through the station door. It was held that the company was liable. Walker v. South Eastern R. Co., 39 L. J. C. P. 346. It has been held that carriers are bound to protect their passengers against "obscene conduct, lascivious behavior, and every unmodest and libidinous approach." Nieto v. Clark, I Cliff. C. C. 145. See also Chamberlain v. Chandler, 3 Mason, C. C. 242. A verdict of $1000 against a railroad for the act of the conductor of a passenger train in kissing a young lady, a passenger, without her consent, has been upheld. Croaker v. Chicago & N. W. R. Co., 36 Wis. 657; s. c., 17 Am. Rep. 504.

Conflicting Cases. It would seem that in the cases in which it has been held that the carrier was not liable for injuries wantonly inflicted by servants engaged in transporting passengers, the rule as to the carrier's responsibility as above stated has been overlooked or neglected. See Wood on Mast. & Serv. p. 652. In this category must be included the case of Isaacs v. Third Avenue R. Co., 47 N.Y. 122; s. c., 7 Am. Rep. 418, which was an action to recover damages for the act of a street car conductor in pushing a female passenger from a street car upon her refusal to alight until the car had properly stopped. It would seem, too, that under the rule stated, the carrier would be bound to protect a passenger from, and be liable in damages for, an assault committed upon him with a hatchet by the baggage master of a railroad, and yet it has been held that, as the assault had not been committed in the course of the baggage-master's employment, the company was not liable. Little Miami R. Co. v. Wetmore, 19 Ohio St. 110. It has likewise been held that the company was not liable for the wrongful and unauthorized arrest of a passenger by a station master. Poulton v. London & S. W. R. Co., L. R. 2 Q. B. 534.

See, Generally, as to Assaults upon Passengers by Servants, Williams v. Pullman P. Car Co., 33 Am. & Eng. R. R. Cas. 407; Spohn v. Missouri Pac. R. Co., and note, 26 Ib. 252, 256.

SACHROWITZ

V.

ATCHISON, TOPEKA AND SANTA FÉ R. Co.

(Kansas Supreme Court.)

Passenger-Assault by Stranger-Liability of Company. In an action against a railroad company it appeared that plaintiff, while standing upon the platform of one of the cars of a train, which he was about to enter as a passenger, was knocked off and robbed, just as the train started, by a person holding a lantern in one hand and a club in the other. It did not appear that the person committing the assault and robbery was an employee of the railroad company, otherwise than that he carried a lantern with letters on it, and wore a cap with a badge upon it; or that the assault was made in ejecting, or attempting to eject, the plaintiff from the cars, by any one connected with the operation of the train, or having any charge of the depot, its grounds, or the road; but, on the contrary, that the alleged assault was wholly disconnected with any service in which any

employee of the railroad company was engaged. Held, that the railroad company operating the train was not responsible for the wrongful acts committed upon the plaintiff, under a petition charging that the plaintiff was assaulted and injured by the servants and employees operating and controlling a train of the company.

ERROR to District Court, Reno County.

The opinion states the case.

W. T. Buckner for plaintiff in error.

Geo. R. Peck, A. A. Hurd, and C. N. Sterry for defendant in

error.

Facts.

HORTON, C.J.-This action was brought by the plaintiff in error to recover damages for personal injuries which he alleges he sustained through the conduct of one of the servants or agents of the defendant in error. The defendant, in its answer, averred that the plaintiff sustained his injuries in attempting to climb upon a freight car while in motion, with the intention of riding on the car without paying any fare.

On the trial, the plaintiff gave evidence tending to show that he was a Hebrew, and had only being living in the United States some two years; that just previous to his injuries he had started to go from Pueblo to Kansas City, and had purchased a ticket to be transported from Pueblo to Kansas City over defendant's road; that he had a grip-sack containing his personal effects, which he shipped by express to Kansas City, not wishing to be bothered with it on the cars that when he had reached a point between Hutchinson and Burrton, the conductor put him off the train he was riding on because he had either lost the pasteboard given him by a former conductor, or that conductor had taken it up; that when he was put off the train he had about five dollars in money; that he walked on to Burrton, reaching there shortly after noon; that while at Burrton he met a young man with whom he could talk a little, as this young man could talk German; that he gave this young man a half dollar in exchange for a cigar-case, and then walked around with him until towards evening, when they went into a private house and got a meal; that after this he left the young man, and walked south of town some distance, and while he was there the regular passenger train going east passed through Burrton; that shortly after 10 o'clock he came back towards the depot, and, as he came, he saw the emigrant train standing there, and he then concluded to purchase a ticket to go to Newton upon it; that he thereafter attempted to cross over the cars to the platform and to the station, which was on the other side, but, as he got upon the platform of one of the cars,

the cars started, and he gave up his attempt to get to the depot; that, just as the cars started, a man having a lantern with letters upon it, and a cap with a badge on it, holding the lantern in one hand, and a club in the other, jumped upon the same platform, and struck the plaintiff with both the club and the lantern, or with one, on the head, knocking him senseless on the ground; that plaintiff never saw the man before; that he had no words with him at the time. The only thing said. by either preceding the blows was the words, "You God damned son of a bitch," uttered by the man who struck him; that plaintiff at the time could neither write, speak, nor understand English, and did not and does not know what the letters were which were on the lantern, or the badge on the man's cap; that he thought this man was a railroad man because he had a lantern with letters on it, and a cap with a badge on it; that was the only reason for saying or believing that he was a railroad man; that, after plaintiff had lain where he fell for two or three minutes, this same man came running towards him, and told him to get up, but plaintiff could not; that he seized the plaintiff, and, raising him up with one hand, went through his pockets with the other; that, as he did so, another man came running towards them, and, as this man came, the one who had hold of him dropped him and ran off towards the town, away from the direction in which the train was; that this other man coming up, an alarm was given, and the citizens came and carried him to Dr. McAtee's office, where Dr. McAtee and his brother dressed his arm and set the bones; that the next morning Dr. Smalt, who was in the employ of the defendant, came and examined the arm and the dressing, and stated that it was all right; that afterwards his arm had to be amputated because of the unskilful and negligent manner in which it was set.

The defendant gave evidence tending to show that between 10 and 11 o'clock on the night of June 26, 1882, a train called "emigrant train," consisting of engine, freight, and emigrant passenger cars, arrived at Burrton on its way east, and stopped there so that the engine could take water at the tank; that, as the rear of the train passed the depot, the conductor, hearing some one halloing as though he was hurt, caused the train to be stopped, and with the brakeman went to the spot where the noise proceeded from, and found two men, dressed and looking like tramps,-one of them was lying on the ground, apparently hurt and in pain, and the other was holding this man's head up and crying; that the one who was not hurt, upon inquiry as to what was the matter, stated, in substance, that he and the injured man, whom he called "Joe" and "Partner," had been beating their way from

Denver east, stealing rides when they could on the cars, and that they had been put off a train early that morning at Burrton, and that they had watched every opportunity to get upon this train, and started to climb up the side of one of the freight cars on the ladder after the train had started, and that the man who was hurt was clumsy and awkward about such business; that, as he reached the top, he fell and struck the ground, and severely hurt himself; that the conductor despatched the man who was not hurt in search of a doctor, and soon a doctor arrived with some of the citizens of the town, and the man was carried to the doctor's office, where it was found that his arm was broken badly; that after a while this arm was set, and the plaintiff was left in the doctor's office that night, in care of the man who was with him; that afterwards it was ascertained the arm had not been properly set, and that amputation was necessary in order to save the plaintiff's life, and therefore his arm was amputated; that when the plaintiff was taken to the doctor's office, the city marshal, who was present, searched his pockets for such valuables as he might have, for the purpose of keeping them for him, but discovered nothing except a loaded revolver.

The case was submitted to the court with a jury, and the jury returned a verdict in favor of the defendant. The court subsequently approved the verdict, and rendered judgment accordingly. The plaintiff, in his proceedings in error, alleges that the district court improperly received upon the trial the declarations of a person known as "Cooney," who claimed to be the "partner" of the plaintiff, as to the manner of his receiving his injuries. Exceptions were also taken to certain

instructions.

sustain the ac

A careful examination of the record convinces us that the court below could not have committed any error prejudicial to the rights of the plaintiff. After the plaintiff had produced all of his evidence, the defendant demurred thereto, and the court overruled the demurrer. Thereupon the defendant introduced the evidence heretofore Plaintiff's evi recited, tending to show that the plaintiff was acci- deuce does not dently injured while endeavoring to climb up the tion. side of a car in motion, with the intention of stealing a ride thereon. The plaintiff did not show, upon the trial, that the person whom he alleges knocked him down and robbed him was the servant or agent of the defendant; but even if we assume that because the man who assaulted him had a lantern in his hand with letters on it, and wore a cap with a badge, that therefore he was an employee of the defendant, it does not follow that he was acting in the course of his employment in making the assault. It is not claimed that 34 A. & E. R. Cas.-25

he was employed directly to make the assault. It does not appear that he had charge of the train, or of the car upon which the plaintiff was standing when he claims he was knocked off. The plaintiff testified that the person who struck and robbed him did not run towards the train after he had got his money, but ran the other way; that he went down town. The evidence of the plaintiff is insufficient in not showing that the person who assaulted him was in the employ of the defendant. Even if we concede he has shown that much, yet his evidence is fatally defective in not showing that the wrongful acts alleged, were done by the servant or agent of the defendant in the course or within the scope of his employment. Hudson v. Railway Co., 16 Kan. 470. This action was not brought against the defendant for its negligence in not protecting the plaintiff while a passenger on its train from the assault of some third party; and it nowhere appears in the evidence that he was thrown from the train by any person connected in any way with its opera

tion.

The evidence offered by the defendant, after the demurrer was overruled, did not supply the omissions in the plaintiff's case. Upon the evidence of the plaintiff, the trial court would have been justified in withdrawing the case from the consideration of the jury, and in deciding it in favor of the defendant. After all the evidence had been presented on both sides, the court would have been justified in instructing the jury to render a verdict for the defendant.

As there is no evidence in the record tending to show that the assault and robbery grew out of any service in which any employee of the defendant was engaged, or that was in the line of the duty of any employee of the defendant, but appears to have been clearly disconnected therefrom, the judgment rendered is the only one that the evidence will support. Under these circumstances, it is unnecessary to discuss the various alleged errors presented in the briefs of plaintiff. The judgment of the district court will be affirmed.

All the justices concurring.

Assaults by Fellow-passengers and Strangers. The carrier owes to the passenger the duty of protecting him from the violence and assaults of his fellow passengers or intruders, when, by the exercise of proper care, the act of violence might have been foreseen and prevented. Holly v Atlanta St. R. Co., 61 Ga. 215; s. c., 7 Rep. 460; New Orleans R. Co. v. Burke, 53 Miss. 200; Putnam v. Broadway & S. A. R. Co., 55 N. Y. 102; Britton v. Atlanta &C. R. Co., 88 N. C. 536; s. c., 18 Am. & Eng. R. R. Cas. 391; Pittsburgh R. Co. v. Pillow, 76 Pa. St. 510. It has been held that a passenger has a right of action for injuries received at the hands of a mob who, defving the order of the conductor, entered the cars at a wayside station and commenced an affray, which resulted in an injury to the passenger