Miller v. Cornwall Railroad Company
Lewis Miller brought his action against the Cornwall Railroad Company in the court of common pleas of Lebanon county, Pa., to recover damages for personal injuries sustained through the company's negligence while he was being carried on one of its trains. At the trial, the case was left to the jury, but the court reserved 'the question as to whether there is any evidence of the defendant's negligence to go to the jury.' A verdict was returned in plaintiff's favor, notwithstanding which, judgment was entered for defendant on the point reserved. The decision turned on the conclusion that Miller was to be treated as if he was, at the time of the accident, an employ e of defendant, because, though not in fact such employ e, he came within the terms of the first section of an act of the general assembly of Pennsylvania, approved April 4, 1868 (Laws Pa. 1868, p. 58, No. 26, § 1), which reads as follows:

'Section 1. 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 court was asked by plaintiff to instruct the jury, among other points, as follows: '(1) Lewis Miller, the plaintiff, was a passenger on the train when he received his injury.' '(2) The act of April 4, 1868, is unconstitutional and void.' '(3) The right of the plaintiff to have remedy for his injury was a wellknown and clearly-defined common-law right, one of the inherent, indefeasible rights guarantied to all citizens by the constitution. The act of April 4, 1868, can therefore not be invoked by the defendant against the plaintiff; and it is not remedy by the due course of law.' But the court refused to do so. The case was taken by appeal to the supreme court of Pennsylvania, and the first, second, and third errors assigned were to the refusals to give the foregoing points, in their order. The words 'inherent, indefeasible rights' and 'remedy by the due course of law' were placed in quotation in point 3, as given in the third assignment. The judgment was affirmed by the supreme court on February 27, 1893, at the January term of that year. 154 Pa. St. 473, 26 Atl. 779. On January 8, 1894, appellant, Miller, filed a motion for reargument, on these grounds:

'(1) Because of material errors of fact into which the court fell, in the consideration of the case, and which, we believe, led to the affirmance of the judgment of the court below.

'(2) Because the plaintiff desires to present the case for review on the point raised, by the second assignment of error, as to the constitutionality of the act of April 4, 1868, under the fourteenth amendment to the constitution of the United States. The question was not orally argued for want of time, and the judgment is not in shape for such a review.

'(3) General reargument.'

A reargument was refused, and this writ of error then sued out.

Benj. Morris Strouse and A. Frank Seltzer, for plaintiff in error.

Wayne MacVeagh and Howard C. Slurk, for defendant in error.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court. 

Notes
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