Opinion by
Mr. Justice Fell,As this case was presented at the trial in the common pleas the right to recover depended upon the relation which the foreman in charge of the work and the laborer who was accidentally killed bore to each other. If they were fellow workmen there was no ground for the action; if the foreman was a vice principal the plaintiffs made out a case which entitled them to go to the jury. The question as to this relation was made subordinate, and expressly so, to the inquiry whether the defendant had provided safe means for carrying the workmen to their work. This inquiry did not arise in the case. The truck from which the deceased was thrown was not provided by the railroad company as a means of transportation for its workmen, nor was it used as such at the time of the accident. It was an implement or appliance used in laying rails, and the workmen were moving it from one part of the works to another for that purpose. Such trucks were generally carried on the cars, but because of its unusual weight this one was pushed on the track in front of the engine. At the time of his injury Evilhock was on the truck for the purpose of aiding in moving it, and not for the purpose of being carried to his work. The company had provided a train of cars, properly equipped and managed, to carry its workmen. No accident happened to this train nor was any one injured while riding on it. By the instruction complained of the attention of the jury was diverted from the real issue and directed to a false one.
Whether under the testimony Evans was a vice principal is not free from doubt. If the facts had been undisputed it would have been the dutjr of the court to decide the question and instruct the jury accordingly: McGinley v. Levering, 152 Pa. 366. As the testimony was not clear and uncontradieted it was *598not error to submit it with proper instructions. It is to be hoped that upon a retrial the relations of the parties will be more clearly defined. The answers to the plaintiffs’ points which are the subjects of the third, sixth and seventh assignments of error assume either that Evans and Evilhock were not fellow workmen or that the truck was furnished as a means of conveyance for the workmen. These assignments, together with the fourteenth and seventeenth, are-sustained, and the judgment is reversed with a venire de novo.