A statute passed April 4, 1868, provides that 'where any person shall sustain personal injury or loss of life while lawfully engaged or employed on or about the road, works, depot, 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 employe, the right of [113 U.S. 218, 219] action or recovery in all such cases against the company shall be such only as would exist if such person were an employe: provided, that this section shall not apply to passengers.' The plaintiff in error sued the defendant in for the loss of her husband by a death which the jury, by the following special verdict, found to be caused by the negligence of the company's servant or servants:
If the court should be of the opinion that the law is with the defendant, then judgment to be entered in favor of the defendant non obstante veredicto.'
Upon this verdict the judge of the trial court held that the deceased was a person engaged in and about the train, within the meaning of the act of 1868, but that he was also within the proviso as a passenger, and gave judgment for plaintiff on the verdict. The judgment was reversed by the supreme court of Pennsylvania on the ground that the deceased was not a passenger within the meaning of the proviso, and a judgment was rendered for defendant, to which this writ of error is prosecuted.
Mr. Charles A. Ray, Mr. Edward A Newman, and Mr. Thomas M. Bayne for plaintiffs in error.
[113 U.S. 218, 221] Mr. John Dalzell argued for the defendant in error.
Mr. Justice Miller deliverd the opinion of the court. He recited the facts as above stated, and continued:
The plaintiff argues here, and insisted throughout the progress of the case in the state courts, that, by reason of certain laws of the United States as applied to the facts found in the verdict of the jury, the decedent was a passenger, and the supreme court erred in holding otherwise. These laws are thus cited in the brief of plaintiff's counsel: 'Section 8, act March 3, 1865, (13 St. at Large U. S. 506,) provides that 'for the purpose of assorting and distributing letters and other matter in railway post-offices, the postmaster general may, from time to time, appoint clerks who shall be paid out of the appropriation for mail transportation.' Section 4000, Rev. St. U. S. requires that 'every railway company carrying the mail shall carry on any train which may run over its road, and without extra charge therefor, all mailable matter directed to be carried thereon, with the person in charge of the same."
We do not think these provisions either aid or govern the construction of the proviso in the Pennsylvania statute. The person thus to be carried with the mail matter, without extra charge, is no more a passenger, because he is in charge of the mail, nor because no other compensation is made for his transportation, than if he had no such charge; nor does the fact that he is in the employment of the United States, and that defendant is bound by contract with the government to carry him, affect the question. It would be just the same if the company had contracted with any other person who had charge of freight on the train to carry him without additional compensation. The statutes of the United States, which authorize this employment and direct this service, do not, therefore, make the person so engaged a passenger, or deprive him of that charac- [113 U.S. 218, 222] ter, in construing the Pennsylvania statute. Nor does it give to persons so employed any right, as against the railroad company, which would not belong to any other person in a similar employment by others than the United States.
We are therefore of opinion that no question of federal authority was involved in the judgment of the supreme court of Pennsylvania, and the writ of error is accordingly dismissed.