$610,000 VERDICT - FEDERAL EMPLOYERS' LIABILITY ACT CLAIM - VIOLATION OF FEDERAL BOILER INSPECTION ACT - TRAIN COLLIDES WITH BACK OF MAIL TRAIN ENGINEER MISSES STOP SIGNAL - FRACTURES TO ARM AND WRIST - HERNIATED LUMBER DISC.

U.S. District Court, Middle District of PA

The plaintiff, a 54-year old conductor for the defendant Consolidated Rail Corporation (Conrail) at the time in question, alleged that the defendant violated the Federal Employers' Liability Act (FELA) in failing to provide a responsibly safe place to work in that an engineer nodded off to sleep and missed a stop signal. The engineer on which the plaintiff was working struck the back of a mail train. The plaintiff also argued that the defendant violated the Federal Boiler Inspection Act by failing to properly maintain a speed indicator on the train. The defendant argued that the plaintiff, as the conductor, was responsible for controlling the safe movement of the train and was also responsible for observing the signals.

The plaintiff originally hired by the defendant in 1961. At the time of the accident on August 23,1996, he was working as a conductor and was a member of a two-man crew taking three light engines from Harrisburg to Philadelphia. The other member of the crew was an engineer. As the crew was approaching 6:50 a.m. The crew then encountered an approach to bring the train down to medium speed of 30 mph or less and be prepared to stop at the next signal. The plaintiff testified that at that point, thinking he had enough time to use the bathroom in the nose of the engine and return to his seat to view the nest signal, he got up from his seat. Although the plaintiff had a computer screen/speed indicator on his side of the cab, testimony indicated that it was not operating and therefore, the plaintiff did not know for sure exactly what speed the train was traveling at. Although the engineer was required to bring his speed down to 30 mph or less, the train was actually traveling approximately 35 mph at that point in time, according to the plaintiff’s claims.

The engineer apparently missed the next signal, which was a stop signal. The plaintiff testified that he never saw the signal because he was still in the bathroom at that time. When the plaintiff returned to his seat, the train was approximately 3,500 feet beyond the stop signal and at that point, the engineer saw a mail train stopped up ahead and threw into an emergency stop. However, it impacted the rear of the mail train at a speed of 20 mph. Upon seeing that impact was imminent, the plaintiff testified that he dove to the floor of the cab. The plaintiff’s physician testified that the plaintiff sustained fractures in his arm and wrist and a herniated lumbar disc as a result of his fall and the impact. The plaintiff did not return to his position as a conductor and claimed to be permanently limited to light sedentary employment. The plaintiff’s economist estimated the plaintiff’s total economic damages to be $366,696 to age 62 and $476,120 to age 65.

The plaintiff argued that the defendant violated the FELA in failing to provide a reasonably safe place to work in that the engineer nodded off and missed the signal. In addition, the plaintiff claimed that the track was not wired for cab signals, which would have enabled the engine to stop automatically in the event the engineer did not acknowledge the stop signal. In addition, the plaintiff contended that the defendant railroad violated the Federal Boiler Inspection Act by adding a computer screen/speed indictor to the conductor’s side of the engine and then failing to properly maintain this speed indication device in working order.

The defendant railroad presented testimony from the engineer and supervisors who interviewed the plaintiff at the hospital immediately after the accident. The engineer testified that he never saw the plaintiff actually leave his seat to use the bathroom. The supervisors testified that the plaintiff never told them at the time if the accident that he had used the bathroom immediately before the impact. In addition, the railroad argued that if, in fact, the plaintiff had gone to use the restroom, he violated certain Northeast Operating Rules Advisory Committee (NORAC) rules which require the conductor to control the safe movement of the train and also states that the crew is equally responsible to observe all signals.

The defendant’s orthopedic surgeon testified that the plaintiff suffered from pre-existing degenerative disc disease of the spine, did not exhibit a herniated disc and that his lumbar condition was not related to trauma. This expert also opined that the plaintiff was not disabled from returning to his previous employment as a conductor.

The jury found the defendant railroad 75% liable and the plaintiff 25% comparatively negligent with regard to the FELA claim. However, the jury also found that the defendant railroad violated the Federal Broiler Inspection Act and that the violation caused the plaintiff’s injury. The plaintiff was awarded $610,00. The verdict was not reduced, based on the jury’s finding under the Federal Broiler Inspection Act. The defendant’s motion for JNOV and a New Trial are pending.

REFERENCE:
Plaintiff’s neurosurgeon: Donald Myers from Philadelphia. Plaintiff’s economist: Malcolm Cohen from Ann Arbor, Michigan. Defendant’s orthopedic surgeon: John Frankeny from Hershey. Defendant’s vocational expert: Arlene Gibble from Harrisburg.

Combs vs. Conrail. Case no. 97-1759; Judge Richard Caputo, 1-7-99.

Attorney for plaintiff: Michael J. Olley of Coffey & Kaye in Bala Cynwyd; Attorney for defendant: Craig Staudenmaier of Nauman, Smith & Hall in Harrisburg.

COMMENTARY:
By his own admission, the engineer was nodding in-and-out of sleep when he apparently missed the stop signal which resulted in the train crash which gave rise to this action. The defendant attempted to cast doubt upon the plaintiff’s credibility by stressing that he was not seen actually leaving his seat and did not mention that he was in the bathroom immediately prior to the crash when he was interviewed shortly after the accident. The defendant also maintained that the plaintiff was equally responsible to observe the signal and was in charge of the safe movement of the train. The jury found the plaintiff 25% comparatively negligent as to the FELA claim. However, the jury went on to find liability and causation against the defendant under the Federal Boiler Inspection Act and, therefore, there was no reduction in the $610,000 jury award since contributory negligence is not a defense to a Broiler Inspection Act violation. The jury apparently found merit in the plaintiff’s argument that because the speed indication devise was not functioning, the train was traveling faster than the plaintiff believed and reached the signal sooner than he expected.

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