Gamboa

This appeal is from an order of dismissal (judgment—Code Civ. Proc. §§ 581, subd. 3, and 58Id) entered after the court sustained, without leave to amend, defendant’s demurrer to plaintiff’s second amended complaint.

Plaintiff’s action was filed under the Federal Employers’ Liability Act (“Railroads,” 45 U.S.C.A. § 51 et seq.). The original complaint was filed January 22, 1970, and the second amended complaint July 21, 1970. In this last pleading plaintiff sought damages from defendant based upon an accident alleged to have occurred November 25, 1952, during the course and scope of plaintiff’s employment by defendant railroad as a shop employee. He alleged that due to defendant’s negligence some equipment fell, glanced off plaintiff’s head and injured him.

Plaintiff pled facts designed to raise estoppel as an issue and preclude defendant from successfully relying upon the statute of limitations as a defense. In this regard he alleged that, following his accident, defendant sent him to a physician who treated a small cut on plaintiff’s head and sent him for observation to defendant’s hospital in Los Angeles where he remained three days and was then released for work.…