Carr, J.:
The defendant appeals from a judgment, entered upon a verdict of a jury, for damages for personal injuries to the plaintiff. The [21]*21rules of law involved in a proper determination of this appeal are not simple, or at least their application is not easy, because of the contentions put forth by the respective counsel. The plaintiff was a gatetender of the New York Central railroad at the Staatsburg station. The defendant carried on a general express business, Using for that purpose cars connected with the trains of the New York Central Railroad Company. The plaintiff was severely injured while assisting in the unloading from the express car of a heavy express package weighing 385 pounds. His claim against the defendant was based upon the supposed negligence of the express messenger, the defendant’s employee, in handling the package. The defendant disputes the alleged negligence and contends further that, assuming the negligence, the plaintiff and the express messenger were for the time being fellow-servants and hence the defendant was not liable. The plaintiff testified that it was not part of his duties as a gatetender for the railroad company to take any part in helping the defendant to unload its express packages at that station. His counsel insists very strongly on the same theory in his brief on this appeal. The plaintiff’s story is that he undertook to assist in unloading the package in question upon the request of the express messenger, the defendant’s employee. The negligence claimed consisted of an alleged failure on the part of the messenger to warn the plaintiff of the weight of the package so that he might be ready for it, and the fact that the messenger practically pushed the package out of the car in such manner as to let it fall upon the plaintiff’s leg. If it was no part of the plaintiff’s duty to his general employer to assist in unloading this express package, then it would seem his participation in that act was either as a volunteer or as “an emergency employee” of this defendant. If he was but a volunteer, the defendant’s liability to him is not clear. If he was an “ emergency employee,” then it may be hard to see how the judgment below can be upheld, for the negligence of the express messenger was that of a fellow-servant. Perhaps there is no clear rule to distinguish always between a “ volunteer ” and an emergency servant.
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 [22]*22emergency employee of the servant’s master and that if he be in jured 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. (Marks v. Rochester Railway Co., 41 App. Div. 66.) The cases on this subject are very few in this State, and hot altogether harmonious. A conflict of authority prevails outside this State-upon the same question.' (26 Cyc. 1287.) In some text books the rule is stated to the effect that the person rendering aid under such circumstances does not become a servant to the extent of depriving him of a right of action against the master, but these statements have been criticised as not being sustained by the very-authorities upon which they purport to be based'. (Marks v. Rochester Railway Co., supra) In the Maries case the plaintiff was but á mere lad who at the request of a driver of - a one-horse car undertook to stand on the; platform of a car which had got into difficulties arid drive the horse, while the' conductor remained on the other platform, and operated the brake. The hoy was injured, by the negligence, of the conductor, and it was held that while he was engaged in driving the horse he became an “ emergency employee” and a fellow-servant of the conductor, and could not recover against the master;for the negligence of the conductor. In an earlier case in this State (Geibel v. Elwell, 19 App. Div. 285, 291), a boy who happened to be upon a pier, from which a brig was departing,- was requested to throw off the stern line of the brig from a spile ori the pier. The request came from the mate of the brig, and while the' boy was endeavoring to do so he was struck by the anchor of- the brig which, through the negligent handling of the brig, swept across the part of the dock where the. boy stood. In an action, to recover for the boy’s injuries, his complaint was dismissed on the ground that he became an emergency fellow-servant with the mate of the brig. On appeal, thé decision Was reversed,, the court saying: “We also régard, as without‘force, the argument that any negligence shown as against the master of the brig was that of fellow-servants of the plaintiff, and that the complaint, was rightly dismissed on that -ground, because we can think of no legal princi-. pie that can be invokecj which would make a boy like this plaintiff, who never had any relation with the master or his employees beyond going to their assistance -in. an emergency, a fellow-servant [23]*23of those who created the emergency. There certainly was no express hiring, and the mere gratuitous rendering of such a service did not impliedly create, as between the plaintiff and those on the brig, the relation of fellow-servants.”
It should be noted, however, that the portion of the opinion just quoted was not necessary to the decision, because that court had also held that, if the position-in which the boy was placed was one of inherent danger of which the boy was ignorant, it would have been negligence to have put him there without a warning, and such questions were for the jury, whether the lad was an “ emergency employee ” or not, for this was a part of the master’s duty to a lad of tender years and no experience.
Another phase of the same question was before this court, quite recently, in Fiesel v. New York Edison Co. (123 App. Div. 676), in- which the rule was declared as follows: “An emergency employe, -called on by another employe to assist him, for however short a time, becomes a fellow-servant, and subject to the rules of law applicable to the injury of a servant by his fellow. But he must be so called on as of necessity in order to make him an employe, for a servant has no authority to call on another to help him in his master’s business as of necessity unless the necessity exists. If he can do the work himself, there is no occasion of necessity to imply power in him to employ assistance.”
In the case at bar the work of the express messenger was to unload a package weighing 385 pounds, and the necessity of securing aid was apparent. At the close of the plaintiff’s case at the trial a motion was made to dismiss on various grounds, including a specified one that the negligence of the express agent was that of a fellow-servant. The appellant now' claims that the • denial of this motion was error and that his exception thereto presents a controlling reason for reversal. The same motion was renewed at. the close of the whole ease and denied, and an exception taken to the denial. Assuming that the motion to dismiss at the close of the plaintiff’s case was denied improperly, yet if any defect in the plaintiff’s proof was thereafter supplied by the defendant, such evidence may be considered to affirm the judgment. (Commercial Bank of Keokuk v. Pfeiffer, 108 N. Y. 242, 252; Painton v. Northern Central R. Co., 83 id. 7; Tiffany v. St. John, 65 id. 314, 317.)
[24]
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Carr, J.:
The defendant appeals from a judgment, entered upon a verdict of a jury, for damages for personal injuries to the plaintiff. The [21]*21rules of law involved in a proper determination of this appeal are not simple, or at least their application is not easy, because of the contentions put forth by the respective counsel. The plaintiff was a gatetender of the New York Central railroad at the Staatsburg station. The defendant carried on a general express business, Using for that purpose cars connected with the trains of the New York Central Railroad Company. The plaintiff was severely injured while assisting in the unloading from the express car of a heavy express package weighing 385 pounds. His claim against the defendant was based upon the supposed negligence of the express messenger, the defendant’s employee, in handling the package. The defendant disputes the alleged negligence and contends further that, assuming the negligence, the plaintiff and the express messenger were for the time being fellow-servants and hence the defendant was not liable. The plaintiff testified that it was not part of his duties as a gatetender for the railroad company to take any part in helping the defendant to unload its express packages at that station. His counsel insists very strongly on the same theory in his brief on this appeal. The plaintiff’s story is that he undertook to assist in unloading the package in question upon the request of the express messenger, the defendant’s employee. The negligence claimed consisted of an alleged failure on the part of the messenger to warn the plaintiff of the weight of the package so that he might be ready for it, and the fact that the messenger practically pushed the package out of the car in such manner as to let it fall upon the plaintiff’s leg. If it was no part of the plaintiff’s duty to his general employer to assist in unloading this express package, then it would seem his participation in that act was either as a volunteer or as “an emergency employee” of this defendant. If he was but a volunteer, the defendant’s liability to him is not clear. If he was an “ emergency employee,” then it may be hard to see how the judgment below can be upheld, for the negligence of the express messenger was that of a fellow-servant. Perhaps there is no clear rule to distinguish always between a “ volunteer ” and an emergency servant.
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 [22]*22emergency employee of the servant’s master and that if he be in jured 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. (Marks v. Rochester Railway Co., 41 App. Div. 66.) The cases on this subject are very few in this State, and hot altogether harmonious. A conflict of authority prevails outside this State-upon the same question.' (26 Cyc. 1287.) In some text books the rule is stated to the effect that the person rendering aid under such circumstances does not become a servant to the extent of depriving him of a right of action against the master, but these statements have been criticised as not being sustained by the very-authorities upon which they purport to be based'. (Marks v. Rochester Railway Co., supra) In the Maries case the plaintiff was but á mere lad who at the request of a driver of - a one-horse car undertook to stand on the; platform of a car which had got into difficulties arid drive the horse, while the' conductor remained on the other platform, and operated the brake. The hoy was injured, by the negligence, of the conductor, and it was held that while he was engaged in driving the horse he became an “ emergency employee” and a fellow-servant of the conductor, and could not recover against the master;for the negligence of the conductor. In an earlier case in this State (Geibel v. Elwell, 19 App. Div. 285, 291), a boy who happened to be upon a pier, from which a brig was departing,- was requested to throw off the stern line of the brig from a spile ori the pier. The request came from the mate of the brig, and while the' boy was endeavoring to do so he was struck by the anchor of- the brig which, through the negligent handling of the brig, swept across the part of the dock where the. boy stood. In an action, to recover for the boy’s injuries, his complaint was dismissed on the ground that he became an emergency fellow-servant with the mate of the brig. On appeal, thé decision Was reversed,, the court saying: “We also régard, as without‘force, the argument that any negligence shown as against the master of the brig was that of fellow-servants of the plaintiff, and that the complaint, was rightly dismissed on that -ground, because we can think of no legal princi-. pie that can be invokecj which would make a boy like this plaintiff, who never had any relation with the master or his employees beyond going to their assistance -in. an emergency, a fellow-servant [23]*23of those who created the emergency. There certainly was no express hiring, and the mere gratuitous rendering of such a service did not impliedly create, as between the plaintiff and those on the brig, the relation of fellow-servants.”
It should be noted, however, that the portion of the opinion just quoted was not necessary to the decision, because that court had also held that, if the position-in which the boy was placed was one of inherent danger of which the boy was ignorant, it would have been negligence to have put him there without a warning, and such questions were for the jury, whether the lad was an “ emergency employee ” or not, for this was a part of the master’s duty to a lad of tender years and no experience.
Another phase of the same question was before this court, quite recently, in Fiesel v. New York Edison Co. (123 App. Div. 676), in- which the rule was declared as follows: “An emergency employe, -called on by another employe to assist him, for however short a time, becomes a fellow-servant, and subject to the rules of law applicable to the injury of a servant by his fellow. But he must be so called on as of necessity in order to make him an employe, for a servant has no authority to call on another to help him in his master’s business as of necessity unless the necessity exists. If he can do the work himself, there is no occasion of necessity to imply power in him to employ assistance.”
In the case at bar the work of the express messenger was to unload a package weighing 385 pounds, and the necessity of securing aid was apparent. At the close of the plaintiff’s case at the trial a motion was made to dismiss on various grounds, including a specified one that the negligence of the express agent was that of a fellow-servant. The appellant now' claims that the • denial of this motion was error and that his exception thereto presents a controlling reason for reversal. The same motion was renewed at. the close of the whole ease and denied, and an exception taken to the denial. Assuming that the motion to dismiss at the close of the plaintiff’s case was denied improperly, yet if any defect in the plaintiff’s proof was thereafter supplied by the defendant, such evidence may be considered to affirm the judgment. (Commercial Bank of Keokuk v. Pfeiffer, 108 N. Y. 242, 252; Painton v. Northern Central R. Co., 83 id. 7; Tiffany v. St. John, 65 id. 314, 317.)
[24]*24As a part of its proof in defense the dófendant called the stationmaster, who was in the common employment of itself and the railroad company. This witness (Sheridan) testified on his direct examination that the dirty of- the plaintiff to liis general master, the railroad company, required the plaintiff “to help get passenger trains off as quickly as possible without delay ” (the train in question was, a passenger train); and that the plaintiff commonly helped at such trains when they were at the station and was so doing at the time of the áccident. What the defendant’s purpose was in offering such procf is not intelligible, for if the plaintiff was engaged in the discharge of his duty to his .'general master in assisting in unloading the express package in order that the train might haul out of the station without delay, then he was scarcely an emergency employee of the express company in -carrying out his general master’s purpose. . Assuming the fact as proved by- the defendant, the plaintiff at the time of the accident was doing the work of the rail'road company and, in such, was not a fellow-servant of the express company. The fact that the servants of both companies were engaged in working for a common end does not make them necessarily fellow-servants, for each set of servants Were carrying out respectively the shares of their separate masters for the common end. (Murray v. Dwight, 161 N. Y. 301; Henry v. Stanley Hod Elevator Co., 129 App. Div. 613; Sanford v. Standard. Oil Co., 118 N. Y. 571; Johnson v. Netherlands Amer Steam Nav. Co., 132 id. 576.) It is true that there are many cases which hold that, on appeal, the parties must be held to the theory on which the trial was conducted. (Snider v. Snider, 160 N. Y. 151; People ex rel. Warschauer v. Dalton, 159 id. 235; Drucker v. Manhattan Railway Co., 106 id. 157.) These are, all of them,, cases-where an appellant was held not entitled to urge on appeal, for the reversal. of a judgment, a theory of the action which he had not urged at the trial. At the same time it is well settled law that a judgment must be secundum allegata etprobata or it cannot be upheld on appeal in the face of an-appropriate exception. (Southwick v. First National Bank of Memphis, 84 N. Y. 420; Rowe v. Gerry, 86 App. Div. 349; Schnaier v. Nathan, 31 id. 225.)
In the case at bar the plaintiff pleaded and gave proof of a cause of action upon which he was not entitled to recover against the [25]*25defendant. Both in his complaint and in his bill of particulars he set forth that the accident happened while he was assisting the defendant on its request. By his proof he contended that such assistance was not a part of any duty devolved upon him by his general master, the railroad company. This was the issue tendered by him to the defendant. The proof offered by the defendant as to the duties of the plaintiff in helping to unload the package in question did not supply any defect or omission in thé plaintiff’s proof, hut rather was hostile to it on this precise question of duty. The case presented on this appeal amounts practically to this situation : The plaintiff’s pleadings and proofs failed to establish a cause of action ; -the defendant moved to dismiss by a motion appropriately setting forth the plaintiff’s failure to make out a cause of action, which motion being denied, it proceeded to offer proof which, if accepted entirely, would absolve it from liability, but a part of which being accepted, and the remainder disregarded, would have made out a canse of action in the. plaintiff’s favor, provided also a part of the plaintiff’s proof be disregarded and certain allegations in his complaint ignored or shorn of their ordinary meaning.
We think that a judgment thus obtained should not be upheld.
The judgment should be reversed and a new trial granted, costs to abide the event.
Jenics, Burr, Thomas and Rich, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.