delivered the opinion of the court, January 3d 1881.
The special verdict finds all the facts necessary to an intelligent consideration of this case. The deceased, A. J. Price, was, at the time of the accident resulting in his death, a route agent of the United States Post-Office Department, duly appointed and commissioned. His route was on the Western Pennsylvania Railroad between Allegheny city and Blairsville. His duties were those incident to the position of mail agents. While engaged in the performance of those duties, on the 23d day of July 1877, he was killed by a collision on the road. The collision was found to be the result of the negligence of the employees of the defendant company. The single question to be decided is whether the deceased *264was a passenger within the meaning of the Act of April 4th 1868,-Pamph. L. 58. The first section of said act is as follows :—
“ 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 railroad 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 to recover 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.”
It was conceded by the learned judge who ruled the cause below, and admitted upon the argument here, that the deceased came within the precise terms of the Act of 1868. Indeed, this is apparent from the facts found by the special verdict. But it is claimed that he comes also within the exception, and was a passenger within the meaning of the act. This position, if not unsound, is certainly paradoxical. To be within the letter of an Act of Assembly, and at the same time within its exception, is a proposition that would hardly he pressed were not the defendant a railroad corporation.
The Act of 1868 has been before this court upon several occasions. Its constitutionality was affirmed in Kirby v. Railroad Co., 26 P. E. Smith 506. Other questions arising under it were considered in Mulherrin v. The Railroad Co., 31 P. F. Smith 366, and Rieard v. The Railroad Co., 8 Norris 193. The point now raised is new and was not considered in either of -the cases cited. It involves a construction of the proviso of the a-ct excepting passengers from its operation. Just here it is important to consider the mischief it was intended to remedy. Prior to its passage, it had been held in numerous cases in this state that an employee could not recover against the company in whose service he was for personal injuries resulting from the negligence of a fellow servant. This was settled law. But the non-liability for damages on the part'of the company ceased there. In the Oatawissa Railroad Co. v. Armstrong, 13 Wright 186, it was held “ That where the deceased was in the sole employ of one railroad company, who had the right to run their trains over the other’s road, the plaintiff is not precluded from recovery on the ground that her husband was in the same general employ with the defendant’s servants ; the rule that where several persons are in the same general employment, and one is injured from the carelessness of another, the employee is not responsible, is not to be extended beyond the limit of the adjudged cases.” At the time this decision was rendered, the law seemed to contemplate but two classes of persons on railroad trains, viz.: 1. Passengers who paid fare or who travelled by virtue of a contract relation with the company, and 2. Employees who were in the service of the company. The Act of 1868 was manifestly intended to create a third class who were neither em*265ployees nor passengers, namely persons who are “lawfully engaged or employed in or about the roads, works, depots and premises of a railroad company, or in or about any train or car therein, of which such person is not an employee.” This class, prior to the Act of 1868, were entitled, under the decision in Catawissa Railroad Co. v. Armstrong, supra, to recover against the company for injuries resulting from the negligence of an employee. But the employee if injured by the negligence of those whom I have designated as the third class, had no remedy against the company. He could only recover against the person whose negligence caused the injury, and as such persons were generally irresponsible pecuniarily, the employee had practically no remedy. Yet he was in daily peril of injury from the negligence of persons of the third class. The legislature doubtless saw that it was unjust to give the non-employees such an advantage, and also that the company should be held liable in damages to such persons, who although lawfully upon the road, were not under its contract. The Act of 1868 places persons in the third class upon the same plane as. the employees of the company. There is strict justice in this. No good reason can be shown why the non-employees should have higher rights than employees. Their compensation is usually equal if not greater; they enter upon the same dangerous employment with full knowledge of its perils and of their legal rights in cases of injury. The rule which prevents a recovery by an employee for the negligence of a fellow servant, is based upon the soundest principles of public policy. Railroad accidents are usually the result of the carelessness of employees. However perfect the system by which trains are moved, the heedlessness of a single man may produce disaster. So long as employees understand that they take their lives in their hands in entering upon their duties, and that their own safety, as well as the welfare of their families, depend upon their care and vigilance, the travelling public will have reasonable assurance of safety. The rule that no recovery can be had for the negligence of a fellow servant, necessarily tends to increased vigilance on the part of employees, and to that extent contributes to the public safety. Properly administered, it is wise and just.
Was the deceased a passenger within the meaning of the Act of 1868 ? Looking at the mischief which the act was intended to remedy, the answer to this question is not difficult. The deceased was “lawfully employed upon the road.” He was, therefore, within the precise language of the act, and must be held to have had the rights only of an employee unless he comes within the exception. The word “passenger” in the proviso must be understood in its ordinary and popular signification. Had the question been asked of any person, intelligent or otherwise, upon this train when the accident occurred, whether A. J. Price, the deceased, was a passenger upon said train, the answer would have been in *266the negative; that he was employed upon the train as a mail-agent Why then should we give to the proviso a forced construction not warranted by its language and repugnant to our common sense ?
It was urged that the deceased was a passenger because, under the Act of Congress (see sect. 4000), “Every railway company carrying the mail shall carry on any train which shall run over its road, and without extra charge therefor, all mailable matter directed to be carried thereon, with the person in charge of the same.” This act makes it the duty of the company to carry the mail-agent without extra charge, but it no more makes him a passenger than it does the mail matter of which he has the care. The company have no control of him as they have over passengers, for whose safety they are responsible. He is not bound to observe any of the rules, prescribed for the protection of passengers. He may expose his life in the most reckless manner. The mail car, like the baggage car, is a known place of danger. From its position it is peculiarly .exposed to destruction in eases of collision. The effect of the Act of Congress is to make his position on the car a lawful one. Being lawfully upon the train a recovery might possibly have been had for his death upon the duty to carry safely : Collett v. Railway Co., 16 Q. B. 984, and Nolton v. Western Railway Co., 15 N. T. 444, go to this extent. But here the Act of 1868 comes in and declares that persons employed upon the road shall have only the rights of employees of the company.
Pennsylvania Railroad Co. v. Henderson, 1 P. F. Smith 815, was decided prior to the passage of the Act of 1868, and it was urged that the legislature had this case in view when they inserted the proviso in question. Conceding this to be so it proves nothing. .There the plaintiff was a drover transporting his live stock upon the cars of the company. He had paid the freight on his stock, and at the same time received a pass for himself. He was travel-ling with his stock, and was as much a passenger as if he had been travelling with his trunk. He had a direct contract relation with the company, pie was under the control of the conductor, and was bound to conform to the reasonable rules of the company the same as other passengers. I see little analogy between such a case and that of a mail-agent, who has no contract relation with the company, and who is not in any sense under its control. It may very well be that Henderson v. The Railroad Company belongs to a class of cases intended to be covered by the proviso to the Act of 1868. Other cases might be suggested to which it may possibly apply. They will, probably, come up in due time, and we will not anticipate them. It is sufficient to say that the legislature doubtless considered that there were, or might be such cases,' and, therefore, added the proviso to save them from the operation of the act. But it would be attributing'a want of intelligence to the law-making *267power to hold that it meant to designate as passengers men who were employed by the year upon the road, as the mail agents of the government.
The Act of 1868 is very broad in its terms. It was said by our brother Gordon, in Ricard v. North Pennsylvania Railroad Co.,' supra, “ The comprehensive words ‘ engaged or employed’ are used to embrace évery imaginable manner by which any one may or might be brought in, upon or about the roadway, cars or works of a railroad company.” Following this sound interpretation of the act we must regard it as intended to relieve railroad companies from liability for injuries to the class of persons enumerated therein. Yet the construction now claimed for it discriminated in favor of certain persons of this class to the exclusion of all others. That is to say, those persons who, by the accident of their position, happen to be employed on the trains, may recover for injuries, while others, equally deserving, who do not ride with the trains, but are “ employed or engaged in or about the roads, works, depots and premises of the company,” have no such right. To illustrate: Suppose the deceased, instead of being employed as mail agent, had been employed by the government to carry the mail from the depot to the post-office, and while so engaged about the depot had been killed by the negligence of the defendant’s servants. In such case he would have been clearly Avithin the act and not within its exception. Can the mere fact that he AVas upon the train instead of being about the depot make any difference? We are of opinion the act contemplated no such distinction.
The learned judge of the court below places considerable stress upon Webster’s definition of the word “passenger,” as “one who travels in some conveyance, as a stage coach or steamboat.” The citation from Webster is not strictly accurate. His definition is, “ A passer or passer by ; one who is making a passage; a traveller, especially by some established conveyance; a person conveyed on a journey.” Worcester defines the same word as follows: “ One who passes, or is on his way ; a traveller; a wayfarer.” It will be seen that the leading idea of these definitions is that a passenger is one Avho travels from place to place. Mere-locomotion is not travel in the popular use of the term. There are conductors on short lines of railroad in this state Avho have passed over more miles in the course of their employment than any traveller of ancient or modern times. Yet we would hardly call them travelled men. The sense given to particular words by our great lexicographers is always entitled to weight. Yet where a word is used in an Act of Assembly regard must he had to the circumstances, surrounding its use. - A more correct definition of the word in its legal sense would be, one who travels in some public conveyance by virtue of a contract, express or implied, with- the carrier, as the payment of fare, or that Avhich is accepted as an equivalent therefor. A mere *268trespasser, a person who steals a ride upon a train, or who is employed thereon, is not a passenger within the meaning of the Act of 1868, nor entitled to protection as such.
We are of opinion that the case comes within the Act of 1868, and that the plaintiff is not entitled to recover.
The judgment is reversed; and judgment is now entered for the defendant below, non obstante veredicto.
Mr. Justice Trunket dissented