The question .involved in this appeal seems to be, was the porter who committed the assault upon the plaintiff to be deemed a servant of the defendant? It is undoubtedly true that the defendant’s servants were bound to exercise due care, even though the plaintiff was not actually upon one of its cars, to protect the plaintiff from assault, but as the act complained of was not one to be forseen and *142Consequently could not be guarded against, there is no evidence of want of care in this respect, and the plaintiff must recover, if at all, upon the ground'that the assault was committed by one of the defendant’s servants while engaged in the business of the defendants. The case of Thorpe v. New York Central and Hudson River Railroad Company (76 N. Y., 402), is relied upon by the appellant’s counsel as establishing the proposition that the porter in the case at bar was, for all the purposes of this action, the servant of the defendants.
In the case of Thorpe the plaintiff was a passenger upon the defendant’s train. He entered the cars at Syracuse with the intention of riding in one of the ordinary cars to Auburn. He passed through the two ordinary cars attached to the train and finding no vacant seats passed into the drawing-room car and when called upon by the porter to pay the extra charge for a seat in that car, declined to pay the sum demanded for the reason that he could find no seat in the other cars. The porter attempted to eject the plaintiff from the car, and for this assault the action was brought and the court held that if the right of the plaintiff to maintain his action depends upon the existence of the conventional relation of master and servant between the defendant and the porter at the time of the transaction in question the action could not be maintained; that the porter was actually the servant of the proprietor of the drawing-room cars. But because of the peculiar relations existing between the’ drawing-room car company and the railroad company, the court was of the opinion that the persons in charge of the drawing-room car wei’e to be regarded and treated in respect of their dealings with the passengers as the servants of the defendants and that the defendants were responsible for their acts to the same extent as if they were directly employed by the company. The assault was committed in the case of Thorpe while the passenger was being transported pursuant to his contract with the railroad company, and it was to enforce a regulation of the company that the attempt was made to remove him.
In the case at bar, however, the porter' had performed all the duties which as a servant of the defendant he owed to the plaintiff. He had told him that the temporary train was going on. He had transported the plaintiff’s small luggage to the train, a duty which *143perhaps he was not legally required to perform, and had left the plaintiff and it was because of the plaintiff’s anxiety to secure sleeping accommodations, not transportation, that he pursued the porter, and it was solely and entirely in respect to that subject that the further circumstances between the plaintiff and the porter took place, which resulted in the assault.
The porter had returned to the plaintiff his passage ticket which he had taken up the evening before so that the plaintiff would not be disturbed during the night, and there was no controversy about that or about the transportation. The whole question was about something additional to that which the plaintiff’s passage ticket entitled him to receive and which the railroad company-had not agreed to furnish. It might be, true that, under the rule laid down in the case of Thorpe, if tne assault in question had been committed upon the plaintiff while upon the train, that the railroad company would haye been liable, although the dispute was about sleeping car accommodations, which, under the law of 1858, might legally be furnished by another party, but it would be .enlarging the rule that the porters on these cars are, constructively, the servants of the railroad company, to an unnecessary extent, to hold that when porters of these cars are in nowise engaged about the transportation of the passengers, and are not upon the tram by winch the passenger is to be transported, and have no connection therewith, the relation of master and servant exists, even constructively, between such porter and the railroad company.
In the case at bar, as has already been said, the porter was in nowise engaged in the business of the transportation of the plaintiff. The plaintiff had been transferred to another train with which the porter liad no connection. He had given up the passage ticket to the plaintiff, had transferred his small baggage to the other train, and had gone a considerable distance from the train followed or accompanied by the plaintiff without any invitation of his, the plaintiff following him for the purpose of securing sleeping accommodations upon the other side of the washout, with the. furnishing of which the defendant had nothing to do. If the defendant furnished transportation that was all it was required to do by its contract, and if in his anxiety to secure something beyond that, to which he may have-been entitled from somebody else, the plaintiff met with an *144obstruction from which he suffered damage, the defendant cannot be held liable,therefor.
A large number of cases have been cited by the appellant in respect to the duties and obligation of the carriers of passengers, but none of them elucidate the questions which arise upon this appeal.
We are of opinion, therefore, that whatever claims the plaintiff may have against the sleeping car company for the assault committed upon him, that none exist against the railroad company for the reasons above stated.
The judgment appealed from should be affirmed, with costs.
Daniels and Bartlett, JJ., concurred.Judgment affirmed, with costs.