This suit was for injuries from an' assault by a “news butcher” plying his trade on a train of the defendant company on which the plaintiff was a passenger. The plaintiff alleged and testified that while he was being cursed and assaulted, the conductor of the train came into the car where the assault was being committed, and, although seeing it, failed to protect him or to prevent the commission of the assault, and made no effort so to do. There was some slight evidence corroborating the plaintiff’s testimony. On the other hand the defendant company denied any knowledge of the assault or that it had any reason to anticipate that an assault was likely to be committed upon the plaintiff. The conductor of the train testified that he was not present when the plaintiff was assaulted, knew nothing of the assault until after it had been committed, and had no reason to apprehend the battery and the consequent injuries of the plaintiff. There was ample testimony to support the contentions of the defendant and to corroborate the evidence of the conductor. It was undisputed'that the “news butcher” who assaulted the plaintiff was not an employee of the defendant. It was not alleged by the plaintiff in his petition, nor shown by any evidence, that any employee of the defendant company other than the conductor was present at the alleged assault, or could have done anything to prevent it. In view of these facts it was prejudicial error to give the instructions referred to in the first headnote, and to fail to give the requested charge referred to in the second headnote.
There was no other error that required a new trial.
Judgment reversed.