The opinion of the court was delivered by: ARTHUR SCHWAB, District Judge
This is a negligence wrongful death action. Plaintiff, Vilma
Bouchard (hereinafter "Bouchard"), Admistratrix of the Estate of
Samatha A. Bouchard (hereinafter "Ms. Bouchard") who was
tragically hit by a train that was owned and operated by
defendant, CSX Transportation (hereinafter "CSX") while riding
her bicycle. Plaintiff alleges that CSX was negligent in several
respects, thereby causing the untimely death of Ms. Bouchard.
Pending before this Court is defendant's motion for summary
judgment. For the reasons set forth below, defendant's motion for
summary judgment will be granted.
Unless otherwise noted, the following facts are undisputed.
1. On May 25, 2003, at approximately 3:15 p.m., Ms. Bouchard
was riding her bicycle in a northerly direction on Juniper Street
in Versailles Borough, Allegheny County, Pennsylvania.
2. Ms. Bouchard stopped her bicycle on the south side of the
crossing and at the right edge of the roadway, as a CSX train was
traveling eastbound (from Ms. Bouchard's left to her right)
through the crossing on the track closest to the south side of
the crossing. 3. The photographs attached as Exhibit "A" and "B" to CSX's
Request for Admissions Directed to Plaintiff are fair and
accurate representations of the Juniper Street crossing in
Versailles, Pennsylvania as it existed on May 25, 2005, and show
the vantage point of persons located on the south side of the
4. From the vantage point of Ms. Bouchard on the south side of
the crossing, the warning devices existing at the crossing
included flashing light signals, a sign that says "3 tracks," and
cross bucks, an "X" shaped sign which reads "Railroad Crossing."
5. On May 25, 2003, the weather was sunny and warm, and Robert
Dodds, a witness, was driving in a 1989 pickup.
6. As he approached the crossing, the flashing warning lights
on the south side of the crossing were in operation and were
7. When Mr. Dodds arrived at the crossing, Ms. Bouchard was
already stopped on the right edge of the roadway and the
eastbound train was in the crossing.
8. Mr. Dodds pulled his vehicle next to Ms. Bouchard so that he
was located to her left on the south side of the crossing.
9. From his and Ms. Bouchard's vantage point, the eastbound
train was on the inside track (i.e. the first track closest to
Ms. Bouchard and Mr. Dodds), and was traveling from their left to
10. The flashing lights on the south side of the crossing were
operational (at least when Mr. Dodd first approached), and Ms. Bouchard was located five
feet south of the flashing light, far enough back that she could
see the flashing lights.
11. Mr. Dodds never observed the warning lights stop flashing,
but he also did not look at them after he first approached the
12. Mr. Dodds recalled giving a statement to CSX claims
representative and he recalled saying that "the crossing lights
were still going and the girl took off on her bike and a train
going the other way hit her."
13. When Ms. Bouchard was learning how to drive at age 16, over
eight years prior to this accident, her mother told her that when
she came to a railroad crossing with red flashing lights, she was
supposed to stop, wait until the lights stopped flashing, look
both ways, and be sure the crossing was clear before proceeding.
14. According to plaintiff, Ms. Bouchard and Mr. Dodds waited
about five to ten minutes for the eastbound train to pass through
the crossing. Defendant contends that Ms. Bouchard and Mr. Dodds
waited five minutes for the train to pass.
15. According to defendant, as soon as the eastbound train
cleared the crossing, Ms. Bouchard glanced from her left to her
right, and then "took off" on her bicycle, while Mr. Dodds
remained stationary in his vehicle and never took his foot off
the brake. Whereas, plaintiff alleges that after the eastbound
train (the first train) had cleared the crossing by about 50 feet
and before pedaling into the crossing, Ms. Bouchard looked to her
left and to her right, but because the first train blocked her
vision of the second train, she did not see that train.
16. As Ms. Bouchard was pedaling over the crossing onto the
second track, the right front of the westbound CSX locomotive
struck the back tire of Ms. Bouchard's bicycle. 17. On the date of the accident, Jeffrey Taylor, who was
sitting on the right side of the locomotive cab, was the engineer
and operator of the westbound CSX train traveling on the second
or middle track, and Brian Frazee, who was sitting to the left of
Mr. Taylor, was the conductor.
18. Defendant contends that Mr. Taylor was certified as a
locomotive engineer by the Federal Railroad Administration
("FRA") beginning in March, 1999 and was certified to operate the
train on the date of the accident. Plaintiff disputes this
contention and states that Mr. Taylor was required to receive
certification of his Operating Rule in 2003 and the records show
that he had not done so and thus he was not certified to operate
the train on the day of the incident.
19. Defendant claims that Mr. Frazee was qualified as a
conductor as of May 25, 2003, and was up to date on his operating
rules test. Plaintiff disputes this contention and states that
Mr. Frazee was not up to date on his operating ...