dissenting: If' the evidence is considered in the light most favorable to the defendant, I think his Honor was justified in charging the jury that, in any aspect of it, the conductor was guilty of an assault.
It may be that the plaintiff had said he would fix the conductor when he reached Rocky Point, and that some one had told the conductor he had a pistol, but the fact is that he had no pistol, and that he was leaving the car quietly, making no demonstration, when he was seized by two employees of the defendant after he reached the ground, and searched by another.
The two employees had been stationed at the place where passengers alighted, for the purpose of watching the plaintiff, and upon the slightest demonstration could have stopped him; but, acting under the orders of the conductor, they preferred not to wait until there was necessity for action.
The conductor, who testified most favorably for the defendant, said, among other things:
Q. You saw Brown when he was getting off? A. He didn’t come down the steps I was on.
Q. You stood there, and didn’t you see him? A. Yes, sir; saw him when they made the alarm.
Q. He was not doing anything but moving along quietly? A. That’s all I saw him do.
Q. He had bundles in his hands? A. I think he had one bundle, one armful.
Q. Got off the train quietly and peacefully? A. I can’t swear what he was doing before.
Q. From your observation, was he doing or saying anything? A. Not at that time.
Q. I ask you, captain, if this man did anything in this world to you — attempt to strike you or offer any violence to you at all — until after you placed him under arrest ? A. He had not attempted; no.
I do not believe it can be law that three employees of the *581defendant can seize and search an unarmed passenger as be is leaving the train, quietly apd peaceably, without threat or-demonstration, and not be guilty of an assault, and these are the facts as I read the evidence.'
Clark, C. J., concurs.