and his right of action is such only as would exist if he were an employé of the defendant, under the provisions of the act of assembly approved the 4th day of April, 1868; and, as the negligence complained of is the alleged negligence of the engineer, brakeman, and employés in charge of the defendant's engine and cars, who occupied the relation of fellow servants to the plaintiff, therefore he cannot recover." The court below negatived the point. Was this error? The act of 1868 (P. L. 58) has several times been the subject of judicial interpretation. The first section reads as follows: "That when any person shall sustain personal injury or loss of life while lawfully 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." The siding on which the car was being loaded and the one on which was shunted the car which struck Weaver were on the land of the iron company, but the cars and all the rolling stock used on these sidings belonged to the railroad company. The railroad company operated the railroad sidings for the benefit of the iron company. The railroad's switch superintendent directed what cars should be shunted in and drawn out for the iron company, and this last-named company directed the switchman where they should be placed, and when they should be drawn out after being loaded. The stoppage and movements of the cars on the siding were directed by the iron company to suit its business purposes and convenience. The manner and method of stoppage and move ment were under the control of the railroad company through its trained railroad employés. About 15 to 20 cars per day were received and dispatched from the sidings in and about the mill of the iron company. In this case the car being loaded with iron was for shipment to Milton, Pa. The car which was shunted in and struck Weaver was loaded with cinder; it being moved to the scales, a few feet from where the accident occurred, to be weighed, and then taken out, consigned to the Keystone Furnace at Reading, Pa. In loading and unloading the cars upon the siding, from the testimony, more in number of the iron company's servants were engaged each day in loading and unloading then the number of railroad men moving the loaded and unloaded cars. The iron company's servants, while in the performance of their duties, necessarily had to cross and recross the sidings to go from the mill to the cars and back again. The facts embraced in defendant's ninth point, with the somewhat more particular statement of them we have here given, are undisputed. With the act of 1868 before us, what is the inevi

In Mulher

table legal inference from them? rin v. Railroad Co., 81 Pa. 366,-arising from an accident occurring within three years after the passage of the act,-plaintiff was employed by another company, which had the right to a restricted use of the tracks of the defendant company. While so employed he was injured by the train of the defendant, with which company he had no relation as employé. The court below held the act of 1868 did not apply, and there was a judgment for the plaintiff. This court reversed the judgment without a venire, holding that the case was clearly within the act. In the case referred to, the assault, although somewhat covertly, was really made upon the act itself. It was argued by appellee's counsel that the statute was in derogation of the common-law right of the citizens, and should be construed strictly against the defendant. We held that the facts of the case brought it clearly within the meaning of the act; that, although plaintiff was not an employé of defendant, he was employed in and about their road; that it was not a question of the extent of his employer's title; the road of defendant was its road for the purpose of moving its trains, and that was sufficient to bring it within the terms of the act of 1868. In this first case we started with the proposition that the act was not to be narrowed and restricted to only those cases technically within its exact words, as a criminal statute, but that our duty was to give to it its plain meaning. This was followed by Cummings v. Railroad Co., 92 Pa. 82. In this case one McCue owned a private coal yard. A side track led from the main tracks of the railroad into the coal yard, the side track being partly on railroad land and partly on McCue's, and constructed at the cost of both. When a train of coal cars arrived near the yard, it was changed by a switch from the main track to the side track, on which it passed to McCue's private coal-yard track. On reaching this side track, the car shunted by the railroad company's locomotive onto the private track into the coal yard. The locomotive did not follow. Cummings, the plaintiff, was employed by McCue to unload a car in the yard. As the result of a collision, caused by an open switch, the plaintiff, while unloading the car, was seriously injured. We held that: "Though the side track was on the property of plaintiff's employer, it nevertheless was used by the defendant [the railroad company] by his license. The plaintiff was, therefore, employed on or about defendant's road, and within the very terms of the act of 1868." It rarely happens that the material facts of two cases are so nearly alike as those in that case and in this. Appellee's counsel undertakes to point out a distinction between the facts in the two cases. He argues that there was no partial ownership of the side tracks between the employer and the railroad company, as in the Cummings Case, and no formal li

was

cense in the railroad company to use the tracks of the iron company, but these are not material facts controlling the application of the statute. The iron company's tracks, though upon its own land, were constructed and located to be used by the railroad company. Without a railroad it could neither bring in its raw material nor ship out its finished product. With the iron company's consent and request, the railroad ran its rolling stock over the siding as if they were part of its own property. What matters it whether this was by reason of an ownership of the land, a formal written license, or by a parol permission of the iron company? For all the purposes of a common carrier, the premises were the premises of the railroad company in shipping in and out the iron company's freight. Stone v. Railroad Co., 132 Pa. 206, 19 Atl. 67, and Christman v. Railroad Co., 141 Pa. 604, 21 Atl. 738, are directly in line with Cummings v. Railroad Co., supra. The latter case distinguishes it from the Cummings Case on this significant difference in the facts, because, as the court says, "The plaintiff was not employed in any business connected with the railroad." This vital distinction in the cases, many of them being noticed, is clearly pointed out by Justice Mitchell, who delivered the opinion in Spisak v. Railroad Co., 152 Pa. 281, 25 Atl. 497. In the case before us, Weaver, in the very terms of the act, clearly "sustained personal injury * about the premises of a railroad company" about a train or car thereon. Therefore, if this was caused by the negligence of the railroad company's servants, they were his fellow servants or co-employés, and he cannot recover from his employer.

on or

We think defendant's ninth point should have been affirmed; therefore the judgment is reversed.

PEPLINSKI v. PENNSYLVANIA R. CO. (Supreme Court of Pennsylvania. May 19, 1902.)

RAILROADS INJURY TO PERSON UNLOADING CAR-FELLOW SERVANT.

Plaintiff was employed by a coal company in unloading cars of coal. The cars stood on a track in the company's yard. The track was laid and maintained by the defendant railroad company, and the cars owned by it and moved by its employés to such points as the coal company directed. While plaintiff was on a car of coal to unload it, other cars were negligently shunted against it with such force as to throw him off and injure him. The act of April 4, 1868, provides that when any person not an employé of the railroad company shall sustain personal injury while lawfully employed on or about any of its trains or cars, the right of recovery against such company shall be only such as would exist if such person were an employé. Held, that plaintiff was a fellow servant of the trainmen under the act of 1868, and could not recover.

Appeal from court of common pleas, Erie county.

Action by August Peplinski against the Pennsylvania Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

J. Ross Thompson & Son, for appellant. Benson & Brooks, for appellee.

DEAN, J. The plaintiff, Peplinski, was an employé of W. L. Scott & Co., large coal dealers at Erie, Pa. On the 19th of June, 1901, he was on top of a car of coal, then standing on the railroad trestle, about to be unloaded, when it was struck or bumped by other cars of defendant pushed or shunted by its locomotive. The effect was to tumble plaintiff off the car into the coal chute below, and very seriously injure him. He brought suit against the defendant for damages, averring negligence in pushing the cars without warning against the one he was on, and thereby causing his injury. The defendant denied the alleged negligence, and further averred that under the act of April 4, 1868, plaintiff was a fellow servant and co-employé of the trainmen who shunted the cars negligently, and therefore could not recover. The court submitted the question of negligence to the jury, but declined to hold that, under the evidence, the plaintiff was a fellow servant of the trainmen. The jury found for the plaintiff, and therefore, necessarily, that the defendant was negligent. Although the evidence of negligence was very meager, still it rose above a scintilla, and was properly submitted to the jury. The remaining assignments of error, in substance, raise the single question whether, on the undisputed facts, the case comes within the act of 1868. It enacts: "That when any person shall sustain personal 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." The railroad company laid the ties and rails on a trestle constructed by Scott & Co. on the land of the Philadelphia & Erie Railroad, lessor of the defendant, for the purpose of moving W. L Scott & Co.'s coal to the Lake Shore Railroad Company. The trestle was for the use of the coal company, and was built to promote its business, as well as that of the railroad company. The railroad company maintains the structure at its own cost; owns and operates the locomotives and cars that run upon it. The trestle is not level, but is an upgrade to a summit, to which they are pushed by a locomotive four cars at a time. There they are detached, and, under the control of a brakeman, are dropped, by gravity, to pockets or coal chutes which discharge their coal into cars on the Lake Shore Rail

road under the trestle. The cars to be moved to and put on the trestle are selected by Scott & Co., and by them marked. The railroad company then moves them to the chutes designated by Scott & Co., where the employés of the latter company, either by hopper bottoms or by hand, unloaded them. On the day of the accident four loaded cars had been placed at the chutes. Peplinski, as was his duty, had got on top of one of these coal cars preparatory to unloading it. Four other cars were then pushed over the summit of the knuckle. These last stopped 10 feet short of their place. The engineer attempted to move them to their proper place. When he did so they bumped heavily against the four already placed, knocking Peplinski over into the coal chute, as already noticed. Clearly, Peplinski at the time of his injury was employed in and about the premises and the car of the railroad company, although employed by another than the railroad company. If he was injured by the negligence of the servants of the railroad company, as the jury has found, then on the undisputed facts he was injured by his fellow servants under the act of 1868, and cannot recover. It is a waste of time to again cite the authorities from Cummings v. Railway Co., 92 Pa. 82, down to Weaver v. Railway Co. (opinion handed down at this term), 52 Atl. 30. We are not here to review criticisms on the wisdom or policy of the statute, but to enforce it according to its plain meaning.

The judgment of the court below is reversed.

ALBRIGHT et al. v. LEHIGH COAL & NAVIGATION CO.

(Supreme Court of Pennsylvania. May 19, 1902.)

EJECTMENT-JUDGMENTS-EXECUTION—WAIVER OF INQUISITION-FILE MARK-IDENTITY OF DEFENDANT.

1. Plaintiff's ancestor was the owner of land in 1816, when an arbitrator's award was made against him, and a docket entry was made that "defendant makes oath and appeals according to law." There was no judgment on the award, but in 1817 a paper was placed in the prothonotary's office stating that defendant agreed that the land levied on might be condemned and sold without holding inquisition thereon. Held that, as this waiver treated the appeal as a nullity, and the award as having become an absolute judgment, a sale on a final execution in 1818 was valid.

2. It was no objection to the validity of a waiver placed in the office of the prothonotary, and stating that lands might be sold under an execution without holding an inquisition there on, that it was not marked "filed" by the prothonotary; it being produced from the proper office by the proper custodian, after the lapse of more than 75 years.

3. An arbitrator's award was made in 1816 against one "Moser," and a waiver of inquisition was executed by him in 1817, and there was no evidence that any other person of the same name as defendant lived in the neighborhood; and he lived on the land in controversy. There were a number of other judgments against him, and generally the officers spelled 52 A.-3

PER CURIAM. Defendant has not moved to quash this appeal, as it might have done, because of the appellants' disregard of the rules of this court in the preparation of paper book, and because the appeal is from a refusal to take off a nonsuit, to which no exception was taken in the court below. It has declined to take this advantage, it is stated, because of a desire to have the litigation ended by a review by this court upon the merits, which we now proceed to give.

The case was an ejectment in the court below by Elizabeth Albright and 121 others, as plaintiffs, against defendant, to recover possession of about 416 acres of land situate in Rahn township and Tamaqua borough, Schuylkill county. The warranty name of the tract was Aaron Bowen, and before the year 1818 had by proper conveyance become the property of one Burkhard Moser, the ancestor of plaintiffs; and if his title was not devested in his lifetime, then, on the evidence before us, it descended to plaintiffs, for defendant claims title and possession under him, their ancestor. But defendant avers that his title was devested by a sheriff's sale on a judgment in favor of one Oswald against Moser made at January term, 1818; that one Kemp, at a bid of $590, became the purchaser, and sheriff's deed was duly acknowledged to him. Under that judicial sale this defendant avers a right of possession adverse to Moser and his heirs down to this day; and it has the right to possession if that sale passed Moser's title. But plaintiffs deny the validity of that sale, or that it establishes the identity of Moser with the defendant in the execution on which the sheriff made the sale. As to the validity of the sale, it is argued, the writ was issued on an award of arbitrators, which had been appealed from; therefore there was no final judgment to sustain the writ. The award was made on the 25th of March, 1816, for £156 2s. 11d. April 13th, less than a month afterwards, there is this docket entry: "Defendant makes oath and appeals according to law." From the record as it thus stood, there was no legal judgment on the award, and no inquisition or waiver thereof, and the

ing without notice of her husband's insolvency, and without knowledge of any intent on his part to defraud his creditors. The policy was assigned, the marriage consummated, and decedent died two months thereafter without children or creditors. Held, that the wife took as a purchaser for a valuable consideration, and on her death the policy should be paid to her administrator, through whom it would pass to her husband, subject to the rights of his later assignees and creditors.

Appeal from court of common pleas, Philadelphia county.

Bill by Swithin C. Shortlidge, as adminis trator of Marie Dixon Jones Shortlidge, against the Provident Life & Trust Company of Philadelphia and others, in which the Fldelity Insurance, Trust & Safe Deposit Company, after being substituted as administrator for plaintiff, was substituted as plaintiff, to recover the proceeds of an endowment policy. The Provident Life & Trust Company of Philadelphia filed an interpleader, and from a judgment directing payment to the assignee for the benefit of certain creditors of Shortlidge the Fidelity Insurance, Trust & Safe Deposit Company and others appeal. Reversed.

E. Spencer Miller and R. C. Dale, for appellant company. Albert Dutton MacDade, for appellants Swithin C. Shortlidge, Jr., and others. Leonard E. Wales, for appellant Evan G. Shortlidge. Chas. A. Chase and Charles Lex Smyth, for appellee Smedley. N. Dubois Miller and Biddle & Ward, for appellee Hall.

BROWN, J. On September 17, 1879, the Provident Life & Trust Company of Philadelphia issued its policy of insurance to Swithin C. Shortlidge, by the terms of which it promised to pay him the sum of $10,000 on September 17, 1900, when he would be 60 years of age; but, if he should die before that time, the promise of the company was to pay the said sum to his wife, Jennie J. Shortlidge, and such children as should survive him, in equal shares to each, and, if none should survive, then to his executors, administrators, or assigns, within 60 days after due notice and satisfactory proof of his death during the continuance of the policy. While it was in force, on June 4, 1892, Shortlidge executed a deed of assignment for the benefit of creditors to Henry C. Howard. The policy was not treated by the assignee as an asset of the assigned estate. He did not include it in the inventory filed in the office of the prothonotary of Delaware county, nor is there any reference to it in his account filed December 2, 1893, and subsequently confirmed absolutely by the court, as a matter of course, in the absence of any exceptions to it. No premiums were paid by the assignee. Through assistance furnished by others, it was kept alive for several years. The assignee subsequently became insane. On March 19, 1901, Garrett E. Smedley, the appellee, was appointed trustee to succeed him, and is now claiming the proceeds of the policy, which the Provident Life

On

& Trust Company has always been ready to pay to whoever may be judicially determined to be entitled to receive the money. The substituted assignee has no rights which his predecessor did not possess when he was removed, and the claim of the assigned estate must be considered as presented by the original assignee. Jennie J. Shortlidge, who was the wife of Swithin C. Shortlidge when the policy was issued, died February 4, 1890. November 15, 1893, he married Marie Dixon Jones, to whom on October 18, 1893, as found by the court below, in consideration of her promise to become his wife, he transferred his interest in the policy. The finding is: "In consideration of Miss Jones' consent, under the circumstances, to become his wife, it had been agreed between them that he should transfer to her his right, under the policy of the Provident Life & Trust Company, to receive the $10,000 payable to him should he attain the age of sixty years. On 18th October, 1893, accordingly, Mr. Shortlidge, by writing under seal, assigned to Miss Jones all his 'right, title, and interest in and to' the policy above mentioned, and 'all advantage to be derived therefrom' in case said policy should become payable as a matured endowment. It is not shown that Miss Jones knew of the assignment which Mr. Shortlidge had made to Howard for the benefit of his creditors, or of his insolvency." Marie D. J. Shortlidge died intestate December 31, 1893, within two months of her marriage to Shortlidge. The premium due on the policy on March 17, 1895, was not paid; and on September 15, 1893, by its express terms, it lapsed. A paid-up policy was issued in lieu of it, as appears from the following finding of the court: "It seems, however, to have been the usage of the insurance company, if not according to the strict letter of the policy, that this policy, in spite of its lapsing, entltled its holder to a certain amount of paidup insurance upon its production and surrender. On 14th of May, 1897, application for the issuance of a paid-up policy in place of that which had lapsed was made by Henry C. Howard, acting as attorney in fact for Swithin C. Shortlidge, and as guardian, by appointment of the orphans' court of Delaware county, of Shortlidge's five minor children. Upon an adjustment of the unpaid premium and interest account, the company, on the 18th May, 1897, in consideration of the representations and stipulations made in the application for its policy No. 14,680, Issued a paid-up policy, No. 70,934, binding itself to pay the sum of $6,865 to Swithin C. Shortlidge, subject to the assignment of the original policy to Mary D. Jones, and also subject to the assignment of the original policy to Evan G. Shortlidge and Henry C. Howard and others, on the 17th day of ninth month, 1900, provided said Shortlidge should then be living; but, in the event of his decease before arriving at the age of sixty years, on that day to such wife (Jennie J.