
    Sylvester McChesney, Resp’t, v. Panama Railroad Co., App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December, 1893.)
    
    Neqmgence—Train dispatcher.
    Where the accident, is caused by the instructions, and the lack of full instructions, by the train dispatcher, the company is liable to an employe who is injured thereby.
    
      Appeal from a judgment in favor of plaintiff.
    
      Coudert Brothers, for app’lt; Parker & Fiero (J. Newton Fierot' of counsel), for resp't.
   Herrick, J.

The plaintiff, the engineer of a locomotive known as No. 9, on the Panama Railroad, came in collision with a special train drawn by an engine known as No. 30, and, as the result of such collision, suffered severe injuries, for which the jury rendered a verdict in his favor. The plaintiff was running a regular train, and on the 2d of January, 1890, started with such train from Aspinwall to go to Panama; he received the following instructions from the train dispatcher of the road: “ No. 9 will leave Aspinwall and run to Bohio ahead of time. Nos. 9 and 10 ahead of time will meet at Bohio.” Bohio is a station about fifteen miles from Aspinwall ;• the distance from Aspinwall to Panama is about sixty miles, according to the time-table in evidence in this case. San Pablo is beyond Bohio, and about twenty-five miles from Aspinwall; after he had passed San Pablo about a thousand feet the collision occurred with the train drawn by No. 30, which was going from Panama to Aspinwall. The engineer and conductor of the train drawn by No. 30 had received the following instructions from the train dispatcher of the defendant: “No. 30 will run special Panama to Aspinwall. Will not pass Bohio until No. 9 ahead of time has arrived there.” The train drawn by No, 30 was not a regular, but a special train, and had no place upon the regular time-table of the road.

It will be seen that the plaintiff received no notice of the running of No. 30, and it seems to me that he had a right to assume that the track would be clear after he left Bohio. The engineer and conductor of the train drawn by No. 30 had the right to assume that they would not meet the train drawn by No. 9, until they reached Bohio, instead of that they met between Panama and Bohio. The cause of the accident is thus perfectly apparent, the instructions, and the lack of full instructions, by the train dispatcher. The question as to whether the defendant is liable for the error of the train dispatcher is not an open question in this court, it was passed upon when the case was heretofore before us. See 49 St. Rep., 148.

As to the various exceptions taken to evidence and to the charge of the court on the trial, in the view that I have taken as to the cause of accident, I cannot see that the defendant has been injured by any rulings of the trial court.

The judgment should' be affirmed with costs.

All concur.  