Milani v. Southern Pacific Co.

SCHOTTKY, J. pro tem.* Caesar Milani was an employee of the city water department of the city of Vallejo. Some time prior to June 28, 1946, the city decided to replace the existing- 4-inch water main into the Sperry Flour Mill with an 8-inch main. The new water main was to be placed under spur tracks of the Southern Pacific Company used for service to the flour mill premises owned by General Mills, Inc. There are six spur tracks on said premises, spur tracks numbered 1, 2 and 3 being fed by number 3 track lead, spur tracks 4, 5 and 6 being fed by number 6 track lead. Each of these spur tracks serves a different building on the Sperry Flour Mills’ •grounds. The Southern Pacific Company’s single track, leading from Lemon Street in South Vallejo to said flour mill premises at a point about 200 feet northerly of the entrance to said premises, divides into two tracks. One is called number 3 track lead; and in order to move a switching engine from spur tracks 1, 2 and 3 on to spur tracks 4, 5 and 6, it is necessary to leave the mill premises over number 3 track lead and return on number 6 .track lead.

After the replacement work had been in progress for two or three weeks, at about 1:15 p. m. on June 28, 1946, while Caesar Milani and other employees of the city water department were engaged in placing the new water main under spur track number 5 the engine and tender of defendant Southern Pacific Company backed down that spur track and ran down Milani, severing one of his legs and inflicting other injuries from which he died.

Dante Milani, the administrator of the estate of Caesar Milani, brought an action against the Southern Pacific Company and the engineer and conductor, to recover damages resulting from said death. At the conclusion of plaintiff’s case defendants made a motion for nonsuit upon the ground that decedent was guilty of contributory negligence as a matter of' law, which motion was granted by the trial court. This appeal is from the judgment of nonsuit in favor of defendants, and the sole question to be determined is whether the trial court erred in granting the nonsuit.

Upon appeal from a judgment of nonsuit it is the duty of this court to consider the evidence, and the inferences which reasonably may be drawn therefrom, in the light most favorable to the plaintiff. That other evidence may be found in the record which would support equally reasonable infer[529]enees to the contrary is of no consequence. Bearing in mind these familiar and well-settled principles we shall summarize briefly the evidence introduced in the trial court.