Eelk v. Southern Pacific Co.(Mem.) , 44 Cal. 2d 882 ( 1955 )

44 Cal. 2d 882 (1955)

CHARLES EELK, Appellant,
v.
SOUTHERN PACIFIC COMPANY (a Corporation), Respondent.

Sac. No. 6523.

Supreme Court of California. In Bank.

Apr. 29, 1955.

Anthony J. Scalora for Appellant.

Horace B. Wulff, Devlin, Diepenbrock & Wulff, Dunne, Dunne & Phelps and Arthur B. Dunne for Respondent.

Memorandum

THE COURT.

Plaintiff, who was employed by defendant railroad company as a carman helper, was injured while working on the construction of new railroad cars, and he brought this action under the Federal Employers' Liability Act. Before trial of the other issues, the court held a hearing on the question of whether the federal act was applicable and concluded that it was not. Judgment was entered accordingly, and plaintiff appeals.

Defendant first employed plaintiff on November 7, 1950, and assigned him to repairing railroad cars already in service. He was placed on construction of new railroad cars from December 1 until January 8, 1951, at which time, apparently due to a shortage of construction materials, he was reassigned to repairs. On February 13, he again started doing new construction work, and he was so engaged exclusively until June 22 when he was injured while riveting sides on a new gondola car. The construction project was the same as that involved in Gileo v. Southern Pac. Co., ante, p. 539 [282 P.2d 872], this day decided, where a welder was injured while working on one of the gondola cars. The factual situations in the two cases are substantially similar, and our decision holding the act applicable to Gileo is controlling here.

The judgment is reversed.