was permitted to fairly present her case to the jury, under instructions which could not have been misunderstood, the failure of the jury to accept her theory of how the injury occurred furnishes no ground for a reversal.

A. E. RICHARDS for appellant.

FAIRLEIGH, STRAUS & FAIRLEIGH, ALFRED SELLIGMAN and HOWARD B. LEE for appellee.

OPINION OF THE COURT BY JUDGE LASSING-Affirming.

In attempting to alight from one of appellee's cars in the city of Louisville, appellant fell or was thrown to the ground and severely injured. She instituted a suit against the appellee to recover damages for her injuries on the ground that they resulted from the gross carelessness and negligence of the conductor in shoving her from the car. The company denied liability, and upon the issues thus formed the case was submitted to a jury, which returned a verdict in favor of the company. Conceiving that the trial court erred in the admission of evidence and in instructing the jury, she prays an appeal and asks that the judgment be reversed.

Two witnesses testified as to the negligence, the plaintiff and the conductor. She testified, that when the car came to a stop she arose from her seat and proceeded to leave the car. As she stepped from the car to the platform and from the platform to the first step, the conductor did not touch or offer to assist her. But as she she was in the act of leaving the car, he took hold of her left arm and turned or shoved her so that she fell to the street and was considerably bruised and injured thereby. The conductor testified, that when the car came to a stop, appellant got off unassisted by him, and that as she stepped to the ground she fell; that he did not touch her in any way after she had passed out of the car. Other witnesses testified to seeing her after she fell, but as to what caused her to fall she and the conductor were the only witnesses.

The court gave to the jury but two instructions, one defining the measure of damages, and the following:

"If you believe from the evidence in this case that the conductor on the car in regard to which you have heard the testimony, took hold of the plaintiff, Henrietta Bullitt, and caused her to fall from the car, the law of the case is for the plaintiff, and you should so find. But un

less you believe from the evidence in this case that the conductor took hold of her and caused her to fall from the car, the law of the case is for the defendant, and you should so find."

This was the issue as made by the pleadings and the evidence. In plain and simple language the court thus submitted to the jury the single issue in the case. If the jury had accepted appellant's statement as true, it could not have escaped returning a verdict in her favor. Evidently they did not believe that the conductor took hold of her and caused her to fall; hence the verdict in favor of the company.

When appellant signalled the car to stop in order that she might alight, the only duty that the company owed to ber was to stop the car and have it remain stationary until she had safely stepped therefrom. In Illinois Central R. R. Co. v. Cruse, 123 Ky., 462, it was held that a carrier does not owe to a passenenger the duty to render him personal service or attention in alighting from the car.

The error in the admission of evidence complained of was the refusal of the court to permit the conductor to answer the following question propounded to him on cross-examination: "Didn't she say to you then and there that you had better learn how to let ladies off the car?" The avowal is, as follows: "Plaintiff avows that the witness, if permitted to answer the question would state, and it is true, that she said to him right there that he had better learn how to take care of ladies getting off of the car, and complained of the way in which he had shoved her off." It is insisted that, as this statement was made to the conductor by the appellant before he had arisen or been helped from the street, his answer thereto must be treated as a part of the res gestae, and would have, in this respect, strengthened her testimony to the effect that he had shoved or thrown her from the car.

There might be some force in this contention if the answer in the avowal were responsive to the question. The conductor was not asked if she did not say to him that he had shoved her off the car. That answer would not have been responsive to the question. It is possible that this question was preliminary and had the court permitted it to be answered the further question, bringing out and developing the answer in the avowal, might have been asked. But inasmuch as no question was asked to which the avowal could have been responsive, appellant

is in no position to complain because the court refused to permit the question to be answered. In fact, if it had heen answered in the form in which it was asked, it would have thrown no light upon the issue involved, for whether or not the conductor knew how to let ladies off of the car could not have aided the jury in determining whether or not he threw or shoved this one off.

We find no error in the record prejudicial to appellants substantial rights. She was permitted to fairly present her case to the jury, under instructions which could not have been misunderstood; and the failure of the jury to accept her theory of how the injury occurred furnishes no ground for reversal.

Judgment affirmed.

Mullins, By, et al. v. Belcher.

(Decided March 9, 1911.)

Appeal from Pike Circuit Court.

Schools-Colored Children-Constitutional Provision.-Under section 187 of the Constitution of Kentucky providing for the maintenance of separate schools for white and colored children the words "colored children" include all children wholly or in part of Negro blood, or having any appreciable mixture thereof. Children who are of Negro blood to the extent of one-sixteenth are therefore colored children and not entitled to attend schools maintained for white children.

J. E. CHILDERS and A. F. CHILDERS for appellant.

ROSCOE VANOVER for appellee.

OPINION OF THE COURT BY WM. ROGERS CLAY, COMMISSIONER-Affirming.

Troy Mullins and Loucreta Mullins are infants be¡ween the years of six and twenty. They reside in Comnon School District No. 28 in Pike county, Kentucky. Appellee Edmond Belcher is the trustee of that school district. He notified appellants that they could not attend said school. Appellants, suing their guardian and next friend, Miles Ratliff, brought this action against appellee Edmond Belcher to enjoin him from interfering or in anywise preventing their at

Vol. 142-22.

tending said school. Appellee defended on the ground that the appellants were colored children, and, therefore, not entitled to attend the school in question, which was maintained and conducted exclusively for the education of white children. The affirmative allegations of the answer were denied by reply. Proof was then taken and the case submitted. The trial judge made a separate finding of the law and the facts. He found that appellants had one-sixteenth negro blood, and concluded, as a matter of law, that they were "colored children," and, therefore, not entitled to attend the school in question, and entered judgment accordingly. From that judgment this appeal is prosecuted.

Section 187 of the Kentucky Constitution is as follows:

"In distributing the school fund no distinction shall be made on account of race or color, and separate schools for white and colored children shall be maintained."

The question before us is: Who are "colored children" within the meaning of the above section?

While it may be doubted if appellants' proportion of negro blood is as small as one-sixteenth, it is not contended that it is less. We shall, therefore, consider the case from this standpoint; that is, that their proportion of negro blood is one-sixteenth.

For appellants it is insisted that, in order to constitute a person a "colored person," he must not only have an appreciable admixture of negro blood, but must also show the racial characteristics of the negro. In this connection it is insisted that appellants are as fair as memhers of the white race, and there is nothing in their personal appearance to indicate the presence of negro blood. In our opinion, however, the question does not depend upon personal appearance. The color of the person may be one means of indicating the class to which he belongs, but the question in its final analysis depends upon whether or not the person has, or has not, an appreciable admixture of negro blood.

In the case of Enos Van Camp v. The Board of Education of the Incorporated Village of Logan (decided in 1859), 9 Ohio St., 406, the Supreme Court of Ohio, in discussing the question arising under a statute of that State providing for separate schools for white and colored chil dren, used the following language:

"Our standard philologist, Webster, defines 'colored people' to be 'black people-Africans or their descend

ants, mixed or unmixed.' Such is also the common understanding of the term. A person who has any perceptible admixture of African blood is generally called a colored person. In affixing the epithet 'colored,' we do not ordinarily stop to estimate the precise shade, whether light or dark, though where precision is desired, they are sometimes called 'light colored,' or 'dark colored,' as the case may be. If we look at the evils the law was intended to remedy, we shall arrive at the same result. One of the evils undoubtedly was the repugnance felt by many of the white youths and their parents to mingling, socially and on equal terms, with those who had any perceptible admixture of African blood. This feeling or prejudice, if it be one, had been fostered by long years of hostile legislation and social exclusion. The general assembly, legislating for the people as they were, rather than as, perhaps, they ought to have been, while providing for the education and consequent ultimate elevation of a long-degraded class, yielded for the time to a deep-seated prejudice, which could not be eradicated suddenly, if at all. Such an arrangement, in the present state of public feeling, is far better for both parties-for the colored youth as well as those entirely white. If those a shade more white than black were to be forced upon the white youth against their consent, the whole policy of the law would be defeated. The prejudice and antagonism of the whites would be aroused, bickerings and contentions become the order of the day, and the moral and mental improvement of both classes retarded. It would seem, then, from this examination of the law of 1853, and the circumstances under which it was passed, that the words 'white' and 'colored,' as used in that act, were both used in the ordinary and common acceptation, and that any other construction would be violence to the legislative intent, and perpetrate the very evils that act was intended to remedy."

In the recent case of State v. Treadway, et al., 52 Sou. Rep., 500, the Supreme Court of Louisiana, speaking through Mr. Justice Provosty, said:

"There is a word in the English language which does express the meaning of a person of mixed negro and other blood, which has been coined for the very purpose of expressing that meaning, and because the word negro was known not to express it, and the need of a word to express it made itself imperatively felt. That word is the