" In Cannon v. Fargo ( 138 App. Div. 20) this court decided, according to the headnote, that "A person rendering aid to the servant of another at the servant's request under circumstances creating a necessity for help becomes an emergency employee of the servant's master and, if he be injured by the negligence of the servant in some detail of the work, he cannot recover of the master." It will be seen from examination of the opinion in that case (p. 21) that "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.
( Cowell v. Saperston, 149 App. Div. 373; Hopkin v. Empire Engineering Corporation, 152 App. Div. 570; Weaver v. Jackson, 153 App. Div. 661; Vasligato v. Yellow Pine Co., 158 App. Div. 551; Hanatsek v. Wilson, 161 App. Div. 634; McHarg v. Adt, 163 App. Div. 782.) The law of this case was very well stated upon the first appeal to the Appellate Division by Mr. Justice CARR. ( Cannon v. Fargo, 138 App. Div. 20.) "If," said he, "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 railroad company and, in such, was not a fellow-servant of the express company.
in turn had a contract with an air-conditioning corporation (the general contractor) to install the ducts which the latter corporation had agreed to furnish to the defendant bank. Under all the circumstances, there was no duty on the part of the defendant bank to furnish either a safe place to work or equipment for the subcontractor's employees ( Gambella v. Johnson Sons, 285 App. Div. 580). The purported assurance of safety by the bank's guard in furnishing the ladder on which plaintiff was injured was not an act within the authorized scope of the guard's duties ( Seifert v. Socony-Vacuum Oil Co., 1 A.D.2d 957). When gratuitously offering the ladder to help plaintiff, the guard was an employee who went "to the aid of the plaintiff, upon his request, to help in the work" belonging to the plaintiff's master, and thereby departed from the scope of his own duties ( Murray v. O'Brien Bros., 227 App. Div. 43, 45). At that point, the guard became a volunteer or plaintiff's fellow servant ( Cannon v. Fargo, 138 App. Div. 20, 21-22). In the Cannon case ( supra), it was said: "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".
" He refused to charge that if the driver had implied authority to call upon any one to assist him, such person then became a fellow-servant, and if the accident was the result of the act of the chauffeur or helper in a detail of the work, the defendant was not responsible. The learned counsel for the appellant argues that the court erred in the refusal of this last request, citing cases in which it has been held that an emergency employee becomes a fellow-servant and cannot recover when the injury is caused by the carelessness of his companions in the method in which they carry out their work. ( Cannon v. Fargo, 138 App. Div. 20; Fiesel v. New York Edison Co., 123 id. 676.) The appellant also urges that there was no evidence that an emergency existed justifying the driver in asking assistance, and that there was no evidence that the work was dangerous or that there was necessity to warn or instruct plaintiff, and he claims that the verdict of the jury was against the evidence.
November, 1914. Under the principle declared in previous reversals ( 138 App. Div. 20; 147 id. 51 and 158 id. 290) the present verdict for plaintiff cannot stand. In helping unload this express box plaintiff was not aware that such assistance was any part of his duties, as he had sworn himself.
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.