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

WHITE, P. J. Plaintiff, an employee of defendant railway company, was injured in the course of his employment while loading ice into a refrigerator freight car. In an action brought by him under the provisions of the Federal Employ[848]ers’ Liability Act (TT.S.C.A. title 45, § 51), judgment in his favor was entered upon the verdict of a jury, from which judgment the present appeal is prosecuted. Appellant railway company contends that a nonsuit should have been granted and that the evidence was insufficient to sustain the verdict, in that there was no showing of negligence on the part of the railway company or its employees proximately causing the injury.

From the evidence it appears that the operation of icing a refrigerator car at Needles, California, where the accident occurred, is conducted from a platform slightly higher than the top of the car.- Ice, in 300-pound blocks, is brought to the surface of the platform by means of a conveyor chain. Bach block is chipped into four pieces by a worker and then slid or slddded into a hatch or opening on the top of the car. Bach car has four hatches, a pair at each end of the car, the two at either end being located on opposite sides of the car. The car is on a track parallel to the platform. For the purpose of conveying the ice to the hatches on the side of the car away from the platform, a device described as an “icing board” is used. This device consists of four steel pipes, 5 or 6 feet long, fastened parallel to each other about 4 inches apart. In practice, the icing board may or may not be used also in loading the nearby hatches, depending on the preference of the worker. In cutting and manipulating the ice from the platform to the hatch, the worker uses a pole tipped with two metal points, one in the shape of a hook, this instrument being known as a “pickeroo” or “Picaroo.”1

In the icing operation, one man operates the “pickeroo” on the platform to slide the ice down the icing board to the hatch, while another man, standing on the ear, tamps or packs the ice down into the bunker or compartment beneath the hatch opening. On the day of the accident, plaintiff testified, he was engaged in the latter operation on the far hatch, and the icing board was in use. His fellow employee, Taylor, was sliding the ice down toward him. Then, according to plaintiff, “we finished filling up this bunker and after he (Taylor) got enough ice in there why I was packing it down. So he took the board (the icing board) away and I closed down the hatch, if I remember right, and came up on to the dock.” Plaintiff did not notice what Taylor did with the icing board,