
    John Cannon, Respondent, v. James C. Fargo, as President of the American Express Company, Appellant.
    Second Department,
    July 25, 1913.
    Railroad—master and servant — negligence—injury to gatetender — emergency employee — evidence.
    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 not 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 fellow-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. On the third trial the plaintiff introduced a new witness, the former gateman, and the immediate predecessor of the plaintiff in that position.
    Evidence examined, and held, that even though the testimony of the new witness justified the submission of the ease to the jury, in view of other testimony discussed in prior opinions in the same case, a judgment in favor of 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 6th day of January, 1913, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 9th day of January, 1913, denying defendant’s motion for a new trial made upon the minutes.
    
      Frank Hasbrouck, for the appellant.
    
      Harry Arnold, for the respondent.
   Per Curiam:

This is the third appeal in this case. Its previous history-may he read in 138 Appellate Division, 20, and 147 Appellate Division, 51, and need not be rewritten.

The learned trial court, in its memorandum upon its decision of defendant’s motion for a new trial on the minutes, states that it perceives no substantial difference between the present record and the record upon the last appeal, except that upon the present trial a new witness, Stickle, the former gateman and the immediate predecessor of the plaintiff in that position, testified. After discussion of that testimony, the learned court addressed itself to the question whether the proof of practice as given in this testimony tends to establish, or at least to raise a presumption, that the printed rule of the railroad company, the plaintiff’s employer, defining the duties of gatekeeper so as not to include the duty of rendering such aid as to the baggage and express, had by such very general and long-continued practice been modified, so that the particular duty was at the time of the accident within the scope of plaintiff’s employment and a part of his business as an employee of the railroad company. We adopt practically the verbiage of the learned court in stating the question. The learned court says that we held upon the last appeal that evidence showing such practice for a period of six months prior to the accident was not sufficient, and then states that it cannot conclude that proof of such practice for fourteen months does not suffice to raise a question for the jury in the first instance. The learned court then proceeds with characteristic care to an extended discussion of the testimony which led to its conclusion that the finding of the jury was not against the evidence. But it seems to us unnecessary to follow the court in its discussion, inasmuch as the court itself says that there is no substantial difference between the present record and that of the last appeal, save the calling of Stickle, unless the discussion convinces us that we were wrong in our former view, and it does not.

Stickle testifies that he preceded the plaintiff as gateman at this crossing “in 1907, December I think until 1908, April 1st; ” that he lowered and raised the gates when necessary to do so; that he unloaded express and baggage once or twice a day sometimes — once or twice a day during the time he was there. Patrick Sheridan was the station agent there for the entire time. He did not give the witness any particular instructions in reference to that while he was there nor when he was hired. Sheridan called Stickle whenever it was necessary to help with express and baggage. The method he used to call was to whistle and holler at Stickle and sometimes beckon with his hand. Besides Sheridan, the baggageman, the expressman sometimes beckoned to Stickle about that duty, and on each of these occasions Stickle went and assisted. During the time Stickle was there Sheridan was at the depot, about 300 feet from the place where Stickle was working, and he was there in that same capacity while Cannon was working there. Occasionally Sheridan would ask Stickle to come up and help, beckon to him, and occasionally the express messenger would beckon to him. Stickle was also at times called to go when they had a number of packages, and was called when they were not only heavy but a number of them so that when they wanted to hurry along he was called in. This is all of his testimony, and it is expressed in substantially his own language. Even if this additional testimony justified the learned court in its submission of the issues to the jury, which question we need not now decide, it seems quite clear to us that, in view of the other testimony in the case which has been discussed in our former opinions, it would have justified the trial court in setting the verdict aside.

On the first appeal the plaintiff insisted that it was not his duty as an employee of the railroad company to assist in removal of the express matter, and we reversed the judgment because we thought that the plaintiff was an emergency employee of the defendant and, therefore, could not recover for the negligence of a fellow-servant. Upon the second trial the plaintiff attempted to alter his complaint, his bill of particulars and his proof to sustain his contention that it was a part of his duty as the servant of the railroad company to assist in removing the express matter. But we thought that the evidence was not sufficient to take the case outside of the decision rendered upon the first appeal. Suffice it to say that we now think that the testimony of Stickle has not saved the plaintiff from the application of our former decision. Our reasons, if stated, would he but reiteration of the former opinions in this case.

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

Jenks, P. J., Btjrr, Thomas, Carr and Putnam, JJ., concurred.

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