Lofy v. Southern Pacific Co.

California Court of Appeal Dec 8, 1954 No. Civ. 19944Published

Before: Drapeau

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Holding. The trial court erred in granting a nonsuit because the evidence regarding the hole in the toe path was sufficient to support an inference of negligence, making the case a question for the jury.

Issues

Whether the evidence presented was sufficient to support an inference of negligence under the Federal Employers' Liability Act.
Whether the trial court erred in granting a motion for nonsuit instead of submitting the case to the jury.

Disposition. reversed

Quotations verified verbatim against the opinion

“From these facts the inference could have been drawn that the condition had been present for some time, that defendant in the exercise of ordinary care should have discovered and remedied it”

“Applying the facts in this case to the rules stated, this court has come to the conclusion that this is a jury case, and that it was error to grant the motion for a nonsuit.”

DRAPEAU, J.

Decedent Walter F. Lofy, Sr., was a switchman for defendant Southern Pacific Company. He was employed in the switching yards of that company at Colton, California. He was riding a freight car on one of the switching tracks in the yard, as the ear was being pushed slowly up to another for coupling.

Decedent had his left foot on the last step down on the ladder going up the side of the car. He was holding onto the ladder,.with his left hand. This last step is called a 1 ‘stirrup. ’’ . It was dark,, and he had his signal lantern in his right hand.

As the ear upon which decedent was riding came close to the other car, he swung off the stirrup to the ground, to run forward and see that the coupling was made. When he stepped to the ground his right foot dropped into a hole on the toe path next to the track. He “kind of hit” the hole with his heel, and caught himself with his left foot. This toe path is on ground, not rock ballast, and the surface is packed hard and smooth for the use of switchmen working in the yard.

As he stepped into the hole, decedent felt a jerk in his back. After he finished his shift and went home serious pain developed in his back. Next day the pain kept getting worse, and he couldn’t go back to work.

After a day or two he went to an osteopathic doctor. He took a few treatments from that doctor, but kept getting worse, and worse. Then he was sent to the company hospital in San Francisco.

From the time of the accident until the trial of the case, he suffered terrific pain and was unable to work. When he tried to work for a few days he had to quit on account of the pain.

A medical witness for decedent testified that in his opinion the deceased suffered a ruptured intervertebral disk. This is a serious and sometimes a lasting injury.

[461]

This appeal is taken from a judgment following the granting by the trial court of defendant’s motion for a nonsuit.

During the pendency of this appeal, Walter F. Lofy, Sr., died, and Pearl Lofy, as administratrix of his estate, has been substituted herein as plaintiff and appellant.

Lofy v. Southern Pacific Co.

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DRAPEAU, J.

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