If the defendant was the real cause of plaintiff's removal from its train, it should be held liable. If it was not, if in truth the real cause of her removal was a mistake on the part of officers of the law, then the defendant should not be made to pay for that mistake. The record satisfies me that her removal from the train was due to the acts of officers of the law involving a case of mistaken identity.
If there is one thing standing out in bold relief in the record before us it is the fact that the two women passengers removed from the train, the plaintiff and her sister, were the two very persons whose apprehension was sought under the Jane Doe and Jane Roe warrants as the supposed pickpockets. The fact that they were innocent; that the suspicions of the complaining witness and of the Albuquerque police officers were unfounded, was soon made manifest. These later developments, however, in no way weaken the obvious fact that prior thereto and because of a real or supposed similarity in description between the suspects and the real *Page 394 culprits, the arrest of the plaintiff and her sister as the guilty parties was actually sought and accomplished.
It is undisputed that it was the departure of plaintiff and her sister on the 11:30 P.M. El Paso train with tickets for El Paso and a then supposed similarity in general description as to ages, dress and race that prompted the hurried filing of a criminal complaint at Albuquerque before Justice of the Peace Gober near midnight (he being gotten out of bed to attend the matter), the issuance of Jane Doe warrants and the long distance call by the Albuquerque police to a peace officer at Belen.
The plaintiff herself introduced in evidence from the files of the Albuquerque Police Department the penciled description of Acting Night Chief Charlton, made at the time and telephoned to the officer at Belen, reading:
"No. 1, short and heavy set, 18 years old, stocky build, brown dress, no hat. No. 2, tall and slender, age 25."
In addition, they were described as young colored women with tickets for El Paso. The only two other colored passengers shown in the evidence to have been on the train were a colored man and his wife traveling to an unannounced destination. The plaintiff and her sister were the only two young colored women shown to be on the train with tickets for El Paso. They were traveling together and occupied the same seat. But all doubt upon the question whether the two persons arrested were the two whose apprehension mistakenly was sought under the Jane Doe warrants is removed by plaintiff's recital of Officer Charlton's statement to her upon his arrival at Belen. The plaintiff testified:
"He (officer Charlton) said two girls were wanted in Albuquerque for picking a man's pocket and they were supposed to have taken the El Paso train and they presumed we were the ones,and they had phoned to have us taken off the train at Belen." (Italics supplied.)
That Officer Charlton was not misquoted by the plaintiff appears from his own statement when cross-examined regarding his penciled descriptions made prior to the arrests and offered in evidence by plaintiff from the files of the Albuquerque Police Department as stated above. He testified:
"Q. What does that read there that you have just identified as your handwriting? A. No. 1, Short and heavy set, 18 years old, stocky build, brown dress, no hat. No. 2, Tall and slender, age 25.
"Q. Was that intended to be a description of those two ladies here, the plaintiff in this suit, and her sister, who were on the train and taken off the train at Belen? A. Yes, I presume it was. It was a long time ago and I don't recall, but I made that notation up there."
I am unable to agree with the statement in the prevailing opinion that the only similarity pointed out by the witnesses for the railway company "between the plaintiff and her sister, on the one hand, and the description of the pickpockets given by the *Page 395 police officer in his message, was that they were negroes." At the least they answered the description as to race, as stated in the prevailing opinion; there was no wide disparity in ages (the plaintiff being not yet 19 years of age, a recent graduate of high school, and the sister married and evidently somewhat older); and they were traveling together upon tickets to El Paso.
Another mistaken view of the facts appearing in the prevailing opinion relates to whether the conductor recognized the special agent as a peace officer, acting as such. The opinion says: "If the conductor had known that the special officer was a deputy sheriff, and was acting as such, his conduct, if as delineated, would have been exemplary." In using the expression, "deputy sheriff," it was not intended, of course, to assert that only this type of peace officer may supersede the conductor in authority over a passenger in making an arrest. If the conductor recognized him as an "officer of the law" seeking to make an arrest, whether a sheriff, his deputy, a police officer, a constable or a G-man, he is excused in offering no resistance and not to be condemned for participation no greater in degree than that here shown.
As a matter of fact, Officer Rickard was a deputy sheriff at the time. The plaintiff made formal admission of that fact in the record. The court so found. It thus is made clear that Officer Rickard was a deputy sheriff. It is equally apparent that he was recognized and regarded by the conductor at the time as an officer of the law. In addition, although the prevailing opinion does not rest upon a contrary view, the record is convincing that he was with the conductor inside the coach when, as found, the conductor asked plaintiff and her sister to leave the train.
Special agent Rickard was what is known as a special officer of the defendant company, and had a deputy sheriff's commission. He is referred to by the conductor in his testimony quoted in the prevailing opinion both as an "officer" and a "special officer." That his status as a mere employee of defendant company was insufficient to satisfy the conductor of his right to enter the train and remove a passenger is disclosed by the following from the conductor's testimony, to-wit:
"He was an officer of the railroad company and I knew him because he had his cap on that said `Station Agent,' or `Station Master,' but of course he had to show me some authority for going in there and removing a passenger. When he said, `I have a message here from the Albuquerque Police Department to take two colored women off your train with tickets for El Paso, and have you those women on your train?' then I said to him, `I have two colored passengers, women, on the train and they have tickets from Albuquerque to El Paso and return, and I will point out my passengers to you if you will come inside with me.' Which he did." *Page 396
If these facts alone can leave doubt on the question of recognition by the conductor of the special agent as an officer of the law, it is removed by the conductor's positive testimony: "I regarded him as an officer, police officer."
Incidentally, it may be said that the proof on the subject must have been deemed convincing, for plaintiff's counsel neither at the trial nor in this court has relied in support of the judgment upon any want of recognition by the conductor of special agent Rickard as an officer of the law, holding a deputy's commission.
Neither has there been any contention below or here that Deputy Sheriff Rickard was not aboard the train and at the least participating in the removal of plaintiff and her sister from the train. The plaintiff actually pleads this fact. In paragraph 7 of her complaint she alleges:
"* * * and said defendant's Conductor proceeded with plaintiff and her sister to the walk immediately outside the train at Belen, New Mexico, and placed the plaintiff and her sister in the custody of H.L. Richards, (Rickard) who was also an agent and employee of the defendant and who was on the train when theConductor ordered the plaintiff and her sister to leave thedefendant's train; that the said H.L. Richards also cooperatedwith the defendant's Conductor at the time the plaintiff and hersister were ordered by the said defendant's Conductor to departfrom said defendant's passenger train; * * *" (Italics supplied.)
In paragraph 8 of her complaint the plaintiff alleged:
"* * * said defendant's agent, H.L. Richards, and said defendant's ticket agent at Belen cooperated in all things withsaid defendant's conductor in the removal of plaintiff from saiddefendant's passenger train; * * *" (Italics supplied.)
In paragraph 10 of her complaint the plaintiff alleged:
"That after the removal of the plaintiff from said defendant's railway train by said defendant's conductor and in which removalthe said defendant's agent and employee, H.L. Richards, and said defendant's ticket agent at Belen cooperated with saiddefendant's railway conductor, the plaintiff was held in the custody of H.L. Richards, * * *" (Italics supplied.)
In paragraph 12 of the complaint she alleged:
"* * * said H.L. Richards, and the ticket agent of defendant at its station in Belen, New Mexico, caused the plaintiff to beremoved from said train * * *" (Italics supplied.)
That the trial court took plaintiff at her word, so often emphasized and reiterated in her pleading, as aforesaid, upon the question of Conductor Quinlan's part as merely co-operating with Officer Rickard in her removal from the train is rendered obvious both by comment and specific findings embraced in the trial court's opinion. The court stated and found: *Page 397
"It is clear from the evidence that neither special agent and deputy-sheriff Rickard or operator and ticket agent Mather were acting other than in their individual capacities in assisting a peace officer of a sister city. They were not acting at the time of receiving the information from Albuquerque and in their activities in moving towards securing the arrest of plaintiff, in the capacity of agents for defendant company; ticket agent Mather did nothing but receive the information and convey the same to special agent Rickard, and special agent Rickard was acting as a peace officer, at least up until the time that the parties were taken by him and the conductor Quinlan, from the train. And sothe Court would find that the special officer Rickard was notacting then for and on behalf of the defendant in the performanceof his duty, but simply as a local peace officer in making thearrest and in assisting in the ejectment of plaintiff.
"The Court would further find that conductor Quinlan was negligent in his duty in not protecting his passengers from this unlawful arrest and detention and especially was he negligent and at fault in assisting in ejecting plaintiff from the train of which he was in charge, and upon which plaintiff was entitled to ride, under the circumstances shown in the case." (Italics supplied.)
* * * * * * "So, the Court finds from the evidence that the conductor * * * made no effort to inquire of the plaintiff after he had assistedin ejecting her from the train * * * whether she was the party wanted * * *" (Italics supplied.)
In addition, the court adopted one of defendant's specially requested findings absolving defendant from all responsibility for Officer Rickard's acts, reading:
"That Mr. Rickard was acting and did act solely and only as a police officer, to-wit, that of Deputy Sheriff of Valencia County, and in no respect in his capacity as Special Officer or Agent of the defendant Railway Company."
The question then for decision is whether the conductor of a passenger train having aboard passengers whose apprehension is sought as suspects on a criminal charge, upon being informed by a known officer of the law that he has instructions from the police department of a sister city to remove and detain them, renders his superior liable if, accompanied by the officer, he points them out to him and requests them to leave the train. In other words, if the passengers following such request leave the train in the company of the officer, has there been an unlawful ejection by the conductor? I think not under the authorities to be cited and discussed.
The law requires no investigation by the conductor to determine if persons known to him to be officers of the law have a warrant for the arrest of a passenger, or to ascertain whether the charge upon which they are proceeding is one upon which an arrest can legally be made. 10 Am.Jur. 272, § 1463, "Carriers"; (5 R.C.L. 1193, § *Page 398 617); annotation, 15 A.L.R. 886, supplemented in 42 A.L.R. 168 and 43 A.L.R. 1035. Leading cases sustaining a conclusion of nonliability under the facts here shown are, Mayfield v. St. Louis, I.M. S.R. Co., 97 Ark. 24, 133 S.W. 168, 32 L.R.A., N.S., 525 and case note; Thompkins v. M.K. T. Ry. Co., 8 Cir., 211 F. 391, 52 L.R.A., N.S., 791, and case note; Bowden v. Atlantic Coast Line R. Co., 144 N.C. 28, 56 S.E. 558, 12 Ann.Cas. 783; Owens v. Wilmington W.R. Co., 126 N.C. 139,35 S.E. 259, 78 Am. St. Rep. 642; Brunswick Western R.R. Co. v. Ponder, 117 Ga. 63, 42 S.E. 430, 60 L.R.A. 713, 97 Am. St. Rep. 152; Burton v. New York Cent. H.R.R. Co., 147 A.D. 557,132 N YS. 628, affirmed without opinion, 210 N.Y. 567,104 N.E. 1127; Clark v. Norfolk W. Ry. Co., 84 W. Va. 526, 100 S.E. 480, 7 A.L.R. 117; Birmingham Ry., Light Power Co. v. Lipscomb,198 Ala. 653, 73 So. 962.
Perhaps the latest statement of the law on the subject by any text is that to be found in 10 Am.Jur. 272, § 1463, under the topic, "Carriers." It reads:
"A conductor is under no duty to make an investigation to ascertain if persons whom he knows to be officers of the law have a warrant for the arrest of a passenger, or to find out whether the charge on which they are proceeding is one for which an arrest can be legally made."
The editor of an extensive annotation of the subject, "Liability of carrier to passenger for assault by third person", appearing in 15 A.L.R. 868, states the law pertinent to the present discussion at page 885 of the annotation as follows:
"A conductor is not bound to make an investigation to ascertain if persons whom he knows to be officers of the law have a warrant for the arrest of a passenger, or to find out whether the charge on which they are proceeding is one for which an arrest can be legally made. Therefore, a carrier is not liable for an assault by an officer of the law in making an illegal arrest, unless its conductor knows of the illegality."
Expressions are to be found in some of the cases to the effect that if the conductor or other servant of the carrier actively participates in the wrongful arrest of a passenger, liability will attach. Few cases appear in which the principle of the exception has been applied. The leading examples are: Gillingham v. Ohio River R.R. Co., 35 W. Va. 588, 14 S.E. 243, 14 L.R.A. 793, 29 Am. St. Rep. 827 and Anania v. Norfolk Western Ry. Co.,77 W. Va. 105, 87 S.E. 167, L.R.A. 1916C, 439.
The distinction between those cases and the one before us is clearly brought out in a later decision by the same court, Clark v. Norfolk W. Ry. Co., supra, in which the facts are very similar to those in the case at bar. The court said (page 481):
"In the Gillingham Case the conductor of the train actually caused plaintiff's arrest for an offense committed in his presence, and which, by the exercise of proper diligence, he was bound to know plaintiff *Page 399 was innocent of. After sending for the officer to make the arrest, the conductor pointed out Gillingham to him as the guilty person; whereas the guilty party was shown to be another passenger occupying the seat behind him. The assault for which the arrest was made was committed on the conductor, and he pointed out to the officer the wrong man as the one who had committed it.
"In the Anania Case, the officer, who happened to be on the train at the time, arrested Anania and some other passengers for disorderly conduct, which occurred in the presence of the conductor and the officer. Anania had been guilty of no misconduct. The opinion in that case states that the conductor knew, or if reasonably diligent ought to have known, that fact. It was clearly the duty of the conductor in that instance to have protested, at least, against Anania's arrest.
"But here the facts are quite different. It is a fact, proven and not disputed, that the conductor and brakeman in charge of the train all knew that the men who forced plaintiff to alight were officers, and in such case the law imposes no duty upon the carrier or its servants or agents to inquire into the officer's authority, or substitute their opinions for his, or to protest against his arresting a passenger. A passenger train is not intended as a place of refuge for criminals, and unless a passenger is arrested for an offense of which the carrier's agent knew, or by proper diligence ought to have known, he is not guilty, he is not obliged to interfere or protest against the arrest. The rule, however, is different where the carrier's servants know, or by the exercise of proper diligence ought to know, that the arrest of the passenger is unlawful, as was the case in Anania v. Norfolk Western Ry. Co., supra.
* * * * * "In this case the brakeman's advice to plaintiff to `go ahead off,' if he said it, which the brakemen all deny, and plaintiff was not able to identify the person who, he says, told him, is not evidence of any intent to aid the officers. According to plaintiff's testimony, the request was made simply to avoid further trouble. There is no evidence whether or not defendant's servants knew that plaintiff's suit case was properly labeled as containing whisky, or that they knew why the officers ejected him from the car. Knowing that they were officers, the defendant's agents were under no duty to inquire into the legality of their acts. The following authorities are in point and support the principles announced in this opinion: 4 R.C.L. 1194; 10 C.J. 908; Nashville C. St. L.R. Co. v. Crosby, 183 Ala. 237, 62 So. 889; Louisville Nashville R. Co. v. Byrley, 152 Ky. 35, 153 S.W. 36, Ann.Cas. 1915B, 240; Brunswick Western R. Co. v. Ponder,117 Ga. 63, 43 S.E. 430, 60 L.R.A. 713, 97 Am. St. Rep. 152; and Thompkins v. M., K. T. Ry. Co. [8 Cir.], 211 F. 391, 128 C.C.A. 1, 52 L.R.A.(N.S.) 791."
Burton v. N.Y. Cent. H.R.R. Co., 147 A.D. 557,132 N.Y.S. 628, affirmed *Page 400 without opinion, 210 N.Y. 567, 104 N.E. 1127, presents a factual situation similar in many respects to that present in the case under consideration. It was obviously a case of mistaken identity. The young woman arrested accompanied by her mother was taken from a Pullman berth upon suspicion of being a notorious murderess. Upon being confronted by officers who stated their purpose, the conductor directed them to the berth occupied by the plaintiff and her mother. As proof of knowledge by the officers and by the conductor that this was a case of mistaken identity, the mother of the plaintiff testified:
"`I am not the woman that is wanted. Can't you do something for me?' I said. `I am not the one. There is a mistake here.' And he said, `You had better go along without any trouble.' I partly dressed the both of us, and the two men and the conductors of the train took us to the stateroom."
Thus, where, as in the case at bar, the conductor led the officers to the seat occupied by the suspects and made a statement of similar import with reference to the suspects' duty to leave the train, a directed verdict in favor of the defendant was held to be proper. The court said (page 630):
"This action is brought, not against the officers, but against the defendant railroad company, upon the theory that it was the duty of the defendant to perform its contract of carriage, and to protect the plaintiffs against the indignities and the humiliations to which they were subjected by the officers. The case is peculiarly aggravating. From the evidence it appears that these women, having no connection with the Indiana or any other crime, were treated with great brutality by the officers, who apparently felt that they had a license to forget all that belongs to their office as peace conservers, and to bully these two defenseless women, whom they had been told by telegraph from Rochester were identified with the Indiana crimes, and it would be worth while to deal with them as the facts seem to warrant, but that case is not here for determination. The question here is as to the duty of the defendant in the premises.
* * * * * * "Being authorized to make the arrest, the peace officers would have been justified in using any force necessary to this end, and the agents and servants of the defendant would have been acting contrary to law if they had refused to permit the arrest to be made. The peace officers, acting within their authority, superseded the authority of the conductor and servants of the defendant in charge of the train, the plaintiffs, by operation of law, were transferred to the custody of the policemen, and the train officials ceased to have any control over them, and the defendant could not, therefore, be held liable for any of the indignities suffered by the plaintiffs. This was practically decided in the case of Newman v. New York, Lake Erie Western R.R. Co., 54 Hun, 335, 7 N.Y.S. 560, where *Page 401 a railroad detective arrested a suspicious character who had purchased a ticket, and was waiting for the departure of a train. The prisoner was taken before a police magistrate and held, and the court held that the arrest might be justified under the circumstances disclosed by the evidence, and that the detention by the police magistrate could not involve the defendant in damages, even though the peace officer making the arrest was in its employ, so long as it was not shown that the prisoner was detained at the instance of the officer."
The dissenting opinion of Mr. Justice Thomas drew to its support the concurrence of none of the other justices. It presents practically every argument that can be advanced in support of the plaintiff's contention in the case at bar.
Mayfield v. St. Louis, I.M. S.R. Co., supra, is one of the leading cases upon the subject of liability of a carrier for wrongful arrest of a passenger on one of its trains. It and the other cases cited along with it supra represent varying degrees of asserted participation by servants of the carrier in an alleged unlawful arrest of a passenger aboard the carrier's train. In each instance liability of the carrier was rejected upon an application of the principles hereinabove stated.
The difficult position of servants of the carrier incident to notice of illegality of the arrest is pointed out in a case note entitled "Liability of a carrier for the wilful torts of his servants to passengers," 40 L.R.A., N.S., 999, the quoted language appearing at page 1073, as follows:
"In jurisdictions where the right to maintain an action against a carrier for a wrongful arrest is treated as being determinable with reference to the theory of a duty on the carrier's part to afford protection to his passengers, that duty is deemed to be absolute only as regards arrests made by the carrier's servants on their own initiative. In respect of arrests made by officers of the law, a passenger cannot recover damages unless he can prove that the carrier's servants were guilty of some positive misconduct with relation to the tort. It has been laid down that such misconduct may be inferred where the servants had notice, actual or constructive, of the illegality of his arrest, and failed to take such measures as were requisite for his protection. But apparently no case has yet been decided in which the defendant's liability turned directly upon the nature and extent of the obligations which such notice imposed upon his servants. When the point is actually presented, the manifest difficulties involved in a doctrine which seems to offer to the carrier's servants the dilemma of an election between interference with the execution of criminal process and a cause of action which will render their employer liable for damages may lead to its definitive repudiation. Be this as it may, there can be no doubt that, in the absence of evidence of such notice, liability cannot be imputed to the carrier on the mere ground that he did not inquire into the authority of the officers, nor *Page 402 resist them and prevent the arrest. It is also clear that, irrespective of the question of notice, he may be held liable if his servants actively participated in the arrest. But such participation is not established by testimony which merely shows that a servant in charge of a railway train or other vehicle of transportation pointed out the passenger as the person indicated by a telegram sent to the officer who made the arrest, or facilitated the entrance of the officers into a place where the passenger had taken refuge, or stopped the train while the arrest was being effected. Nor is the carrier under any duty to see that the officers use only such force as is necessary to make the arrest."
For annotations dealing with liability of the carrier for false arrest caused by agent or servant, a related subject, see 35 A.L.R. 645, 664, supplemented in 77 A.L.R. 927, 931.
The discussion earlier in this opinion of the obvious fact that the two women removed from the train were the identical persons whose apprehension was sought under the Jane Doe and Jane Roe warrants is important only as demonstrating that if the investigation suggested in the prevailing opinion had been made, it would have been futile. Certainly, the object of any such investigation would have been to prove the identity of the suspects and to establish by implication their innocence. The guilt or innocence of the accused was a matter about which the conductor was under no duty to inquire, having recognized in the one seeking the arrest a known officer of the law. The officer having taken into custody the very persons he was ordered to detain, the question of their guilt or innocence was for determination in due course, either in the courts or upon a clearing up of the question of identity before the Albuquerque police department, prior to reaching the courts.
The result declared by the majority in my opinion visits upon an unoffending carrier responsibility for apparent mistakes of others, either that of the prosecuting witness in furnishing a description or of officers of the law in procuring process and effecting an arrest. That the defendant had nothing to do with instigating the prosecution and issuance of the Jane Doe warrants is conceded by all. And in view of the unanimity of opinion that no duty rests upon the conductor even to inquire of a known officer whether he has a warrant for arrest of a passenger whose apprehension is sought, possession of a defective warrant or no warrant at all could not affect defendant's liability. Hence, the discussion in the prevailing opinion upon the sufficiency of a Jane Doe warrant and as to probable cause for arrest of a suspected person is beside the point except in the apparent view of the majority that it supports liability on the part of defendant. That this consideration furnishes no support is fully demonstrated by the decisions.
The extent of the conductor's participation as found by the court was to request the plaintiff and her sister to leave the *Page 403 train with the officer who accompanied him. The conductor and the officer dispute even this request but the court's finding must be accepted. The trial judge in several instances speaks of the conductor's participation as "co-operation" with the officer. If plaintiff's removal from the train was inevitable; if, as cannot be doubted, the officer was there to take her into custody and compel her removal, then it fairly cannot be said she would have been permitted to continue her journey but for the conductor's request. The latter's act was therefore not the proximate cause of her removal. Hence, the defendant is not liable.
It is, of course, the duty of the citizen, when requested, to assist a known officer of the law.
"According to the better considered authorities, private persons may respond to the call of a known officer, without waiting for information as to the offense which the criminal has committed, and without pausing to inquire into the regularity of the process; and whoever, in good faith, renders assistance and obeys the orders and directions of a known public officer in response to a call for assistance is protected in making an arrest, although the officer may be acting wrongfully and may be personally liable for a false arrest. This protection is due to the necessity of immediate action, since if all those summoned were required to examine and judge of the legality of the warrant and then act upon their own responsibility, the power of police officers would be to a great degree paralyzed;" 4 Am.Jur. 80, § 129.
See the leading case, Firestone v. Rice, 71 Mich. 377,38 N.W. 885, 15 Am.St. Rep. 266 and case notes, 44 Am. St. Rep. 136; 14 L.R.A., N.S., 1123; 13 Ann.Cas. 195. See, also, sections 35-2707 and 106-108, 106-109, Comp.St. 1929; the former making it a criminal offense to refuse upon request to assist officers "in the execution of their office"; the latter sections rendering it a punishable offense for any "free, white male" person to fail to respond to the call of an officer in executing "any process", criminal or civil.
It appears obvious to me that the courts, in relieving the conductor of all duty to inquire into legality of the arrest or possession of a warrant by a known officer of the law, have measurably, at least, given the conductor the status of a private citizen called upon to assist an officer. Whether consciously or not, and I believe not unwittingly, exactly the same immunity is afforded by the better reasoned authorities as respects nonliability of the conductor or his superior on account of illegality in the arrest. In other words, even without formal request for assistance, the conductor, up to a certain point at least, is afforded the same immunity from liability because of illegality in the arrest which the private citizen may claim only following a request for assistance by the officer.
In pointing out the suspected person to an officer, the conductor is assisting or co-operating to a degree in effecting the *Page 404 arrest. Yet, such action is within the immunity from liability afforded both the conductor and the carrier by the authorities. The majority do not contend such an act violates the contract of carriage. But they say, having pointed out the passenger, to go further and request peaceable acquiescence in what the officer stands ready physically to enforce, departure from the train in the officer's company, is actionable. The challenged finding that the conductor refused to answer plaintiff's question as to reason for her removal in no way alters the legal rights of the parties.
The doctrine announced by the majority, in my opinion, is unsound and beset with dangers. It renders too short the step from mere acquiescence and consequent non-liability to actual obstruction of the officer by trainmen in an effort to avoid liability under a rule so exacting. It practically makes a tightrope walker of the conductor in an effort to fulfill his duty as a good citizen on the one hand and to protect his superior from liability on the other. Thus torn between conflicting duties, deception as to presence on the train of suspects and even positive obstruction to officers of the law in their efforts to make arrests may often be the consequence.
Without more extended discussion, I am satisfied the conductor did not inject himself into the arrest in a manner rendering his superior liable. His train was due to leave when he was confronted by a person known to him to be an officer of the law and presumably armed. The identical persons whose immediate apprehension was sought under the Jane Roe and Jane Doe warrants were on his train, although admittedly they were not the persons involved in the offense charged. He conducted the officer to their seats and requested them to accompany the officer from the train. I am unable to find in the facts presented tortious conduct by defendant toward plaintiff unless we are to impose upon the conductor the duty of holding his train against orders while conducting a court of inquiry of doubtful outcome, presenting issues he was poorly qualified to pass upon and the decision of which he was still less prepared to enforce save in open defiance of a recognized peace officer. Persuasive precedents and sound reason deny such an alternative.