(after stating the facts). In the case of St. Louis, Iron Mountain & Southern Railway Company v. Hudson, 95 Ark. 506, the court held:
“In a suit against a carrier for an arrest made by its conductor. an instruction that, though the conductor was the judge as to whether plaintiff was intoxicated when arrested, yet if he was mistaken the company would be liable, was erroneous, as it ignored the question whether the conductor acted in good faith.”
It is now the contention of appellant that when a conductor arrests a passenger and ejects him from a train, in pursuance of the act of 1909 conferring upon him that power, he acts solely as a peace officer, and the railway company can not be held responsible for his acts.
We can not agree with counsel in their contention. It is the settled law that when a railway company puts a conductor in charge of its train, and he wrongfully ejects a passenger from the car, the railway company must bear the blame and pay the damages. This is so because it is the duty of the railway company to treat its passengers properly and to carry them safely. There is nothing in the act in question to indicate that it was the intention of the Legislature to diminish the responsibility of the common carrier or to render it less liable for failure to discharge its duties than before the passage of the act. The conductor is the person whom the railway company puts in charge of its trains, and it was the evident intention of the Legislature to enable the company to discharge the duties it owed its passengers the more efficiently through its conductor by the enactment of the statute in question. It gave the conductor the protection as well as the authority and power of the State in keeping and enforcing the law. If the conductor makes an arrest under the statute with reasonable cause for belief and in good faith, the railway company is not liable, even though it appears afterwards that in fact the person arrested was not drunk. Gillingham v. Ohio River Railroad Co., 29 Am. St. Rep. (W. Va.) 827; King v. Illinois Central Railroad Co., 69 Miss. 245.
Error is next assigned because the court gave the following instruction:
“For one to be in a drunken and intoxicated condition as defined by the law, he must be under the influence of intoxicating liquors to such an extent as to have lost the normal control of his bodily and mental faculties, and to evince a disposition of violence, quarrelsomeness and bestiality.”
In this contention we think counsel for appellant are correct. The latter part of the instruction was erroneous. A person might be drunk and still not evince a disposition of violence, quarrelsomeness and bestiality. There are various degrees of drunkenness. It is a matter of common knowledge that intoxication affects men in different ways. Some men become quarrelsome when they are drunk, while others become stupefied and inactive, and still others do not give any outward and visible signs except a pleasurable excitement. A man may be said to be drunk whenever he is under the influence of intoxicating liquors to the extent that they affect his acts or conduct, so that persons coming in contact with him could readily see and know that the intoxicating liquors were affecting him in that respect.
In the case of Midland Valley Railroad Company v. Hamilton, 84 Ark. 81, the court said:
“Instructions given by the court undertaking to define soberness on the one hand and drunkenness on the other are criticised and assigned as error. It must be confessed that these instructions, to some extent, lacked accuracy, and were of little aid to the jury in determining from the evidence whether the plaintiff was drunk or sober. In fact, it may well be doubted whether these terms are susceptible to any accurate definition for practical purposes. They sufficiently define themselves, and it would have been better to leave it to the jury, without attempt at definition, to determine what the condition of the plaintiff was in this respect.”
The opinion of the court in this respect was approved in the case of Brooke v. State, 86 Ark. 364, and nothing said in the latter opinion was intended to be taken as a definition of drunkenness which could be given as a declaration of law in cases where that question was to be submitted to a jury.
In the case of Little Rock Railway & Electric Company v. Dobbins, 78 Ark. 553, the court said:
' ‘A street railway company is liable for the wrongful acts of its conductor in ordering a policeman to arrest one of its passengers and remove him from the car in which he was riding; but not for such conductor’s subsequent acts in prosecuting the passenger for a breach of the peace, such prosecution not being within the scope of the conductor’s authority.”
It follows that the appellant is not liable for the acts of its conductor in swearing out a warrant of arrest against appellee on the next day after he was ejected from the train. It was competent in the present case to show all that was said and done in the train pertaining to the arrest of appellee and all that was said and done on the depot platform at Newport after, appellee was ejected. All that occurred after this time was not competent evidence. The undisputed evidence shows that the conductor and auditor of the train asked appellee while he was standinig on the platform at Newport to get back on the train and that they would carry him on to Corning. The appellee refused to do this. The city marshal testified that he carried him on to the jail because he had been drunk and disorderly on the train. What happened after the conductor turned appellee over to the city marshal has no relevance to the case at bar; for the acts and conduct of the parties thereafter can not be attributed to the railway company, for the reason that the conductor’s subsequent act in prosecuting the passenger was not within the scope of his authority as a servant of the company.
In an action to recover damages for false imprisonment, where the arrest is without a warrant, if the imprisonment is proved or admitted, the burden of justification is on the defendant. In this respect the rule as to the burden of proof is not analogous to an action for malicious prosecution, where it has been held to be the duty of plaintiff to affirmatively show want of probable cause. Jackson v. Knowlton, 173 Mass. 94, 53 N. E. 134; McAlees v. Good, (Pa.) 65 Atl. 934, 10 L. R. A. (N. S.) 303. and case note. See also Floyd v. State, 12 Ark. 43.
Therefore, the court did not err in the instructions on the burden of proof. For the error in instructing the jury as to what constitutes drunkenness, the judgment will be reversed, and the cause remanded for a new trial.