dissenting: I am unable to concur in the majority opinion. On the contrary, I take the view that the hearing Commissioner and the court below correctly concluded that claimants are not entitled to recover.
There are certain principles of law relating to Workmen’s Compensation which seem to have become well established in this and other jurisdictions.
Ordinarily, the employer is not liable for an injury suffered by an employee while going to and from his work. This is upon the theory *482that such injury does not arise out of or in the course of his employment. Dependents of Phifer v. Dairy, 200 N. C., 65, 156 S. E., 147; Davis v. Mecldenburg County, 214 N. C., 469, 199 S. E., 604; Bray v. Weatherly & Co., 203 N. C., 160, 165 S. E., 332; Smith v. Gastonia, 216 N. C., 517, 5 S. E. (2d), 540; Lassiter v. Tel. Co., 215 N. C., 227, 1 S. E. (2d), 542; Bourlee’s Case, 129 N. E. (Mass.), 603; Padgorski v. Kerwin, 175 N. W. (Minn.), 694; Nesbitt v. Twin City Forge & Foundry Co., 177 N. W. (Minn.), 131; Ogden Transit Co. v. Ind. Comm. (Utah), 79 Pac. (2d), 17; Schneider, Workmen’s Compensation Law (2d), 769, sec. 265. There is no liability even though the employee is paid for the time consumed in going to and fro. Hunt v. State, 201 N. C., 707, 161 S. E., 203.
In the absence of a contract transportation of the employee by the employer to and from his work is presumed to be gratuitous and no .liability attaches for injuries suffered by the employee while being so transported. Lassiter v. Tel. Co., supra.
To entitle a claimant who is injured while being transported to or from his work to recover it must be made to appear that he accepted transportation as a matter of right, under an express or implied contract, as an incident of his employment. Lassiter v. Tel. Co., supra; Hunt v. State, supra; Edwards v. Loving Co., 203 N. C., 189, 165 S. E., 356; Dependents of Phifer v. Dairy, supra, and cases cited; Smith v. Gastonia, supra; Anno. 10 A. L. R., 169; Anno. 21 A. L. R., 1223; Anno. 24 A. L. R., 1233; Anno 62 A. L. R., 1438.
The rule that has been generally followed is stated by the Massachusetts Court in Donovan’s case, 217 Mass., 76, 104 N. E., 431, as follows: “The rule has been established, as we consider in accordance with sound reason, that the employer’s liability in such cases depends upon whether the conveyance has been provided by him, after the real beginning of the employment, in compliance with one of the implied or express terms of the contract of employment, for the mere use of the employees, and is one which the employees are required, or as a matter of right are permitted, to use by virtue of that contract.” See 25 Harvard Law Review, 401, and A. L. R. Anno, above cited; 1 Honnold, Workmen’s Compensation, sec. 110; Harrison v. Central Con. Corp., 108 Atl. (Conn.), 346; American Coal Mining Co. v. Crenshaw, 133 N. E. (Ind.), 394.
The risk which caused the injury must be incidental to and arise out of the employment. Hunt v. State, supra; Harden v. Furniture Co., 199 N. C., 733; Hollowell v. Department of Conservation and Development, 206 N. C., 206, 173 S. E., 603; Hildebrand v. Furniture Co., 212 N. C., 100, 193 S. E., 294; Lockey v. Cohen, Goldman & Co., 213 N. C., 356, 196 S. E., 342.
*483It follows that to recover plaintiffs must prove an express or implied contract to transport as a part of the employment and an injury sustained while being so transported. They have shown, and the Commission found, that there was a contract, but they have signally failed to show an injury sustained while being transported in the manner and upon the conveyance provided by the contract. The contra affirmatively appears, both from the evidence and from the findings of the Commission.
What was the contract? The Commission found “that the defendant employer regularly furnished transportation to the employees who were working in the woods to and from the place said employees were working; that the means of said transportation was an enclosed car sometimes called the ‘safety car’ which had been built by the defendant employer for the purpose of transporting his employees to and from work . . . that the plaintiffs’ deceased, together with other employees of the defendant, had been warned not to ride the log train but to use the safety car which had been provided for their transportation.”
It is clear then that the contract was to transport by means of the safety car and not by log train. The log train was excluded both by rule and by express instructions. It is equally clear that plaintiffs have failed to bring themselves within the contract upon which they rely.
Had there been no contract to transport plaintiffs could not recover. This is conceded. It seems to me that as to this particular occurrence the conclusion that it had no relation to or connection with, but was completely outside, the contract is inescapable.
The employee had quit work more than 5 minutes before the accident. The safety car was not yet ready to depart. Evidently becoming impatient and unwilling to await the departure of the safety car, the conveyance provided under the contract, he, for his own convenience, deviated or departed from the course of his employment and chose his own means of travel without the consent and against the will of his employer. The log train was not the conveyance provided by the employer “in compliance with one of the terms of employment for the mere use of the employees.” It was not “one which the employees were required to use by virtue of that contract.” The deceased was not “using it by permission or as a matter of right.” On the contrary, he was doing so in defiance of specific instructions and in violation of an express rule of the employer.
The employee worked in the woods. His duties did not require him to go on or about the log train. He was to be transported by means of the safety car. The risk incurred by attempting to board the log train was in no sense a risk “incidental to and arising out of” his employment. It was a risk created by him for his own convenience and had no relation *484to tbe work be was engaged to do. 71 C. J., 669, sec. 410; Wither's case, 147 N. E., 831; Jacobson’s case, 143 N. E., 317.
Tbe rule that forbade tbe employees to ride tbe log train was not a safety rule. A safety rule relates to tbe manner and method of doing tbe work assigned or to tbe tools, equipment or materials to be used. Tbis rule bad no relation to either. It was, in effect, a limitation of tbe contract to transport. Tbe employer, both by rule and by express instructions, made it clear that employees were not permitted and bad no right to use tbis train as a means of conveyance witbin tbe meaning of tbe contract.
Tbe cases cited in tbe majority opinion do not sustain its conclusion.
In Michaux v. Bottling Co., 205 N. C., 786, 172 S. E., 406, tbe use of tbe truck was an essential part of tbe work.
In Edwards v. Loving Co., supra, tbe employee was injured while riding to work in a conveyance furnished by tbe employers under tbe contract of employment.
In Gordon v. Chair Co., 205 N. C., 739, 172 S. E., 485, tbe employee was not injured while going to or from bis work.
In Bellamy v. Mfg. Co., 200 N. C., 676, 158 S. E., 246, tbe employee was injured while on an elevator witbin tbe building where be worked and which be was permitted to use.
In Smith v. Gastonia, supra, tbe employer furnished tbe means of transportation and permitted its use.
In Mion v. Marble & Tile Co., Inc., 217 N. C., 743, 9 S. E. (2d), 501, there was a contract to transport and tbe employee was using a vehicle be was directed to use because tbe regular vehicle was already overcrowded.
For tbe reasons stated, I vote to affirm.
Schenck, J., concurs in dissent.