Page:Federal Reporter, 1st Series, Volume 7.djvu/68

56 FBDBBAL BEPOBTEB. �based on color was, therefore, not passed upon by the court Vide 4 FED, Eep. 37, 38. �Hammond, D. J. This case is again before me on a motion for a new trial, and I have been aided by lengthy oral argu- ments, and an elaborate printed brief for defendant of unu- sual eamestness and exhaustive research. It is conceded by the learned counsel for defendant that "in all cases of exclusion for any reason we have not found a single case of a woman, but that on account of color, in Railroad Co. v. Williams, 55 m. 185, and Railroad Co. v. Miles, 55 Pa. St. 209," to which may be added Railroad Co. v. Brown, 17 Wall. 445, and other cases not necessary to cite. This statement accords with my own researches, for when this case was before me on demurrer I endeavored diligently to discover if the defence set up in the special plea in this case had ever before been made. The reason is plain. Thieves, rioters, gamblers, drunkards, or otherwise disorderly persons are not generally women, nor while traveling do women often misbehave, our own sex being substantially monopolists of these vices ,* nor are they generally engaged in any calling which can be used to the detriment of the carrier's business, by using his means of transportation to solicit patronage for a rival line, as in Jeudis V. Coleman, 2 Sumn. 221, the leading case on this sub- ject ; and it is for this reason that carriers, acting upon the notions of chivalry that, with all its vices, characterize our sex, seek to protect women from the rude conduct of the dis- orderly by providing for them a special "ladies' car, " in which, while traveling alone, they may be somewhat secluded. And, in my judgment, this case of Jencks v. Coleman bas been often misapplied, as it bas been in argument here, during which its language was repeatedly quoted with constant reiteration of emphasis. In delivering his opinion in the case, Mr. Jus- tice Story uses language which, interpreted in the light of the facts he was considering, and of the facts of subsequent cases that have followed it properly in judgment, contains the enunciation of a principle that has become established law. But when he speaks of the character and conduct of paasen- gers ^'who are guilty of grosa and vulgar habits of conduct, or ��� �