Bertie Wyatt, a young man nineteen years old, in company with Arthur Wood, another young man, on the 15th of October 'left his home to attend a circus at Ft. Smith. He carried with him a black slicker. After the circus they went to the depot to purchase a ticket to Van Burén over appellant’s road. Appellee asked the ticket agent when the train was due, and he replied at six o’clock, but informed appellee that the train was an hour and a half late. Appellee then left the ticket office without purchasing his ticket, went out of the door, met some companions not far from the door and near the corner of the building, was standing leaning against the wall talking to these parties when one Davis, a switchman in the employ of appellant, came up, and began cursing appellee, and accused him of stealing his slicker, and pounded him over the head with his lantern. He hit appellee over the left eye; made a wound which bled profusely ; knocked appellee down. Appellee ran around the trucks on the platform, all the while calling' for help', the man still after him and pounding him with the lantern, and almost knocking appellee senseless. Appellee then ran into the waiting room and back to the water cooler, between the ticket office and the stairs, when and where a man by the name of Penn came, and took hold of appellee’s arm, and carried him into the baggage room, where there was a policeman, and Penn told the policeman to take charge of appellee. Penn told the policeman it was fpr “suspicious larceny,” or something of the kind, about the slicker. He said to the policeman: “Take these young men; they are charged with stealing a man’s coat.” The policeman carried appellee and his companion, Arthur Ward, to jail, where they remained for twelve or sixteen hours. Appellee had the money to purchase his ticket, and intended to do so and to take the appellant’s passenger train to Van Burén.
Penn was appellant’s special secret service agent. It was his duty to look after criminal matters for the appellant. He looked after anything that was stolen out of the box cars or the stations; he had authority to inquire into complaints of larceny about the station. When any trouble came up about the *197station, it was his duty to investigate the facts, and report the matter to the civil authorities. He had no power to make arrests himself. That was not in the line of his duty. But he was expected to report matters to the officers when trouble came up, and in this way he caused arrests to be made.
Davis, the switchman, who did the injury to appellee, was off duty at the time; he had quit work. He worked on the yards; had no control over the station or passengers. It was his duty to look after switches. He had a black slicker, and, on missing it from his engine, he started out through the crowd to look for it, and when he came upon appellee with the slicker he supposed it was his and began to pound appellee in the manner described.
Davis was also arrested by the policeman, but was not put in jail, but simply directed to appear before the police court. The ticket agent made no effort to stop the fight, but he testified that he had no opportunity to do so. When the trouble first began, however, some one in the ticket office told the special secret service agent, Penn, that there was about to be a fight or trouble on hand, and that he “had better get busy.” Appellee was discharged by the police court from the charge of larceny. The above are substantially the facts stated in brief (and in the strongest light for appellee) upon which he predicates his suit against appellant, alleging two causes of action, one for failure to protect a passenger from assault and one for false imprisonment.
1. A majority of the court is of the opinion that these facts do not constitute a cause of action against appellant. Davis, the switchman who made the assault, was acting entirely beyond the scope of his employment in so doing, and the appellant was in no manner chargeable with his unlawful acts. Nor was appellant liable, under the proof, for failing to exercise ordinary care to protect its passengers, and those intending to become passengers, from insults and injuries of the kind here complained of. The assault upon appellee was so sudden that appellant could not reasonably have anticipated and prevented it. Nor, in the exercise of ordinary care, could it have done more than it did to quell the trouble after it began. Appellant’s secret service agent was on the ground. It was his duty to have pre*198vented the trouble, if possible. He testifies: “Was in Ft. Smith on the day of.the circus; was at the station; heard some disturbance; I was in the ticket office at the time; was talking over the telephone. Mr. Milligan and Mr. Robinson were in the office. They looked out the window and said: ‘There is a fight or something out here, and you had better get busy.’ I hung up the receiver, and' started promptly, and met one of these young men at the waiting room door, and noticed he had some blood on his face and hands, and said, ‘What is the matter?’ and he said a man struck him with a lantern.” Other witnesses show that the crowd was dense, and the attack so sudden they could not have prevented it, had they tried! This evidence is undisputed, and it shows that the rencounter was on and off so quickly that the failure of appellant to prevent it, or to stop it after it commenced, was not actionable negligence.
A majority of the court-is of the opinion'that the court should have given appellant’s second request for instruction.*
2. We are of the opinion that the undisputed evidence shows that the special agent, Penn, had no authority to make arrests, and that if he arrested appellee he acted beyond the-scope of his employment, and the appellant, company is not liable therefor. Even if it may be said that appellee was arrested at his instance and request, and that such arrest was in the line of the special agent’s employment, appellant would not be liable therefor, provided its special agent exercised ordinary care, and there was probable cause for having appellee apprehended. There was certainly evidence to warrant the submission of the question to the jury as to whether or not there was probable cause to believe that appellee had committed the crime of larceny. The court erred in refusing to give appellant’s third request for instruction.† The court, having refused this *199instruction, should certainly have given subdivisions (a) and (b) of appellant’s fifth request for instruction.‡ For the errors indicated, the Judgment is reversed and the cause is remanded for new trial.