This is an action by appellee to recover damages for an assault and battery committed upon him by the servants of appellant.
The sufficiency of the complaint was tested by demurrer, and it is here claimed that this demurrer should have been sustained.
The complaint alleges, among other things,- that appellant is a duly organized union railway corporation, owning and controlling the depot and station at Indianapolis, where the various railroads receive and discharge their passengers, together with the tracks upon which the trains enter the same; that appellant, by its servants, assumed and exercised the control and management of said station, and the ticket offices therein, and of the gates and ways leading to the trains; “that under the rules and usages of the defendant (appellant) i't is, and at all such times has been, the duty and practice of the £ gatemen ’ in said depot to stand at the gateivays through which passengers must pass in going from such waiting room to the cars upon said tracks, and there to inspect the tickets of parties passing through said gateways to such ears, and to prevent persons not supplied with tickets — and all others who, for any reason ought not to do so — from passing through said gates, and to inform passengers upon what part of said tracks their respective trains are standing, and to keep the passageways through and near said gates free from unnecessary •crowds of people, or other obstructions that might-hinder
Counsel for appellant insist that, under these allegations, it does not appear that the gateman was acting within the scope of his employment, but that it is apparent that he had left his master’s work and engaged in an independent warfare of his own.
It seems to us reasonably clear, from the allegations of the complaint, that the servant was, at the time of doing the acts complained of, on duty for his master, and at or near his proper place, and that the assault was committed upon appellee while he was properly on the master’s, grounds and under the charge of the master’s servants, and entitled to their protection rather than their abuse.
It was within the general scope of the gateman’s duty to lay hands upon and use force if necessary, in proper cases,
Moreover, the appellee did not bear the relation of a stranger to the appellant, but, on the contrary, it owed to him an affirmative duty to protect him from the violence and insults of its own servants at the station.
It is well settled that one who has purchased his ticket, and is passing at the proper time from the depot to the train, is a passenger, and entitled to the rights of a passenger. Cooley on Torts,*644; Warren v. Fitchburg R. R. Co.,
It is clear that this Union Railway Company had assumed to carry out a portion of the obligations owed by the railroad companies whose lines ran into Indianapolis to the traveling public, and this being true, this company assumed, also, toward the passengers the same liability within the sphere of its operations as rested upon the railroad companies from whose shoulders it took the burden.
One of the prime duties resting upon a railroad company is to protect its passengers from assaults and injuries by its servants, nor does the question of its liability for a breach of this duty depend upon whether or not the servant, in the performance of the act, is within the scope of his employment. 2 "Wood on Railway Law, section 315; Craker v. Chicago, etc., R. W. Co.,
Erom an examination of this case, it is plain that the rule asserted by counsel, and which is laid down in Smith v. Louisville, etc., R. R. Co.,
We arc of opinion, therefore, that the complaint was sufficient.
It is also argued that, under the complaint, the appellee could only recover by proof of the attack made before he had entered or passed the g’ate, and this question is raised on the instructions. We can not concur in this view. The precise point at which the attack took place, whether immediately before or immediately after passing through the gate, or while in the act of passing through was wholly immaterial. The gist of the action was the unlawful attack upon appellee within appellant’s depot and station, and by its servants. We do not see how there can be any doubt about this judgment being a bar to any further suit arising out of this transaction. Thez’e is nothing to indicate more than the one occurrence. Were an amendment necessary upon such a point as this, the court would consider it as having been made. Louisville, etc., R. W. Co. v. Overman,
The cases cited by appellant upon this point, City of Huntington v. Mendenhall,
The instruction given was not erroneous, nor was there any error in the refusal to give tlie instruction asked.
The judgment is affirmed, with costs.