#### Fleming *v.*Penna. R. R. Co.

In an action for damages for the death of an employee of a contractor to widen the road bed of the railroad company defendant, the evidence showed that the employee was killed by a passing train, which gave no signal, while he was wheeling material, on a plank placed between the tracks by the contractor, to workmen under the tracks who were constructing a bridge to support the tracks. The supreme court held that the court below properly entered a non-suit on the ground that the case was within the Act of April 4, 1868, providing that, when any person shall sustain any injury or loss of life while lawfully engaged or employed on or about the roads, works, depots and premises of a railroad company, or in or about any train or car therein or thereon, of which company such person is not an employee, the right of action and recovery in all such cases against the company shall be such only as would exist if such person were an employee, provided that this section shall not apply to passengers ; and the court subsequently refused a re-argument,

*744The supreme court also refused a re-argument asked on the ground that the tacit requirement or the authorization of the requirement of the use of the dangerous means of work in this case was not a violation, by defendant, of the obligation of a master to furnish a safe place in which his servant may work.

A re-argument was also refused which was asked on the ground that the court had overlooked the distinction between the liability of a master resulting from the negligence of a servant of the common employer of the person injured, and such negligent servant, and that resulting from the negligence of one in a common employment with the injured person.

May 28, 1890.

Motion for re-argument of appeal, No. 183, Jan. T., 1890, to C. P. No. 2, Philadelphia Co., to review a judgment of compulsory non-suit in an action on the case by Thomas Fleming and wife against the Pennsylvania R. R. Co. to recover damages for the death of their son caused by the alleged negligence of the defendant, at Sept. T., 1887, No. 538. Reported in 134 Pa. 477. Green and McCollum, JJ., absent from the argument April 7, 1890. The motion for re-argument was filed when court was not sitting.

The case is reported here in full in order to present the points raised by the re-argument.

The evidence was to the following effect, on the trial, before Fell, J.:

The defendant company employed Bailey & Nelson, by written contract, to widen a portion of its road bed, near Malvern station. In the performance of their work, the contractors were required to build a four-tracked arch or culvert to carry the railroad over a township road, at a point some fifty feet east of the station at Malvern. The bricklayers worked under the railroad upon a trestle. The brick and stone for use in the erection of the bridge were piled near the station and were delivered to the bricklayers through an opening between the rails of the defendant’s road. The most direct way to deliver the bricks was to wheel them along the defendants road and dump them through the opening between the rails. About a week before the accident, planks were nailed between the rails of the defendant’s road from the brick pile to the opening between the rails, for the purpose of making the wheeling more easy. This was done by order of a sub-contractor who had charge of building the brick-work.

On Sept. 20, 1887, Michael Fleming was employed by the contractors as a laborer, and set to work wheeling bricks from the pile to the point of delivery. The next morning, which was foggy, just as Fleming had delivered a load of brick and was turning to go back to the brick pile, he was struck and killed by a west bound train, running on this track at the rate of at least thirty miles an hour. No signal was given of the approach of the train.

A witness for plaintiffs testified: “ Track-walkers of the Pennsylvania railroad had been by nearly every day. They could see the planks laid there. They were working right along there fixing the sidings and taking some points off the curve, at the time work on the tunnel was going on.”

*745The chief engineer of the railroad, called by the plaintiffs, testified that he was a passenger on the train that killed Fleming; that that was the first time he saw the plank upon which the men wheeled the brick. He had a man in charge of the bridge who would have known whether the planks were there or not, but he had nothing to do with the tracks. After the accident, he ordered the plank removed, because, as he testified, they did not allow the contractors to erect anything between their main rails. If there is anything to be done there in order to facilitate work, the railroad company puts it down and makes the contractors pay for it.

At the close of plaintiff’s testimony, the court entered a non-suit on the ground that the case came within § 1 of the Act of April 4, 1868, P. L. 58, and subsequently refused to take it off; whereupon the plaintiffs took this writ.

*The assignments of error*specified, 1, the entry of the nonsuit; and, 2, the refusal to take it off.

*Henry*Budd, with him *William C.*Stoever, for appellants.

The rule of law as to the management of running trains is stated in Reeves *v.*R. R., 30 Pa. 454; P. & R. R. R. *v.*Long, 75 Pa. 257; and Pa. R. R. *v.*Lewis, 79 Pa. 33.

In all the cases cited in the report in 134 Pa. 479, in which the Act has been held applicable and the defendant exempted from liability, the injured person was in some way or other engaged in the business of transportation in connection with the railroad; even in the case of B. & O. R. R. *v.*Colvin, 118 Pa. 230, the teamster was co-operating in the transport of the goods from their original point of departure.

The cases cited to show that the negligence was not that of a fellow-servant will be found in 134 Pa. 479.

If, under the Act, the railroad company claims the immunity of an employer,it must also take the responsibilities; one of the duties of a master is to supply a safe place within which his servant may work. It will hardly be contended that this was done in this case ; that it could have been done is shown by what took place after the accident: Lewis *v.*Seifert, 116 Pa. 647.

Further, it can hardly be said that the death of Fleming was the result of one of the risks which he took on entering upon his employment. The case is distinguishable from Kennedy *v.*R. R., 1 Mona. 271 ; S. c. 24 W. N. C. 371- In that case, the evidence was that the deceased had for some time lived alongside of the railroad and had been in the company’s service for several weeks at the time of the accident. Here, the deceased had just entered on his work. But, concede that Fleming took the risk of being run down by a train under ordinary circumstances — the case before the court does not present ordinary circumstances. He had the right to expect that a warning would be given him. He did not, by entering upon his employment, take the risk of being run down by a train in a fog.

*746June 4, 1890.

May 5, 1890.

*David W.*Sellers, for appellee,

not heard. — Though the question in the cases cited has usually been presented for injuries arising in or about transportation, yet it as much applies to those “ lawfully engaged or employed on or about the road.”

In further support of the nonsuit, the evidence of appellants shows that the negligence was that of an independent contractor who was building the bridge, and that so soon as the officer of the appellee knew of it he removed the plank, which it is alleged was not placed with care..

Under this evidence, the injury was the result of a neglect of duty by his master, who, *quoad*his relation to the appellee, was a co-employe : Johnston *v.*Railroad, 114 Pa. 443.

Per Curiam,

The learned judge below nonsuited the plaintiffs because the case came within the Act of April 4, 1868, P. L. 58. In this we find no error.

Judgment affirmed.

The motion and reasons for re-argument were as follows:

“And now, to wit, May 28, 1890, the appellants in the above case move-the learned court to grant a re-argument therein and assign the following reasons:

“ 1st. The learned court, in its opinion, has overlooked the fact that while the facts of the case bring it within the rule of the Act of 1868, as to the measure of the defendants’ responsibility, yet the said facts are radically different from those of any of the cases in which the learned court has held that, by reason of the Act, the defendant has been exempted from liability.'

“ 2d. The learned court has not passed upon the question whether the tacit requirement, or the authorization of the requirement of the use of the dangerous means of work in this case was not a violation, by the defendant, of the obligation of a master to furnish a safe place in which his servant may work.

“ 3d. The learned court has apparently overlooked the distinction between the liability of a master resulting from the negligence of a servant of the common employer of the person injured and such negligent servant, and that resulting from the negligence of one in a common employment with the injured person.”

*William C. Stoever,*and *Henry Budd,*for motion, filed no argument in support of the motion.

*David W.*■Sellers, for appellee, filed no answer to the motion.

Per Curiam,

Re-argument refused.