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. (Schradin 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.