The opinion of the court was delivered by
Graves, J.:The arrest and detention of the plaintiff, prior to July 1, 1905, was without a complaint or warrant. When the arrest complained of was made the plaintiff was not engaged in the commission of any offense whatever. He was quietly seated in a chair, like other passengers.
The defendant interposed the defense that the conductor, when the arrest was made by him, had probable cause to believe that a felony had been committed, and this belief, if honestly and in good faith entertained, justified the arrest, whether the felony had been committed or not. As indicated by this issue, the pivotal question in the case was whether this alleged probable cause existed or not. This question could not be intelligently determined by the jury unless they understood what in law constitutes probable cause. It was the duty of the court to define this phrase clearly, so that the evidence could be easily applied to such definition by the jury. The only'instruction given by the court upon this question, reads:
“If the plaintiff was a passenger on one of the pas*571senger-trains of the defendant company, and the conductor of said train arrested the plaintiff and removed him from said train at Ottawa, a station on said road, or removed plaintiff from the train and then caused his arrest and imprisonment, the defendant company would be liable for. said arrest and imprisonment if said arrest and imprisonment was false; that is, wrongfully made under the circumstances of the case.”
When is an arrest legally false or wrongful? When may a conductor on a passenger-train, without a warrant, rightfully imprison a passenger while such passenger is conducting himself in a quiet and orderly manner and there are no reasonable grounds to apprehend misconduct on his part? The answer given by the law to the last question is: When the conductor has probable cause for believing that the passenger has committed a felony, and acts in good faith upon such belief. What in a legal sense constitutes probable cause? What is a felony? These questions involve both law and fact, and are vital to the issue presented in this case. The jury are not supposed-to know the law, and they should be clearly advised by the court as to the law which governs the case on trial. This was not done, but the law and the fact were both submitted to the jury for their determination. The railway company requested the court to give the following instructions :
“(3) .You are instructed that if the plaintiff stabbed the porter on the Pullman car attached to defendant’s train, with a large knife, he was guilty of a felonious assault upon said porter, unless said porter had first made an assault upon the plaintiff and from the nature of the assault so made by such porter upon the plaintiff there was reasonable grounds to believe that the said porter would immediately kill the plaintiff or do him great bodily harm, and the plaintiff had no means of escaping such death or great bodily harm, except by using said knife upon said porter.”
“(12) You are instructed that there was probable cause for the arrest of the plaintiff, and your verdict ■ will be for the defendant.”
*572“(16) If the plaintiff assaulted the porter of the sleeping-car with a knife and wounded him, then that was probable cause and sufficient cause for his arrest and detention for trial.”
It was probably not error to refuse this request, but if the instructions requested do not accurately state the law applicable to this case they are sufficient to indicate to the court that the defendant wished the law upon probable cause to be given, and stated what it claimed the law to be. The attention of the court was thereby called to this important feature of the case, and an instruction upon this point should have been given. There is nothing in the instructions given by the court which covers or refers to this matter. Instruction No. 13, standing alon,e, is calculated to lead the jury into a misconception, if not an entire disregard, of the important feature of probable cause. This instruction reads:
“Where the relation of a passenger and common carrier exists, and a servant of said carrier wrongfully inflicts an injury on the passenger by arresting him, or unlawfully removing him from the train, the carrier would be responsible for such unlawful arrest and unlawful act and its natural and legitimate consequences, regardless of the particular motive of such servant.” ’
Under the facts shown in this case it appears that the plaintiff was a passenger. He was arrested by the conductor without a warrant. Apparently this was wrongful. The only justification presented is that the' conductor acted in good faith, upon information which amounted to probable cause. Good motive is a material part of the defense. (26 Cyc. 30.) The last words of the instruction, “regardless of the particular motive of such servant,” therefore seem misleading.
Other questions have been presented and discussed, but as they are not likely to arise again, and as the case can be otherwise disposed of, they need not be considered.
*573Because of the erroneous and misleading character of the instructions given, and the failure to instruct fully upon an important'feature of the case, the judgment of the district court is reversed, with directions to grant a new trial and proceed in accordance with the views herein expressed.