
    Miller, Appellant, v. Cornwall R. R.
    
      Negligence — Railroad—Fellow servants — Act of April 4, 1868.
    A person employed by the individual owner of cars run on a railroad, under a contract with the railroad company, is, when in charge of the cars, an employee of the railroad company within the meaning of the act of April 4, 1868, P. L. 58.
    
      
      Negligence — Defective guard rail — Excessive speed — Evidence.
    In an action against a railroad company to recover damages for personal injuries, plaintiff, who was in the position of an employee, claimed that the accident was caused either by a defective guard rail, or by the excessive speed of the train around a curve. Plaintiff did not describe the position of the rail on the day of the accident, but as it was “ a few days ” or “ several days” or “a couple of days” before that time; while the testimony of defendant’s witnesses was positive and uneontradieted that a new rail had been put in proper position on the day before the accident. Held, that the evidence as to the defect in the rail was insufficient, and that if the accident was caused by excessive speed it was due to the negligence of a fellow servant, and that on neither of the grounds alleged was it proper to submit the case to the jury.
    Argued Feb. 15, 1893.
    Appeal, No. 275, Jan. T., 1893, by-plaintiff, Lewis Miller, from judgment of C. P. Lebanon Co., for defendant, non obstante veredicto.
    Before Paxson, C. J., Sterrett, Green, Williams and McCollum, JJ.
    Trespass for personal injuries caused by defendant’s negligence.
    At the trial, before McPherson, J., it appeared that plaintiff was an employee of Coleman & Brock, proprietors of the North Lebanon furnaces. The ore for the supply of the furnanees was obtained from the Cornwall Ore Bank by way of defendant’s railroad under a traffic agreement requiring the owners of the furnace to furnish their own cars and a man to take charge of them. Plaintiff was injured while in charge of the cars of his employers on the railroad. He claimed that his injuries were caused either by a defective guard rail, or by the running of the train at an excessive speed around a curve. He did not describe the condition of the rail on the day of the accident, but as it was “a few days ” or “several days ” or “a couple of days ” before that time; while the testimony of defendant’s witnesses was positive and uneontradieted that a new rail had been put up in proper position on the day before the accident.
    Plaintiff’s points were among others as follows:
    “ 1. Lewis Miller, the plaintiff, was a passenger on the train when he received his injury.” Refused. [1]
    “ 2. The act of April 4, 1868, is unconstitutional and void.” Refused. [2]
    Verdict for plaintiff subject to the question reserved as to whether there was any evidence of defendant’s negligence to go to the jury. The court subsequently entered judgment for defendant, non obstante veredicto.
    
      Errors assigned were (1, 2) instructions, quoting them; (5) entry of judgment.
    
      A. Erante Seltzer, B. Morris Sfrouse with him, for appellant.
    Plaintiff was a passenger: P. R. R. Co. v. Henderson, 51 Pa. 315; Cumberland Valley R. R. v. Myers, 55 Pa. 288; O’Donnell v. Allegheny Valley R. R., 59 Pa. 239; Blair v. The Erie R. R., 66 N Y. 313; Yeomans v. The Contra Costa Steam Navigation Co., 44 Cal. 71. Defendant was negligent: P. R. R. v. Barnett, 59 Pa. 259; Johnson v. Bruner, 61 Pa. 58; McKee v. Bidwell, 74 Pa. 218; Crissey v. Pass. Ry., 75 Pa. 83; Neslie v. Pass. Ry., 113 Pa. 300; Pass. Ry. v. Foxley, 107 Pa. 537; West Chester, etc., R. R. v. McElwee, 67 Pa. 311; Smyth v. Craig, 3 W. & S. 14; Bevan v. Ins. Co., 9 W. & S. 187 ; Maynes v. Atwater, 88 Pa. 496.
    
      Howard O. Shirte, for appellee, not heard,
    cited, on the status of plaintiff: P. R. R. v. Price, 96 Pa. 256. As to the negligence of defendant: Titus v. R. R., 136 Pa. 618; P. &. R. R. R. v. Hughes, 119 Pa. 301; Wood on Master and Servant, § 382; Grimont v. Hartman, 17 W. N. 252; Campbell v. P. R. R., 17 W. N. 73; Erie & W. V. R. v. Smith, 125 Pa. 259 ; Burrell v. Gowen, 134 Pa. 527.
    February 27, 1893:
   Per, Curiam,

Judgment affirmed.  