The following is the statement of this case, together with their conclusions upon the evidence filed by the Court of Civil Appeals: *Page 20
"This is an action by the appellee, Steve Phillio, against the railroad company to recover damages for injuries sustained, arising from the following state of facts, which are as substantially alleged in his petition: Plaintiff and his wife went to the depot of the appellant's road, in the town of Calvert, for the purpose of procuring a ticket for his wife to the town of Marlin. She at the time was sick and in feeble condition. While waiting in the waiting room of the depot for the train, and after the ticket had been purchased and the baggage checked, the defendant permitted one Allen, who was alleged to be a strong, active, and robust white man, and being in a drunken and rowdy condition, sang vulgar and indecent songs, and used vulgar and indecent language in the presence of plaintiff and his wife, and being armed with a pocketknife open in his hand, made an unjustifiable assault upon the plaintiff and his wife, by which the plaintiff and his wife were greatly intimidated, causing them to become frightened, and Causing plaintiff's wife to become very nervous and sick. There are further allegations to the effect that the agent of the plaintiff at the depot at that time was present and witnessed the assault and wrongful conduct as alleged, inflicted upon the plaintiff and his wife by Allen, or was in a position to see the same, and that no steps were taken by the agent to prevent the assault or the wrongful conduct complained of.
"Upon trial of the case below, verdict and judgment were in favor of the plaintiff for the sum of $400.
"We find that the evidence in the record substantially sustains these averments, and the judgment and verdict below are supported by the evidence found in the record."
The Court of Civil Appeals found no error in the proceedings and affirmed the judgment of the trial court.
We are of the opinion that the conclusions of that court, in so far as they pertain to the rights of recovery by reason of the assault upon and insulting conduct towards the wife of the plaintiff are correct, but do not concur in the proposition that the evidence showed any right of action in the plaintiff on account of the outrage of Allen upon himself personally. The wife having entered the depot and a ticket having been procured for her, became a passenger of the defendant company, and the duty devolved upon the company's agent to protect her against assault and insulting conduct on the part of third persons, provided he knew of such misconduct or had reasonable grounds to anticipate it. As to the plaintiff the case is different. He went to the depot merely to assist his wife in taking the train and with no intention of becoming a passenger himself. He was there by the implied invitation of the company and was not a trespasser. The railway company owed him the duty which is owed by the owners of property to persons who enter upon it by their invitation and no more. That duty is to use ordinary care to see that the premises are kept in a reasonably safe condition, so that persons entering thereupon by invitation are not injured thereby. Hamilton v. Railway, 64 Tex. 251; Railway v. Best, 66 Tex. 116 [66 Tex. 116]. In the case *Page 21 of Railway v. Crunk, 119 Indiana, 542, the court say: "The defendant, in contracting to carry the passenger Naas in his sick and enfeebled condition, contracted an obligation which could only be carried out by Naas being carried upon the train and seated in the car. By thus contracting to carry Naas as a passenger, it took upon itself the obligation of allowing him assistants to place him upon the train and seat him in the car, and the compensation received by the defendant for conveying Naas from Mount Vernon to his destination included as well the right to have assistants place him in the car as the carrying him after being so placed in the car, and the defendant owed the same obligation to his assistants while necessarily entering and leaving the car with Naas as it owed to Naas himself." So far as we have been able to discover, this case, in so far as it holds that the railway company owed the same duty to the assistants which it owed to the passenger stands by itself; and unless there be a distinguishing feature in the fact that owing to the enfeebled condition of the passenger, which made it necessary for his friends to assist in boarding the train and securing a seat (which we doubt), it is in opposition to all the authorities upon the question.
Our conclusion is that since the plaintiff was not a passenger the defendant company did not owe him the duty of protection against the injurious actions of third persons, and that therefore he was not entitled to recover for the misconduct of Allen towards himself. Therefore the judgment of the District Court and that of the Court of Civil Appeals are reversed and the cause remanded.
Reversed and remanded.