
    John Cannon, Respondent, v. James C. Fargo, as President of the American Express Company, Appellant.
    Second Department,
    November 10, 1911.
    Railroad — master and servant — negligence — injury to gatetender.— changing theory of action on second trial.
    In the absence of evidence to the contrary, the court will assume that it is not the duty of railroad engineers, firemen, ticket agents or telegraph operators to assist in handling express packages.
    
      Action against a railroad company by a gatetender who was injured while assisting an express messenger to remove an express package from a ear. On the first .trial of the action plaintiff claimed that it was no part of his duty, to aid the express messenger. A judgment in his favor was reversed on the ground that, under the circumstances, he was an emergency employee of the express company and could not recover as the . injury was caused by the act of a follow-servant. On the second trial the plaintiff amended his complaint and bill of particulars to allege that it was part of his. duty to aid the express company’s employee. Evidence examined, and held, that a judgment for the plaintiff should be reversed and a new trial granted. ■ •
    Appeal by the defendant, James 0. Fargo, as president, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the Utli day of November, 1910, upon the verdict of a jury for $1,8J5; also from an order entered in said clerk’s office on the 3d day of December, 1910, denying the defendant’s motion for a new trial made upon the minutes; also from an order made at the beginning of the trial denying the defendant’s motion to dismiss the complaint, and also from an order granting and allowing plaintiff to amend his complaint.
    
      Frank Hasbrouck, for the appellant.
    
      Harry Arnold, for the respondent.
   Burr, J.:

On the 31st day of October, 1908, plaintiff was in the employ of the New York Central and Hudson River Railroad Company as a gatetender at the public crossing near the station at Staatsburg in Dutchess county. While he was assisting in removing an express package from a car under the control a,nd in possession of defendant the package fell and he was injured. There was a sharp conflict of evidence whether such fall was due to the negligence of Messick, the express messenger and defendant’s employee. Assuming, for -the sake of.the argument, that it was, the question remains whether defendant is then hable. Upon a previous appeal plaintiff contended that it was no part of the duty which he owed to the .railroad company to assist in removing the expresé packages of defendant. We then said, in reversing a judgment in plaintiff’s favor: “ Where one renders aid to the servant of another at the request of the servant, and under circumstances which create a necessity for aid, it has been held that the person rendering aid becomes an emergency employee of the servant’s master and that if he be injured through the negligence of the servant in some detail of the work, he cannot recover against the master, for the-negligence is that of a fellow-servant.” (Cannon v. Fargo, 138 App. Div. 20.) Upon the present trial a bold attempt was made to alter plaintiff’s complaint, bill of particulars and evidence, in order to. overcome the obstacle to recovery pointed out in the previous opinion. In his original complaint plaintiff alleged that he was “requested by said defendant at said time to' assist in the removal of merchandise from said car,” and that he was injured while assisting “ in the removal of such merchandise pursuant to such request.” In his amended complaint he omits the allegations above set forth, and alleges that he is “ informed and believes that it was a part of his duty as said gate tender for the New York Central and Hudson River Railroad to assist in removing express matter from said car.” In his original bill of particulars he states that the request to assist in removing said express matter came from the defendant, “its servant, agent and employee at Staatsburg station.” In the amended bill the words in quotation marks were omitted, and there were substituted therefor the words “and that it was a part of the duty of the plaintiff herein as gate tender for the New York Central and Hudson River Railroad Company to assist in removing express matter from the said express car.” Plaintiff’s evidence fails to establish this. He admitted that on the previous trial he had testified that under his employment by the railroad company he had nothing to do except to attend to the gate, had no other duties, and that under such employment he had no connection with reference to any work on the express car. He also then testified that, although on several occasions while doing duty as gatetender he had been called upon to assist by the express agent at' Staatsburg, it was no part of his duty. He admitted also that he then testified that when hired he received no instructions to assist in handling of baggage and freight so the trains would not be delayed; that he was never informed hy any one connected with the railroad company that he was expected to go and help with, the baggage and express matter, and that he did not understand that it was a part of his duty there. "Upon this trial he testified that.it Was his duty “to lower and raise the gates as. trains came and went,” and that he “had been called by the agent [of the express company] on several occasions” to work for the express company, and that he “ helped whenever he requested me on the express work.” He did testify that he thought it was part of his duty- to his employer to assist with the express work. But he fails to introduce any evidence that there was an agreement between the railroad company and the express company to that effect or that such service was included in the terms of his hiring, or that there were any rules of the railroad company requiring him so. to. act, or that any of his superior officers informed him that such service was expected of him. His whole “thought” that it was part of his duty seems to have been based upon a remark made by a witness called by the defendant upon the previous trial, one Patrick Sheridan. Sheridan was the general agent at Staatsburg, both of the New York Central and Hudson Biver Bailroad Company and the American Express Company, the defendant. Upon the previous trial he swore that it was part of plaintiff’s duty when requested not only to attend the gate but to assist in the removal of express packages. Plaintiff admits that he did not know this, and it is perfectly clear that when he went to assist Messick, the express messenger, he did not suppose that he was going otherwise than voluntarily or from a desire to accommodate him and to render him assistance. But Sheridan’s testimony is uncontradicted that he based the conclusion to which he testified, not upon any rules of the railroad company nor by reason of any express authority conferred upon him' to require such service, but because he assumed that “any railroad man’s duty ” is to assist the expressman. No fact is' proven sustaining such assumption. In the absence .of evidence to the contrary, the court may assume that it is not the duty of the engineer, or the fireman, or the ticket agent, or the- telegraph operator, all of whom are “railroad men,” to ■ assist' in handling express packages. The evidence as to plaintiff’s “duty.” is too meager to sustain a verdict. But even if the evidence, meager as it is, would warrant the submission to the jury of the question whether it. was part of plaintiff’s duty as a gateman, if requested by one of his Superior officers in the employ of the railroad company, to render assistance to the express messenger, it affirmatively appears that on this occasion no such request or command was given by Sheridan, his superior, or by any other railroad employee. Nor were any general instructions given of such a character.

We think, therefore, in obedience to the rule previously laid down in this-case plaintiff should have been nonsuited. If we are right in this conclusion, it is unnecessary to consider the other exceptions in the case, or to determine whether that portion of the charge of the trial justice which contrasted his personal views of the law of this case with those of “the learned men whose duty it is to investigate these cases and analyze them and reason them out ” was calculated to weaken in the minds of the jury the force of the .rule previously stated by this court, and which if applied in this case would have exonerated defendant.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Hirschberg, Thomas and Carr, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  