I concur with Mr. Justice ClabkE ; I also think that plaintiff failed to show a want of probable cause for the charge made against him. The question of probable cause is a question óf law for the court and not for the jury,'and upon the facts that appeared without substantial contradiction — assuming that the defendant was responsible for the plaintiff’s arrest — it had probable cause to charge the plaintiff with being concerned in the assault upon the conductor of the first car.
I do not think that the defendant.was liable for the act of the conductor of the first car in charging the plaintiff with an assault. The alleged assault occurred in the public street after the conductor had left his car, and there was nothing to show that the conductor was, at the time of the assault, or when he made the charge, acting in the course of his employment or in the performance of any duty imposed upon him by the defendant. The mere fact that the counsel for the conductor before the magistrate was also counsel for the railroad company does not connect the railroad company with the prosecution so as to make it liable therefor.
On both these points I think the plaintiff failed' to prove facts sufficient to sustain his action and that the complaint should have been dismissed..
Houghton, J., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.