On Rehearing.
Per Curiam.The plaintiff contends that the former decision erroneously held .that the plaintiff was not engaged in' interstate commerce. The contention is without foundation. It is true the writer of that decision expressed as his individual' opinion that plaintiff was not engaged in interstate commerce, but the remaining members of the court did not do so. They deemed this to be immaterial, and expressed no opinion thereon. The Federal Employers’ Liability Act and the state act are in all essentials the same. See 35 U. S. Stat. at L. 65, chap. 149, Comp, Stat. § 8657, 8 Fed. Stat. Anno. 2d ed. p. 1208; N. D. Laws, 1915, chap. 207. Under both laws, negligence is the basis of liability, and there can be no recovery under either act in the absence of negligence on the part of the railroad company or some of its employees. Seaboard Air Line R. Co. v. Horton, 233 U. S. 492, 501, 502, 58 L. ed. 1062, 1068, 1069, L.R.A.1915C, 1, 34 Sup. Ct. Rep. 635, Ann. Cas. 1915B, 475, 8 N. C. C. A. 834; Manson v. Great Northern R. Co. 31 N. D. 643, 649, 155 N. W. 32; Vanevery v. Minneapolis, St. P. & S. Ste. M. R. Co. 41 N. D. 599, 171 N. W. 610; Koofos v. Great Northern R. Co. 41 N. D. 176, 170 N. W. 859. A party, in order to be entitled to recover under either act, “must allege and .prove (as in other actions based upon negligence): (1) The existence of some duty or obligation on the part of the defendant toward the plaintiff; (2) a failure to discharge that duty; and (3) in*522jury resulting from such failure.” Koofos v. Great Northern R. Co. supra.
This is not a case where an employee of the company while engaged as such violates some rule by leaving a hand car or other obstruction upon the track. The undisputed facts are that the section foreman at Portal on the evening the accident happened took out the hand ear for the purpose of taldng some companions — not employees of the defendant — to Flaxton to attend a lodge meeting. It is undisputed that the proposed trip was in no manner connected with any business of the defendant. It is also undisputed that the taking and use of the car was in violation of the express rules and specific instructions of the company, and that the section foreman knew this to be so. It is fux*ther undisputed that the rule had been kept, and had never before been violated by the section foreman in question. Suppose the section foreman, instead of taking the hand car, had taken an autoxnobile with an attachment so as to enable him to propel it along the railroad track, would anyone contend that the company would have been liable for any injury occasioned thereby? Yet the defendant railroad company had no more connection with the matter of the travel by hand ear than if the section foreman and his companions had attempted to use an automobile, or than if they- had walked along the track. The men were in no manner engaged in the service of the company, either directly or indirectly. The only connection the company had with the matter was that the parties were wrongfully using for their own private purposes a hand car belonging to the company.
On the other hand, there is no showing that the car in which plaintiff was traveling was being driven at an excessive rate of speed. In fact the evidence negatives rather than affirxns excessive speed. Nor is there, in oxxr opinion, any evidence from which reasonable men in the exercise of their judgment could find that the injury was occasioned by reason of defective appliances on the car on which plaintiff traveled. In our opinion the evidence in the ease warrants only one conclusion,’ — that the proximate cause of the accident was the placing of the hand car on the track by the man or men who had wrongfully taken it from the defendant for the purpose of going to Flaxton to attend a lodge meeting at that place. Such man or men were not employees or representatives of the defendant, but were trespasssrs on *523its railway. And such man or men — and not the defendant — were responsible for the injuries sustained by the plaintiff.
We adhere to the conclusion reached in the former decision, — that plaintiff has failed to establish that he was injured by reason of any negligent act on the part of the defendant or its employees.