OPINION DENYING A PETITION FOR A SECOND REHEARING.
The opinion of the court was delivered by
Mason, J.:In a petition for a rehearing attention is called' t.o the fact that in ordering a reversal of the judgment the court failed to mention one of the contentions made in behalf of the railway company. The petition is denied, but to remedy the omission noted this addition is made to the opinion already filed:
The defendant in error contends that if the act of 1870 be so construed as to cut off the defense of assumption of risk by contract the statute itself is void because repugnant to the federal constitution, and especially to the fourteenth amendment thereof, citing in support of this contention K. C., Ft. S. & G. Rld. Co. v. McHenry, 24 Kan. 501. That case established that the statute did not abolish the defense of contributory negligence, the writer of the opinion adding that such a construction would conflict with the constitutional guaranties of “equity of rights and remedies for injury by due course *30of law.” (Page 504.) In the present case the court interprets the statute no further than is necessary to determine the precise controversy involved. What is decided is that under the acts of 1870 and 1874 an express messenger can not by contract made in advance relieve a railroad company from liability for injuries received through its negligence while in the performance of his duties upon its cars. In this we discover no conflict with any provision of either the state or federal constitution.