The jury in this case rendered a verdict for the defendant under a binding instruction from the court below. We are of opinion such instruction was proper. There were no disputed facts. The question was whether the plaintiff came within the act of 1868. This was a question of law for the court.
It appears from the plaintiff’s own testimony that he was injured in doing an act about the cars of the defendant company which was clearly within the line of his duty. The case comes directly within the authority of Mulherrin v. Railroad Co., 81 Pa. 366; Cummings v. Railway Co., 92 Pa. 82; Balt. & O. R. Co. v. Colvin, 118 Pa. 230. It was urged, however, that the case is upon all fours with Richter v. Penna. Co., 104 Pa. 511. We do not so regard it. On the contrary, the distinction between that case and those above cited is marked. Richter v. Penna. Co. was decided upon the ground that the plaintiff, at the time he was killed, Avas not engaged or employed in any business connected with the railroad, but was merely attempting to exercise his right to cross the same.
Judgment affirmed.