(dissenting). I cannot agree that the parties hereto occupied the -relation of passenger and carrier at -the time of the accident. If the premise from which my colleague has started were correct, his conclusion would- be sustained by a part of the decisions cited. Some of the -decisions ’have no possible *431Application to the facts of this case. This is noticeably true of Louisville, etc., v. Scott’s Ackn’or, Marshall v. Nashville, etc., and Dickinson v. Railway Co. But if his premise is -wrong his conclusion finds no support in -any one -of the authorities cited. My ■colleague says:
“Defendant was under obligation- to furnish this transportation, though appellant was under no obligation to avail himself ■of the opportunity to ride. He could have walked to camp, cine could have carried a lunch out with him in the -morning and not have gone t-o camp -at that time -at all. The transportation was furnished .as a matter of convenience to him an-d, by the terms of the contract of employment, was a part of the compensation for his labor.”
I -believe that, under the contract -entered into, when construed in- the light of the work to 'be done- thereunder, appellant w-as under obligation to -avail himself of -the opportunity to- ride. Under the contract, it was his duty to ride on this car to and from work, morning and -evening, and-to and from the place for meals at the noon hour. The transportation was not “furnished as a matter of convenience to” appellant, but as a necessary and ■essential element in the carrying -out of the enterprise in which appellant and his fellow workmen were engaged. The work was to -be done all along the line of railway from Mil-bank to- Aberdeen; -filie respondent w-as to furnish -board and lodging for the men, and was to take them- back and- forth to and from work. At the time of the accident, their headquarters -were- at Webster, -and they were working near Andover, th-e second station west of Webster. Appellant could not, from- -the very nature of the cir-■cu-mstanees, -have -lodged and boarded- where he -desired. It wias; absolutely necessary for him, in properly fulfilling his -contract and as a part thereof, to make use of the transportation offered. There is not a -case cited by appellant where it is held that -the relation of passenger and carrier -exists und-er such -circumstances; hut' wherever a contract, such as the one before us, has been before the oo-urt, -it -has always been- held that -the relation of master •and servant -existed during- the period of transportation. The -distinction between where it is th-e d-uty of the injured party to ride, and where it is his privilege to do so, is clearly noted in the following -cases, some of which are among the cases cited by *432my -colleague; Enos v. Railway Co., 28 R. I. 291, 67 Atl. 5, 12 L. R. A. (N. S.) 244; McNulty v. Railway Co., 182 Pa. 479, 38 Atl. 524, 38 L. R A. 376, 61 Am. St. Rep. 721; Dickinson v. Railway Co., 177 Mass. 365, 59 N. E. 60, 52 L. R. A. 326, 83 Am. St. Rep. 284; Harris v. City, 69 W. Va. 65, 70, S. E. 859, Ann. Cas. 1912D, 59; Hebert v. Railway Co., 103 Me. 315, 69 Atl. 266, 125 Am. St. Rep. 297, 13 Ann. Cas. 886. In the McNulty Case, the -court held that -the relation of passenger and carrier existed between the parties because the plaintiff “was under no -obligation to ride on the cars.” The oonrt distinguished it from a former case before the same court where it was held that the relation -o-f master and servant existed-, and stated that th-e plaintiff in such former case was held to- be -a servant because r
“It was part of * * * (his) contract of service that he was to-return -each -day to Birmingham by the pick-u-p train, to be reair to start uipon his -work the next morning’.”
And in tire Dickins-o-n Case the -court held the plaintiff to be a passenger, -and -not a servant, because:
“It was no part of his -duty '* * * as a servant to take the car on which he was riding and go to the particular place for his -dinner.”
I must confess my inability to reconcile the two different posit-ons taken in the -majority opinion. Eirst it is held that, in the -matter of transportation — that out of which the accident resulted — the relation of master and servant did not exist. Then it is held that there is a liability because “appellant and Frizell c-eased to be -co-laborers -or coemp-loyees, and Frizell took the place of his principal.” The rule holding -the master liable for injuries-to his servant through th-e act of his vice principal can hav-e no-application where the relation between the principal and the party injured is -other than that of -master and servant; there cant be no vice principal where there is no servant.
GATES, ]., -concurs in -the v-iews expressed by Judge WHITING.'