Churchill

The action is one based on negligence, and arises under the diversity of citizen-; ship jurisdiction of the district court, After plaintiff’s case was presented to a jury, the court granted the motion of the defendant to dismiss under Rule 41 (b), Rules of Civil Procedure, 28 U.S.C. A., took the ease from the jury and made its written order of dismissal. The correctness of such action by the trial court is the sole question presented on this appeal.

Whether or not a certain set of facts constitute a cause of action based on negligence, in a case arising under the diversity of citizenship jurisdiction of the federal court, must be determined by application of state law. Erie R. Co. v. Tompkins, 1938, 304 U.S. 64 , 58 S.Ct. 817 , 82 L.Ed. 1188 .

Under California law plaintiff’s evidence must be viewed in its most favorable light-and the plaintiff must be given the benefit of all favorable inferences a jury would be entitled to draw from the evidence.

The plaintiff and appellant, hereafter referred to as Churchill, was employed by-Barron-Gray & Dole Pineapple Company at San.Jose, California, hereafter referred to as the Company.. The premises of the Company consisted in part of a…