Opinion of the Court, per MILLER, J. road without charge. 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 employe. His services had then commenced under the contract; he paid no fare as an ordinary passenger would have done, but was being transported under the pass referred to. Under these circumstances the deceased was, at the time of the accident, in the car under the terms of the contract made for the rendition of his services, and not as a passenger. It/ was essential that he should be in the car, at the time and place of the accident, to enable him to perform the contract of service into which he had entered. But for this he would' not have been there at the time, and his traveling on this occasion was in the capacity of an employe and not as a passenger. If two separate contracts had been intended to have been made, one for the services of the deceased and the other for his transportation, it is fair to assume that the amount allowed for his wages would have been increased sufficiently to pay his fare as a passenger. Clearly such could not have been the intention, as the contract made was a single one which related only to the services of the deceased and the conpensation he was to receive for the same. 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. The right to go and return being inseparable from the contract to do the work, it is not obvious that any valid ground exists for claiming that the deceased was a passenger and paid his own fare. As to the position that because his hours of labor had not commenced at the time of the accident, the deceased was to be regarded as a passenger, it is a complete answer to say that, his conveyance to and from his work was incident to his employment, and was part of the contract of service under which he was engaged. This remark will also apply to the position of the respondent's counsel that traveling to the shop where work was to be done was not the beginning of service but an Opinion of the Court, per MILLER, J. act done to obtain the service. If it was a part of the contract then obviously it cannot be said that the deceased gave a portion of his wages as the price of transportation independent of his contract. He was as much under the control of the defendant when traveling as any other employe who was transported by virtue of a contract with the company for his services, which contract provided for the right to go and come upon the defendant's cars to and from the place where he was required to work. Although he had no particular duty to discharge while traveling, yet the traveling of the deceased was not as a passenger but as an employe under the contract of service between him and the defendant. No question arises upon the record before us as to the liability of the defendant in case the injury had been received outside of the contract of service, and it is a sufficient answer to the suggestion made in this respect to say, that the accident which caused the injury to the deceased occurred while he was traveling for a purpose connected with and within the scope of the contract. Some authorities are cited in support of the position of the appellant's counsel, which tend in that direction. In the case of Ross' Administratrix v. N. Y. C. & H. R. R. R. Co. (5 Hun, 488; affirmed in this court in 74 N. Y. 617) the intestate was killed by an accident on the defendant's road. He was an assistant surveyor, employed by the month, and had no duty to perform in connection with the running of the defendant's train, nor any care in reference to the road. His death occurred while being transported on defendant's cars, free of charge, from his home to the place where he was to perform work. There was no direct proof that the contract provided for his transportation upon the road free of charge, but it may be implied from the circumstances that such was the understanding. That case differs from this in want of proof as to the precise terms of the contract in reference to the transportation of the deceased, but in principle it is difficult to see that any distinction exists between the two cases, and as we have seen, the contract for service in that case included the trans Opinion of the Court, per MILLER, J. portation; in this particular it is not as strong in favor of the application of the doctrine that the deceased there was an employe as the case at bar. In the case of Russell v. H. R. R. R. Co. (17 N. Y. 134) the deceased was employed to work under an arrangement by which he was to be conveyed home every night in the cars in connection with which he was working, free of charge. He was to be taken home upon the gravel train at night, and when his day's work was completed he was under no further obligation to do any more work for the company. Carrying him home constituted a part of his wages. This case differs in some of its aspects from the case at bar, but it tends somewhat to sustain the general rule that when the transportation of the party, free of charge, constitutes a part of the contract of service, he is an employe and servant, and not a passenger. In the case of Gillshannon v. Stony Brook Railroad Corporation (19 Cush. 228) it appears that the plaintiff was a laborer on the road and was conveyed in the defendant's cars to and from the place of his work with the consent of the company for mutual convenience, there being no contract between them as to his transportation. He was injured while thus on his way to his work, and the court says: "If the plaintiff was by the contract of service to be carried by the defendant to the place of his labor, then the injury was received while engaged in the service for which he was employed, and so falls within the ordinary cases of servants sustaining injury from the negligence of other servants." This case sustains the doctrine that if the traveling was done under the contract of service, then the defendant is not liable, and bears directly upon that question as presented in the case at bar. The cases of Seaver v. Boston & Maine Railroad (14 Gray, 466), and Tunney v. Midland Railway Co. (L. R., 1 C. P. 291), also sustain the doctrine contended for by the appellant's counsel. Of a contrary import is the case of O'Donnell v. A. V. R. R. Co. (59 Penn. St. 239), which is in conflict with the rule which obtains in this State and is not sound law. Statement of case. There is no doubt of the general rule that the master can only set up the relation of master and servant as a defense to an action of a servant where the injuries were received while engaged in his employment. If the master's negligence is a matter extraneous to his specific employment, or 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 employe and the company, in whose employment he is at the time engaged, is not responsible for the injury. It follows that the judge upon the trial erred in the varions rulings referred to. As the judgment must be reversed on this ground, it is not necessary to consider the other questions raised. The judgment should be reversed and a new trial granted, costs to abide the event. All concur, except DANFORTH and FINCH, JJ., dissenting. CATHERINE WALDELE, as Administratrix, etc., Respondent, v. Declarations which are merely narrative of a past transaction are not ad- In an action to recover damages for alleged negligence, causing the death of J., plaintiff's intestate, it appeared that about midnight a freight train passed a street crossing on defendant's road, followed, about fifty feet distant, by an engine going backward. Shortly after their passage J. was found lying near the track fatally injured. No one saw the accident. Plaintiff's theory was that J., who was an educated deaf-mute, well acquainted with the locality, approached the track on his way home, waited for the freight train to pass, and then in attempting to cross was Statement of case. struck by the engine. A witness for plaintiff was permitted to testify to declarations made by J. by means of signs about thirty minutes after the accident, to the effect that there was a long train; that he waited for it to go by, and was struck by an engine which followed. Held error. The authorities upon the question of the admissibility of declarations as part of the res gesta collated and discussed. Waldele v. N. Y. C. & H. R. R. R. Co. (29 Hun, 35), reversed. (Argued February 28, 1884; decided March 11, 1884.) APPEAL from judgment of the General Term of the Supreme Court, in the fourth judicial department, in favor of plaintiff, entered upon an order made January 9, 1883, which reversed an order of Special Term, setting aside a verdict for plaintiff, and directing a new trial. Hun, 35.) (Reported below, 29 This action was brought to recover damages for alleged negligence, causing the death of John E. Waldele, plaintiff's intestate. The facts, so far as material, are stated in the opinion. Edward Harris for appellant. The court erred in receiving the evidence of Philip Waldele as to the declarations of John Waldele, made after the injury and while John Waldele was on the sidewalk on Kent street, as they were too remote and narrative. (Waldele v. N. Y. C. & H. R. R. R. Co., 19 Hun, 69; 14 Am. Law Review, 817; 15 id. 1-70, 104; Chapin v. Marlborough, 9 Gray, 244; Rockwell v. Taylor, 41 Conn., 59; Greenfield's Case, 85 N. Y. 88; People v. Davis, 56 id. 95; Feeley v. H. R. R. Co., 17 id. 131; Cleveland v. C. & C. R. R., 26 Ohio, 185; State v. Davidson, 30 Vt. 377.) Wm. S. Oliver for respondent. The statement of plaintiff's intestate being made at the place where, and within a few minutes after, the casualty occurred and growing directly out of it, was a part of the res gesta, and was admissible. (19 Hun, 73; Rex v. Foster, 25 Eng. C. L. 421; 6 C. & P. 325, and note; Aveson v. Kinnard, 6 East, 193; Thompson v. Trevanion, Skinner, 402; Rouch v. R. R. Co., 4 P. & D. 686; 2 |