Shanley v. American Olive Co.

SHAW, J.

The plaintiff sues to recover damages arising from bodily injuries to himself, alleged to have been caused by the negligence of the defendant. After the filing of its answer, the defendant moved for judgment in its favor on the pleadings. 'This motion was sustained by the court and judgment was entered accordingly. The plaintiff appeals.

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The effect of such motion by defendant was to admit the truth of all the allegations of the complaint. The answer must

be

disregarded. The sole question is whether or not the facts stated in the complaint constitute a cause of action against the defendant. We proceed to state the facts alleged.

The defendant was the owner of land near the railroad of the Pacific Electric Railway Company, on which land it maintained a plant for the buying and selling of olive oils and other products. At the request of the defendant, the Pacific Electric Railway Company had constructed a spur-track for the use of the defendant in its business, from the main-track of the railroad to and upon the said land. Thereafter the defendant built as a part of its plant a building forty feet high, fifteen feet wide, and thirty-eight feet long. The plaintiff was employed by the Pacific Electric Railway Company as a switchman assisting in the operation of its cars. The Pacific Electric Railway Company agreed to switch a carload of gravel and sand for the defendant on to said spur-track. The plaintiff was one of the crew of the Railway Company engaged in the said switching operation. On the side of said car was a ladder for the use of the crew in climbing upon it. The said building was so near to said spur-track that when such a car passed it on the track the clearance between the ladder on the car and the side of the building was “only about four to six inches.’’ While engaged in switching said gravel-car as aforesaid, and while

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attempting to climb upon the side of the car as it was moving along the spur-track, the plaintiff was caught between the car and the side of said building and was crushed and injured. The defendant knew of the situation of the spur-track when it erected said building and by the exercise of ordinary care could have, known of the danger in making such a switching movement of cars thereon. The plaintiff had not been upon the spur-track nor had he been engaged in any work in relation thereto after the erection of said building, and he did not know that the building was there until after said accident and injury.