#### Cora C. Vroom, as Administratrix, etc., of Benjamin H. Vroom, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

Fourth Department,

January 6, 1909.

Railroad—negligence—free pass to employee — exemption from liability for negligence.

Under the amendment to the Railroad Jjaw made by chapter 657 of the Laws of 1906 one who has physical control of a signal, train or telegraph office is a vice-principal of the railroad corporation and not a fellow-servant of the other employees of the company.

Where an employee óf a railroad company, who went home on Saturday and returned to his work on Sunday, was given a free pass for such purpose, con-*859tabling the usual exemption from liability for negligence, he is to be considered an employee of the railroad while using such pass in going to and from his home, and may recover for injuries sustained by its negligence during his journey.

Williams, J., and McLennan, P. J., dissented, with opinion.

Appeal by the defendant, The New York Central and Hudson Elver Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 27th day of May, 1908, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 27th day of May, 1908, denying the defendant’s motion for a new trial made upon the minutes.

*Maurice C. Spratt*and *Alfred L.*Becker, for the appellant.

*Charles L.*Feldman, for the respondent

Kruse, J.:

The plaintiff’s intestate, Benjamin H. Vroom, whose death, it is contended on her part was caused through the negligence of the defendant, was a workman employed by the defendant as a brakeman on a construction train. He lived in the city of Buffalo. The construction train worked on the West Shore branch near Despatch, just east of Bochester.

He had been at work there on this train for some months. It was customary for him to go home Saturdays a,nd return Sundays. He had gone home on the Saturday before the accident and was on his way back Sunday evening, when a collision occurred between two trains on the defendant’s railroad, east of Bochester and just before reaching the place where he usually got off the train, resulting in his death.

The defendant had furnished the deceased a free pass, which he used in *going*back and forth from his work to his home. He was riding on the pass at the time he met his death. The pass contained the usual condition exempting the defendant from liability for negligence.

While the pass upon its face did not limit its use by the deceased in going back and forth to and from his work, we think the inference is permissible that such was the primary purpose for which it *860was issued by the defendant, and that it was a part of the contract of employment made between the defendant and the deceased, and that the further conclusion is warranted from the evidence that at the time of the accident he was an employee of the defendant, having the right to ride free as a part of the contract between himself and the defendant.

It may well be that no question of fact was involved under the evidence, but if there was, it must be regarded as resolved in favor of the plaintiff, since the only question of fact submitted to the jury was that of damages, and none other was requested to be submitted, it being contended on behalf of the defendant that no legal liability had been established against it as a matter of law.

Chapter 657 of the Laws of 1906 (adding to Railroad Law [Laws of 1890, chap. 565], § 42a), known as the Barnes Act, provides that it shall bo held that persons engaged in certain kinds of service for a railroad company, with certain specific authority named in the act, among other things that of authority to direct or control other employees, or who have as a part of their duty for the time being physical control or direction of the movement of a signal, train or telegraph office, are vice-principals of the corporation, and not fellow-servants of the injured or deceased employee. The act further provides that no contract, receipt, rule or regulation between the employee and the railroad corporation shall exempt or limit the liability of the corporation from the provisions of the section. The appellant contends that the act is unconstitutional, but we have repeatedly applied the act and held it to be constitutional. (Sc*hradin*v. *N. Y. C. & H. R. R. R. Co.,*103 N. Y. Supp. 73; S. C., 124 App. Div. 705; *Brown*v. *N. Y. C. & H. R. R. R. Co.,*126 id. 240; *Laplaca*v. *L. S. & M. S. R. Co.,*127 id. 843.)

If, therefore, the deceased was an employee at the tizne he met his death, then under the facts of this case the defendant’s employees, through whose lack of care and attention the collision occuz-red, were vice-principals.

As has been stated, we think the evidence warrants the conclusion that at the time the deceased was injured and znet his death he was not a passenger being transported free, but that the relation of master azid servazzt existed between the defendant and him, and if *861we are right in that conclusion, it follows that the defendant is liable. *(Vick*v. *N. Y. C. & H. R. R. R. Co.,*95 N. Y. 267.) But even if that relation did not exist at the time of the accident, we think under the circumstances of this case it could well be found that the pass was not a mere gratuity, but a part of the contract of employment, entitling the deceased to transportation to and from his work.

We, therefore, conclude that the judgment and order should be affirmed, with costs.

All concurred, except McLennan, P. J., and Williams, J., who dissented in an opinion by Williams, J.

Williams, J. (dissenting):

The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide event.

The action was brought to recover damages for the death of Benjamin H. Vroom, alleged to have resulted from the negligence of the defendant.

The only question involved in this appeal is whether the exemptions from liability in the pass on which the deceased was' riding at the time he met liis death, bars this right of action, and this question is dependent upon the further question whether he was riding on the defendant’s car at the time as its employee, or as a passenger merely.

It is the settled law of this State that a *passenger may,*in consideration of free transportation, stipulate that a railroad company shall not be liable for personal in juries'to such passenger, by reason of its negligence or that of its servants, and such stipulation will bar any action for damages for such injuries while making use of such free transportation. *(Johnston*v. *Fargo,*184 N. Y. 379, and the cases therein referred to.)

It is provided, however, by the Barnes Act (so called) (Laws of 1906, chap. 657, adding to Railroad Law [Laws of 1890, chap. 565], § 42a), among other things, in effect, that it shall be held in actions by employees against railroad companies for personal injuries, by reason of negligence, that persons who have as a part of their duty for the time being physical control of the movements of the trains are vice-principals of the railroad companies and not fellow-serv*862ants-of such employees, and that no contract between the railroad companies and their employees shall exempt or limit the liability of the companies from the provisions of this section. So that if the deceased was at the time of his death riding on the defendant’s train as its employee, he was protected by this statute, and the railroad company could not interpose any defense based upon the negligence of coemployees, or the stipulation for non-liability contained in the pass upon which deceased was riding. Moreover, such a stipulation in a contract between an express company and its employees was held invalid as against public policy generally in *Johnston*v. *Fargo (supra),*without reference to the Barnes Act which related to railroad companies alone.

We should not hold the Barnes Act in the provision referred to unconstitutional. (See *Schradin*v. *N. Y. C. & H. R. R. R.*Co., 103 N. Y. Supp. 73; S. C., 124 App. Div. 105; *Brown v. N. Y. C. & H. R. R. R.*Co., 126 id. 240.)

The single question, therefore, for our determination is, whether deceased when he met his death was an employee of the defendant within the provisions of the statute in question. The facts relating to this subject are not in dispute. Deceased was working on defendant’s railroad at the time of his death and had been for four or five years. Just prior to his death he was a bralceman on a work construction train and had been for some months. The train was working during that time on the West Shore branch near Despatch. His home was in Buffalo, where his wife and family lived, and he would be away from home at his work during the week and go home Saturdays and back Sundays. On the occasion when he met his death he had been at home, and on Sunday night was returning to his train and while riding on the Auburn branch near his destination he was killed in a collision between two trains. He was riding on a pass. It does not appear how long he had had the pass or whether *it*constituted any part of his contract of service or had anything to do with his original employment. He was described in it as a freight brakeman, and it was *over the western division.*Upon these facts we think it must be said that the deceased was *not*an employee, but merely a passenger when he met his death. The pass entitled him'to ride free over the division referred to therein, not only for the purpose of his employment, not only while engaged *863in performing Ms duties as an employee, but for any and all purposes of Ms own, for his own pleasure or his own profit. Indeed he would be likely more often to use it when *off*duty, as employee, than when engaged in his work. On the occasion in question he was riding for his own pleasure, had been visiting his family and home, and'was on his way back to the place where he was employed. He was not then riding as an employee *at all.*

The rule is very clearly stated by Judge Miller in his opinion in *Vick*v. *N. Y. C. & H. R. R. R. Co.*(95 N. Y. 267) as follows: “ If the injury be received at a time when the servant is not engaged in his duties, then the servant occupies the position or status of a stranger. But this rule has no application, when by the terms of the contract, expressed or implied, it appears that traveling on the cars constitutes a part and portion of the contract of service. In such a case we think the person injured must be regarded as a servant or employee.”

That action was brought to recover for the death of an employee, resulting from the negligence of other employees. The death occurred in 1878, long before the Barnes Act was enacted, and the right to recover there rested upon the question whether the deceased was riding upon defendant’s train, when he met his death, as an employee or a passenger or stranger, as it was then expressed. The court held he was an *employee,*and could not, therefore, recover. “ The essence of the contract was (as stated by the court) that the deceased should work for the defendant as foreman of the tin shop, and in consideration thereof it should pay Mm a price fixed per hour, and should transport him from his residence to the place where the work was to be done and back again upon its railroad without charge; ” and the court further said: “ At the time of the accident the deceased was in the shop car of the defendant on his way to the place where he was to perform services. As his transportation was a part of the contract he was there by virtue thereof as an employee. * * * The deceased was * * * in the car under the terms of the contract made for the rendition .of his services, and not as a passenger. * * * It was part of this contract of service that he was to be carried to and from the place of his work every week, on the defendant’s railroad and on a train which was usually provided for that purpose. * * * His con*864veyance to and from his work was incident to his employment, and was part of the contract of service under which he was engaged.”

It will be seen from these extracts and from the reading of the whole opinion that that decision was based upon the proposition that the free transportation was *a part of the eontraet of service.*It was a part of the consideration for the contract of service. Several cases were referred to in that opinion holding substantially the same doctrine. This *Vick*case is much relied on here, and this judgment must be upheld if at all under the doctrine there laid down. But the trouble with the case we are here considering is that the free transportation here was not shown to be a part of the contract for service — a part of the consideration for such service. The pass was unlimited except as to the western division, and to the exclusion of certain trains. ■ The deceased might ride on it at all times and under all circumstances when he chose to do so, not only while going home or returning to the place where he worked, but for any other purpose of pleasure or profit. He might go out for a pleasure trip or to transact business he was engaged in entirely separate and apart from the service he was to render defendant. In the *Viek*case there was no such general pass or unlimited free transportation. It was there agreed merely that the railroad company would once each week transport deceased free of charge directly to and from his work to be performed for the railroad company. The facts of that case and this are entirely different so far as they bear upon this question of the deceased’s being an employee or a passenger or stranger when he met his death. The trial court very properly held in this case that there was no question of fact for the jury, and that only a question of law was involved, but we think that question of law was settled improperly in favor of the plaintiff.

There should have been a nonsuit directed.

McLennan, P. J., concurred.

Judgment and order affirmed, with costs.