At the place of the accident the appellant operates a double-track electric railroad parallel with and contiguous *777to the four-track railroad of the New York Central Railroad Company. The two railroads are crossed by a public highway and except at the highway intersection are separated from each other by a line fence. The railroads extend easterly and westerly and the highway nearly northerly and southerly. The railroad of the appellant is the southerly one of the two. The distance between the two sets of tracks is about fifty feet. The New York Central crossing is protected by gates raised and lowered by a gateman stationed north of the track and west of the highway. The crossing of the appellant was not provided with gates but was protected by a flagman or watchman who when his duties did not otherwise require usually sat on the north side of the appellant's tracks and east side of the highway because from that position he could to better advantage guard the crossing. The deceased employee Priglise was the flagman or watchman at this crossing.
On the occasion of the accident some school children approached the New York Central crossing from the north and waited for a freight train to pass on the northerly track. After it had cleared the crossing they proceeded southerly. Another freight train was approaching on the southerly track of the same railroad. The gateman guarding that crossing shouted to the children to stop. The evidence is conflicting as to whether the gates at that time were up or down. The fact is immaterial as far as this case is concerned. Two of the children, being brothers, did not heed the warning but attempted to cross in front of the approaching train. The younger of the two stumbled and fell on the track. The elder lad, who had reached the other side, went back to rescue his brother and succeeded in doing so but was killed in the attempt. In the meantime Priglise, observing the danger of the boys, left his crossing and went to their assistance and was himself struck and killed by the train. The question is did the accident to him arise out of his employment.
The findings of the Commission seek to establish the inference that the northerly approach to these two highway crossings was guarded by the gateman of the New York Central Railroad Company and that the southerly approach to both of them was guarded by the deceased employee of the *778appellant. No such inference is justified by the evidence. The arrangements of the two railroad companies for guarding the two crossings were as complete and independent of each other as if the crossings had been separated by a distance of miles. There was ample space between the two crossings for pedestrians or vehicles after having crossed one railroad to stop and await the passage of a train on the other, and as a matter of fact each of the two crossings was guarded on both sides by the two railroad companies respectively without reference to each other. The duties of Priglise were confined entirely to the crossing of the appellant. The uncontradicted evidence shows this to be the fact.
In Matter of Waters v. Taylor Co. (218 N. Y. 248) an award was sustained where an employee engaged in the construction of a building was killed while attempting to save the life of another employee engaged in the same construction but working for a different employer. The question in that case as stated in the opinion was whether the general employment of the deceased employee authorized his attempt to rescue from death a fellow-laborer “ working only a few feet away on the same general undertaking, although for a different employer.” It was further stated that “ his act was prompted by the relationship existing between himself and a fellow-workman caused by their employment on a common undertaking ” and emphasis was laid on the fact that the fellow-workman was only “ technically working for a different employer.” The opinion was carefully limited to the facts of the particular case. In Matter of Di Salvio v. Menihan Co. (225 N. Y. 127) the court in reviewing a number of authorities in which it had been held that the accident arose out of the employment alluded to the Waters case and said that perhaps it went farther than any of the others and again called attention to the fact that the rescued workman was only technically in the employ of an independent contractor and in explaining the decision said that between the work for which the employee was engaged and the disputed act which led to the accident there was a real relationship which brought the accident within the range of employment.
It seems to me that to sustain the award in this case it is *779necessary to extend the doctrine of the Waters case much beyond the limits there existing and to go farther than any case to which our attention has been called. The link connecting the employment with the accident which existed in that case is missing here. There was no community of interest between the two railroad companies in respect to these two crossings. There was no co-operation on the part of either employer or employees. Certainly the act of the deceased employee was not within the contemplation of his employ^ ment because the other railroad company employed a man to prevent the identical situation which led to the accident. It was the duty of the gateman of the New York Central railroad to keep people off its tracks when a train was approaching. It could not have been contemplated or anticipated that an emergency would arise authorizing Priglise to do that which it was the duty of the New York Central gateman to do or which became necessary or proper because of his omission of duty. The accident occurred on different premises and without any relationship connecting the accident with the employment. The act of Priglise was heroic and elicits the highest commendation, but we must not permit our admiration for his heroism to blind us to the injustice of requiring his employer to pay for his heroism no matter how meritorious unless it was. displayed in an act which properly can be said to have arisen out of and in the course of his employment. (Workmen’s Compensation Law, § 10; Id. § 3, subd. 7, as amd. by Laws of 1917, chap. 705.)
I advise that the award be reversed and the claim dismissed.
All concur, except John M. Kellogg, P. J., dissenting with a memorandum.