Prichard v. Southern Pacific Co.

[702]

McCOMB, J.,

pro tem.

This is an appeal from a judgment in favor of defendant based upon the trial court’s order granting defendant’s motion for a nonsuit.

The action is for damages which plaintiff alleges she sustained as a result of the death of her husband, due to injuries received while in defendant’s employ as a railroad fireman.

The complaint alleges in:

Count 1,

defendant’s failure to comply with an order made March 13, 1911, by the Interstate Commerce Commission pursuant to the Safety Appliance Act of Congress;

Count 2,

defendant’s failure to comply with the provisions of the Federal Boiler Inspection Act, in that the locomotive tender from which decedent fell was not equipped with sufficient hand rails;

Count 3,

defendant’s violation of the Federal Boiler Inspection Act in equipping the tender on which decedent was working with a hook too large and heavy for the purpose of manipulating safely the spout of a water column.

Appellant concedes that the motion for a nonsuit was properly granted as to count 1 of the complaint. Therefore we dismiss it without further consideration.

There are two propositions presented for determination.

First: Was there sufficient evidence as to the proximate cause of the accident to require the court to submit the case to the jury ?

Second: Did the trial court commit prejudicial error in its rulings in excluding certain evidence proffered by plaintiff?

In determining the first proposition the evidence is undisputed. Decedent was a fireman of a locomotive crew engaged in hauling a train in. interstate commerce. It was his duty to take water for the locomotive when it was needed. He performed this task on June 8, 1932, by causing the locomotive to stop in a position where the manhole on the top of the tender was opposite a water column located beside the railroad. He then engaged, as was customary, a “hook” 91 inches long and % inches in diameter, with which the tender was equipped, in a ring dangling from a spout on the water column. He thus pulled the spout over the manhole and took water.