dissenting.
The case is by no means free from difficulty, and notwithstanding the very careful thought that has been given to it by both of my associates, as evidenced by their opinions just expressed, there still seems to be s-ome lingering doubt about the propriety of an affirmance of this judgment. I have no doubt that the judgment should be reversed.
This man Beatty, at the time of the alleged assault for which judgment has been obtained in the court below, was acting in one *380of three capacities: lie either, as substantially asserted in the evidence of the plaintiff and as the latter describes the transaction, committed an unprovoked assault, acting on his own volition, and neither as policeman nor agent, upon an altercation arising between Fiebach and Beatty and not in the performance of any duty for the company and not in the performance of any duty to the public; or else he acted as an agent of the company; or he acted as a policeman in the discharge of his duties under the commission given him by the governor and under the statute.
If he was acting, as the plaintiff describes, without in the first instance directing him to go off the premises, without any effort to prevent him from committing a trespass, if it be true that he struck the plaintiff without provocation, after mere words between them, then he was acting on his own volition and in his own behalf; and surely, it can not be assumed that even if he was in the employ of the company generally for the purpose of protecting its grounds and driving away trespassers the company had ever authorized him to make unprovoked assaults upon persons outside of any effort to carry out the work entrusted to him.
It is not a case where, as in the case of a passenger upon a railway train, the person assaulted may be in a sense under the protection of the company. It is possible that if a railway conductor, not in an effort to eject a passenger from a car, but actuated by private and personal motives, should commit an assault upon a passenger in a car, the company might be liable, although our Supreme Court, so far as I am aware, has never so held. v
The company was not liable, if this man committed an assault not within the scope of his employment as agent or servant (the transaction that plaintiff describes), and the company was not liable if he was acting as policeman under his commission as such.
It has been properly urged in argument in behalf of the plaintiff in error that Beatty could not act both as agent of the company and as a public officer at the same time. I do not understand that there is any discord among the members of this court upon that proposition, but the question has been, in which one of two capacities, that of policeman, or of agent of the company, was he acting, in the transactions which are alleged as the grounds of the plaintiff’s recovery and which resulted in damage to the *381plaintiff. I am inclined to agree with my associates that the court below was not in error in.refusing to permit the testimony of Beatty that he intended, in what he was doing, to act as policeman. If the question had been, whether at the time he took hold of Fiebach, he was intending to arrest him, I think the answer to the question should have been permitted; but there perhaps was involved in the inquiry what was the understanding of Beatty as to the nature of his duties, rather than an understanding or statement of just the kind of an act he was intending to do. ITis purpose is an important element in the case — whether he was at the time intending to make an arrest or whether he was at the time intending to eject the man from the company’s grounds. If he was intending to make an arrest, he was surely doing something that the company could not authorize, or control or prevent. My own judgment is, that even if he was intending merely to eject the man from the grounds, he may have been acting also as a conservator of the peace, and consequently as an officer of the law.
It may be assumed that, although there is very little evidence in pany, still upon the very slight concession made along that line, the case that he was acting in any capacity for the company, or that he had ever received any instruction's whatever from the oomhe had some authority from the company to patrol its grounds and to drive away trespassers, or to direct them to go away from the grounds, acting as an agent of the company.
Assuming that he had such authority and that in directing any one to go off the grounds, he was acting as thó agent of the company, it does not seem to me that it can be assumed that in the subsequent act, when he put his hands upon the man and attempted either to eject or to arrest him, he was so acting; that is, as an agent of the company.
General Code, 12522 (Revised Statutes, 6880e) provides a penalty for trespassing upon lands of another:
"Whoever, being about to enter unlawfully upon the inclosed or uninclosed lands or premises of another, and shall be forbidden so to do by the owner or occupant, or his agent or servant, or who, being unlawfully upon the inclosed or uninclosed lands or premises of another, shall be notified to depart therefrom by the owner or occupant, or his agent or servant, and shall thereafter enter upon such lands or premises, or neglect or refuse to *382depart therefrom, except persons who are crossing said lands or premises for some lawful purpose, with the consent of the owner of such premises, shall be guilty of a misdemeanor, and upon conviction thereof, shall be fined,” etc.
If Beatty, as agent of the company, notified Fiebach, to “get off the grounds or come along with me” and Fiebach “neglected or refused to depart,” Beatty as agent might have ejected him, or as an officer might in my judgment have lawfully either ejected him to prevent further violation of the law or might have arrested him, or both. He had all the powers under the statute by virtue of which he was commissioned, of any policeman of a city.
We have another statute, General Code, 12543 (Revised Statutes, 6982), which reads as follows:
“A person who climbs, jumps, steps or stands upon, or clings or in any way attaches himself to any locomotive, engine, or car, upon any part of the track of a railroad, unless in so doing he acts in compliance with law, or by permission under the lawful rules and regulations of the corporation then managing such railroad shall be fined not more than twenty-five dollars. ’ ’
Here we have another misdemeanor which may be the stealing of a ride, or it may be getting upon a car which is standing still, but in either event, it is trespassing upon some of the rolling stock of the company. Beatty claims that was what this man was hanging about there for — to “steal a ride.”
It is true, as suggested by Judge Parker, that when the final violence came, according to one witness, one train mentioned had moved on away from the station; but the controversy arose, as claimed by Beatty, upon the basis of his supposition that the man was there for the purpose of stealing a ride upon the cars.
Now, we have very clear authority by our Supreme Court that where evidence in a case is susceptible of a choice of interpretations and. especially in a case where the presumptions are more strongly against the plaintiff’s theories than for them, it is the duty of the court to arrest the case from the jury and not permit the jury to speculate as to whether or not the plaintiff’s theories may be well founded. It is probable here, that Beatty was attempting to act as a police officer, although he grossly neglected some of his duties as such in not having a badge'displayed and in not informing the man that he was an officer, so *383as to remove any excuse for resistance. Although neglectful of his duties as an officer, if he was still attempting to act as an officer, then manifestly he was not acting as an agent of the company and the company would not be liable.
It seems to me the tendencies of the evidence are fortified by what seem to -be the legal presumptions.
Tolchester Beach Imp. Co. v. Steinmeier, 72 Md., 318, is a ease partly in point:
“A policeman appointed upon the application of a corporation which is required by law to pay his salary, is an officer of the state, and the corporation is not responsible for his acts as such officer in making an arrest, especially if it is not done on'the premises of the corporation.”
In Jardine v. Cornell, 50 N. J. L., 485, 486:
“The police officer was expressly directed by defendant’s agent to make the arrest, and the court held that this made the officer the agent of the defendant, yet the court held that for the subsequent arrest the defendant would not be liable, saying that the act of the officer will be presumed to have been done by virtue of his official character, notwithstanding the fact that, prior to such disorderly conduct, the officer was in law the agent of the defendant. ’ ’
In Brill v. Eddy, 115 Mo., 596, 605:
‘‘ The officer had been in the employ of the defendant as watchman and was, while so employed, appointed policeman by the mayor of the city. The court held it was a question of fact whether he was acting in his capacity of employe of the defendant, or as policeman. Yet the court said: ‘It is no uncommon thing for corporations and individuals to employ duly appointed police officers to watch their property; and if such officer so employed make an arrest for disorderly conduct, the presumption is, that he acted in his official capacity as agent for the state, and not as agent of his employer. Being an officer whose duties are prescribed by law, it should be presumed, until the contrary is shown, that his employment contemplates only the exercise of such powers as the law confers upon him. ’ ”
There are several other authorities that tend in the same direction in the brief before me from which I have read.
No authorities have been cited to -us in conflict with the rule or the statement here made, that the presumption in the case’of an arrest is that the man is acting under the authority of his com*384mission as a policeman, and that he is not acting as an agent. But, discarding all this, and considering only the rule that the burden of proof is upon the plaintiff to establish his claim that the man was acting as the agent of the company, it seems to me very clear that he has not, by the evidence in this case, substantiated his claim. His own evidence, as I have said, tends to show that the assault was an unprovoked one by Beatty, as an individual, acting neither as a policeman, nor within the scope of any authority as an agent of the defendant company. The defendant’s testimony, through Beatty himself, is rather that he was acting as a policeman; it strongly tends to show that he was intending to arrest the man; that seems to have been the impression of the on-lookers and while he perhaps did not so conduct himself in doing it as to justify himself, in case he had been sued personally by Fiebach for assault and battery, still he did not so conduct himself as to make the company liable.
Without dwelling longer upon this phase of the case, and without attempting to read the special instructions asked by defendant and refused, I will content myself with saying that I think instructions 5, 9 and 12 should surely have been given and probably some others.
I do not agree with one of my associates that this was one continuous fracas from beginning to end. I think that according to all the testimony, not only that of Beatty, but that of Fiebach and the by-standers, there was a cessation of hostilities in which the parties separated and after which it was resumed in such manner that there can be no possible claim that as to subsequent transactions the witness Beatty was acting as the agent of the company. However, it is possible that the court sufficiently, in one of the instructions given, guarded the jury from blending all the elements of damage arising from the transaction before the renewal of the fracas with -those which arose afterwards. The most serious injury was done to plaintiff after the fight was re-mewed by the plaintiff himself.
I am not prepared to say that the court erred in not sufficiently separateing the transactions in this regard, or that the damages, if permissible at all, were so excessive as to show passion or prejudice on the part of the jury.
The judgment, in my opinion, should be reversed for the reasons that I have stated.