If the Lehigh Company was engaged in foreign commerce, and plaintiff’s intestate, its employee, was employed therein at the time he was hurt, as we may be required to hold (Louisiana R. R. Commission v. Texas & Pacific Railway, 229 U. S. 336), the liability of that company is governed exclusively by the Federal Employers’ Liability Act (35 U. S. Stat. at Large, 65, chap. 149, as amd. by 36 id. 291, chap. 143), while that of its codefendant, the Erie Company, is to be determined by the laws of this State. (See Code Civ. Proc. § 1902 et seq.)
If the two defendants are to be regarded as joint tort feasors in causing the death of the intestate, or even if there are two independent causes of action, and not so inconsistent with each other that they may be prosecuted to judgment together and the joinder of them in one action a mere matter of procedure, then I think, even though they may be improperly joined, Mr. Justice Foote is right in holding that the question has been waived. I assume his conclusion is correct, but there are other questions raised which, it seems to me, require a reversal.
The learned trial judge charged that the Federal Employers’ Liability Act was applicable to the claim against the Lehigh Valley Company, and also against the Erie as a joint operator of the Buffalo Creek Railroad. Company, except as to the question of contributory negligence.
The jury was further instructed that it was a general rule of law that a master, as master and employer, as was the Lehigh Company, is bound to use reasonable care and prudence for the safety of its servants in providing safe places wherein to work, and to maintain them in a reasonably safe condition, and that the jury were to consider whether or not the Lehigh Company exercised due care in providing and maintaining a safe place to work for the plaintiff’s intestate, as bearing upon the question of the negligence of the defendants.
While the instruction that the Erie Company’s liability was measured by the Federal Employers’ Liability Act, except as to contributory negligence, was modified, after exception, by stating that the court meant that the Erie Company was subject to common-law liability alone, no modification of the *579charge respecting a safe place was made, and the request to charge made on behalf of the Lehigh Company, that there was no question of unsafe place to work involved, was refused, as was also the request that the Lehigh Company was not liable for any acts of the Erie Company or its employees in connection with the operation of the switch, and proper exceptions taken to the rulings, to the charge as made, and the refusal to charge as requested.
As I view the case it is not one of unsafe place. The accident happened, not because the switch was defective, but because it was left open. If that condition was caused by the employees of the Lehigh Company it is liable therefor, and perhaps even if it was not, the open switch may be regarded as a defect covered by the Federal Employers’ Liability Act.
That, however, is not so as to the Erie Company. Its liability is governed by the principles of the common law There was no contractual relation between the deceased and the Erie Company, nor was he its invitee; he was there as an employee of the Lehigh Company, and unless it be shown that the Erie Company failed in some duty it owed to him, no liability arises against it.
• If the accident happened through the failure of the Buffalo Creek switchman to close the switch, as seems possible, the Lehigh Company may be hable, but, as it seems to me, the negligence should not make the Erie Company hable therefor to the Lehigh Company.
Judgment and order affirmed, with costs.