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

GRIFFIN, J. This action was instituted by plaintiff and appellant against defendants and respondents under the provisions of 35 Stats. 65, title 45, U.S.C.A. ch. 2, § 51 et seq. (Federal Employers’ Liability Act) for claimed injuries occurring to plaintiff while defendant company was engaged in interstate commerce. Damages claimed amounted to $30,500.

Defendants denied generally the allegations of the complaint, and claimed contributory negligence on the part of plaintiff by way of diminution of damages under 35 Stats. 66, title 45, U.S.C.A. ch. 2, § 53. (See Myers v. Southern Pacific Co., 14 Cal.App.2d 287 [58 P.2d 387].)

From May to July 14, 1946, plaintiff was engaged by defendant company as a locomotive fireman. On July 14, the day of the accident, he was firing one of three engines pulling a train of 80 freight cars in an easterly direction near Wood-ford, in Kern County. His engine was “spotted” for water at waterspout number 4. The engineer, according to plaintiff’s testimony, set the air brake controlling the entire train and also set the independent hand brake controlling the engine and tender. It was plaintiff’s duty to, and on that occasion he climbed upon the tender, reached up, and by means of a hook swung the water-spout around to the manhole and slid the sleeve extension down into it. He then stood upon a platform which was attached to and located on the sleeve extension about 6 or 8 inches above the floor of the tender for the purpose of holding the spout in place. He reached for the valve, pulled it toward him, and turned on the water. After the water had been feeding into the tank for a short time (one or two minutes) the engine started to roll back. Lewy, according to his testimony, lost his balance on the platform, fell toward the front of and across a compound box attached to the upper portion of the tender. While in this position he claims the water spout swung across and struck him with sufficient force to break the box free from its rivets (defendant produced evidence showing that the rivets were not loosened.) The spout broke and fell over the main line. Plaintiff then testified that he returned to the cab of the engine; that the engineer had been down oiling the engine; that he noticed the hand brake was set but that the main air brakes had been released; and that the train had been moved back about two car-lengths before it was brought to a stop. He then testified that both of his legs were badly bruised, his hip and back were numb, his arms bruised and that he had a sprained [120]elbow and wrist. Plaintiff continued with his duties into Barstow. On July 16, he reported to a company doctor in Bakersfield. He was treated for a period of about two weeks and returned to work as a fireman on a helper engine. He claimed that he was unable to do his regular work due to pain in his left hip. He reported back to the doctor who treated him for about two months. After his release he went back to work as a “hostler.” He laid off again because of a claimed pain in his hip. He was also examined and treated in the company hospital in Los Angeles. Thereafter, he resigned from the company and consulted his own doctor and was treated by him up to the time of the trial of this action.