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District Court of Appeal, Third District, California.

Robert Bruce McMILLAN, Plaintiff and Appellant, v. WESTERN PACIFIC RAILROAD COMPANY, a California corporation, Defendant and Respondent.*

Civ. 9799.

Decided: July 14, 1960

McCarthy & Crow, Sacramento, for appellant. Johnson Davies & Greve, Sacramento, for respondent.

This is an appeal by plaintiff from a judgment of dismissal entered following an order of the trial court sustaining defendant's demurrer to plaintiff's first amended complaint without leave to amend. The complaint alleged that while plaintiff was employed by defendant as a train dispatcher, defendant ‘negligently and carelessly required’ him ‘to be subjected * * * to working conditions of unusual responsibility, stress and tension’ in that he was ‘required to operate a system of central traffic control of defendant's railroad which system involved multitudinous and complex mechanical factors and mental decisions, extreme responsibility, constant but shifting attention, and numerous clerical functions which * * * imposed an unusual stress and burden upon plaintiff's physical and nervous systems' which caused plaintiff to suffer ‘a severe nervous collapse’ which rendered him ‘sick, sore, lame and disabled.’

The sole question on appeal is whether the amended complaint herein states a cause of action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51, which provides in part that railroads engaged in interstate commerce ‘* * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * for such injury * * * resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, * * *.’

The determination of whether plaintiff's nervous collapse was an ‘injury’ caused by defendant's ‘negligence’ is governed by federal law. Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282. The facts alleged by plaintiff are clarly distinguishable from those in the occupational disease cases such as the Urie case and Atchison, Topeka & Santa Fe Railway Co. v. Preston, 10 Cir., 257 F.2d 933, upon which plaintiff relies. The cause of action as stated in plaintiff's complaint is more comparable to that as set forth in Burwell v. Railway Express Agency, Inc., D.C., 26 F.Supp. 26. There it was alleged that the employer required a bookkeeper to do more work than his condition warranted which so impaired his health as to cause his death. The court, in sustaining defendant's demurrer without leave to amend, held that the conditions alleged did not constitute an injury within the purview of the statute, and hence the complaint did not state a cause of action.

The judgment is affirmed.

PEEK, Justice.

VAN DYKE, P. J., and SCHOTTKY, J., concur.

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