
    In the Supreme Court of Pennsylvania.
    KIRBY vs. THE PENNSYLVANIA R. R. COMPANY, operating the Erie and Pittsburg Railroad.
    The Act of April 4th, 1868, enacting that persons engaged about the premises of a railroad company, although not employed by the company itself, should only have the same right to recover against the railroad for an injury as one of its employees would have, is constitutional.
    Error to tlie Court of Common Pleas of Mercer county.
   Opinion delivered January 4, 1875, by

Agnew, C. J.

The Sharon and Greenfield Railroad is a coal railway, terminating above grade near to a side track of the Erie and Pittsburg Railroad. The cars of the latter are run out upon the side .track to receive the coal from the former, by means of schutes from above. The plaintiff was employed, not by the Erie and Pittsburg Railroad Company, or its lessee, but by others, to assist in running the coal through the schutes into the cars below standing on the side track. While so engaged, and standing* on a car, directing the movement of the coal into the car, a train of cars laden with limestone, becoming disengaged from a locomotive drawing it away, ran off down grade, and entered the side track, the switch of which had been left open by the servants of the defendants running out the side track; the limestone train struck the coal cars standing on the side track with great violence, throwing the plaintiff off the car on which he was engaged, and injuring him badly. An action for this injury was brought against the Pennsylvania Company, the lessees operating' the Erie and Pittsburg Railroad. On the trial the plaintiff was non-suited under the terms of the first section of the Act of 4th April, 1868,. P. L. 58, in these words, “ That when any person shall sustain personal injury, or loss of life, while lawfully engaged, or employed on or about the roads, works, depots and premises of a railway company, or in or about any train or car therein, or thereon, of which company such person is not an employee, the right of action, and recovery in all such cases against the company, shall be such only as would exist, if such person were an employee. Provided, that this section shall not apply to passengers.” Is this a valid law ? Had the Legislature the power to pass it ? The case of the plaintiff evidently falls within its terms. The propriety of the law is not a question before us. If the Legislature had the constitutional power to pass it, repeal is the only mode of annulling it. It may be considered that the natural rights of men, among them that of personal security, are guarded by the Bill of Rights, and “that all courts shall be open and every man for an injury done him, in his lands, goods, person, and reputation,, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” 'But in what respect does this law trench upon' this guaranty, or indeed on any other in the Constitution. The person to be affected by it, must be one lawfully engaged or e??iployed on or about, the road, &c. To be thus engaged he must be there by his own consent. He is therefore voluntarily there, to perform some act or business connected ■Ovith the road, or its works. . He lcnowingiy assumes a relation regulated by the law, and thus places himself under the operation of the law, which governs the relation. He is not bound to assume the relation, and when he does, he acts with his eyes opén. The law is not retrospective, and takes from him no remedy for an injury already sustained. The relation he assumes is one of danger, and the fact of danger authorizes regulation by the State, as the conservator of the lives, security and property of her citizens. It is a police regulation, having respect to the general good, forbid individuals from undertaking a dangerous employment, except at their own risk, to the same extent as if they were in the immediate employment of the railroad company. Leaving each one to assert his proper remedy against the person whose act or negligence does him the injury, the lawsays to him that the legal principle of respondent superior shall have no place in this particular relation ; that as a matter of proper policy for the good of all, those who voluntarily venture into employment along side of the servants of a railroad company, shall have just the same remedies, for injuries happening in the employment, that these have,' and none other. In doing this, no fundamental right of the person thus voluntarily venturing, is cut off or struck down. The, liability of the company for the acts or omissions of others, though they be servants, is only an offspring of law. The negligence which injures is not theirs in fact-, but only by imputation of law. The law which thus imputes it to the company, for reasons of policy, can remove the imputation from the master and let it remain with the servant, whose negligence causes the injury. It is unnecessary to refer to the long line of decisions, asserting the general power 5f legislation when unforbid-den in the Constitution. Finding no prohibition against such a regulation of persons lawfully engaged or employed upon a railroad or its works, the section quoted of the Act of 1868 is not unconstitutional.

The judgment is therefore affirmed.  