
    (74 Hun, 150.)
    McCHESNEY v. PANAMA R. CO.
    (Supreme Court, General Term, Third Department.
    December 6, 1893.)
    Negligence—Evidence.
    In an action by a locomotive engineer for Injuries caused by a collision, it appeared that the train dispatcher ordered plaintiff to meet train No. 10 at B., but the instructions did not mention train 30, a special, with which plaintiff’s train collided. The engineer on train 30 was instructed not to pass B. until plaintiff’s train arrived there. The collision occurred after plaintiff had passed train No. 10 at B. according to his instructions. Held, that the collision was catised by the negligence of the train dispatcher.
    Appeal from circuit court, Albany county.
    Action by Sylvester McChesney against the Panama Railroad Company for personal injuries. There was a judgment in favor of plaintiff, and defendant appeals.
    Affirmed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Coudert Bros., for appellant.
    Parker & Fiero, (J. Newton Fiero, of counsel,) for respondent.
   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 15 miles from Aspinwall. The distance from Aspinwall to Panama is about 60 miles, according to the time table in evidence in this case. San Pablo is beyond Bohio, and about 25* miles from Aspinwall. After' he had passed San Pablo about 1,000 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. 21 N. Y. Supp. 207. 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 the 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.  