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.