William H. Booth, Respondent, v. The Boston and Albany Railroad Company, Appellant

William H. Booth, Respondent, v. The Boston and Albany Railroad Company, Appellant. (Argued October 2, 1876; decided November 14, 1876.) This action was brought to recover damages for injuries sustained by plaintiff, whilst an employe of defendant, by a collision on its road. The collision by which plaintiff was injured was the same as that 'which killed Sipperly, a fireman, for whose death a recovery was sustained (see Flihe v. B. cmd A. li. R. Co., 53 N. Y., 549), and Sprong, the brakeman, for whose death a recovery was sustained in Sprong v. Boston cmd Albany Railroad Company (58 FT. Y., 56). In this case the cause was submitted to the jury with instructions to find for the plaintiff if, upon the evidence, they should find the defendant guilty of negligence causing or contributing to the injury in any one of these three particulars : First, in dispatching the train preceding that upon which plaintiff was injured without the proper and sufficient number of brakemen; second, in dispatching it with defective or insufficient breaks; third, in sending the train upon which plaintiff was engineer to follow too quickly the preceding train. In respect to the last two alleged acts of negligence the court was asked, but refused, to charge that there was no evidence upon which the jury would be justified in finding-negligence. The verdict was general. Held, that the refusal to charge as to the third act or ground of negligence was error, as there was no evidence tending to prove that proper care and caution and ordinary prudence was not exercised ; indeed, there was no evidence of the time that did actually elapse between the departure of the two trains; and as it did not appear upon what ground of negligence the jury found against plaintiff, and there being no evidence upon one of the points suggested, the error was one for which a new trial must be granted. George W. Miller for the appellant. Matthew Male for the respondent. [MAJORITY — Allen, J.,] Allen, J., reads for reversal and new trial. All concur. Judgment reversed.