
    Sylvester McChesney, Resp’t, v. The Panama Railroad Co., App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 22, 1892.)
    
    Master and servant—Railroads—Train dispatcher.
    The act of a train dispatcher vested with discretion as to the time and manner of dispatching trains is the act of the company, and not that of a fellow servant, and any negligence of his in the exercise of that discretion must he treated as the negligence of the company.
    Appeal from order setting aside a nonsuit granted at the trial; made upon the minutes of the trial judge. The action was prosecuted to recover for personal injuries suffered by the plaintiff while in the employ of the defendant, alleged to have been caused by its negligence.
    The defense charged that the negligence which caused the injury complained of was that of a co-servant of the plaintiff, for which the defendant was not liable, and upon that question the whole controversy seems to turn.
    
      Coudert Brothers (F. R. Coudert, of counsel), for app’lt: Parker & Fiero (J. Newton Fiero, of counsel), for resp’t.
   Mayham, P. J.

The plaintiff at the time of the injury complained of was a locomotive engineer in the employ of the defendant, engaged in running an engine on the defendant’s railroad from Aspinwall across the Isthmus of Panama to the City of Panama on the Pacific coast, in which service he had been engaged for several years. The defendant’s railroad is a single track with several intermediate stations between the two termini, with sidings and switches at each intermediate station.

On the day of the injury the plaintiff was running an engine attached to a regular freight train southerly from Aspinwall to Panama, and when at a point near an intermediate station called San Pablo, his engine collided with a locomotive going in an opposite direction, drawing a special train, and the plaintiff sustained an injury for which this suit is brought.

On the trial the plaintiff was nonsuited and the trial judge on a motion for a new trial upon the minutes set aside the nonsuit and ordered a new trial, from which decision and order the defendant appeals.

The case discloses that the plaintiff in running his train was acting under the orders of the train dispatcher of the defendant, and it is not claimed by the defendant that he was guilty of any contributory negligence which resulted in or contributed to his injury.

But it is insisted that the injury resulted from the negligence or mistake of the train dispatcher, or master of trains, or the engineer of engine No. 30, in running a special or irregular passenger train, not in conformity with the rules prescribed by the defendant for running trains, and that they were fellow servants with the plaintiff for whose errors or negligence the defendant was not liable and of which the plaintiff assumed the risk by the nature of his employment.

The determination of this, controverted question must, we think, depend upon the fact of the authority vested in the train master, or train dispatcher, by the defendant.

If the authority conferred upon him by the company under its rules vested in him any discretion as to the time or manner of dispatching trains, and gave him any power to change the time of starting or running trains from those fixed in the time tables by the company, then to the extent of that discretionary authority he was the alter ego of the defendant and his negligence would be the negligence of the company.

We think the discretion was vested, by the defendant’s rules, in the train master, or train dispatcher, and was exercised in this instance, and that his act in that particular was the act of the defendant. Sutherland v. Troy & Boston R. R. Co., 46 Hun, 372; 11 St. Rep., 841; same case on subsequent appeal, 28 St. Rep., 201, affirmed by the court of appeals, 35 id., 853.

This case seems to settle the rule, before that involved in some doubt, that the act of the train dispatcher vested with a discretion is the act of the company and not that of a fellow servant, and that any negligence of his in the exercise of that discretion must be treated as the negligence of the company.

It is quite apparent that the train dispatcher exercised this discretion in ordering train Ho. 9, to which plaintiff’s engine was attached, to “leave Aspinwall and run to Boheo ahead of time.”

It is also apparent that the train dispatcher exercised his discretion in ordering engine Ho. 30, with which plaintiffs engine collided, to “run special, Panama to Aspinwall,” and, while disobedience to these orders would be the negligence of the servant, for which the defendant would not be liable, any defect or imperfection in the orders or in their manner of communication would be the negligence of the defendant, and that question would be one of fact to be submitted to the jury.

We are, therefore, of the opinion that it was error to take the case from the jury, and that the order mide by the trial judge granting a new trial was right and should be affirmed.

Order affirmed, with ten dollars costs and printing disbursements.

Putnam, J., concurs; Herrick, J., not acting.  