Oldham v. Atchison, Topeka & Santa Fe Railway Co.

VALLEE, J. pro tern. Appeal by plaintiff from a judgment for defendants, The Atchison, Topeka & Santa Fe Railway Company (referred to as “Santa Fe”), and United States Gypsum Company (referred to as “Gypsum Company”), entered upon the granting of their respective motions for a judgment of nonsuit in an action for damages for personal injuries. Plaintiff has dismissed his appeal from the judgment in favor of the Santa Fe.

Viewing the evidence in the light most favorable to the plaintiff, indulging in all reasonable inferences in his favor and disregarding all conflicting and contradictory evidence, the facts are these: The accident occurred on February 25, 1945, at about 6:30 a. m., as plaintiff, a conductor, stepped off a freight train, causing him to slip and sustain the injuries complained of. The Gypsum Company maintains a large plant at Midland, California, where it manufactures gypsum plaster, fertilizer and plasterboard. One part of its plant is known as the board plant. It maintains a number of spur tracks at its plant and on its property. The accident occurred in front of door No. 37 of the board plant of the Gypsum Company and opposite its spur track No. 3. Spur track No. 3 runs in a southeasterly direction from the main line of the Santa Fe and between the Gypsum Company’s board plant (which is immediately adjacent to track No. 3 to the east) and its warehouse and mill (which is immediately adjacent to track No. 3 to the west). Boxcars are “spotted” for load[216]ing and unloading on spur track No. 3. The floor of the board plant building is set level with the floors of “spotted” boxcars. Door No. 37 is located “about twenty-two feet north of the south end of the board plant.” When boxcars are loaded a ramp is placed from the floor of the building into the boxcars. Between track No. 3 and the outer wall of the board plant there is a pathway about 3% feet wide. The ground slants downward from the board plant building to the tracks. Freight cars are brought in and out of the Gypsum Company plant every night on the spur tracks by employees of the Santa Fe. On the morning of the accident the Santa Fe was engaged in taking loaded cars from, and in “spotting” empty cars in, the Gypsum Company plant. . ■

At the time of the accident, plaintiff, an employee of the Santa Fe, was engaged in “spotting” 13 freight ears on spur track No. 3 in front of the board plant of the Gypsum Company. The 13 cars were being shoved by an engine in a southerly direction. The train originated at Blythe, California, and left there some time before midnight of February 24, 1945. It arrived at Midland shortly after midnight. At the time of the accident it “was just breaking day. It wasn’t quite light to work without lamp signals.” There were no lights alongside the board plant building. Plaintiff was on the “lead” car—the farthest from the engine—going southerly on track No. 3. He was on the side of the car next to "the board plant. The train was going “four .to six miles an hour.” It was plaintiff’s duty to spot the door of freight car 6 opposite door No. 37 of the board plant so that the car could be loaded right out of the plant. To do so, it was his duty to get off the lead car in the space between the board plant building and the tracks as the lead car passed door No. 37, stand there, and when the sixth car from the engine was opposite door No. 37, give the proper signal.to stop the train. Upon reaching door No. 37 plaintiff turned his hand loose from the grab irons of the car to step off. He noticed that he was hitting a piece of plasterboard in the pathway between the board plant and the tracks, but he had released himself from the side of the car so far that he could not regain his hold and he stepped on the piece of plasterboard. He stumbled over some timbers and pieces of plasterboard and rubbish that lay between the tracks and the board plant. His foot slipped and he was thrown against the board plant building. When he hit the building he was thrown back against a moving car which knocked him to "the ground. The