Semole

Plaintiffs (appellants) appeal from the order dismissing this action brought against respondent to recover damages for wrongful death. The dismissal was entered after respondent’s demurrer to appellants’ second amended complaint had been sustained without leave to amend on the ground that no cause of action had been stated.

The original complaint, filed on July 11, 1966, alleges that on May 9, 1966, appellants’ son, John Semole, was fatally injured while loading piggyback trailers onto railroad flatcars. It named as defendants the decedent’s employer, Pacific Motor Trucking Company, and a fellow employee, Robert J. Sansoucie, respondent herein, and 10 Does.

On December 11, 1970, the court below granted the motion of the defendant corporation for summary judgment and dismissed the action as to that defendant on the ground that the action against decedent’s employer was barred by Labor Code section 3601 which, with inapplicable exceptions, limits the remedy to the recovery of workmen’s compensation. Appellants took no appeal from that judgment but have sought to maintain the action against respondent, decedent’s fellow employee, by invoking Labor Code section 3601,…