The opinion of the court was delivered by

This is an action against the Pennsylvania Railroad Company, for causing the death of Henry Papen■burg, the plaintiff’s intestate. Papenburg was struck and ■killed by a United States mail-bag thrown from the mail car attached to one of defendant’s trains. The bag was thrown from the postal car, not by one of the defendant’s servants, ■but by the mail agent of the United States government. The place where the bag was thrown from the train was about the -centre of Cherry street, in the city of Rahway. Papenburg was approaching Cherry street across a triangle of ground belonging to the railroad company, upon a beaten track lying near to and parallel with the railroad tracks and used by the public in gaining access to the station. About the middle of this triangle, alongside the track, a mail crane had been •erected, from which moving trains might take on mail-bags. The foot of this crane was the spot designated for throwing ■off mail-bags. In order that the bags thrown from rapidly-moving trains .should fall at the foot of this crane, it was necessary to throw them off before the mail car had actually reached the crane. Upon the occasion in question the United States mail agent threw off the bag some eighty feet before reaching the crane, causing thereby the fatal accident to Papenburg, who was lawfully at the place where he was .•struck and killed.

In this situation of affairs two interesting questions arose *138and were to some extent discussed — first, the liability of the defendant for the acts of the servant of the United States government, and second, the negligence of the defendant in designating for a performance of this character a spot so near to a traveled pathway over its own property, that, in the-natural course of things, injury might befall one lawfully using this thoroughfare.

These- questions are, however, not presented by the case-with which we have to deal, for the reason that the negligence of the company was put by the trial court upon another and different ground, in which aspect alone it is before us upon a specific exception on which error has been assigned.

The ground of negligence thus alluded to is that it was the-duty of the baggagemasters of the defendant company to-observe how the mails were thrown off and to use precautions against injury therefrom, and in this connection the-jury was told that any neglect of this duty by the baggage-master by which injury arose was the neglect of the company. Inasmuch as there was no attempt to prove that thebaggagemaster of the train in question had supervised the-throwing off of the mail-bag by which Papenburg was killed,, it is clear that the defendant was guilty of neglect of its duty-in this respect if that duty was correctly stated in this instruction. The basis of the court’s charge upon this point was; a printed notice in evidence, designating the places for the delivery of mail from moving trains. This notice was signedby Joseph Crawford, superintendent of the defendant company, and also by R. C. Jackson, superintendent of the United States mail service. It reads as follows: “ General Notice to Passenger Trainmen- and Mail Agents. Baggage-masters and mail agents are hereby instructed to throw off mail-bags at the points designated in the following statement. It must be distinctly understood, however, that this does not in. any way relieve baggagemasters and mail agents from using-all possible precaution against liability of injuring anyone in-throwing off mail.”

The instruction of the trial judge upon this branch of the-*139case was as follows: “I call your attention to the notice given by Crawford, the superintendent of the railroad company, to the trainmen on passenger cars as well as to the mail agents. He expressly made it the duty of the baggage-masters, who are railroad employes, to use all possible precautions against injury by throwing off the mails. It was thus made the duty-of these baggagemasters to observe how the mails were thrown off, and any neglect on their part by which injury was done was the neglect of the defendant company.”

The conclusion I have reached is that the learned judge misconceived the meaning of this notice, and, in consequence of such misconception, placed the liability of the defendant upon an untenable ground. The jury was, in effect, told that when mails were thrown from moving trains, whether by trainmen or by mail agents, it was the duty of the railroad baggagemasters to observe the operation with the view of averting injury, and that their failure in this respect would be the neglect of the railroad company. Applied to the case-of a mail-bag thrown from a mail car by the United States official in charge thereof, I do not think that this notice contemplated any oversight or interference by the ordinary trainmen or that, properly interpreted, such a direction will be-found in it. In the course of the case it was shown that some-trains carried mail cars in charge of mail agents, while upon others the duty of handling the mails was left to the railroad employes. The natural meaning of the joint notice of the federal government and the railroad company, in view of this fact, is not that baggagemasters on trains that carried United States mail agents should oversee the latter, but that whose-soever duty it was to throw off the mail — mail agents from mail ears, baggagemasters from baggage cars — should observe care and exercise all possible precautions against injury.

The injurious effect of the court’s instructions must at once appear, for it is admitted that, in the case in hand, the baggagemaster of the defendant did not oversee the United States-mail agent who threw off the bag. This omission in itself would, under the charge of the court, be plenary proof of' *140negligence, and upon this ground of error, we must, on this argument, assume that the jury rested its verdict. Deeming, as we do, that this instruction was erroneous and considering the question of contributory negligence as one that was properly left to the jury, there must be a venire de novo.

For affirmance — Kone.

For reversal — The Chancellor, Chief Justice, Abbett, Depue, Dixon, Garrison, Lippincott, Mache, Reed, Bogert, Brown, Krueger, Sims, Smith. 14.