulting in irreparable injury to them in their business, but simply a refusal to deliver to them on their siding three particular car loads of lumber. For the refusal of the company to deliver these there was an adequate remedy at law, either in trespass or replevin, and the proceeding ought to have been on the commonlaw side of the court. If the appellees had shown persistent refusal on the part of the appellant to perform its constant duty to them, a different situation would be presented, and equity would furnish the only adequate relief, but it will not interfere when all the complainants are able to show is a refusal to deliver specific articles, for the refusal to deliver which there is compensation in damages. For this reason the twelfth assignment of error is sustained. The decree of the court below is reversed, and it is now ordered, adjudged, and decreed that the plaintiff's bill be dismissed, with costs to the appellant. CHILES 7. CHESAPEAKE & O. RY. Co. et al. (Court of Appeals of Kentucky, April 16, 1907.) Civil Rights Carriage of Passengers-Rules of Carrier-Separate Apartment for Colored Passengers.*-A railroad company may, independent of statute, adopt and enforce rules and regulations requiring colored passengers, although they may be interstate passengers, to occupy compartments in coaches separate from those occupied by white passengers, if they are substantially equal in quality and accommodations to those furnished white passengers having similar tickets. Appeal from Circuit Court, Fayette County. "To be officially reported." Action by J. Alexander Chiles against the Chesapeake & Ohio Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed. C. J. Bronston, Allen & Duncan, B. F. Smith, and J. A. Chiles, for appellant. Geo. T. Shelby, for appellee. CARROLL, C. Appellant, a negro, bought a first-class ticket over the appellee's line of railway from Washington, District of Columbia, to Lexington, Ky. At Ashland, Ky., on the line of railway between Washington and Lexington, all passengers for Lexington, except those occupying sleeping cars, are required to leave the train on which they come from vashington and get on a train that leaves Ashland for Lexington. When the Washington train, upon which appellant was a passenger, arrived at Ashland, in company with the other passengers in the day car in which he was riding, he got out for the purpose of getting on the Lexington train. This Lexington train is made up of four coaches, the first, and the one nearest the engine, being a combined baggage, mail, and express car. The second is a passengar coach, divided by board partitions, into three compartments. One of these compartments located in the end of the car is set apart for colored passengers, the middle compartment is for the use of colored passengers who smoke, and the end compartment is for the accommodation of white persons who smoke. The third car is a passenger coach intended for the use of white ladies and gentlemen. The fourth car is a sleeping car that runs through from Washington to Lexington. Appellant, when he attemped to get on the Lexington train, was told by the brakeman to go in the colored apartment. This he declined to do, and walked in and took a seat in the third coach set apart for the exclusive use of white passengers. In a few moments the conductor came in and asked the appellant in obedience *See extensive note, 4 R. R. R. 490, 27 Am. & Eng. R. Cas., N. S., Chiles v. Chesapeake & O. Ry. Co to a rule of the company to go forward in the apartment set apart for colored passengers, but he refused to do so, stating that he had bought a through first-class ticket from Washington to Lexington, and was an interstate passenger who knew his rights, and that the separate coach law of Kentucky did not apply to him, and declared his intention of retaining the seat he occupied. Thereupon the conductor summoned a policeman, who also requested appellant to go in the other car, and, upon his refusal, he was informed that he would be compelled to leave the car in which he was seated. Appellant, yet insisting upon his right to remain in the car in which he was, followed the policeman into the colored passenger coach. Afterwards he brought this action against the company for damages, alleging in his petition that he had purchased in Washington a first-class ticket for transportation to Lexington, Ky., and that he was forcibly and wrongfully ejected from the firstclass car in which he was seated, thereby subjecting him to great mortification and humiliation, to his damage in the sum of $10,000. In its answer appellee set up that the car from which appellant was required to remove at Ashland was one set apart under its rules and regulations exclusively for the transportation of white passengers, and the car into which he was compelled to go was under its rules and regulations set apart exclusively for the accommodation and transportation of colored persons; that it was a first-class car, equal in quality, convenience, and accommodation to the car appellant was directed to remove from. A reply was filed, controverting the affirmative matter in the answer, and upon a trial before a properly instructed jury a verdict was returned for appellee. There is really no material issue of fact involved in the case. No force or violence, or rude or oppressive conduct, was employed by the agents of appellee in removing appellant from the car in which he was seated to the car set apart for colored persons; and, except that the car into which he was removed is divided by partitions into three compartments, it was substantially equal in quality, convenience, and accommodation to the car in which he first seated himself, and the compartment into which appellant was directed to go was clean and ample for his accommodation, and equipped with the same conveniences as the other passenger coach on the train from which he was ejected. It is admitted that sections 795-801 of the Kentucky Statutes, requiring all railroad companies to furnish separate coaches for transportation of white and colored passengers, and imposing upon the company and conductors a penalty for refusing or failing to carry out the provisions of the law, does not apply to appellant, who was an interstate passenger; it being conceded that the statute is only operative within the territorial limits of this state, and effective as to passengers who travel from one point within the state to another place within its border. The question presented for our consideration is: Has a common carrier, such as a railroad company, the right, independant of the statute, to establish reasonable rules and regulations for the transportation of passengers, and to |